2 It has been held that a deficiency in one kind of provisions is not compensated by an abundance in another; as a deficiency in bread by an excess of beef;1 nor is it any excuse for a deficiency in bread that flour is given; but it is clear that the master must have in every port a certain discretion in supplying wholesome and abundant food, of such kinds as can be most economically procured, if those specified in the act cannot be obtained by reasonable exer tions. But it is doubtful if it is any excuse under the statute that the article in which the deficiency occurred could not be procured. The master must see to the expenditure of the provisions; he should guard against waste; and putting the crew on allowance is by no means the same thing as putting them on short allowance.5 sailing. Piehl v. Balchen, Olcott, Adm. 24, 31. In the Bark Childe Harold, Olcott, Adm. 275, 279, it was contended that the same rule applied where the libellant showed that bread of a bad and unwholesome quality had been served out to them. But the court held that the rule ought not to be extended to require the owner to give evidence of the quantity and quality of provisions stored on board, when the testimony of the libellants showed that there was an abundant supply in the ship, and only accused it of being unwholesome in quality when shipped. The Mary Paulina, 1 Sprague, 45; Coleman v. Brig Harriet, Bee, Adm. 80. In this latter case the captain left port with only ninety pounds of bread per man instead of one hundred, but there was a great overplus of meat and water. It was held that the seamen should receive one third of the amount of wages contracted for over and above their common wages. There were some special reasons, perhaps, in this case, which led the court to give only one third of the entire wages, but the rule is that although there be a deficiency in one kind of food, the entire double wages are due, and not merely one third. The Mary Paulina, 1 Sprague, 45. Foster v. Sampson, 1 Sprague, 182. * Mariners v. Ship Washington, 1 Pet. Adm. 219. But in such a case the articles substituted must be a full equivalent both in quantity and quality for those required by law. The Mary, Ware, 454. This was held a defence in Mariners v. Ship But not in Coleman v. Brig Harriet, Bee, Adm. 80. 1 Sprague, 182. Washington, 1 Pet. Adm. 219. McDonald v. Ship Cabot, 1 Newb. Adm. 348. What is a proper allowance is to be determined by the navy ration. Mariners v. Ship Washington, 1 Pet. Adm. 219; The Mary, Ware, 353, 460; The Mary Paulina, 1 Sprague, 45; Ship Elizabeth v. Rickers, 2 Paine, C. C. 291, 288. In this case Mr. Justice Thompson said: "To subject the master or owners to the extra wages, the crew must be put upon short allowance; by which I should understand that there must be some SECTION V. OF THE SEAWORTHINESS OF THE SHIP. So, too, the owner is bound to provide a seaworthy ship;1 and our statutes provide the means of lawfully ascertaining her condition, on the complaint of the mate and a majority of the seamen, by a regular survey, at home or abroad.2 The third section of order or command to that effect given, or some gross negligence in the master. An accidental or unintentional deficiency in weight, would not subject the master or owner to the penalty." If extra wages are claimed, the answer must set forth precisely whether the vessel shipped the quantity and quality of provisions required by the statute. The Elizabeth Frith, 1 Blatchf. & H. Adm. 195. The navy ration is fixed by Acts of 1842, c. 267, 5 U. S. Stats. at Large, 546. In Couch v. Steel, 3 Ellis & B. 402, 24 Eng. L. & Eq. 77, an action was brought by a seaman to recover damages for injuries sustained in consequence of the vessel leaving port in an unseaworthy condition. There was no allegation that the owners knew the vessel was unseaworthy. On demurrer the court held that the plaintiff could not recover, as there was no implied warranty on the part of the owners that the ship should be seaworthy. This decision is clearly repugnant to the principles of the American authorities on this subject, independent of statute provisions. In the case of Dixon v. Ship Cyrus, 2 Pet. Adm. 407, 411, decided in 1789, it was held that both law and reason implied that at the commencement of the voyage the vessel should be seaworthy. See also Rice v. Kitty, id. 420. In the case of The Ship Moslem, Olcott, Adm. 289, the vessel put into Cape Town in a leaky condition. The libellants shipped there for the home voyage to New York. The condition of the vessel was known to them, and they shipped with the express notice that their services would be required in pumping out the vessel on her voyage. Yet it was held that if the vessel was actually unseaworthy when she sailed, that is, if she was unfit for the voyage, the libellants were not bound by their contract, and could rightfully refuse to continue their voyage, and compel the master to return to port. In Eaken v. Thom, 5 Esp. 6, it was held that where the ship sailed in an unseaworthy condition, and in consequence thereof the voyage was afterwards abandoned, no freight being earned, the seamen were not entitled to their wages. This case was doubted by Kent, C. J., in Hoyt v. Wildfire, 3 Johns. 