« AnteriorContinuar »
Of the contract with Seamen, and breach thereof.
Master, before proceeding on voy. Seaman having shipped, absenting age, to make agreement with himself, penalty on
1473 1470 Wages of seamen, when demand. Seamen without such agreement,
able-how recoverable, in case how paid-penalty on master 1471 of non-payment
1474 Time to be stated when seaman Seamen deserting, how appreshall render himself on board 1472 hended
1475 Penalty on harbouring deserters 1476
ART. 1470. The master of any vessel bound from a port in the United States to any foreign port, or of any vessel of the burthen of fifty tons or upwards, bound from a port in one state to a port in any other than an adjoining state, shall, before he proceed on such voyage, make an agreement in writing or in print, with every seaman on board, (except such as shall be apprentice or servant to himself or owners) declaring the voyage or voyages, term or terms of time, for which such seaman shall be shipped. (1)
1471. And if such master shall carry out any seaman (except as above excepted) without such agreement having been first made and signed by him, he shall pay him the highest wages which shall have been given at the port where he shall have been shipped, for a similar voyage, within three months next before the time of such shipping, if the seaman shall perform such voyage, or if he do not, then for such time as he shall do duty on board ; and the master shall moreover forfeit twenty dollars for every such seaman, onehalf to the person prosecuting therefor, and the other half to the United States; and the seaman who shall not have signed such contract, shall not be bound by the regulations, nor subject to the penalties and forfeitures, imposed by the act for the government and regulation of seamen in the mer. chants' service (1)
1472. At the foot of such contract there shall be a memorandum in writing, of the day and hour on which the seaman, who shall so ship and subscribe, shall render himself on board to begin the voyage. And if he neglect so to render himself at such time, and the master shall, on the day on which such neglect shall happen, make an entry in his log-book of the name of such seaman, and of the time he so neglected to render himself after the time appointed, such seaman shall forfeit, for every hour he shall so neglect to render himself, one day's pay, according to the rate of wages agreed upon, to be deducted from his wages. And if he shall wholly neglect to render himself on board, or having so rendered himself, shall afterwards desert, so that the vessel proceed to sea without him, he shall for. feit and pay to her master, owner or consignee, a sum equal to that which shall have been paid him in advance, at the signing of the contract, in addi. tion to the sum so advanced; both of which sums shall be recoverable in any court, or before any justice, which, by law, has cognizance of debts of equal value, against such seaman, or his surely, in case he shall have given surety to proceed the voyage.(2)
1473. If any seaman who shall have subscribed such contract, shall absent himself from on board the vessel, in which he shall so have shipped, without leave of the master or officer commanding on board; and the mate,
(1) Act 20th July, 1790, sec. 1.
(2) Ibid. sec. 2.
or other officer having charge of the log-book, shall make an entry therein of the name of such seaman on the day on which he shall so absent him. self, and such seaman shall return to his duty within forty-eight hours, he shall forfeit three days' pay for every day which he shall so absent himself, to be deducted out of his wages : but if he shall absent himself for more than forty-eight hours at one time, he shall forfeit all the wages due to him, and all his goods and chattels which were on board, or in any store where they may have been lodged at the time of his desertion, to the use of the owners of the vessel, and he shall be liable to pay to them, all damages which they may sustain by being obliged to hire other seamen in his place, to be recovered, with costs, in any court, or before any justice having juris. diction of the recovery of debts, to the value of ten dollars, or upwards.(1)
1474. Every seaman may demand from the master of the vessel to which he belongs, one-third part of the wages which shall be due to him, at every port where she shall land her cargo, before the voyage be ended, unless the contrary be expressly stipulated in the contract: and as soon as the voyage is ended, and the cargo or ballast be fully discharged at the last port of delivery, he shall be entitled to the wages which shall be then due according to his contract: and if such wages be not paid within ten days after such discharge, or if any dispute shall arise between the master and seamen, touch. ing such wages, it shall be lawful for the judge of the district where the vessel shall be, or in case his residence be more than three miles from the place, or of his absence from the place of his residence, then for any judge or justice of the peace, to summon the