a decision (u) on the construction of the 5 & 6 Wm. 4, c. 19, ss. 7 & 9, deserves to be quoted at length, as a most excellent illustration of general principles. A West India ship having returned with a cargo to the river Thames, was lashed to another vessel in the port of London, a little below Blackwall, preparatory to her entrance into the West India Dock, for the discharge of her cargo, being the only place at which it could lawfully be discharged. In this situation the carpenter quitted the ship without the permission of the mate, who was left on board in the command, and probably with a knowledge that permission had been actually refused. It appears that several others of the crew left the ship in the same situation; and the owners were obliged to procure other assistance to work the vessel into the dock. The carpenter instituted a suit for his wages, and it was contended on his behalf, that if any penalty at all was incurred, it was only a forfeiture of one month's pay to Greenwich Hospital, under the statute 2 Geo. 2, c. 36, s. 6. On the other hand, the owners insisted that the entire right to wages was forfeited and gone by this desertion; and the learned Judge so decreed, and made the following remarks upon the law in such cases: "The question then is as to the penalty; if the word penalty is that which properly belongs to this act of misconduct. That such a demand as this, for entire wages, under such conduct on the part of those who claim them, could have been at any time supported, is inconceivable; if owners are damnified by the misconduct of their mariners, they are entitled upon every principle of reason and justice to a set-off against the demand of wages, on account of the hazards to which their property has been exposed by the non-performance of the contract. By interpretation of law, the voyage is not completed by the mere fact of arrival: the act of mooring is an act to be done by the crew, and their duty extends to the time of the unlivery of the cargo (x). There is no period at which the cargo is more exposed to hazard than when it is in the act of being transferred from the ship to the shore; and therefore the law, not only the old law, but particularly the statute by which the West India trade has been in latter times regulated, has enjoined, in the strictest manner, that the mariners shall stay by the vessel until the cargo be actually delivered. I take this to have been always a part of the duty of the mariners, their contract is legally understood to go this length, and there never can have been a time when the owner was not entitled to some compensation against the mariners, on account of the non-completion of the contract. This is a consideration not in modum pœnæ, but it is a civil compensation for injury received, existing in all reason and justice antecedently to any statute upon the subject. In the case of freight, if a master does not execute any part of the contract, it is in strict principle a forfeiture of the whole freight, and so it would be in these cases of wages, (u) McDonald v. Jopling, 4 M. & W. 285; the Two Sisters, 2 Wm. Rob. 128; The Westmoreland, 1 Wm. Rob. 216. (x) The Cambridge, 2 Hagg. Ad. Rep. 243. See also The Westmoreland, 1 W Rob. Rep. p. 216. though the law has not usually been carried to its full extent; but from that indulgence with which it has always contemplated the interests, and even the errors and failures of this class of men, it has wrought only the forfeiture of a part of the wages by way of compensation to the owner for the trouble and risk of the exposure of his property, and for his additional expense in procuring other assistance to effect that which ought to have been effected by such deserters. Then came the statute of merchant seamen, which contained a clause, giving one month's wages to Greenwich Hospital in cases of desertion, and in the argument which has been founded, I presume, upon the case of Frontine v. Frost, it is urged as if it was understood to transfer a part of the forfeited wages to that Institution. It was laid down pretty strongly in the argument of that case by counsel, that the delinquent does not forfeit the whole of his wages, which is true. But it was further argued, that the master must have debited himself to Greenwich Hospital in order to entitle himself to make the deduction, on the ground that the deduction is for the benefit of that charity, and not for the compensation of the owner. Now I take the interpretation of the case to be this; that it will not entitle the owner to set off the forfeiture to Greenwich Hospital as a forfeiture under the statute, which he had done in the pleadings, unless he shall have complied with the requisitions of the statute that he shall not lose his own right of deducting a compensation due to himself personally on account of the imperfect execution of the contract. I have conversed with very learned persons, who were interested in that judgment, and from whom I understand that the authority of their opinions concurs in sustaining the proposition, that the owner is not debarred by the provisions of the statute from those rights to which he was entitled under the old law. The Legislature never could have intended to deprive the owner of his remedy, when it superadded this forfeiture in favour of the hospital, which was to be obtained in the modes it has prescribed. The case does not, I think, in any manner interfere with the principle which I have laid down, that the owner is at liberty to set off the compensation to which he is entitled against a demand for wages independently of that statute. But the present case goes a great deal further; it is true the vessel had arrived in the river, but the voyage was not finished, it was still to be prosecuted. The Acts which have passed having made the West India Docks the only place where these cargoes can be discharged, the voyage can only terminate there; the vessel has not, till then, arrived at her final moorings. Her port is not the port of London generally, but that particular portion of it which is expressly and exclusively appropriated for the reception of West India ships. It is therefore a desertion during the voyage, which by the old law, as well as by the statute, works a forfeiture of the whole wages; and it is a case of a very flagrant nature" (y). (y) The Baltic Merchant, 1 Edw. 86. But see on the construction of the 5 & 6 Wm. 4, c. 19, ss. 7 & 9, Macdonald v. Jopling, 4 M. & W. 285. 