[in the Court of Admiralty the owners allege desertion as a defence to Chap. 3. a suit for wages, it is incumbent on them to show the articles or contract, in order that the stipulated service may appear (h). In the case of certain mariners hired in the Downs, for a voyage or run to the port of Hull at twelve guineas each, who with the consent of the master but against the positive orders of the owners, quitted the ship on the day after her arrival in the roadstead of that port, in the river Humber, the port being so full that the vessel could not enter immediately: the Court of Admiralty decreed that the mariners had forfeited their wages. The ship actually entered the port within a week; it did not appear that at the time of the desertion there was any prospect of a lasting impediment; and the learned judge, without determining how long mariners were bound to wait in such a case, held that they could not be entitled to their dismissal, "till after some time of just expectation of the removal of the difficulty" (i). Certain articles of agreement for service in a privateer contained in the body of a clause imposing the penalty of forfeiture of wages for twenty-four hours' absence without leave; and, in addition thereto, contained also the following memorandum written in the margin, viz.: "to leave at the end of three months, if the ship is in port, or in perfect safety, of which the captain is to be the sole judge." The ship belonged to the port of London. The captain's cook, who had signed these articles, brought an action against the master for his wages; and at the trial it appeared that the plaintiff had served ten months, and on his return from a cruise, while the ship was in Yarmouth Roads, and the master was on shore, he asked leave of the mate to go on shore to see his wife, but was told by the mate that he could not say whether he might have leave or not: the plaintiff, however, went on shore, and did not afterwards join the ship. Yarmouth Roads are rather a dangerous place; the crew had originally consisted of twenty mariners; twelve were sufficient to navigate the ship to London; and the boatswain, quarter-master, and two lieutenants had been previously discharged. The learned judge (Mr. Justice CHAMBRE) before whom the cause was tried, told the jury that under such a clause he did not think the master could refuse leave without a sufficient reason, and left it to them to consider whether the ship was in a place of safety when the plaintiff quitted. The jury found a verdict for the plaintiff, and the Court of Common Pleas afterwards approved of the direction of the learned Judge, and the verdict was established (k). This being the case of a private ship of war, and not of a merchant vessel, the forfeiture depended upon the particular contract of the parties, and not upon any legislative enactment.] By the 2 Geo. 2, c. 36 (now repealed) reciting that "seamen and mariners, after their ship's arrival at their unlivering port in Great Britain, ofttimes leave the ships and vessels before they are unladen, (h) [The Bulmer, 1 Hagg. 163]; 4 & 5 Will. 4, c. 19, s. 16. (i) [The Pearl, 5 Rob. 224.] (k) [Neave v. Pratt, 2 B. & P. New Rep. 408.1 Part V. Forfeiture may be waived or before the said seamen and mariners are discharged by the masters or commanders of such ships and vessels," it was enacted, "that in case any seamen or mariner, not entering into the service of his Majesty, his heirs and successors, should leave such ship or vessel to which he or they belonged, before he or they should have a discharge in writing from the master or commander, or other person having the charge of such ship or vessel, he or they so leaving such ship or vessel should forfeit one month's pay" to the use of Greenwich Hospital (a). Although by this clause the discharge was required to be in writing, yet in an action brought by a seaman against the master for his wages, at the trial whereof it appeared that the plaintiff and several others left the ship under these circumstances, while she was under the command of the mate, and the master insisted upon his right to make this deduction, but did not call the mate to prove that he had not given a discharge in writing; it was held that the jury might presume that the plaintiff had received such a discharge: this being the case of a penalty in which the negative ought to be proved by the party insisting on the forfeiture, as the circumstances of the case appeared to afford him the means of doing so (b). It is to be observed, that in this case the defence at the trial was grounded on the particular