master of such vessel to appear before him, to show cause why process should not issue against such vessel, her tackle, furniture, and apparel, according to the course of admiralty courts, to answer for such wages : and if the master shall neglect to appear, or appearing, shall not show that the wages are paid, or otherwise satisfied or forfeited, and if the matter in dispute shall not be forthwith settled, the judge or justice shall certify to the clerk of the court of the district, that there is sufficient cause of complaint whereon to found admiralty process, and thereupon the clerk shall issue process against the vessel, and the suit shall be proceeded on, and final judgment be given, according to the course of ad. miralty courts in such cases; and in such suit all the seamen (having cause of complaint of the like kind against the same vessel) shall be joined as complainants; and the master shall produce the contract and log book, if required, to ascertain any matters in dispute; otherwise the complainants shall be permitted to state the contents thereof, and the proof of the contrary shall lie on him: but nothing herein contained shall prevent any seaman from maintaining any action at common law, for the recovery of his wages, or from immediate process of any court having admiralty jurisdiction, wherever any vessel may be found, in case she shall have left the port of delivery where her voyage ended, before payment of the wages, or in case she shall be about to proceed to sea before the end of the ten days next after the delivery of her cargo or ballast.(2)
1475. If any seaman who shall have signed a contract to perform a voyage, shall, at any place, desert, or shall absent himself from such vessel, without leave of the master, or officer commanding in the absence of the master, any justice of the peace within the United States (upon the complaint of the master) may issue his warrant to apprehend such deserter, and bring him before such justice; and if it shall then appear, by due proof, that he has signed such contract, and that the voyage agreed for is not finished, altered, or the contract otherwise dissolved, and that he has deserted the ves.
(1) Act 20th July, 1790, sec. 5.
(2) Ibid. sec. 6.
sel, or absented himself without leave, such justice shall commit him to the house of correction, or common jail of the city, town, or place, there to remain until the vessel shall be ready to proceed on her voyage, or till the master shall require his discharge, and then to be delivered to the master, he paying all the cost of such commitment, and deducting the same out of the wages due to such seaman.(1)
1476. If any person shall harbour, or secrete, any seaman belonging to any vessel, knowing him to belong thereto, on conviction thereof, before any court in the city, town, or county, where he may reside, he shall forfeit and pay ten dollars for every day which he shall so harbour or secrete such sea. man, one-half to the use of the person prosecuting, and the other half to the use of the United States ; and no sum exceeding one dollar, shall be recoverable from any seaman by any one person, for any debt contracted during the time he shall actually belong to any vessel, until the voyage, for which he engaged, shall be ended.(2)*
(1) Act 20th July, 1790, sec. 7.
(2) Ibid. sec. 4.
* Where a seaman bas deserted, if the master receive him again, and subsequently give him a discharge, with an acknowledgment that he is entitled to his wages, it is a complete purging away of all the previous forfeiture.-Emerson v. Howland et al., 1 Mason, 45.
The contract of the seaman is not dissolved by shipwreck. He is bound to labour for the preservation of the ship and cargo, and if he leave the ship, without endeavouring to save them, he deserts his duty, and may
antecedently due.—The Two Catharines, 2 Mason, 319.
If the owner or master of a vessel would claim the forfeiture of a mariner's wages, on account of, and up to the time of his absenting himself from the vessel for more than 48 hours, without permission from the master or commanding officer, such ab. sence must have been entered in the log-book, by the officer having charge of it, on the day on which the seaman absented himself.—The Phebe v. Dignum, C. C. U. S. P., April, 1803, Coxe's Dig. 477.
And if the mariner be again received on board, a forfeiture previously incurred, is waived and pardoned.-Whitton v. The Commerce, 1 Adm. Decis. 160.
Where a mariner has incurred a forfeiture by absenting himself from the vessel, and repents, and makes an offer of satisfaction, and return to duty in due time, that is, before the master has hired another in his place, or otherwise fairly rendered it impracticable, without injury to the owner, to receive him again, the master is bound to receive him. But all demands for damages, and contributions for losses, which warrant deductions from amount of wages, are unextinguished.—Ibid.
Where seamen are compelled to leave the ship by cruelty and oppression, wages are recoverable.-Relf and al. v. The Maria, Adm. Decis. 186.
