Statute of limitations. [All suits and actions brought in the Court of Admiralty for Chap. 4. seamen's wages must be commenced within six years next after the cause of such suit or action shall accrue, unless the party entitled to sue shall at that time be within the age of twenty-one years, a feme covert, non compos mentis, or unless such party, or the party sued, shall be at that time beyond the seas; in which cases the suit may brought within six years after the party suing shall be of full age, discovert, of sane memory, or at large; or either the party suing, or the party sued, shall return from beyond the seas (ƒ).] be As to a seaman being allowed to prove the agreement with him Proof of without producing the original or giving notice to produce it, see agreement, sect. 165 (g). As to erasures, &c., in an agreement being inoperative, see sect. 163. As to competing liens, and when lien for wages has priority over Competing other liens, see post, Part VI., Chap. 4. (h). 2. By Action at Common Law against the Master or Owners. [In the Courts of Common Law the seamen may sue either the master (i), as the person immediately contracting with them and answerable to them, or the owners, as the persons virtually contracting with them, through the agency of the master, and answerable for the performance of his engagement.] Where a seaman agreed not to sue any of the owners for wages, except one of them, who was the captain, he was held not entitled to sue the others, though they had received the proceeds of the cargo, and one of them was the managing owner (k). 3. Under 17 & 18 Vict. c. 104, by complaint on Oath to a Magistrate, The 17 & 18 Vict. c. 104, in adopting, with some modifications, the provisions of former Acts, gives a summary mode of recovering wages,-enacting that any seaman or apprentice may sue in a summary manner before two justices of the peace residing near to the liens. (f) 4 Anne, c. 16, sects. 17, 18, 19. The length of time thus allowed may be very inconvenient in the case of a suit against the ship, if the property thereof has been changed. The French Ordinance allows only one year. As to a creditor beyond seas or imprisoned not now being entitled to further time to sue on these accounts, see 19 & 20 Vict. c. 97, s. 10. (g) Bowman v. Manzelman, 2 Campb. 315. (h) The Favorite, 2 Rob. Ad. Rep. 232; French Ordin. liv. 1, tit. 14, De la saisie (i) See the Salacia, 32 L. J. Ad. 41. (k) McAuliffe v. Bicknell, 2 C. M. & R. 263. Part V. place where the service shall have terminated, or at which the seaman. or apprentice has been discharged, or at which any person on whom the claim is made resides, and before the sheriff also in Scotland, for any amount of wages not exceeding 507. above the costs of the proceeding; and that every order made by such justices or sheriff shall be final (a). And to enforce the adoption of this less costly remedy, it is enacted, that no suit for wages shall, unless they exceed 501., be instituted against the ship, or the master or owner thereof, in any Court of Admiralty, or of Record, in the Queen's dominions, or the territories of the East India Company, unless the owner be bankrupt or insolvent, or the ship under arrest or sold by the authority of a Court of Admiralty, or unless a magistrate acting under the authority of this Act shall refer the case to be adjudged by any such court, or unless neither the owner nor master shall reside near the place where the service of the seaman shall terminate, or be discharged, or put on shore (b). But no seaman, who is engaged for a voyage to terminate in the U. K., is entitled to sue in any court abroad for wages, unless he is discharged with the sanction required by the Act, and with the written consent of the master; or proves such ill-usage on the part of the master, or by his authority, as to warrant reasonable apprehension of danger to the life of such seaman, if he were to remain on board (c). 4. The Master's Remedies for his Wages. By 17 & 18 Vict. c. 104, s. 191, it is provided " that every master of a ship shall, so far as the case permits, have the same rights, liens (d), and remedies, for the recovery of his wages which by this act, or by any law or custom, any seaman, not being a master, has for the recovery of his wages: and if in any proceeding in any Court of Admiralty or Vice-Admiralty, touching the claim of a master to wages any right of set-off, or counter-claim, is set up, it shall be lawful for such court to enter into and adjudicate upon all questions, and to settle all accounts (e) then arising or outstanding and unsettled between the parties to the proceeding, and to direct payment of any balance, which is found to be due " (ƒ). It has been held that the master of a foreign ship, under this section, has the same remedy for his wages against ship and freight (g) (a) Sect. 188. (b) Sect. 189. As to this section applying to masters, see the Blakenly, Swa. 428. It has been doubted whether this section applies to foreign ships. Burns v. Chapman, 28 L. J. Q. B. 6. (c) Sect. 190. (d) The Feronia, L. R. 2 A. & E. 65. before suing in the Court of Admiralty for wages. The Fleur de Lis, L. R. 