Relief of Lascar seamen. WAGES. Ordinary con tract, and its incidents. however, to such modifications in the case of foreigners as the Board of Trade may direct. The 544th section of the Merchant Shipping Act, 1854, and the 23rd section of the Amendment Act of 1855, enables the master or owner of any ship or his agent to enter into contracts under the conditions mentioned in the sections with Lascars or natives of India, binding them in certain cases to serve as seamen in ships bound to or from the United Kingdom; and the 16th section of the Merchant Shipping Act Repeal Act, 1854, makes provision against the master of any ship in which any native either of Asia or Africa or the South Sea or Pacific Islands has been brought to the United Kingdom as a seaman leaving him in distress in this country (≈). Before treating of the general statutory provisions relating to the discharge of seamen at the conclusion of their engagement, it is convenient to consider the subject of wages. In former times, advantage was frequently taken of the improvidence and ignorance of seamen to induce them to bind themselves by unjust and oppressive contracts as to wages. The legislature interfered from time to time to check this abuse, and the Court of Admiralty, in its character of a Court of Equity, relieved as far as it could against these contracts; but, as these are now matters of history only, and the earlier decisions of the Courts of law turn chiefly upon acts of parliament worded differently from the existing statutes, we will pass, at once, to the modern statutes which regulate contracts of hire with seamen (a). Wages begin either when the seaman commences work, or at the time specified in the agreement for his commencing it, or for his presence on board, whichever may first happen (6), and () The 17 & 18 Vict. c. 120, s. 16, App. p. clxvii. As to the relief and conveyance home of Lascars and other natives of the Indian Empire who are found destitute in the United Kingdom, see 4 Geo. 4, c. 80, ss. 25 --28, 30-34, and the M. S. Act, 1855, s. 22. (a) The early acts will be found mentioned in sect. 1 of the 5 & 6 Will. 4, c. 19. The decisions upon them are collected in Abbott on Shipping, pp. 615-652. (b) The M. S. Act, 1854, s. 181. At common law, if the ship was not sent on the projected voyage, the seamen were entitled to be paid for the time during which they were employed on board. Wellsv. Osman, 2 Ld. Raym. 1044; Mills v. Gregory, Sayer, 127. Where a seaman was discharged after the articles had been signed, but before the commencement of the voyage, it was held that he was entitled to sue in the Court of Admiralty for wages if the voyage had been prosecuted. The City of London, any seaman who has signed an agreement and is discharged before the commencement of the voyage, or before one month's wages are earned, without fault on his part, justifying the discharge, and without his consent, is entitled, as we have already seen (c), in addition to the wages earned, to compensation for any damage caused to him, not exceeding one month's wages; and he may recover this compensation, as if it were wages duly earned (d). The forms of agreement now in use in pursuance of the Merchant Shipping Act, 1854, contain, as we have seen (e), 1 W. Rob. 88. If the voyage was abandoned, the remedy was only at common law. Ib.; see also The Debrecsia, 3 W. Rob. 37. (e) Ante, p. 210. (d) The M. S. Act, 1854, s. 167. The French Code has settled with great precision the mode in which seamen are to be indemnified if the voyage is, by reason of any act of the owners, master, or freighters, not prosecuted. If the intended voyage is given up before the ship sails, the seamen who are engaged for the voyage, or by the month, must be paid for the time during which they have been employed about the ship, and they are also entitled to retain any money that may have been advanced to them. If nothing has been paid in advance, they are to receive a month's wages as an indemnity, or, if they were hired for the voyage, that proportion of their wages which a month bears to the average length of the voyage. If this abandonment of the adventure occurs after the commencement of the voyage, the seamen hired by the voyage are entitled to the whole of the wages stipulated, and those who were hired by the month must be paid all that they have earned, and also, as an indemnity, half of the full amount of their wages, computed according to the probable duration of the voyage. In every event, the mariners are to be paid a sum to cover their expenses back to the port from which the vessel sailed, unless an engagement is procured for them on some ship returning there. If the voyage is prevented, before the ship sails, by an interdiction of commerce with the port of destination, or by an order of government, (arrest of princes or embargo,) the seamen are only entitled to be paid for the days of actual employment; if this occur after the commencement