A seaman shipped without signing articles, must be paid at the highest rate of wages given at the port of shipment
, within three months next precedent; and be subject to all the forfeitures imposed and rules fixed by the maritime law, pre-existent to the act of congress, and not altered by the statutes.- Jameson v. The Regulus, 1 Adm. Decis. 212.
If one ships as an officer or mariner, and either expressly or impliedly professes himself a mariner capable of thoroughly executing the contract, and it turns out otherwise, wages will be denied entirely, or a quantum meruit allowed, according to circumstances.--Mitchell y. The Orizimbo, 1 Adm. Decis. 250.
A mariner, affected with a severe pulmonary disease, shipped as an able bodied seaman, to perform a voyage to the East Indies, and died of the complaint soon after leaving port—wages for the voyage refused. -Writer Adm. v. The Richmond, 2 Adm. Decis. 263.
Where a cargo is purchased at several ports, and the vessel proceeds to each of them to receive it, the last port of lading is that to which wages should be paid.Cranmer et al. v. Genen, 2 Adm. Decis. 390.
It is the duty of the seamen to abide by the vessel as long as a reasonable hope remains. If they abandon their duty, so that it can be proved that this dereliction occasioned a final loss or temporary damage, where their exertions would have prevented the latter, or ultimately restored the ship to safety, the seamen lose their SECTION III.
Of the finding of the Vessel, and Treatment of Seamen on Board. Certain vessels to be supplied with Proceedings where the crew believe medicine chests 1477 vessel, &c. unfit for sea
1479 Quantity and quality of provisions Penalty on masters, &c. for ill treatprescribed for each seaman 1478 ing seamen
ART. 1477. Every vessel, belonging to a citizen of the United States, of the burthen of one hundred and fifty tons or upwards, navigated by ten or
wages, and are answerable in damages.-Sims v. Sundry Mariners, 2 Adm. Decis. 393.
The act of congress for the regulation of merchant seamen must be strictly followed.
If the mariners suffer imprisonment, under the 7th clause of that act, they do not also forfeit wages under the 5th.
The change of the captain does not justify the seamen in leaving the ship, after they have signed articles to proceed on a definite voyage.—The Atalanta, Bee, 82. United States v. Hamilton, 1 Mason, 443.
A mariner shipped on a voyage “ from Boston to the Pacific, Indian and Chinese oceans, or elsewhere, on a trading voyage, and from thence back to Boston," with a stipulation that two months' wages should be paid on arrival at Canton ; the voyage being, in fact, a trading voyage to the north-west coast for furs; held that the outward voyage terminated at Čanton ; and that the shipping articles did not authorize a return from Canton to the north-west coast, and therefore, it was not a desertion in a seaman to leave the ship at Canton, it being intended that the ship should return to that coast. It seems a trading voyage does not include a freighting voyage.--Brown v. Jones et al. 2 Gall. 477.
The words or elsewhere,” in the shipping articles, are either yoid for uncer. tainty, under the act of congress, regulating mariners in the merchant service, or are to be construed as subordinate to the principal voyage as stated in the articles, -Ib. Anonymous, 1 Hall, Am. L. Journ. 210.
Voyage is a technical phrase, and always imports a definite commencement and end.-Ibid.
A voyage in shipping articles from A to B, or some other port, and return to the United States, is not ended on arrival at first port in the United States, unless it be the port of discharge.- United States v. Smith, 1 Mason, 147.
Shipping articles, being the usual and proper documents of the ship for the voyage, are in the admiralty always admitted as evidence of the terms of hire, even of the master or apprentice, but the evidence is not conclusive.-Willard and Ux v. Dorr, 3 Mason, 161.
Where the prosecution of the voyage is prevented by a declaration of war, the original contract for wages is completely dissolved ; but if the seamen, with the consent of the master, come on board and do duty, they are entitled under an implied contract, to receive a reasonable recompense in the nature of wages. And seamen thus engaged by the master, if afterwards discharged in a foreign port, are entitled to two months' pay, provided by the act of congress of February 28th, 1803, to be calculated on the wages growing out of this new contract, and may recover it in the admiralty.—The Saratoga, 2 Gallis, 164.
