Abbott on case just quoted, was an Englishman; an action was also brought by Shipping a mariner, belonging to another ship, under circumstances the same in all respects except as to his national character, he being a foreigner. In this action also the decision of the Court was the same.a Desertion. Secondly, as to the forfeiture of wages. The 7 & 8 Vict. c. 112, ss. 7, 8, and 9, declare "that if any seaman during the time or period specified for his service shall wilfully and without leave absent himself from the ship, or otherwise from his duty, he shall (in all cases not of desertion, or not treated as such by the master,) forfeit out of his wages the amount of two days' pay, and for every twenty-hours of such absence the amount of six days' pay, or, at the option of the master, the amount of such expenses as shall have been necessarily incurred in hiring a substitute; and in case any seaman while he shall belong to the ship shall without sufficient cause neglect or refuse to perform such his duty as shall be reasonably required of him by the master or other person in command of the ship, he shall be subject to a like forfeiture in respect of every such offence, and of every twenty-four hours continuance thereof; and in case any such seaman, after the ship's arrival at her port of delivery, and before her cargo shall be discharged, shall quit the ship, without a previous discharge or leave from the master, he shall forfeit one month's pay out of his wages: provided always, that no such forfeiture shall be incurred unless the fact of the seaman's absence, neglect, or refusal shall be duly entered in the ship's log-book, the truth of which entry it shall be incumbent on the owner or master, in all cases of dispute, to substantiate by the evidence of the mate or some other credible witness. That in all cases where the seaman shall have contracted for wages by the voyage or by the run or by the share, and not by the month or other stated period of time, the amount of forfeitures to be incurred by seamen under this act shall be ascertained in manner following: (that is to say,) if the whole time spent in the voyage agreed upon shall exceed one calendar month, the forfeiture of one month's pay expressed in this act shall be accounted and taken to be a forfeiture of a sum of money bearing the same proportion to the whole wages or share as a calendar month shall bear to the whole time spent in the voyage; and in like manner a forfeiture of six days' pay, or less, shall be accounted and taken to be a forfeiture of a sum bearing the same proportion to the whole wages or share as the six days' or other period shall bear to the whole time spent in the voyage; and if the whole time spent in the voyage shall not exceed the period for which the pay is to be forfeited, the forfeiture shall be accounted and taken to be a forfeiture of the whole wages or share; and the master or owner is hereby authorised to deduct the amount of all forfeitures out of the wages or share of any seaman incurring the same. That any seaman or other person who shall desert the ship to which he shall belong shall forfeit to the owner thereof all his clothes and effects which he may leave on board, and he shall also forfeit all wages and emoluments to which he might otherwise be entitled ; a Johnson v. Broderick, 4 East, 566. recoverable by master, 13 & 14 Vict. c. b Wages forfeited for desertion are 93, s. 73. and in case of any seaman deserting abroad he shall likewise forfeit CH. XXII. all wages and emoluments whatever which shall be or become due or be agreed to be paid to him from or by the owner or master of any other ship in the service whereof such seaman may have engaged for the voyage back to the United Kingdom; and that all wages and portions of wages and emoluments which shall in any case whatever become forfeited for desertion shall be applied, in the first instance, in or towards the reimbursement of the expenses occasioned by such desertion to the owner or master of the ship from which the seaman shall have deserted, and the remainder shall be paid to the Seamen's Hospital Society; and the master shall, in case of desertion in the United Kingdom, deliver up the register ticket of such seaman or other person to the collector or comptroller of the customs at the port; provided always, that every desertion be entered in the log-book at the time, and certified by the signatures of the master and the mate, or the master and one other credible witness; and that the absence of a seaman from his ship for any time within twenty-four hours immediately preceding the sailing of the ship from any port, whether before the commencement or during the progress of any voyage, wilfully and knowingly, without permission, or the wilful absence of a seaman from his ship at or for any time without permission, and under circumstances showing an intention to abandon the same, and not return thereto, shall be deemed a desertion of and from the said ship; and in case