of the voyage, they are to be paid, in cases of interdiction, (and it would seem also in cases of actual stoppage caused by the government putting an It ap end to the voyage,) for the time only of actual service; these being cases of vis major, in which it is just that all the parties should bear a proportion of the loss. In cases of mere delay by the government, those seamen who are hired by the month are to receive at the rate of half their monthly wages during the delay, and those who are hired by the voyage are to receive no increase of pay. If the voyage is prolonged (owing to the ship proceeding to a more distant port than that originally intended for her destination, or to her going to her port of destination by a longer voyage than that which was agreed upon), the seamen hired by the voyage are not entitled to refuse to serve, but their wages are to be increased in proportion to the increased length of the voyage; but no reduction is to be made if the ship is discharged voluntarily at a port nearer than the port of original destination. pears, however, that if such a discharge takes place by reason of perils of the sea, or of any other cause over which the owners and master have no control, the seamen hired by the voyage are to be subject to a proportionate reduction of their wages. See the Code de Commerce, Arts. 252 to 256. Where the agreement is that the men are to be remunerated by sharing in the freight, or in the profits of the adventure, no compensation or payment is to be made to them if the voyage is prevented, shortened, or lengthened by cases of vis major; but if the alteration is caused by an act of the freighters, owners, or master, they are entitled to be compensated. See Ib. Art. 252 to 257, with Rogron's Commentary. These rules have been adopted in Belgium, and, with some modifications, in Holland. In America, the principles sanctioned by them have been acted upon in some cases. See 3 Kent, Com. 188 (ed. 1873). (e) See ante, p. 198. P 5 Allotment of wages by notes. a stipulation that any embezzlement, or wilful or negligent destruction of any part of the ship's cargo or stores, shall be made good to the owner out of the wages of the offender; and that if any person enters himself as qualified for a duty which he proves incompetent to perform, his wages are to be subject to a reduction proportioned to his incompetency. The Merchant Shipping Act, 1854, also provides by sect. 168, that all stipulations for the allotment by notes of any part of the wages of seamen during their absence, shall, if made at the commencement of the voyage, be inserted in the agreement, and shall state the amounts and times of payment. In cases where a seaman desires that any part of his wages not exceeding one half shall be paid during his absence to his wife or other relation, or in favour of a savings bank, it is obligatory on the owner or master to insert a stipulation for that purpose in the agreement. These notes must be in the form sanctioned by the Board of Trade (ƒ), and may, by sect. 169 of the Merchant Shipping Act, 1854, be proceeded on, in the County Court or summarily (g), either by the relations mentioned in that section, or, if the note is in favour of a savings bank, by such persons as the Board of Trade may direct; and the amount may be recovered with costs from the owner, or any agent who has authorized the drawing of the notes (). In these proceedings the seamen are to be presumed to be duly earning their wages, unless the contrary is shown by any evidence which the Court may, in its discretion, think sufficient. No wife of any seaman, however, who deserts her children, or so misconducts herself as to be undeserving of support from her husband, can recover wages on any allotment note (i). Sect. 3 of the Merchant Seamen Act, 1880, provides for the time and mode of payment of these notes. (f) See Appendix, "Forms," No. 26; and No. 26A, note (b). With respect to "advance notes," by which an owner or master agrees to repay a sum advanced to a seaman, provided the ship sails, see M'Kune v. Joynson, 5 C. B., N. S. 218. These notes are made illegal by the M. S. Act, 1880, s. 2 (Appendix, p. ccclxxb). See also 8 Geo. 1, c. 24, s. 7. (g) See also the M. S. Act, 1854, ss. 188, 519. The mode of proceeding summarily in these cases is to claim the wages before two justices or a stipendiary magistrate acting in or near to the place at which the person upon whom the claim is made, is, or resides. Ib. (h) See the M. S. Act, 1880, s. 3 (Appendix, p. ccclxxe). A registered owner who has demised his ship and parted with all control over her is not liable under this provision. Meiklereid v. West, 1 Q. B. D. 428. (i) Sects. 