producing a certificate of discharge from their last ship; and, secondly, in the case of necessity, hazardous service, or extraordinary duty, proved upon oath, to mariners, who have not deserted from their last ship; then the last part of the clause will be ineffectual. If, on the other hand, it was intended to allow this power to the master only in the case of necessity, &c. so proved, and to mariners who have not deserted, then the first part of the clause will be ineffectual.

5. Soon after the passing of this statute, it was decided, that a licence given by a magistrate in the WestIndies, to the master of a ship, "to procure men on such "terms, as he could, to navigate the ship home," was not a compliance with the regulation prescribed, and that mariner could not maintain an action on a promise made in pursuance of such licence to pay wages exceeding in amount double the wages agreed to be given to a person in the like situation on the outward voy

age for that the statute required the magis- [ 422] trate to exercise his own discretion as to the rate of wages to be paid, and to specify the same in the licence (1).

6. A form of articles of agreement between the mas. ter, officers, and mariners of British ships employed in carrying slaves from the coast of Africa, is annexed to the statutes made for regulating the manner of carrying slaves in such ships, which contains several regulations applicable to that particular employment, and is the only form allowed to be used for ships in that employment.

These legislative provisions respecting seamen, extend to every officer of the ship, except the master. His contract can only be made with the owners, and is not required to be in writing.

(1) Rodgers v. Lacy, 2 Bos. & Pull. 57.

7. The statutes do not render a verbal agreement for wages absolutely void; but impose a penalty on the master, if a written agreement is not made. When a written agreement is made, it becomes the only evidence of the contract between the parties; and a mariner cannot recover any thing agreed to be given in reward for his service, which is not specified in the articles: this has been decided with respect to a promise to pay to the mate of a ship employed in the slave trade, the average price of a slave at the place {423 ] of the ship's destination (m); and also with respect to a promise to pay to a sail-maker, serving in a ship belonging to the East-India Company, a monthly sum beyond the wages mentioned in the ship's articles, which had been signed by him as sail-maker (n).

8. A seaman who has engaged to serve on board a ship, is bound to exert himself to the utmost in the service of the ship; and therefore a promise made by the master when a ship was in distress, to pay an extra sum to a mariner as an inducement to extraordinary exertion on his part, was esteemed to be wholly void (0). (1)

(m) White v. Wilson, 2 Bos. & Pull. 116. and the ISABELLA, Brand; 2 Rob. A. R. 241.

(n) Elsworth & Wife v Woolmore, Guildhall, Sit. Dec. 1803, before

Lord Alvanley, Ch. J. There is a note of this case in Mr.Espinasse's N. P. C. vol. 5. p. 84.

(0) Harris v. Watson, Peake'sN. P. Cases, 72.

(1) No wages can be recovered where the hiring has been for an illegal voyage, or in contravention of the provisions of a statute. No man can make claim to the wages of iniquity. The law will not countenance a contract ex turpi causa. Therefore in a case where a contract had been made in a slave voyage contrary to the statute, Sir William Scott repudiated the claim for wages with manifest indignation. The Vanguard, 6 Rob. Adm. Rep. 207.

CHAPTER THE SECOND.

OF THE EARNING AND PAYMENT OF WAGES.

I PROPOSE in the present chapter to consider,

FIRST, the cases in which the whole wages agreed to be given to seamen are to be paid; SECONDLY, the cases in which a part only is to be paid; and, LASTLY, the time at which the payment is to be made. [ 424 ] All that is said in this and the following chapter respecting seamen, is to be understood of all the officers in the ship, except the master, and of him also, if the subject is not inapplicable to his situation and char

acter.

