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(c) See now M. S. A. 1906, ss. 30, 36, as to such certificates. Where seamen were left on shore to be called for on the return journey because they refused to continue a voyage with contraband of war on becoming aware that their destination was a port of a belligerent, it was held they were entitled to their wages until they reached the United Kingdom, on proof that they had not been discharged under their contract or under this Act, and that their ship had not been wrecked, though she had been stranded and abandoned to underwriters but subsequently refloated. Lloyd v. Sheen (1905), 10 Asp. M. L. C. 75; 93 L. T. 174.

(d) By the law maritime, a seaman disabled by an accident happening to him in the course of his duty was entitled to wages for the whole voyage, even though the accident prevented his performing the whole of it. Chandler v. Greaves (1792), 2 H. BI. 606, n.; 6 T. R. 325, n. And under the statute it seems he is still entitled to full wages if the master retains him on board, whether his incapacity be due to such an accident or to illness which has not been caused by his own wilful act or default. See s. 160. S.e also, as to cases of wreck, s. 157, sub-s. (1).

For decisions as to wages claimed in cases of termination or suspension of services from other causes than those above mentioned, see Button v. Thompson (dismissal at a foreign port for negligence and misconduct) (1869), 38 L. J. C. P. 225; L. R. 4 C. P. 330; The Friends (capture and imprisonment by enemy) (1801), 4 C. Rob. 143; Beale v. Thompson (embargo) (1804), 4 East, 546; Melville v. De Wolf (sent home as a witness by consular officer) (1855), 24 L. J. Q. B. 200; 4 E. & B. 844; and see Kay on Shipmasters and Seamen, 2nd ed. pp. 366-372.

As to wages on termination of service by death of seaman, see s. 169, note (b); and by volunteering into the Royal Navy, ss. 195-197.

As to time of payment of wages, see s. 134.

Pt. II. 159-162.

work or im

159. A seaman or apprentice shall not be entitled to wages Wages not to for any time during which he unlawfully refuses or neglects to accrue during work, when required, whether before or after the time fixed by refusal to the agreement for his commencement of such work, nor, unless prisonment. the court hearing the case otherwise directs, for any period [1851, s. 186.] during which he is lawfully imprisoned for any offence committed by him.

wages, &c. when illness caused by his

of seaman

160. Where a seaman is by reason of illness incapable of per- Forfeiture of forming his duty, and it is proved that the illness has been caused by his own wilful act or default (a), he shall not be entitled to wages for the time during which he is by reason of the illness incapable of performing his duty.

own default.
[30 & 31 Vict.

(a) See note (d) to s. 158, as to liability by the law maritime, and M. S. A. c. 124, s. 8.] 1906, s. 34, as to expenses of medical attendance.

161. Whenever in any proceeding relating to seamen's wages Costs of it is shown that a seaman or apprentice has in the course of the procuring punishment voyage been convicted of an offence by a competent tribunal, may be and rightfully punished for that offence by imprisonment or deducted otherwise, the court hearing the case may direct any part of the from wages. wages due to the seaman, not exceeding three pounds, to be [1854, s. 251.] applied in reimbursing any costs properly incurred by the master in procuring the conviction and punishment.

162. If a seaman, having signed an agreement (a), is dis- Compensation charged otherwise than in accordance with the terms thereof (b)

to seamen

Pt. II.

163-164. before the commencement of the voyage, or before one month's improperly wages are earned, without fault on his part justifying that disdischarged. charge (c), and without his consent, he shall be entitled to receive [1854, s. 167.] from the master or owner (d), in addition to any wages he may have earned, due compensation for the damage caused to him by the discharge not exceeding one month's wages, and may recover that compensation as if it were wages duly earned.

Restriction
on sale of,
and charge
upon, wages.
[1854, s. 233.]

Summary proceedings

for wages.

(a) This section applies only where there is a signed agreement; but, where the agreement is merely oral, the seaman may still have a remedy under s. 134 if he is wrongfully discharged before the ship sails. See as to the time when the agreement may be signed, s. 113, note (e), s. 131, note (b), and Re the Great Eastern S.S. Co., there cited.

(b) The words "otherwise than in accordance with the terms thereof" were added in 1894, presumably for greater lucidity. They embody the decision in Tindle v. Davison (1892), 61 L. J. M. C. 107; 66 L. T. 372, that the section here reenacted only applied to an improper discharge.

