loss to the owners of the ship, he is liable to compensate them for such loss; and in a suit for wages instituted by the master the owners may claim to deduct from his wages the amount of such loss (i). In considering the acts of the master, it must be remembered that nothing more can be required from him than the honest exercise of his own discretion, according to the degree of ability and experience in business which such an officer may fairly be supposed to possess, and that a mere error of judgment on his part, not tainted with any guilty intention or corrupt motive, cannot be regarded as negligence or misconduct (k). The old rule, that freight is the mother of wages, did not extend to the salary of the master (7). The master is usually entitled, in addition to the pay which Primage. he may stipulate to receive from those who employ him, to primage, which is mentioned in the bills of lading thus, "with primage and average accustomed" (m). This is a small payment made by the owner or consignee of the goods to the master for his care and trouble, which varies in amount according to the particular trade in which the ship is engaged. The master may sue the consignee for it, although the freight has been settled with the shipowner (n); but if by the contract between the owner and the master, the master is not to receive primage, he can maintain no action for it (0). (i) The Repulse, 4 No. Ca. 169; The New Phonix, 2 Hagg. 420. This was the rule in the Admiralty Court even before the Judicature Act of 1873; now, of course, the owners possess the right of counterclaim conferred by the Act. (k) See the judgment of Dr. Lushington in The Thomas Worthington, 3W. Rob. 128, and The Camilla, Swa. 312. (1) Hawkins v. Twizell, 5 E. & B. 883. (m) The older books speak also of average as a payment to the master. As to master's gratuity, see Howitt v. Paul, 5 Sess. Ca. (4th series), p. 321. (n) Best v. Saunders, Mo. & Mal. 268. (0) See Caughey v. Gordon, 3 C. P. D. 419. There the charterer engaged the ship at a specified freight per ton in full, the master, who was engaged by his owners at a fixed salary to include "all charges and allowances," signed a bill of lading, making the goods deliverable to order or assigns Trading on his own account. REMEDY FOR The law considers, however, on obvious grounds of policy, that the master is engaged to devote the whole of his time and attention to the concerns of his owner, and it, therefore, does not allow him to trade on his own account (q), or to hire out his services, or any part of them, to another. Should he do so, he is not entitled to receive any earnings derived from such a contract, and if they have been paid to the owner, the latter is entitled to retain them (r). For the same reason the master may not claim premiums for himself which arise out of transactions in which he is engaged on behalf of his employers, even although a contrary usage may have prevailed in this respect (s). The master could not formerly sue in the Admiralty Court for his wages (t) ; but the 7 & 8 Vict. c. 112, s. 16, conferred upon him, in the case of the bankruptcy or insolvency of the owner, the same rights, liens and remedies as the other mariners (u). Now, however, it is provided by sect. 191 of the Merchant Shipping Act, 1854, that every master shall have the same rights, liens and remedies (v), for the recovery of his wages, as any seaman, not being a master; and if in any proceeding in any ances," Lord Tenterden being of opin- MENT. (1) Gardner v. M'Cutcheon, 4 Beav. 534. (r) Thompson v. Havelock, 1 Camp. 527. (s) Diplock v. Blackburn, 3 Camp. 43; Shallcross v. Oldham, 2 Johns. & H. 609. (t) Bayly v. Grant, 1 Salk. 33; per Sir W. Scott, in The Lord Hobart, 2 Dods. 104; Barber v. Wharton, 2 Ld. Raym. 1452. If, however, the mate became master during the voyage, he might sue in the Court of Admiralty for wages due to him as mate during the whole time, but not as master for the time during which he served in that capacity. See The Favourite, 2 Rob. 232; Read v. Chapman, 2 Str. 937; and Lord Stowell's judgment in The Batavia, 2 Dods. 500. The owners may, however, go into the whole account. The Caledonian, 1 Swa. 17; The Mary Ann, L. R., 1 A. & E. 8. (u) See post, Chap. IV. CREW. This statute is now repealed. It was held in the Admiralty Court, that to entitle a master to sue there for his wages under it, the owner must have been insolvent in the legal sense of the word, and not merely under a