4. Forfeiture for refusing to assist the Master in defending the Ship against Pirates. The Legislature has 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 (2). It seems also that 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 the seaman of his wages (a). But a single act or even occasional acts of intemperance, will not have that effect (c). The present learned Judge of the Court of Admiralty (Doctor Lushington) has expressed an opinion, that the misconduct of the seaman must, to work a forfeiture of wages, be of such a character as to render his discharge imperatively necessary for the safety of the ship, and the due preservation of discipline (d). Drunkenness will not be held in that Court an available defence to a mariner's claim for wages, unless specifically pleaded, and put in issue in the cause: nor will mere neglect of duty, in a particular instance, not followed up by consequences injurious to the owners, even when the seaman acted in the capacity of chief mate, have that effect (e). 5. In case of Embezzlement by the Mariners. 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 of 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 (f). A proviso introduced in a note to the agreement prescribed by the 5 & 6 Wm. 4, c. 19, was calculated to enforce this rule in the case of embezzlement, either of the cargo, or of the ship's stores. This proviso was construed individually, as affecting only the particular persons guilty of the embezzlement, and not the whole crew (g). Nor was any innocent person liable to contribute a portion of his wages to make good the loss occasioned by the misconduct of others (h). By the form now prescribed it is expressly agreed, that any embezzlement, or wilful or negligent loss or destruction, of any part of the ship's cargo or stores, shall be made good to the owner out of the wages (so far as they will extend) of the person guilty of the same. And if any seaman shall have entered himself as qualified for a duty to which he shall prove to be not competent, he shall be subject to a reduction of the rate of wages hereby agreed for in proportion to his incompetency (i). CHAPTER IV. OF PROCEEDINGS TO OBTAIN THE PAYMENT OF WAGES: AND HEREIN, (Ss.) 1. Proceedings by Suit in the Court of Admiralty against the Ship in Specie, when the Contract is in the usual form, and not under Seal-In what Cases Prohibitions will be granted, p. 510. 2. Seaman's Claim for Wages is preferred in Admiralty to all other Charges on Ships, p. 517. 3. By Action at Common Law against the Master or Owners, p. 517. 4. Under 17 & 18 Vict. c. 104, by Complaint on Oath to a Magistrate, p. 518. 5. Master's Remedies for his Wages, p. 519. 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. 1. Proceedings by Suit in the Court of Admiralty against the Ship in Specie, when the Contract is in the usual form, and not under Seal—In what cases Prohibitions will be granted. According to the observation made in a former part of this Treatise (a), 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, or the proceeds of a sale thereof remaining in the Court. 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. The Court of Admiralty was originally constituted for the adjudication of causes and disputes arising upon the high sea, and within the jurisdiction of the Lord 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 King Richard the Second, 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 (a) Part 2, chap. 3. the King that now is" (b). 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 cognizance, power, nor jurisdiction" (c). 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 cognizance 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 cognizance 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 place of the service, and the place of the hiring, are in both cases usually the same. Nevertheless, a distinction was made between them, and had become a settled rule of law. The seamen had as they have now in ordinary cases a threefold remedy: against the ship, the owners, and the master; the master a remedy against the owners only. The suit of the seamen in the Court of Admiralty is frequently spoken of as an excepted case (d), and an indulgence granted to them on account of the convenience and advantage of proceeding in a Court in which all may join in one suit, and payment may be obtained out of the value of the ship; and of the presumption that they who contract with the master, contract with him on the credit of the ship; whereas the master, who contracts with the owners, was, until the 7 & 8 Vict. c. 112, presumed to trust to their personal credit. The clear result of the several decisions (e) upon this subject is that until lately the Court of Admiralty had no special jurisdiction over contracts for wages, i. e., over contracts, other than or in addition to the ship's articles (f), but that if the hiring was on the usual terms, and made by word, or by writing only, and not by deed, the seamen, or any one or more of them, and every officer, except the master, might sue in the Court of Admiralty, and might, by the process of that Court, arrest the ship as a security for their demand, or cite the master or owners personally to answer to them. The master by the 191 section of the Merchant Shipping Act has now the same remedies as the seamen. (b) 13 Rich. 2, stat. 1, c. 5. (c) 15 Rich. 2, c. 3. (d) In the cases cited in the two last notes. (e) As to the seamen, after sentence, Winch. 8; before sentence, Alleson v. Mursh, 2. Vent. 181; Anon. 3 Mod. 379; Bens v. Parre, 2 Lord Raym. 1206. The Boatswain, King v. Ragg, 2 Stra. 858; 1 Barn. 297. The Carpenter, Wheeler v. Thompson, 1 Stra. 707. The Lord Hobart, 2 Dods. 104. The Prince George, 3 Hagg. 376. The Sur And by the 24 Vict. c. 10, geon, Mills v. Long, 1 Sayer, 136. The (f) The Sidney Cove, 2 Dods. 12. The Mona, 1 W. Rob. 137. The Riby Grove, 2 W. Rob. 52, where in a suit for wages, part of which by the seaman's contract was to consist in a share of the proceeds of a whaling voyage, the Court of Admiralty sustained an objection to its jurisdiction. The Debrecsia, W. Rob. 33. The Harriet, 1 Lush. 285. |