(c) Misconduct in order to justify dismissal must not be slight, but aggravated, or such as threatens the safety of the ship or the preservation of discipline. See The Exeter (1799), 2 C. Rob. 261; The Blake (1839), 1 W. Rob. 73; Renno v. Bennett (1842), 12 L. J. Q. B. 17; 3 Q. B. 768; The Marina (1881), 50 L. J. Adm. 33; 29 W. R. 508.

(d) As to whether the registered owner or the charterer is liable for wages in the case of a demised ship, see note (a) to s. 143 and the cases there cited.

163.-(1.) As respects wages due or accruing to a seaman or apprentice to the sea service

(a.) they shall not be subject to attachment or arrestment from any court;

(b.) an assignment or sale thereof made prior to the accruing thereof shall not bind the person making the same (a); (c.) a power of attorney or authority for the receipt thereof shall not be irrevocable (a); and

(d.) a payment of wages to the seaman or apprentice shall be valid in law, notwithstanding any previous sale or assignment of those wages, or any attachment, incumbrance, or arrestment thereof.

(2.) Nothing in this section shall affect the provisions of this Act with respect to allotment notes (b).

(a) This section does not prohibit an agreement by the master to advance wages to a seaman or his order. So where the master, with the authority of the seaman, paid the assignee of an advance note the amount of the note, the transaction was not void, and did not entitle the seaman to recover the sum paid from the master. Rowlands v. Miller, 68 L. J. Q. B. 338; [1899] 1 Q. B. 735. [This was a case of a seaman engaged at a foreign port; but this part of the judgment was independent of the place of engagement.] Cf. ss. 156, 212, and Bellamy v. Lunn (1897), 8 Asp. M. L. C. 348, as to assignment by seamen of advance notes.

(b) This section, together with s. 212, post, reproduces s. 233 of M. S. A. 1854. As to allotment notes, see ss. 140-144.

Mode of recovering Wages.

164. A seaman or apprentice to the sea service, or a person duly authorised on his behalf (a), may as soon as any wages due

Pt. II.

165.

to him, not exceeding fifty pounds, become payable, sue for the same before a court of summary jurisdiction (b) in or near the place at which his service has terminated, or at which he has [1851, s. 188.] been discharged, or at which any person on whom the claim is made is or resides, and the order made by the court in the matter shall be final (c).

(a) Quere, whether the personal representative of a deceased seaman may sue under this section. See the procedure prescribed by ss. 169 et seq.; and see also Hollingsworth v. Palmer (1849), 18 L. J. Ex. 409; 4 Ex. 267 (under 7 & 8 Vict. c. 112, ss. 15, 16).

(b) As to the application of the Summary Jurisdiction Acts, and as to legal proceedings generally, see s. 681 and other provisions of Part XIII.

(c) As to the jurisdiction in cases of foreign ships, see note (a) to s. 167. As to the seaman's lien for wages, see s. 156 and note (b) thereto. As to who is liable as owner for wages, see cases cited in note (a) to s. 143.

wages.

165. A proceeding for the recovery of wages (a) not exceed Restrictions ing fifty pounds (b) shall not be instituted by or on behalf of on suits for any seaman (c) or apprentice to the sea service in any superior [1854, s. 189.] court of record in Her Majesty's dominions, nor as an Admiralty proceeding in any court having Admiralty jurisdiction (d) in those dominions, except:

(i.) where the owner of the ship is adjudged bankrupt; or
(ii.) where the ship is under arrest or is sold by the authority
of any such court as aforesaid; or

(iii) where a court of summary jurisdiction acting under the
authority of this Act, refers the claim to any such
court; or

(iv.) where neither the owner nor the master of the ship is or resides (e) within twenty miles of the place where the seaman or apprentice is discharged or put ashore.

(a) In The Harriet (1861), Lush. 285; 5 L. T. 210, it was held that the Court of Admiralty had no jurisdiction over a contract for wages different from the ordinary mariner's contract; and hence that it could not enforce a parol agreement made with a mate (who had signed articles as such) for the payment to him of an additional sum per month in consideration of his also acting as purser, &c. (b) The section bars the recovery of wages not exceeding 507. in the Court of Admiralty (except in the contingencies specified), although a bonâ fide claim has been made for a sum exceeding 507. The Harriet, supra.

