Abbott on
Shipping.

any discharge and settlement, the master or owner and each sea-
man shall respectively, in the presence of the shipping master, sign a
mutual release of all claims in respect of the past voyage or engage-
ment, in a form to be sanctioned by the Board of Trade, and the
shipping master shall also sign and attest it, and shall retain and
transmit it as herein-before directed; and such, release so signed and
attested shall operate as a mutual discharge and settlement of all
demands between the parties thereto in respect of the past voyage
or engagement; and a copy of such release, certified under the
hand of such shipping master to be a true copy, shall be given by
him to any person who may be a party thereto, and may require the
same; and such shall be receivable in evidence upon any
copy
future question touching such claims as aforesaid, and shall have all
the effect of the original of which it purports to be a copy; and in
cases in which discharge and settlement before a shipping master is
required, no payment, receipt, settlement, or discharge otherwise
made shall operate or be admitted as evidence of the release or
satisfaction of any claim; and upon any payment being made by a
master before a shipping master, the shipping master shall, if re-
quired, sign and give to such master a statement of the whole
amount so paid; and such statement shall, as between the master and
his employer, be received as evidence that he has made the pay.
ments therein mentioned. That every master shall, upon any dis-
charge being effected before a shipping master, make and sign in
duplicate, in a form sanctioned by the Board of Trade, a report of
the conduct, character, and qualifications of the persons discharged,
or may state, in a column to be left for that purpose in the said form,
that he declines to give any opinion thereupon; and the shipping
master shall retain one copy, and shall transmit the other to the
registrar of seamen, or to such other person as the Board may direct,
to be recorded, and shall, if desired so to do by any seaman, give
to him or endorse on his certificate of discharge a copy of so much
of such report as concerns him. That any shipping master may, in
any proceeding relating to the wages, claims, or discharge of any
seaman hereby directed to be carried on before him, call upon
the owner or his agent, or upon the master or any mate or other
member of the crew, to produce any log-books, papers, or other
documents in their respective possession or power relating to any
matter in question in such proceeding, and may call before him and
examine any of such persons, being then at or near the place, on any
such matter. That any master or owner who, in any case in which
discharge or settlement for wages are hereby directed to be made
before a shipping master, discharges any seaman or settles with
him for his wages otherwise than as herein-before directed, shall for
each offence be liable to a penalty not exceeding ten pounds; and
any master who fails to deliver such account as herein-before re-
quired at the time and in the manner herein-before directed, shail for
each offence be liable to a penalty not exceeding five pounds; and
every owner, agent, master, mate, or other member of the crew,
who, when called upon by the shipping master, does not produce any

such paper or document as herein-before in that behalf mentioned, CH. XXII. if in his possession or power, or does not appear and give evidence, and does not show some reasonable excuse for such default, shall for each offence be liable to a penalty not exceeding five pounds; and every person who makes or procures to be made or assists in making any false certificate or report of the service, qualifications, conduct, or character of any seaman, knowing the same to be false, or who fraudulently forges or alters, or procures to be forged or altered, or assists in forging or altering, any such certificate or report, or who fraudulently makes use of any certificate or report which is forged or altered or does not belong to him, for each offence shall either be deemed guilty of a misdemeanour, or shall be liable summarily to a penalty not exceeding fifty pounds, or to imprisonment not exceeding three months, with or without hard labour, as the justice or court hearing the case may think fit."

2ndly, It was determined before the passing of any of the statutes Entry into for regulating the service of seamen in merchant ships, that a sea- the Ř. N. man, who was impressed from such a ship into the royal service, was entitled to receive a proportion of his wages, up to the time of impressing, the ship having afterwards arrived in safety at her port of discharge. And the 7 and 8 Vict. c. 112, s. 50, expressly provides, that a seaman belonging to any merchant ship, who enters into the service of H. M. on board any of H. M.'s ships, shall not for such entry incur any penalty or forfeiture, nor shall such entry be deemed a desertion: any clause to the contrary inserted in the agreement is void.

C

b

Seamen.