518. As the voyage was lost by the default of the owner in sending the vessel to sea in such a condition, it seems clear that the wages should have been paid. See Hindman v. Shaw, 2 Pet. Adm. 264, 266. 2 Act of July 20, 1790, c. 29, § 3, 1 U. S. Stats. at Large, 132; Act of July 20, 1840, c. 48, §§ 12, 13, 14, 5 U. S. Stats. at Large, 396. The former of these acts provides that if the mate or first officer under the captain, and a majority of the crew of any vessel bound on a voyage to a foreign port, shall, before the vessel has left the land, require the seaworthiness of the vessel to be inquired into, the the statute of 1794, provides that the master shall pay the costs of the survey in the first instance, and if the complaint appears to have been without foundation, the costs and a reasonable sum for the detention shall be paid out of the wages of the crew. But it has been held that if there was reasonable cause for the survey, the owners cannot charge the expense to the seamen.1 Seamen, after shipping, often refuse to proceed on the voyage; and if then arrested for the mutiny, the condition of the vessel, if that be their excuse, is inquired into by the court; and if she is found. to be unseaworthy, their punishment is reduced and mitigated accordingly.2 master shall stop at the nearest port for the purpose of having such inquiry made. On the construction of this act, Ware, J., remarked in the case of The William Harris, Ware, 367, 373, that the reason of the law applied as strongly to the case of a vessel departing from a foreign port on her return, as leaving her home port on a foreign voyage. This is now settled by the statute of 1840. By this act the consul, or commercial agent at the foreign port, is directed, on complaint being made in writing by any officer and a majority of the crew, to appoint two persons to inspect the vessel, etc. By the Act of 1850, c. 27, § 6, 9 U. S. Stats. at Large, 441, the Act of 1840 is so far amended, as to require the complaint to be signed. by the first, or the second and third officers, and a majority of the crew. If the crew, instead of availing themselves of their statute remedy, suffer the owner to repair the vessel of his own accord, and he employs an agent who pronounces her seaworthy, they cannot refuse to proceed on the ground that the repairs are insufficient, if they are not so in fact. Porter v. Andrews, 9 Johns. 350. The William Harris, Ware, 367. The statute of 1840 provides that the expenses shall be deducted from the wages of the seamen, on the inspectors certifying that the complaint was made without good and sufficient cause. United States v. Nye, 2 Curtis, C. C. 225. Mr. Justice Curtis in this case said: "I think the correct rule is, that after the men have rendered themselves on board, pursuant to their contract, and before the voyage is begun, they may lawfully refuse to go to sea in the vessel, if they have reasonable cause to believe, and do believe, the vessel to be unseaworthy. But the presumption is that the vessel was seaworthy; and the seamen must prove that they acted in good faith, and upon reasonable grounds of belief that the ship was not in a fit condition to go to sea, by reason of unseaworthiness. If they prove this, they are justified in their refusal, and are not guilty of any offence." See also United States v. Staly, 1 Woodb. & M. 338; Dixon v. The Ship Cyrus, 2 Pet. Adm. 407. So unseaworthiness is a sufficient defence to the charge of endeavoring to commit a revolt by compelling the master to return to port. United States v. Ashton, 2 Sumner, 13. See also The William Harris, Ware, 367. In The United States v. Givings, 1 Sprague, 75, and in The Hibernia, id. 78, it was held that if seamen believe that a vessel is unseaworthy, and ask for a survey, they are not bound to go to sea in her till such request is granted, although the jury should incline to think that the SECTION VI. OF THE CARE OF SEAMEN IN SICKNESS. Sickness is provided for by statute, so far as to require that every ship or vessel, belonging to a citizen of the United States, of the burden of one hundred and fifty tons or upwards, navigated by ten or more persons in the whole, and bound on a voyage without the limits of the United States, shall be provided with a chest of medicines, put up by some apothecary of known reputation, and accompanied by directions for administering the same; and the medicines shall be examined by the same or some other apothecary, once at least in every year, and supplied with fresh medicines in the place of such as shall have been used or spoiled; and in default of having such medicine chest so provided and kept for use, the commander of such vessel shall provide and pay for all such advice, medicine, or