CHAPTER THE FOURTH. OF PROCEEDINGS TÓ OBTAIN THE PAYMENT HAVING, in the three preceding chapters, consid ered the contract for service on board a mer[458] chant ship; the cases, in which the remuneration of such service is due either wholly or in part; and those, in which it is lost, or forfeited; I propose in this last chapter to treat of the means of obtaining this remuneration by legal process. 1. According to the observation made in a former part of this treatise (a), the jurisdiction of the Courts of Common law can in this case be exercised only by suit against the person; but the jurisdiction of the Court of Admiralty may be exercised by process against the ship. In this Court alone therefore that principle of the maritime law, which holds the ship in specie to be subject to the claim of wages earned by service in it, can be carried into effect. The Court of Admiralty was originally constituted for the adjudication of causes and disputes arising upon the high sea, and within the jurisdiction of the Lord High Admiral, whose deputy the Judge of that Court formerly was. The proceedings therein, being according to the course of the Civil Law, appear to have been very unpopular in ancient times; and two statutes were made in the reign of King Richard the Second, upon the complaint of the Commons of (a) Part 2. ch. 3. sect. 25. England, to define the limits of its jurisdiction; by the first of which it is "accorded and assented, that the "admirals and their deputies shall not meddle from "henceforth of any thing done within the realm, but "only of a thing done upon the sea, as it hath "been used in the time of the noble prince [459] "King Edward grandfather of our Lord the "King that now is:" (b) by the other, "It is declared, "ordained and established, that of all manner of con"tracts, pleas, and quarrels, and all other things, aris"ing within the bodies of counties, as well by land as "by water, and also of wreck of the sea, the Admiral's "Court shall have no manner of cognizance, power, nor jurisdiction" (c). Considering these statutes with reference to the present subject, it is evident that, if the seaman's claim to wages be in reality founded on the performance of bis service in the navigation of a ship on the high sea, the Court of Admiralty must have cognizance of the claim; and on the other hand that, if the claim be in reality founded on the contract made for performance of such service, and such contract be, as it usually is, made on shore, or in a port or river, within the body of a county, the Court of Admiralty can have no cognizance of it. In this view of the subject, it is difficult to distinguish the case of the master from that of the persons employed under his command; the nature and place of the service, and the place of the hiring, are in both cases usually the same. Nevertheless a distinction has long been made between the", and is now become a settled rule of law. In pursuance of this distinction the seamen have now in ordinary cases a three (b) 13 Rich. 2. st. 1. c. 5. (c) 15 Rich. 2. c. 3. fold remedy, agaiust the ship, the owners, and [460] the master; the master, whether appointed to that office at the commencement (d), or succeeding to it in the course (e), of the voyage, can only sue the owners personally in a Court of Common Law (1). But as he generally receives the freight and earnings of the ship, and may pay himself out of the money in bis hands, he has not often occasion for the aid of a Court of Justice to obtain his right. The suit of the seamen in the Court of Admiralty is frequently spoken of as an excepted case (ƒ), and an indulgence granted to them on account of the convenience and advantage of proceeding in a Court, in which all may join in one suit, and payment may be obtained out of the value of the ship; and of the presumption that they, who contract with the master, contract with him on the credit of the ship: whereas the master, who contracts with the owners, is presumed to trust to their personal credit (2). (d) Ragg v. King, 2 Stra. 858, 1 Bernard: 297. and King v. Player, there cited. Clay v. Sudgrave, or, Snellgrave, Salk. 33. 1 Ld. Raym. 576. 