any seaman shall desert in parts beyond the seas, and the master of the ship shall engage a substitute at a higher rate of wages than that stipulated in the agreement to be paid to the seaman so deserting, the owner or master of the ship shall be entitled to recover from the deserter, by summary proceeding, in the same manner as penalties are by this act made recoverable (so far as the same can be applied), any excess of wages or portion thereof which such owner or master shall pay to such substitute beyond the amount which would have been payable to the deserter in case he had duly performed his service pursuant to his agreement: provided always, that no seaman shall be imprisoned longer than three calendar months for non-payment of any such excess of wages." The 13 & 14 Vict. c. 93, ss. 78, 79, 80, and 81, enacts "that Other of any seaman or apprentice who whilst on service commits any of fences. the following offences, and who then is or afterwards arrives or is found at any place in which there is a court of justice capable of exercising summary jurisdiction under this act, may, on due proof of the offence, and of such entry thereof in the log-book as hereinafter directed, be summarily punished by imprisonment, with or without hard labour, not exceeding in duration the several periods following: (that is to say,)-1, Twelve weeks for wilfully damaging the ship, or embezzling or wilfully damaging any of her stores or cargo: 2, Twelve weeks for assaulting any master or mate: 3, Four weeks for wilful disobedience to any lawful command: 4, Twelve weeks for continued wilful disobedience to lawful commands, or for continued wilful neglect of duty: 5, Twelve weeks for combining with any other or others of the crew to disobey lawful commands, or to neglect duty, or to impede the navigation of the ship or the Abbott on progress of the voyage: provided always, that nothing hereinShipping before contained shall take away or abridge any powers which a master has over his crew. That whenever any act of misconduct is committed which is by the agreement subject to a fine, the appropriate fine shall, if an entry of the offence is made and attested in the official log-book as hereinafter directed, and if the offence is proved to the satisfaction of the shipping master to whom the fine is to be paid, be deducted from the wages of the offender; and the master or owner shall pay over every fine so deducted as follows; that is to say, in the case of foreign-going ships to the shipping master before whom the crew is discharged, and in the case of home trade ships to the shipping master at or nearest to the place at which the crew is discharged; and any master or owner who neglects or refuses to pay over any such fine as aforesaid shall for each offence be liable to a penalty not exceeding six times the amount of the fine retained by him: provided always, that if, before the final discharge of the crew in the United Kingdom, any such offender as aforesaid enters into any of Her Majesty's ships, or is discharged abroad, the offence shall then be proved to the satisfaction of the officer in command of the ship into which he so enters, or of the consular officer, officer of customs, or other person by whose sanction he is so discharged; and the fine shall thereupon be deducted as aforesaid; and an entry of such deduction shall then be made in the official log-book, and signed by such officer or other person; and such fine shall, on the return of the ship to the United Kingdom, in the case of foreign-going ships,' be paid to the shipping master before whom the crew is discharged, and in the case of home trade ships' to the shipping master at or nearest to the place at which the crew is discharged. That whenever in any proceeding under the General Merchant Seamen's Act or this act any question arises concerning any offence committed by a seaman' or apprentice which is punishable under either of such acts, the court or justice hearing the same may, if the justice of the case requires, order the offender to be punished, both by lawful imprisonment appropriate to the case, and, in addition, may make such order in regard of wages accruing due in the meantime as to such court or justice may seem fit. That no 'seaman or apprentice shall be entitled to any pecuniary allowance, on account of any reduction in the quantity of provisions furnished to him during such time as he wilfully and without sufficient cause refuses or neglects to perform his duty, or is lawfully under confinement for misconduct either on board or on shore, or during such time as such quantity may be reduced in accordance with any regulation for reduction by way of punishment contained in the agreement." Drunken ness, &c. 6 The Legislature also punished with the forfeiture of wages the offence of neglecting or refusing to assist the master in defending the ship against the attack of pirates. Neglect of duty, disobedience of orders, habitual drunkenness, or any cause which will