1 A. & E. 49. (f) To what ships this part of the Act applies, see sect. 109. The Rajah of Cochin, Swab. 476. (g) The Milford, Swab. 362. The Jonathan Goodhue, ib., 524; the Golubchick, 1 W. Rob. 143. : as a foreign seaman has that the section operating only "so far as Chap. 4. the case may permit" does not enable a master who has given a bottomry bond in the usual form, i.e. binding himself, ship, and freight, to assert his lien upon them for his wages to the prejudice of the bondholder (h): that the accounts spoken of mean the accounts between the master and the ship, exclusive of any extraneous account between them (i); that it is only when the shipowner or mortgagee in answer to a master's suit for wages advances a counter-claim, or set-off, that the court in adjudicating between him and the master can allow credit to him for disbursements in respect of which he has no lien on the ship and freight and this not, it has been said, of absolute right, but by the practice of the Court of Admiralty, if after notice given to the consul of the State to which the ship belongs he acquiesces in the exercise of the jurisdiction (k); that the account being once opened by the counter-claim of the owner, the general account between him in respect of the ship and the master, but not extraneous to it, must be gone through, and a balance made (1); that a mortgagee also taking possession of the ship, and claiming the benefit of items in the account against the master's claim for wages, thereby makes himself a party to the whole account (7); that a claim of damages alleged by the owner to have been sustained by him, through the master's misconduct or neglect of duty, will not constitute a "counter-claim" or "set-off" within the meaning of those words in the section (m). A master may recover his wages though during the time of his service he was occasionally drunk, or committed an error in judg ment (n). As the master generally receives the freight and earnings of the ship, and may pay himself out of the money in his hands, he has not often occasion for the aid of a Court of Justice to obtain his wages. Whether appointed to that office at the commencement (o), or having succeeded to it in the course (p) of the voyage, he could formerly only sue the owners personally in a Court of Common Law, and had not until the passing of the 17 & 18 Vict. c. 104 (q), the same liens and remedies for his wages as the seamen. Part V. It has been held that the 187th section of the M. S. Act, 1854, which entitles a seaman to recover as wages a sum not exceeding the amount of two days' pay for each of the days not exceeding ten days, during which, payment of his wages is delayed beyond the periods in that section provided-is extended by the 191st section, already mentioned, to the case of the master-unless he himself, e.g., by improperly keeping back the accounts of the ship, be the cause of the delay (a). Lis alibi pendens, or a fruitless judgment in an action for wages obtained in another court, is no answer in Admiralty to a suit in rem against the ship for the same cause whether against the debtor, or a purchaser since the debt accrued of the ship, even although the master or mariner may have proved his debt under the bankruptcy of his debtor (b). (a) The Princess Helena, 1 Lush, 180. (b) Read v. Chapman, 2 Stra. 937. PART THE SIXTH. OF GENERAL AVERAGE, SALVAGE, COLLISION, AND MARITIME LIEN. CHAPTER I. OF GENERAL OR GROSS AVERAGE (c); AND HEREIN. SECTS. 1. Of the Lex Rhodia de Jactu, and the Regulations of Foreign Ordinances respecting Jettison, p. 497. 2. Of the Losses for which Contribution by General Average shall be made, p. 503. 3. Of Ship's Expenses in a Port of Refuge, p. 508. 4. Of Goods sold for the Necessities of Ship and Cargo, p. 516. 5. Of the Expense of Wages and Maintenance of the Crew during the Detention of a Ship by Order of a Sovereign Power, p. 517. 6. Of the Expense of Wages and Maintenance of Crew while the Ship is waiting for Convoy, p. 518. 7. Of the Expense of Healing Mariners wounded in Defence of the Ship, p. 519. 8. Of Loss by Collision, p. 520. 9. Of the Jettison of Goods stowed on the Deck of the Ship, p. 520. 10. Remarks, p. 524. 11. What Articles are to Contribute, p. 527. 12. Of the Mode of Contribution, p. 528. 13. How settled and recovered in Case of Dispute, p. 530. 1. Of the Lex Rhodia de Jactu, and the Regulations of Foreign Ordinances respecting Jettison. [HAVING thus treated of the respective duties of the owner and the merchant, I now proceed to the consideration of a subject which is equally a duty of the one and the other, namely, the general contribution that is to be made by all parties toward a loss sustained by some for the benefit of all. This contribution is sometimes called by the name of general average to distinguish it from special or particular average-a very incorrect expression (d), used to denote every kind of partial loss or damage] (c) See Lowndes on General Average where the laws of some foreign countries on this subject are set out. (d) See Vol. 1, Pars. Mar. Law 284 where it is suggested that a case of par, ticular average is where part only of the |