12 Mod.405. Carth.518. (e) Read v. Chapman, 2 Stra. 937. The FAVOURITE, De Jersey, 2 Rob. A. R. 232. (ƒ) In the cases cited in the two last notes. (1) So held in Montgomery v. Henry, 1 Dall. Rep. 49. See Gardner v. Ship Jersey, as to what sums will be paid out of remnants and surplusses in the Courts of Admiralty, 1 Peters. Adm. Rep. 223. See also as to the right of the master to sue in the Admiralty, 2 Brown. Civ. and Adm. Law. 95. (2) The Constitution of the United States has expressly delegated to the Courts of the United States, all causes of Admiralty and Maritime jurisdiction. The act of Congress, regulating seamen in the merchants' service, provides that the seamen may sue in the Admiralty Court for their wages. Act, 20. July, 2. The clear result of the several decisions (g) upon this subject is, that if the hiring be on the usual terms, and made by word, or by writing only [461] without seal, the seamen, or any one or more of them, and every officer except the master, may sue in the Court of Admiralty; and may by the process of that Court arrest the ship as a security for their demand, or cite the master or owners personally to answer to them. And the seamen may sue there not only for the wages earned in the course of a voyage, but for those earned in rigging and fitting out a ship for a voyage, on which they have engaged to proceed, if the owners do not afterwards think proper to send the ship on the intended voyage (h). And it seems also that they may wages contracted to be paid to them ship from one port of this country, to And if a suit be there instituted, that Court can properly decide whether a place at which a sue there for the for navigating a another (i). (1) (g) As to the SEAMEN, after sentence, Winch. 8. Before sentence, Alleson v. Marsh, 2 Vent, 181. Anon. 8. Mod. 379. Bens. v. Parre. 2 Ld. Raym. 1206. The BOATSWAIN, King v. Ragg. 2 Stra. 858. 1 Barnard: 297. The CARPENTER, Wheeler v. Thomson, 1 Stra. 707. The SURGEON, Say. er, 136. The MATE, Bayley v. Grant, 1 Ld. Raym. 632. Salk. 33. (h) Wells v Osman, 2 Ld. Raym. 1044. 6 Mod. 238. See also Mills & another v. Gregory, Sayer, 127. (i) Anon. 1 Vent. 343. The application for a prohibition was after sentence. See 31 Geo. 3. c. 39. 8. 6. 1790. ch. 29. (1 U. S. L. 134.) sect. 6. The same right or privilege is granted to fishermen employed in the fisheries of the United States. Act, 16. February, 1792. ch. 6. (2 U. S. L. 15.) (1) The same point is decided in Ireland, Parry v. Peggy, ? Brown's Civil and Adm. Law, Appendix, p. 533. ship may have arrived be a port of delivery so as to entitle them to wages (k). Indeed if the master has obtained a sentence in the Court of Admiralty upon the usual allegation, stating that he was hired within the jurisdiction of that Court, the Courts at Westminster Hall will not prohibit the execution of the sentence (1). 3. I have said that seamen may sue in the Court [462] of Admiralty, if the contract is made on the usual terms and not by deed. It was decided in two causes, before the passing of the earliest statute requir ing the contract to be in writing, that the Court of Admiralty had jurisdiction in the case of a written contract (m). And as well the statute requiring a written agreement in the case of foreign voyages (n), as that which requires such an agreement in the case of certain vessels employed in the coasting trade (o), contains a clause, enacting that no seaman shall, by entering into or signing such agreement, be deprived of any means for the recovery of wages against any ship, the master, or owners, which he might then lawfully make use of. The case of special agreements, and of contracts under seal, requires further explanation. The contract, whatever be its form or nature, always remains in the possession of the master or owners; the statutes expressly ordain that where it becomes necessary to produce the contract. in Court, no obligation shall lie on the seamen to produce it, but on the master or owners of the ship, and that no seaman shall fail in any suit or process for the recovery of wages for want of the production of (k) Brown v. Benn & others, 2 Ld. Raym. 1247. (1) Barber &another v.Wharton, 2 Ld Raym. 1452. (m) Bens v. Parre, M. T. 4 Ann. 2 Ld. Raym, 1206, and the Mar- (n) 2 Geo. 2. c. 36. s. 8. |