justify a master in discharging a seaman during the voyage, will also deprive a 22 & 23 Car. 2, c. 11, s. 7. the seaman of his wages; but it would seem to be so only where CH.XXIII. the misconduct is such as to render the discharge of the seaman imperatively necessary for the safety of the ship and the due preservation of discipline. And in the consideration of the question, a broad line is drawn between disobedience of orders and the like in port and on the high seas.b A master may likewise forfeit his wages; but a mere error of judgment, unaccompanied by corrupt intention or wilful disobedience of orders, will not per se have such an effect. When misconduct is set up by the owners, the Admiralty Court has no power to mitigate the penalty; it must pronounce for or against the whole claim. If the cargo be embezzled or injured by the fraud or negligence of the seamen, so that the merchant has a right to claim a satisfaction from the master and owners, they may, by the custom of merchants, deduct the value thereof from the wages of the seamen, by whose misconduct the injury has taken place. And the last proviso introduced into the usual agreement signed by the seamen, is calculated to enforce this rule in the case of embezzlement either of the cargo, or of the ship's stores. This proviso, however, is to be construed individually, as affecting only the particular persons guilty of the embezzlement, and not the whole crew.f Nor, as it seems, is any innocent person liable to contribute a portion of his wages to make good the loss occasioned by the misconduct of others.g d CHAPTER XXIII. PROCEEDINGS TO OBTAIN THE PAYMENT OF WAGES. HAVING, in the three preceding chapters, considered the contract for service on board a merchant 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. According to the observation made in a former part of this treatise, 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. In all claims for wages this Court has power to decree a sale of the vessel proceeded against, unless the demand of the successful suitor a See the judgment pronounced by Sir William Scott, in the case of Robinet v. the ship Exeter, 2 Rob. A. R. 261; the Gondolier, 3 Hagg. 190. b The Blake, 1 Wm. Rob. 75. The Thomas Worthington, 3 Wm. Rob. 128. d See 16 & 17 Vict. c. 93, s. 78; Molloy, b. 2, ch. 3, s. 9; 2 Show. 167; 1 Ld. Raym. 650; Duchess of Kent, 1 Thorn. 183. e 5 & 6 Wm. 4, c. 19. f Thompson v. Collins, I N. R. 347. a C Abbott on be satisfied. The Court was originally constituted for the adjudiShipping. cation of causes and disputes arising upon the high sea and within the jurisdiction of the Ld. 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 K. Rich. II., upon the complaint of the Commons of 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 anything 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 King Edward, grandfather of our Lord the King that now is:" by the other, "It is declared, ordained, and established, that of all manner of contracts, pleas, and quarrels, and all other things, arising 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 cognisance, power, nor jurisdiction." But by a recent statute the jurisdiction of the Court has been extended. 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 his service in the navigation of a ship on the high sea, the Court of Admiralty must have cognisance 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 cognisance 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 the place of the service and the nature of the hiring are in both cases usually the same. The seamen have now, in ordinary cases, a threefold remedy—against the ship, proceeds of the ship, or freight (the claim amounting to 201.), against the owners, and against the master. The master, whether appointed to that office at the commencement,f or succeeding to it in the course of the voyage, could only sue the owners personally in a court of common law, before the 7 & 8 Vict. c. 112, s. 16, extended to him the same lien and remedy for wages as the seaman has.h But as he generally received the freight and earnings of the ship, and might pay himself out of the money in his hands, he had not often occasion for the aid of a court of justice to obtain his right. The clear result of the several decisions upon this subject a The Fremont, 1 Wm. Rob. 164. c 15 Rich. 2, c. 3. d Ld. Cochrane, 1 Th. 285; the Westmorland, Ib. 20. He has no lien on the cargo. Lady Durham, 3 Hagg. 196; The Riby Grove, 2 Th. 208. e The King William, 1 Wm. Rob. 231. Read v. Chapman, 2 Stra. 937; the h As to the construction of the act, see the Princess Royal, 2 Wm. Rob. 373; the Repulse, Ib. 399. He may sue on the stat. though joint mortgagee of the ship, Ib. i As to the seamen, after sentence, Winch. 8; before sentence, Alleson v. Marsh, 2 Vent. 181; Bens v. Parre, Ld. Raym. 1206; Ragg v. King, 2 Stra. 858; Wheeler v. Thomson, 1 Stra. 707; Sayer, 136; Bayley v. Grant, 1 Ld. Raym. 632; Read v. Chapman, 2 Stra. 937. |