general inability to pay his debts. The Princess Royal, 2 W. Rob. 373. Where an owner had committed an act of bankruptcy by filing a declaration of insolvency, and two months had expired, but no commission had issued, this was held not to be a case of bankruptcy under the statute so as to entitle the master to sue. The Great Northern, 2 W. Rob. 509; see also The Tecumseh, 3 ib. 109. It was also considered doubtful whether the statute applied where some only of several part owners were bankrupt. See The Simlah, 15 Jur. 865, and the 7 & 8 Vict. c. 112, s. 63, (the interpretation clause). (v) He is entitled to double pay under the 187th section of the M. S. Act, 1854; to compensation for a reduction of provisions under the 223rd section. The Princess Helena, Lush. 190; The Josephine, Swab. 428. Admiralty or Vice-Admiralty Court (~), touching the claim of a master to wages, any set-off or counter-claim () is set up, the Court may adjudicate upon and settle all questions and accounts arising and unsettled between the parties, and direct the payment of any balance found due. The master of a foreign ship may claim the benefit of this provision (z). Before the passing of the Judicature Act, it was held that this section applied only where the set-off was one of the matters of dispute between the parties actually before the Court; for instance, where a master and part-owner, who had bound himself by a bottomry bond on ship, freight and cargo, brought a suit against the ship for wages, the Court refused an application made by the owner of the cargo hypothecated to stay proceedings in the wages suit (a). But now the provisions of the Judicature Act confer upon the Court more extended powers with respect to the rights of third parties (b). ments. Under the above-mentioned section of the Merchant Shipping DisburseAct it was held that the master's claim was confined to wages, and that he could not in the first instance make any claim in respect of advances or disbursements, although, if the owners set up any counter-claim, the Court would then go into the whole account between the parties (c). But to remedy this inconvenience the Admiralty Court Act, 1861, s. 10, conferred jurisdiction upon the Admiralty Court over any claim made by a master for wages earned by him on board the ship, and for disbursements made by him on account of the ship (d). () As to the establishment and jurisdiction of Vice-Admiralty Courts in the Colonies, see the "Vice-Admiralty Courts Act, 1863," (26 Vict. c. 24), and the Vice-Admiralty Courts Act Amendment Act, 1867, 30 & 31 Vict. c. 45. See the 56 Geo. 3, c. 8, and the 2 & 3 Will. 4, c. 51, as to ViceAdmiralty Courts in India. As to the existing Vice-Admiralty Courts, see Appendix, p. CCXLII. As to the ViceAdmiralty jurisdiction of the Consular Court at Constantinople, see The Laconia, Br. & L. 117. The Supreme Court of Her Majesty in China possesses a Vice-Admiralty jurisdiction. See "Order in Council," 18th August, 1878. ) As to the meaning of counterclaim in this Act, see The City of Mobile, L. R., 4 A. & E. 191. (2) The Milford, Swab. 362. As to notice to a foreign consul, see The Nina, L. R., 2 P. C. 38, and the Rules of (a) The Daring, L. R., 2 A. & E. (b) The Judicature Act, 1873, s. 24, sub-s. 3, Ord. XVI. rr. 17-21; Ord. XIX. r. 3. As to the duty of the master to furnish accounts before suing, see The Fleur de Lis, L. R., 1 A. & E. 49. (c) The Caledonian, 1 Swab. 17; The Mary Ann, L. R., 1 A. & E. 8. (d) The 24 Vict. c. 10, s. 10. This section provides, that "if in any such cause the plaintiff do not recover fifty pounds, he shall not be entitled to any costs, charges or expenses incurred by him therein, unless the judge shall certify that the cause was a fit one to be tried in the said Court." But see supra, p. 98, note (), as to costs. As to the costs of the reference, when the claim is referred to the registrar Period up to which the master may A claim for damages for wrongful dismissal is included under a claim for wages (ƒ). Only money actually expended by the master can properly be treated as disbursements (g), and he will not, as a general rule, be allowed to make any claim in respect of a liability which he has not discharged. But where the master has incurred liabilities on account of the ship in respect of items which have not been paid at the time of the institution of the suit, the Court will frequently allow the items, and at the same time direct that no order for