167, 168, and 169 of the M. S. Act, 1854, which occur in the third part of the act, are not excepted in s. 13 of the M. S. Act, 1862, which extends to sea-going yachts, certain fishing vessels, and ships belonging to the three General Lighthouse Boards, the greater part of Part III. of the earlier act. rule that It was by the common law of England an implied condition Common law of the contract for wages that they were to be dependent upon wages were the earning of freight by the ship. This ancient rule, which was dependent upon freight. generally expressed by saying that freight is the mother of wages, was, even before the modern statutory alterations, subject to several exceptions. Thus, where the loss of freight proceeded from the misconduct of the master, or of the owner, the maritime law considered the innocent seamen to be still entitled to their wages (). So, no arrangement between the owners and charterers not agreed to by the seamen, by which the payment of the freight was made to depend on the accomplishment of the entire voyage out, and in, affected their right to wages; and where a vessel set out on a seeking voyage in search of freight and obtained none, the wages were nevertheless payable (1). The old rule, that freight is the mother of wages, implied not only that freight must be earned in order that the claim for wages might arise, but also that if freight was earned, the mariners were, under ordinary circumstances, entitled to be paid (m). In earlier times the Courts of common law and the (4) Malynes' Lex Merc. 105; Molloy, B. 2, c. 3, s. 7. In Eaken v. Thom, 5 Esp. 6, Lord Ellenborough ruled at Nisi Prius, that where the abandonment of the voyage arose from the ship not being seaworthy the sailor could not recover his wages, but must sue in a special action on the case. See also Fewings v. Tisdale, 1 Ex. 295. (7) See the American authorities cited 3 Kent Com. 190, and the judgments of Lord Stowell in The Neptune, 1 Hagg. 232, and of Sir J. Nicholl in The Lady Durham, 3 ib. 202. The exceptions which existed formerly are thus stated in one of Mr. Justice Story's judgments: "If the voyage or freight be lost by the negligence, fraud, or misconduct of the owner or master, or voluntarily abandoned by them; if the owner have contracted for freight upon terms or contingencies differing from the general rules of maritime law; or if he have chartered his ship to take a freight at a foreign port, and none is to be earned on the outward voyage; in all these cases the mariners are entitled to wages, notwithstanding no freight has been earned." The Saratoga, 2 Gallison's (American) Rep. 175. (m) The ground of this rule is mentioned in an early case, where it is said, "Car si les mariners avera lour gages in Right to wages under the Merchant Shipping Acts. Courts of Admiralty differed in the effect which they attributed to this rule. The Court of Admiralty upheld so strongly the right of the seamen to claim wages if freight was earned, that it held invalid all stipulations by which they consented to forego their claim to wages although freight might be earned on part of the voyage if the ship did not return to her port of discharge; whilst, on the other hand, the Courts of law gave effect to contracts of this description, acting upon the ordinary rule that the parties were bound by their express bargain without reference to its improvidence or hardship (n). This question is now, however, settled by the legislature, and, as we have seen, all contracts by which any seaman consents to forego any claim to wages in the case of the loss of the ship, are wholly void (0). It is not, however, to be supposed that all contracts under which it was stipulated that wages should not become payable until certain conditions precedent had been performed, were invalid. Where the payment of wages was made to depend upon the performance of the service until the completion of the voyage, or upon the arrival of the ship at the port of discharge, it was held that on the death of the seaman during the voyage in the one case, and on the loss of the ship before her arrival in the other, no wages accrued in respect of the service actually performed (p). The ancient rule, that freight is the mother of wages, was modified by the 7 & 8 Vict. c. 112, and it has now been abrogated, for most purposes, by the Merchant Shipping Act, 1854. The former act (which was repealed by the 17 & 18 Vict. c. 120) enacted, that in cases of wreck or loss of the ship, the surviving seamen should be entitled to wages up to this period, whether the ship had earned freight or not, on producing a certificate that they had exerted themselves to the utmost to save the ship and stores (q). It is now provided (n) Appleby v. Dods, 8 East, 300; (0) The M. S. Act, 1854, s. 182. wages, or a portion of them, may be claimed on a quantum meruit although the terms of the original contract have not been performed, Eaken v. Thom, 5 Esp. 6; Hillyard v. Mount, 3 C. & P. 93; White v. Mattison, 2 Stark. 325; Jesse v. Roy, ubi supra. (7) See the 7 & 8 Vict. c. 112, s. 17. Before this statute it had been held in the Court of Admiralty, in cases of shipwreck in which, although the cargo was lost, the fragments of the |