If a seaman falls sick and dies during the voyage, the laws of Death of Oleron, of Wisby, and of the Hanse Towns, direct that his wages shall be paid to his heirs, in general words, without distinction as to the terms upon which he was hired; and it is not clear whether the payment thus directed, is to be understood of a sum proportionate to the time of his service, or of the whole sum that would have been earned if he had lived to the end of the voyage. The French Ordinancef (of 1681), distinguishes between the case of a hiring by the month, and a hiring for the voyage; and, in the first case, directs the payment of wages up to the day of the death of the seaman; in the last case, it directs the payment of half the stipulated sum, if a seaman dies on the voyage outward, and the whole, if he dies on the voyage homeward. A similar rule had been laid down in the case of a hiring by the voyage, in the Ordinance of the Emperor Charles V., which regulated the commerce of the Low Countries; and Cleirac and Valin say, that the same rule was established by the Consolato del Mare. There is no general decision on this subject in our law

C

"Ten

Abbott on books; but in the caseb which I am about to quote, it seems to Shipping have been admitted, that the representatives of a seaman hired by the month, would be entitled to a proportion of wages to the time of his death. The facts of the case itself were very particular, and the decision turned upon them. Before the passing of the statute which limited the wages to be given to persons for navigating a ship back from the West Indies to this country, one Cutter was hired as second mate on a voyage from Jamaica to Liverpool; and at J., the master subscribed and delivered to him the following note:days after the ship G. P., myself master, arrives at L., I promise to pay to Mr. T. Cutter, the sum of 30 guineas, provided he proceeds, continues, and does his duty as second mate in the said ship, from hence to the port of L. Kingston, July 31, 1793." The ship sailed from Kingston on the 2nd of Aug., and arrived at L. on the 9th of Oct. Cutter went on board the 31st of July, sailed in the ship, and proceeded, continued, and did his duty as second mate until his death, which happened on the 20th of Sept. It was proved that the wages usually paid to a second mate of a ship on such a voyage, if hired by the month, out and home, were 47. per month that when seamen were shipped by the run from J. to England, a gross sum was usually given; and that the usual length of a voyage from Jamaica to L., was about eight weeks. The executrix of C. brought an action against the master, and it was contended on her behalf, that she ought to recover a proportion of the wages for that part of the voyage that he lived, and served on board the ship. The Court of K. B., before which this question was brought for decision, directed inquiry to be made as to the usage among merchants, &c., in cases of this kind; but no satisfactory information being obtained as to the usage, although such notes had been often given, the court, upon consideration of the particular terms of the note, and of the great excess of the sum to be paid to C., if he had performed the whole voyage according to those terms, above the usual rate of wages upon a monthly hiring, decided that nothing was payable for the partial service: declaring at the same time, that, if the plaintiff could have proved a usage to pay a proportional sum in similar cases, their decision should have been conformable to the

Freight the mother of wages.

usage.

The payment of wages is generally dependent upon the payment of freight; if the ship has earned its freight, the seamen, who have

a Nor does the 5 & 6 Wm. 4, c. 19, settle the question. It seems to apply only to wages due. Again, the ship's articles would probably receive the same construction as the contract in Cutter v. Powell, 2 Smith's L. C. 1, and Jesse v. Roy, 1 C. M. & R. 316, if it were not for the 13 & 14 Vict. c. 93, s. 53. But as that declares that a seaman's rights and remedies are not to be in any way affected by the articles; and as it declares also that he is not obliged to

produce them in any court of justice, in support of his claims, it seems to follow, that his executor might recover a quantum meruit, for a proportionate part of the voyage. Note: The 4 & 5 Wm. 4, c. 52, s. 30, relates to seamen dying on board; the 7 & 8 Vict. c. 112, s. 31, to seamen dying abroad, elsewhere than on board.

b Cutter v. Powell, 6 T. R. 320; 2 Smith's, L. C. 1.

c 37 Geo. 3, c. 73, s. 3.

a

served on board the ship, have in like manner earned their wages. CH. XXII. And as, in general, if a ship destined on a voyage out and home has delivered her outward-bound cargo but perishes in the homeward voyage, the freight for the outward voyage is due, so, in the same case, the seamen are entitled to receive their wages for the time employed in the outward voyage and the unloading of the cargo.d And if a ship sails to several places, wages are payable to the time of the delivery of the last cargo. Upon the same principle, where money had been advanced to the owners in part of the freight outward, and the ship perished before her arrival at the port of delivery, it was held that the seamen were entitled to wages in proportion to the money advanced. If a charter-party be so framed When as to exclude the owners from demanding freight for the carriage of owners are the outward-bound cargo, unless the ship brings back her home- not entitled to freight. ward-bound cargo in safety, such a special agreement, whereby the owners consent to relinquish a benefit, to which they are entitled by the general principles of law, does not affect the seamen, or deprive them of their general right.f