enactment of the statute. [The same statute authorized the master or owner to deduct from the wages due to a mariner, all the penalties and forfeitures incurred by the Act, and to enter them in a book to be kept for that purpose, to be signed by the master and two or more principal officers (c); and it was held that the master could not make this deduction, unless the forfeiture had been regularly entered in a book as the statute directed (b). I have already mentioned that entry into the service of her Majesty is not deemed a desertion, nor followed by the forfeitures of wages (d).] But where a mariner quitted a vessel in defiance of the master, with opprobrious language-and, without any declaration of such intention when he quitted the vessel, entered on board a King's ship within twenty-four hours, it was held to be a desertion, working a forfeiture of wages (e). [A forfeiture in this, as in other cases, may be waived by the party entitled to take advantage of it. And accordingly, in the case of a foreign seaman, by whose articles it was provided, "that if any of the crew should absent themselves before the ship was unloaded without the master's leave, they should forfeit the whole of their wages," and who quitted the ship without leave in the port of London, before she was unloaded, and was absent a day and a night, but who afterwards returned to the ship, and was received by the master, and worked in discharging the cargo in the same way as the other mariners, it was held that the master could not set up this absence as a defence to an] (a) 2 Geo. 2, c. 36, s. 6. (b) Frontine v. Frost, 3 Boss. & Pull. 302. (d) Sect. 214, ante, p. 134. (e) The Amphitrite, 2 Hagg, Ad. Rep. 403. See further as to desertion, and what justifies same, ante, p. 132. [action brought by the seaman for his wages (f).] But a forfeiture Chap. 3. is not waived by the acceptance of a seaman's services whilst the ship is in distress, unless such acceptance be continued when the necessity for them has ceased (g). On the other hand, it cannot be insisted on, if the seaman's breach of duty be occasioned by the master's misconduct (h). [It is, however, of great importance to understand that the for- Forfeiture feiture of wages for desertion docs not arise out of these provisions depends on of the legislature, but depends, as I have already intimated, upon of law. general rule a general rule and maxim of the maritime law. This point has been most ably discussed and enforced in a judgment pronounced by a learned judge of the Court of Admiralty, which], notwithstanding a decision (i) on the construction of the 5 & 6 Will. 4, c. 19, ss. 7 & 9, (now repealed) [requires to be quoted, 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 (k). 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 there-] (f) [Miller v. Brant, 2 Campb. 590], and 5 & 6 Will. 4, c. 10, s. 7. (g) Train v. Bennet, 3 C. & P. 3. (h) Ibid. (i) McDonald v. Jopling, 4 M. & W. 285; the Two Sisters, 2 Wm. Rob. 128; The Westmoreland, 1 Wm. Rob. 216. This (k) The Cambridge, 2 Hagg. Ad. Rep. Part V. [fore 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 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 consideration not in modum pænæ, 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, 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 affect 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" (a).] 4. Forfeiture for wilful neglect of Duty, &c.-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 (b).] It seems also that habitual 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 (c). But a single act (d), or even occasional acts of intemperance, will not have that effect (e). A learned judge of the Court of Admiralty (Dr. 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 (f). As to forfeiture of wages, &c., of seamen when his illness caused by his own default, see 30 & 31 Vict. c. 124, s. 8. As to deducting fines and forfeitures incurred by a seaman from his wages, see ante, pp. 481, 482; and as to deducting from his wages amount of damage wilfully done by him, see post, p. 488. 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 (g).] A proviso in the agreement with (a) [The Baltic Merchant, 1 Edw. 86.] But see on the construction of 5 & 6 Will. 4, c. 19, ss. 7 & 9, M'Donald v. Jopling, 4 M. & W. 285. (b) [22 & 23 Car. 2, c. 11, s. 7.] [See the judgment of Sir WILLIAM SCOTT, in Robinett v. the ship Exeter, 2 Rob. 261.] See Button v. Thompson, ante, p. 481. (d) The Martha, 2 Hagg. 158; the (e) The Lady Campbell, 2 Hagg. 5. (g) [Molloy, book 2, chap. 3, sect. 9, 2 Chap. 3. |