Where a mariner who is a slave, is illegally discharged abroad, his master may recover full wages up to the time when he might have returned to the United States. -Emerson v. Howland et al. 1 Mason, 45.
Where a seaman is discharged abroad, without the payment of the three months' wages required by the act of 1803, on a libel for wages, the court will enforce payment of the three
months' wages.-Ibid. Seamen of the United States, put on board an American vessel, by a consul in a foreign port, are within the act of April 30th, 1790, and are bound by the same regulations as exist as to articled seamen.—United States v. Sharp and al. 1 Peters, c. C. R. 118.
Ketaining seamen on board by direction of the owner, after the determination of the voyage for which they shipped, amounts to a new contract for the return voy;
more persons in the whole, and bound on a voyage without the limits of the United States, and every vessel of the burthen of seventy-five tons or upwards, navigated with six persons or more in the whole, and bound from the United States to any port in the West Indies,(1) 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 such chest shall be examined by some apothecary, once, at least, in every year, and be supplied with fresh medicines in the place of such as shall have been used or spoiled; in default whereof the master shall provide and pay for all such advice, medi. cine, or attendance of physicians, as any of the crew shall require in sickness, at every port where the vessel may touch or trade during the voyage, with. out deduction from the wages of such seaman therefor.(2)*
1478. Every such vessel, bound on a voyage across the Atlantic ocean, shall, at the time of leaving the last port from whence she sails, have on board, well secured under deck, at least sixty gallons of water, one hundred pounds of salted flesh meat, and one hundred pounds of wholesome shipbread,
(1) Act 2d March, 1805.
(2) Act 20th July, 1790, sec. 8.
age upon the same terms as the outward voyage.—Thompson et al. v. Fausset, 1 Peters, C. C. R. 132.
Seamen are bound to remain with a neutral ship, carried by a belligerent into the port of the captors for adjudication. A voluntary abandonment of their duty in this respect, amounts to desertion, and forfeiture of wages.—Boardman and al. v. The Elizabeth, 1 Adm. Decis. 128. But where they are prevented from remaining on board, either by the captors or the master, or have not provisions or accommodation, and are without money or the means of subsistence, they are not chargeable with any consequences.—Ibid.
In the shipping articles used in the United States, though wages are designated by the month, yet the contract is entire for the voyage. And if a seaman shipped for the whole voyage, dies before its termination, his representatives are entitled to full wages.
:-Walter Admr. v. The Neptune, 1 Adm. Decis. 142. But if the sickness, disability, or death of the seaman, be owing to vicious or unjustifiable conduct, he or his heirs must bear the loss.-Ibid. And if the contract be by the month, and the seaman dies before the end of the
representatives are entitled to wages only to the time of his death.-Carey et al. v. The Kitty, Bee, 254.
The expense of curing a sick seaman, in the course of the voyage, is a charge on the ship by the maritime law; and includes not only medicine and medical ad. vice, but nursing, diet and lodging, if the seaman be carried on shore.-Harden v. Gordon, et al. 2 Mason, 541.
The act of Congress of July 20th, 1790, has not changed the maritime law, er. cept, perhaps, so far as respects medicines and medical advice, when there is a proper medicine chest and medical directions on board the vessel. The charges for nursing and lodging are not affected by the act.-Ibid.
The onus probandi in respect to the sufficiency of the medical chest, lies on the owner, in an action by the seamen against him.-Ibid.
A stipulation that the seamen shall pay for medical advice and medicines, without any condition that there shall be a suitable medicine chest, is void, as contrary to the policy of the act of Congress.-Ibid. ; And no stipulation, contrary to the maritime law, to the injury of seamen, will be allowed to stand, unless an adequate additional compensation be given to them.Ibid.
Where the provisions specified in the act of Congress, to be put on board the vessel, can be procured, no substitutes can be allowed; but where the specific articles cannot be obtained, others may be substituted. When the requisite quantity is taken in, the master is the sole judge of their expenditure. If the voyage is likely to be uncommonly procrastinated, if provisions are, by accident, diminished in quantity, he may justifiably diminish the usual allowance. There is not the shadow of reason to complain where other provisions are substituted for enumerated articles damaged. -Sundry Mariners v. The Washington, 1 Admiralty Decis.