If, after the hiring of seamen, the owners of a ship do not think proper to send her on the intended voyage, the seamen are to be paid for the time during which they may have been employed on board the ship. And if they sustain any special damage by the breaking off the contract, it seems reasonable also that they should recover such damage by an action upon the agreement. The Effect of French Ordinance (of 1681) also directs the payment of wages for embargo, the time employed in equipping the ship in two other cases, which I &c. do not find mentioned in the more ancient sea-laws; these are, the prohibition of commerce by the government of the country to which the ship belongs, with the country to which it is destined (which must always take place if a war happens between the two countries), and an embargo imposed in the lading port. The latter case does not dissolve the contract between the owners and the merchant by the law either of France or England, as I have already mentioned;k yet it may be reasonable on such an occasion to discharge the greater part of the mariners, who may readily find in other ships an employment equally beneficial to themselves, and are therefore not likely to sustain or recover special damage to any considerable amount by the non-performance of the contract made with

them.

In the case of shipwreck, it is the duty of the seamen to exert Shipwreck. themselves to the utmost to save as much as possible of the vessel and cargo.

If the cargo is saved, and a proportion of the freight paid by the merchant in respect thereof, the seamen are also entitled

Abbott on

a

to a proportion of their wages, and this is expressly directed by the Shipping. French Ordinance (of 1681). So, although no freight be earned, they are entitled upon the parts saved, as far as they will go, in satisfaction of their wages already earned.b

Time of payment.

As to the period within which wages are to be made, the 7 and 8 Vict. c. 112, enacts "that the master or owner of every ship shall and is hereby required to pay every seaman his wages within the respective periods following; (that is to say,) if the ship shall be employed in coasting, the wages shall be paid within two days after the termination of the agreement, or at the time when any such seaman shall be discharged, whichever shall first happen; and if the ship shall be employed otherwise than coasting, then the wages shall be paid at the latest within three days after the cargo shall have been delivered, or within seven days after the seaman's discharge, whichever shall first happen; and in all cases the seaman shall, at the time of his discharge, be entitled to be paid, on account, a sum equal to one fourth part of the balance due to him; and in case the master or owner shall neglect or refuse to make payment in manner aforesaid, he shall for every such neglect or refusal forfeit and pay to the seaman the amount of two days' pay (to be recovered as wages) for each day, not exceeding ten days, during which payment shall, without sufficient cause, be delayed beyond the respective periods aforesaid: provided always, that nothing in this clause contained shall extend to the cases of ships employed in the southern whale fishery, or on voyages for which seamen, by the terms of their agreement, are wholly compensated by shares in the profits of the adventure. That every such payment of wages to a seaman shall be valid and effectual in law, notwithstanding any bill of sale or assignment which may have been made of such wages, or of any attachment or incumbrance thereon, and that no assignment or sale of wages or salvage made prior to the accruing thereof, nor any power of attorney expressed to be irrevocable for the receipt of any such wages or salvage, shall be valid or binding upon the party making the same, and any attachment to be issued from any court whatever shall not prevent the payment of wages to any seaman; and if during the voyage the allowance of provisions which a seaman agreed to receive shall be reduced one third of the quantity, or less, he shall receive fourpence per day, and if the reduction be more than one third he shall receive eightpence per day, during the period such respective deductions may be made, and such pecuniary allowance shall be paid to him in addition to and be recoverable as wages. That if three days after the termen wish to mination of the stipulated service, or if three days after a seaman shall have been discharged, he shall be desirous of proceeding on another voyage, and in order thereto, or for any other sufficient reason, shall require immediate payment of any amount of wages, not exceeding twenty pounds, due to him, it shall be lawful for any justice of the peace, in and for any part of Her Majesty's dominions

When sea

go on ano

ther voyage.

a Liv. 3, tit. 4; Loyers des Matelots, art. 9; Code de Commerce, art. 259.

b The Neptune, 1 Hagg. A. R. 227 the Reliance, 2 T. R. 347.