(e) An Order in Council, under 2 Will. 4, c 51, gave the Vice-Admiralty Court jurisdiction to entertain a suit for wages brought by any number of seamen not exceeding six, and such jurisdiction is not taken away by this section so long as the aggregate amount claimed by such seamen exceeds 507. By virtue of the Interpretation Act (13 & 14 Vict. c. 21), the section may be read as if the words were "on behalf of any seaman or seamen. The Ferret (Phillips v. Highland Railway Co.) (1883), 52 L. J. P. C. 51; 8 App. Cas. 329.

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This section, read with s. 167 (1), extends to masters of ships. The Blakeney (1859), Swa. 428; 5 Jur. (N. S.) 418. Quære, whether it applies to foreign ships. See Burns v. Chapman (1858), 28 L. J. C. P. 6; 5 C. B. (N. S.) 481.

(d) "As an Admiralty proceeding in any court having Admiralty jurisdiction.". The corresponding words of the repealed section were "in any Court of Admiralty or Vice-Admiralty." The present section deprives seamen, where the claim does not exceed 507., of the right of suing in rem (except in the con

Pt. II.

166–167. tingencies named) in a County Court having Admiralty jurisdiction, which (it is believed) they previously enjoyed under the County Courts Admiralty Jurisdiction Act, 1868, s. 3, notwithstanding the provisions of s. 189 of M. S. A. 1851. There seems, however, nothing to prevent seamen recovering such wages at common law in any County Court.

Wages not recoverable

abroad in

certain cases.

As to recovery of wages in Colonial Courts of Admiralty, see note to s. 167. (e) A place of occasional business is not a residence within this section. The Blakeney, supra.

166.-(1.) Where a seaman is engaged for a voyage or engagement which is to terminate in the United Kingdom, he shall not be entitled to sue in any court abroad for wages, unless [1854, s. 190.] he is discharged with such sanction as is required by this Act (a), and with the written consent of the master, or proves such ill-usage on the part or by authority of the master, as to warrant reasonable apprehension of danger to his life if he were to remain on board.

Remedies of master for

wages,

disbursements, &c.

[1854, s. 191; 52 & 53 Vict. c. 46, s. 1.]

(2.) If a seaman on his return to the United Kingdom proves that the master or owner has been guilty of any conduct or default which but for this section would have entitled the seaman to sue for wages before the termination of the voyage or engagement, he shall be entitled to recover in addition to his wages such compensation not exceeding twenty pounds as the court hearing the case thinks reasonable (b).

(a) See as to sanction required for seamen discharged abroad, formerly s. 188, now M. S. A. 1906, s. 30.

(b) As to jurisdiction, apart from statute, to award a seaman general damages for breach of agreement, see The Justitia (1887), 56 L. J. P. 111; 12 P. D. 145; and note to s. 199.

167.—(1.) The master of a ship (a) shall, so far as the case permits (b), have the same rights, liens, and remedies for the recovery of his wages (c) as a seaman has under this Act, or by any law or custom (d).

(2.) The master of a ship, and every person lawfully acting as master of a ship, by reason of the decease or incapacity from illness of the master of the ship, shall, so far as the case permits, have the same rights, liens, and remedies for the recovery of disbursements or liabilities properly made or incurred by him on account of the ship (e) as a master has for the recovery of his

wages.

(3.) If in any Admiralty proceeding in any court having Admiralty jurisdiction (f) touching the claim of a master in respect of wages, or of such disbursements, or liabilities as aforesaid, any right of set-off or counter-claim is set up, the court may enter into and adjudicate upon all questions, and settle all accounts then arising or outstanding and unsettled between the parties to the proceeding, and may direct payment of any balance found to be due (g).

By the law maritime, though a seaman has a lien for wages, a master has no lien for either wages or disbursements. See Bristow v. Whitmore (1861), 31

L. J. Ch. 467; 9 H. L. Cas. 391. A lien was given to a master for wages in certain cases by 7 & 8 Vict. c. 112, and generally, as under the present Act, by M. S. A. 1854, s. 191; and for disbursements by M. S. A. 1889, s. 1 (1894, s. 167, sub-ss. (2), (3)).