attendance of physicians as any of the crew shall stand in need of in case of sickness, at every place where the vessel may touch or trade during the voyage, without any deduction from the wages of such sick seaman.1 This act has been extended to vessels of seventy-five tons, navigated by six or more persons in the whole, bound from the United States to any port in the West Indies.2 By other statutes the master may deduct twenty cents a month from every seaman's wages, to make up a fund for the support of marine hospitals, in which every sailor may have medical treatment.3 There is, howvessel was in fact seaworthy; and that if the masts are rotten and unfit for the voyage, the crew are not bound to go to sea, although the master makes a verbal promise that he will keep in certain latitudes and carry certain sail, for which the masts are sufficient. 1 Act of 1790, c. 29, § 8, 1 U. S. Stats. at Large, 134. * Act of 1805, c. 28, 2 U. S. Stats. at Large, 330. 8 Act of 1798, c. 77, 1 U. S. Stats. at Large, 605; Act of 1799, c. 36, 1 U. S. Stats. at Large, 729; Act of 1802, c. 51, 2 U. S. Stats. at Large, 192; Act of 1811, c. 26, 2 U. S. Stats. at Large, 650; Act of 1843, c. 49, 5 U. S. Stats. at Large, 602; Act of 1846, c. 60, 9 U. S. Stats. at Large, 38; Act of 1864, c. 70, 13 U. S. Stats. at Large, 61. The Act of 1802, § 3, extends a similar provision to the case of boats, rafts, or flats, descending the Mississippi to New Orleans. In Reed v. Canfield, 1 Sumner, 195, 201, Mr. Justice Story said it seemed that these acts had been construed in practice not to impose upon ships and vessels in the whale and other fisheries, the payment of ever, by the general law merchant, an obligation upon every shipowner or master to provide for a seaman who becomes sick, or wounded, or maimed in the discharge of his duty, whether at home or abroad, at sea or on land,—if it be not by his own fault,1 -suitable care, medicines, and medical treatment, including nursing, diet, and lodging. At first it was held that the statute re hospital money. By the Act of March 1, 1843, c. 49, 5 U. S. Stats. at Large, 602, the provisions and penalties of the Act of 1798 are extended to registered vessels in the coasting-trade. Canal boats without masts or steam power are exempt, by the act of 1846, from the payment of hospital money, and are not entitled to the benefit from the hospital fund. By the act of 1864, if a vessel of the United States is sold in a foreign port, the consul, vice-consul, commercial agent, or vice-commercial agent of the United States within whose consulate or district such sale or transfer is made, or in whose hands the papers of the vessel are, is required to collect of the master or agent all moneys due under the act of 1798. 1 In Johnson v. Huckins, 1 Sprague, 67, it was held that a seaman, during an illness occasioned by his own fault, was not entitled to wages, and was liable for the expenses of his subsistence, but not for the wages paid another man in his place, nor for the detention of the vessel for want of his services, it being in the power of the master to procure a substitute. * Laws of Oleron, arts. 6, 7; Laws of Wisbuy, art. 19; Laws of the Hanse Towns, art. 39; Molloy, 243; L'Ord. de la Mar. liv. 3, tit. 4, art. 11; Valin, Com. tome 1, p. 721; Pothier on Maritime Contracts, n. 190, Cushing's translation, 115; Pothier, Us et Coust. de la Mer, p. 31; Harden v. Gordon, 2 Mason, 541; Walton v. The Ship Neptune, 1 Pet. Adm. 142; Hastings v. The Ship Happy Return, id. 253, 256, n.; The Forest, Ware, 420; The Brig George, 1 Sumner, 151; Reed v. Canfield, id. 197; Lamson v. Westcott, id. 591, Appen. ; Crapo v. Allen, 1 Sprague, 184. Freeman v. Baker, Blatchf. & H. Adm. 372, 382; Nevitt v. Clarke, Olcott, Adm. 316; Croucher v. Oakman, 3 Allen, 185. In Reed v. Canfield, supra, it was held that if the seaman was injured while in the service of the ship, he was entitled to the expenses of his cure until it was completed, as far as the ordinary medical means extend, but that the owners were not liable for consequential damages. In Nevitt v. Clarke, Olcott, Adm. 316, it was held that the owners were only liable for expenses while the seaman was in their employ. See also The Atlantic, Abbott, Adm. 451, where this question is discussed at length. In Ringold v. Crocker, Abbott, Adm. 344, the seaman went on shore without leave, and on returning to the vessel, when asked by the mate why he went ashore, answered in an insolent manner, whereupon the mate struck him with a belaying-pin and injured him severely. The master was boarding on shore at the time, and when the seaman went to him he placed him in a house there, and directed a physician to attend him. Held, that the seaman was entitled to be cured if injured while in the service of the ship, and that he was to be deemed in the service while under the power and authority of the officers, and that an injury received in executing an improper order, or inflicted on him by |