1. FIRST, it is obvious that a seaman, who has faithfully performed his service on board a ship during the whole period of the intended voyage, is entitled to receive the whole of the stipulated reward, if no disaster has rendered his service useless or unproductive to his employer. And as a seaman is exposed to the hazard of losing the reward of his faithful service during a considerable period in certain cases, so on the other hand the law gives him his whole wages, even when he has been unable to render his service, if his inability bas proceeded from any hurt received in the performance of his duty, or from natural sickness happening to him in the course of the voyage (a). And if a master in viola

(a) Laws of Oleron, art. 6 & 7. of Wisbuy, art. 19. of the HanseTowns, art. 39 & 45. same of the year 1614, tit. 14. art. 1. French Ordinance, liv. 3. tit. 4. Des Loyers

des Matelots, art. 11. Chandler v. Grieves, 2 Hen. Blac. 606. note (a), and by Lord Mansfield in the case of Paul v. Eden, in the King's Bench. E. T. 25 Geo. 3.

tion of his contract discharges a seaman from the ship during a voyage, the seaman will be entitled to his full wages up to the prosperous determination of the voyage deducting, if the case require it, such sum as [425] he may in the meantime have earned in another vessel (b). (!) The French Ordinance

(b) Robinet v. The ship EXETER, not. 43. Old Hanseatic Ordinance, 2. Rab. A. R 261. The BEAVER, art. 42. Hunseanc Ordinance of Grierson, 3 Rob. A. R. 92. Roccus 1614. tit. 3. art. 7.

(1) The same point is established in Mahoon v. The Gloucester, 2 Peters. Adm. Rep. 403., in Rice v. Polly and Kitty, id. 420., and in Weiberg v. The St. Oloff, id. 428. Hulle v. Heightman, 2 East. Rep. 145. Keane v. The Gloucester, 2 Dall. Rep. 36. Hoyt. v. Wildfire, 3 John. Rep. 518.

But the residue of the crew cannot claim more wages, although by the dismission of such mariner, the risk and labor becomes proportionally greater. Keane v. The Gloucester, 2 Dall.. 36.

There is a technical rule applicable to the courts of common law, which requires attention. I allude to the manner of stating the demand of the mariner who is dismissed. It seems that if wrongfully dismissed, he cannot recover his full wages in an action, declaring generally for labor and services, but should in an action against the master specially state the injury whereby he was prevented from earning his full wages. See Hulle v. Heightman, 2 East. Rep. 145. And if by the ship's articles, the mariner is not to demand his wages until the end of the voyage,such form of action is indispensible, upon a wrongful dismission, as this act of the master is not considered as a recision of the contract. id. ibid. However in the case of Sigard v. Roberts, 3 Esp. N. P. C. 71., where the wages were not payable until the voyage was ended, Lord Eldon held, that the master having dismissed the mariner, he was entitled to recover his wages in the

adds, that in such cases the master shall not charge the owners with the payment (c).

1. b. In the discussion of the cases, that arose on the detention of the British ships in Russia by the late Emperor Faul in the year 1800, it was admitted in both Courts, that, in the ordinary case of an embargo, a seaman hired by the month, and remaining with the vessel, has a right to his wages during the embargo, if the ship afterwards perform her voyage and earn her freight (d). (2) The circumstances of that detention (c) Liv. 3. tit. 4 Loyers des Ma- (d) Beale v. Thompson, 3 Bos. & telots, art. 10. Pull. 405. & 4 East. 546,

common action for that purpose; and said the voyage is then ended with respect to any man, when he is discharged from the ship, and then he is entitled to sue consistently with the articles. See also Limland v. Stephens, 3 Esp. N. P. C. 269. See also Hoyt v. Wildfire, 3 John. Rep. 518., and Willendson v. The Forkoset, 1 Peters. Adm. Rep. 197.

As to discharging mariners abroad, see the act of Congress, 28. February, 1803, sect. 1 & 3. (6 U. S. L. 206.) which regulates the manner and circumstances under which mariners may with their own consent be discharged abroad, ante 165, note and appendix.

Where foreign seamen are shipped at a foreign port in a foreign ship, and in the course of the voyage are discharged, if the articles of shipping contain a clause that they shall not sue for their wages in a foreign country, but shall abide by the maritime code of their own country, the courts of law in England will not sustain a suit for the wages. Gienar v. Meyer, 2 H. Bl. 603., cited post, p. 441., and see the note there.

(2) See also Jones v. The Insurance Company, 4 Dall. Rep. 246., and Kingston v. Girard, 4 Dall. Rep. 274. Marshall v. Montgomery, 2 Dall. Rep. 170. In this last case the point was directly decided by the court, conformably to the text.