As carly, however, as 1865, it was held in The Mary Ann (1865), 35 L. J. Adm. 6; L. R. 1 A. & E. 8, that the effect of s. 10 of the Admiralty Court Act, 1861, whereby the Court of Admiralty was given "jurisdiction over any claim by the master of any ship for wages and for disbursements made by him on account of the ship. was to give the master a maritime lien for such disbursements. This decision, which was followed by the Admiralty Court for over twenty years, and recognised by the Court of Appeal in Re The Rio Grande Do Sul S.S. Co. (1876), 45 L. J. Ch. 277; 5 C. D. 282, was ultimately overruled by the House of Lords in The Sara (1889), 58 L. J. P. 57; 14 App. Cas. 209. But immediately after this case, M. S. A. 1889, s. 1, was passed for the purpose of creating the lien which had previously been supposed to exist [see per Lord Herschell, L. C., Morgan v. Castlegate S.S. Co., The Castlegate, [1893] A. C. 38, at pp. 46, 47; 62 L. J. P. C. 17], and the authority of the overruled cases was thereby restored, save as to the construction of the Act of 1861.

As to the nature of the master's lien, see The Bold Buccleugh (1851), 7 Moo. P. C. at p. 284; The Fercnia, infra (note (b) V.). See also The Edwin, infra (note (e)).

(a) “Ship."—As to what ships this Part of the Act applies to, see ss. 260 et seq. Foreign Ship.-In The Milford (1858), Swa. 362; 4 Jur. (N. S.) 417, and The Jonathan Goodhue (1859), Swa. 524, it was held that M. S. A. 1854, s. 191 (1894, s. 167, sub-s. (1)), extended, notwithstanding s. 109 (1894, ss. 260 et seq.), to claims by masters of foreign ships. It is the lex fori which applies, and not the lex loi contractus, because we are "construing an English statute with regard to property which is within the English jurisdiction": per Phillimore, J., The Tagus, 72 L. J. P. 4; [1903] P. 44. But the jurisdiction as to such claims and as to wages generally in the case of foreign ships is discretionary only: notice must be given to the consul of the state to which the ship belongs and the suit has frequently been dismissed on his protest. See the first two cases cited in this note, and The Golubchick (1840), 1 W. Rob. 143; The Herzogin Marie (1861), Lush. 292; 5 L. T. 88; The Octavie (1863), B. & L. 215; 9 L. T. 695 (under Admiralty Court Act, 1861, s. 10); The Timor (1863), 9 L. T. 397; 12 W. R. 219; The Nina (1867), 87 L. J. Adm. 17; L. R. 2 A. & E. 44; on appeal, L. R. 2 P. C. 38; The Leon XIII. (1883), 52 L. J. Adm. 58; 8 P. D. 121 (C. A.). See also R. S. C. 1883, Order V. r. 16 (b).

(2) "So far as the case permits."—The law as to the recovery of seamen's wages cannot generally be applied without modification to the case of a master's claim for wages or disbursements. His rights are not infrequently affected by the relation in which he stands, whether as master or otherwise, towards the seamen, the owners, and other interested persons. The following cases on the subject appear applicable under the present Act. As to the revived authority of some of them with regard to disbursement claims, see note (a), supra.

Master's lien-Competing claims- Priorities, &c.-The master's lien takes precedence of all others except those for subsequent salvage, for collision, seamen's wages, and bottomry bonds by which the master has bound himself personally or which are given on a subsequent voyage, and the possessory lien of shipwrights and material-men in respect of work done, &c. before wages earned. See the cases following:

I. Sairage. The master is in the same position as the seamen, and therefore his claim is deferred to that of a subsequent salvor. The Panthea (1871), 1 Asp. M. L. C. 133; The Selina (1842), 2 Notes of Cases, 18.

II. Damage. It would seem that similarly his claim is deferred to a damage claim, whether subsequent or not. See ibid., and The Elin (1882), 52 L. J. P. 55; 8 P. D. 129, following The Linda F.or (1857), Swa. 309.

III. Seamen.-Sub-s. (1) is intended to relate to claims of the master upon the owners and the owners' property, and does not alter his relation to the seamen; and, since he is by law liable to pay them their wages, their claim against the res for wages is preferred to his for wages or disbursements. Salacia (1862), 32 L. J. Ad. 41; Lush. 515.

The

Pt. II.

167.

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