payment be made until they have been discharged (). It is the duty of the master to furnish accounts before suing (i). The fact that the master is also partowner does not take away his right to sue for wages (j). The provisions of the Merchant Shipping Act, 1854, which regulate the rights of seamen to wages in case of the wreck of the ship, claim wages. and which relate to the wages of seamen dying during a voyage, apply to the master (). Where a master was compelled by pressing necessity of ill-health to leave his ship at a port in the British colonies, it was held he was entitled to sue immediately for his wages (1). And in a case where a master was wrongfully discharged abroad, he was held to be entitled to wages up to the period when he obtained other employment (m). County Court jurisdiction. Maritime lien of master. County Courts having Admiralty Jurisdiction have jurisdiction over actions for master's wages where the amount claimed does not exceed 1507. (n). Formerly, the master had no maritime lien on the ship (p), or freight (2), for his wages, or for disbursements on account of the ship during the voyage. We have seen, however, that under the Merchant Shipping Act, 1854, he has now the same liens and remedies for his wages as the seamen have; and the seamen have, independently of statute, a lien upon the ship and freight and merchants and reduced, The Le- (f) The Great Eastern, L. R., 1 A. (h) The Feronia, L. R., 2 A. & E. (j) The Feronia, L. R., 2 A. & E. 65; The Daring, ib. 260. (A) The M. S. Act, 1854, ss. 184, 185; and see post, WAGES. (1) The Rajah of Cochin, Swab. 473. (m) The Camilla, Swab. 313. (n) The 31 & 32 Vict. c. 71, s. 3, Appendix, p. ccxCVII. (p) Wilkins v. Carmichael, 1 Doug. 101; Hussey v. Christie, 9 East, 426. (2) Smith v. Plummer, 1 B. & A. 575. for their wages, which lien is enforceable in the Court of Admiralty (r). The master has accordingly in that Court a maritime lien for his wages and for disbursements (s). The claim of the master for his wages earned subsequently (t) to the granting of a bottomry bond has priority over that of a bottomry bond holder, except where the master has bound himself by the bond to pay the money advanced (u), and his claim is preferred to that of a mortgagee (r). But where a master and part-owner of a ship orders necessaries whereby he becomes liable, the material man is entitled to be paid for them out of the proceeds of the ship and freight in priority to a claim of the master for wages and disbursements (y). The seamen's claim for wages takes, however, precedence of the master's claim, either for his own wages or for advance of wages made to the seamen (≈). is obThus, receive the The ordinary remedies of the master or mate may, it vious, be affected by their conduct in any particular case. where a mate, having the option at a foreign port to his wages in money, or by a bill upon the owners, preferred latter, it was held that he had lost all claim against the ship, because, although where a creditor has taken a bill it is in general regarded as conditional payment only, yet if it be shown that the creditor took the bill in voluntary preference, he must be regarded as accepting it in satisfaction of his debt («). Where a master had several times balanced accounts with the owner, which included disbursements and wages, and had re (r) See post, Chap. IV. CREW. (s) See the judgment of Dr. Lushington in The Ella A. Clark, 32 L. J., P. M. & A. 211; and in The Mary Ann, L. R., 1 A. & E, 8. This lien is not impaired by reason of his employer having a fraudulent possession of the ship, The Edwin, Br. & L. 281; 33 L. J., P. M. & A. 197; or by the master releasing his personal claim against the owner. The Chieftain, Br. & Lush. 212. Where the ship belongs to a company whose affairs are being wound up under the Winding-up Acts, the master should obtain leave to proceed in the admiralty, or should seek his remedy by proceedings in the winding up. In re Australian Navigation Co., L. R., 20 Eq. 325; In re Rio Grande Steamship Co., 5 C. D. 282. As to Bankruptcy, see Halliday v. Harris, L. R., 9 C. P. 668, and In re T. C., L. R. (Irish), 11 Eq. 151. (t) The Jonathan Goodhue, Swa. 524. In the case of The Hope, Asp. Mar. (u) As to the right of the master to (x) The Mary Ann, L. R., 1 A. & E. 8. (y) The Jenny Lind, L. R., 3 A. & E. 529. (2) The Salacia, Lush. 545. See, however, The Edward Oliver, L. R., 1 A. & E. 379. (a) See The William Money, 2 Hagg. 136. |