* of that place, and a neutral can no more be permitted to assist the traffic of exportation than of importation.

"The notice," said his lordship, (decreeing restitution of the Heinrich and Maria (2), a neutral ship, captured for an alleged attempt to enter the port of Amsterdam, to which a blockade, notified by the officer in command of the blockading squadron as extending to all the Dutch ports, was de facto confined,) "is, in point of authority, illegal. At the time when it was given there was no blockade which extended to all Dutch ports. A declaration of blockade is a high act of sovereignty, and a commander of a King's ship is not to extend it. The notice is also, I think, as illegal in effect as in authority. It cannot be said that such a notice, though bad for other ports, is good for Amsterdam. It takes from the neutral all power of election as to what other port of Holland he should go to, when he found the port of his destination under blockade. A commander of a ship must not reduce a neutral to this kind of distress; and I am of opinion, that if the neutral had contravened the notice, he would not have been subject to condemnation." And again, in the case of the Rolla (a), "All that is necessary to make a notification effectual and valid, is, that it shall be communicated in a credible manner; because, though one mode may be more formal than another, yet any communication which brings it to the knowledge of the party, in a way which could leave no doubt on his mind as to the authority of the information, would be that which ought to govern his conduct."

5. The duty of a master to whom, upon his arrival at the port of loading, notice is given by the merchant of his inability to provide a cargo, has already been adverted to (b). It has been decided, in recent cases, that such an intimation given to a British master at Odessa, but not acted upon by him until the breaking out of war between England and Russia became known there, was not a breach by the merchant of his contract to furnish a full cargo, for which he had become liable, before actual notice of a state of war dissolved the contract (c).

It was held also, in the first of the two last-cited cases, that where by the terms of a charter-party between British subjects its performance was to be in part dispensed with in the event of war-the war, to produce that effect, must be a war which rendered the performance of the contract by them unlawful; e. g., a war between England and Russia, not one between Russia and Turkey.

Although contracts which cannot be performed without being guilty of the unlawful act of trading with the King's enemies are dissolved by the breaking out of hostilities, it has in a late case been considered that a declaration of war against a foreign state does not necessarily render unlawful the performance of a contract by a British subject within its territory. "The cargo," it was observed by Lord *Campbell, "which he has contracted to supply, may have been pur

(2) 1 Rob. 148. (a) 6 Rob. 372. (b) Ante, p.

427.

(c) Avery v. Bowden, 4 W. R. 93. Reed r. Hoskins, 4 W. R. 95; and see Hockster e. Delatour, 2 E. & B. 578.

*chased beforehand by him, or by the subject of a friendly or allied state, in either of which cases it may be meritorious to save it from the grasp of the enemy:" and on these grounds, where a plaintiff, who was the master of a vessel and the subject of a friendly and neutral state, had agreed by charter-party with a British subject to proceed to Odessa, and there load a cargo of grain to be provided by the factors of the defendant, a plea that before the ship arrived at Odessa, and before the defendant had provided or purchased any cargo to be loaded on board the said ship, war was declared against Russia, and it thereby became impossible for him to perform his agreement without trading with the Queen's enemies, and that thereby the contract became and was wholly rescinded, was held on demurrer to be no answer to the action (d). In a subsequent case, in which the plea alleged the plaintiff and defendant were British subjects; that both of them had notice of the war between our Queen and the Emperor of Russia, before the alleged, breach of the contract; that Odessa, the agreed port of loading, was within his dominions; and that the defendant could not, without trading and corresponding with the enemy, have procured nor the plaintiff's have received a cargo, the contract was held to have been dissolved. "Here," said Lord Campbell," the defendant, by the averment in his plea, that he could not have loaded the ship without trading with the enemy, acquits himself of all blame. If the captain had been a neutral, as in the case of Esposito v. Bowden, he might have safely remained and loaded a cargo; but being a British subject, it was his duty, after he knew of the declaration of war, to make his escape, and seek a place of safety, instead of lingering for the chance of obtaining a * cargo, and thereby endangering the safety of the ship” (e).

(d) Esposito v. Bowden, 3 W. R., Q. B. p. 451. The issue of fact, "impossible or not," without trading and corresponding with the enemy, was afterwards tried before Baron Platt, at York, and evidence given that duties of export would become due to the Russian government on the shipment. The jury, under the direction of the learned Judge, found a verdict for the defendant.

(e) Reid v. Hoskins, 3 W. R., Q. B. p. 491. It has been thought better not to disturb the continuity of Lord Tenterden's text by introducing these cases in the second section of this chapter, to which they more appropriately belong.

PART THE FIFTH.

OF THE WAGES OF MERCHANT SEAMEN; THE EMPLOYMENT OF SEAMEN BY THE MONTH OR FOR THE VOYAGE; THE EARNING AND PAYMENT OF WAGES; THE LOSS AND FORFEITURE OF WAGES; AND THE MODES OF ENFORCING PAYMENT OF THEM BY THE AID OF COURTS OF JUSTICE.

CHAPTER I.

OF THE HIRING OF SEAMEN, AND HEREIN,

(Ss.) 1. Of the Hiring of Seamen generally.

2. Of Ships' Articles-Regulations respecting them-of 2 Geo. 2, c. 36-2 Geo. 3, c. 31-31 Geo. 3, c. 39-and 37 Geo. 3, c. 73.

3. Regulations respecting them, 7 & 8 Vict. c. 112-of 13 & 14 Vict. c. 93-14 & 15 Vict. c. 96 and 17 & 18 Vict. c. 104.

4. Provisions for the protection of Seamen and the preservation of their Health.

5. Verbal agreement for Wages not absolutely void.

6. Seamen not entitled to increased Remuneration for extraordinary Service.

7. Provisions of 17 & 18 Vict., c. 104, for the licensing by the Board of Trade of persons authorized to procure Seamen for Merchant Ships.

1. SEAMEN employed in merchant ships are usually hired at a certain sum, either by the month or for the voyage. In the former case, the amount of the payment that may be earned by them depends upon the length of the voyage; in the latter, it is fixed invariably without any regard to the duration of the voyage. In the fishing trade, particularly the whale-fishery, and in private ships of war, the seamen usually serve under an engagement to receive a certain portion of the profits of the adventure. Such an engagement is rather in the nature of a partnership (a) than of a contract of hiring and service, and the objects of it do not properly fall under my consideration. An engagement to receive a certain part of the freight to be earned by a merchant ship, which seems formerly to have been not unfrequent, is at present seldom, if ever, made.

2. In order to prevent the mischiefs that frequently arose from the want of proper proof of the precise terms upon which seamen

(a) But not one; see Wilkinson v. Frazer, 1 Esp. 182. Dry v. Boswell, 1 Carpt. 329. Poll. v. Eylon, 3 C. B. 32.

engaged to perform their service in merchant ships, it was enacted by a statute made in the early part of the reign of King George the Second, "That it should not be lawful for any master or commander of any ship or vessel, bound to parts beyond the seas, to carry any seaman or mariner, except his apprentice or apprentices, to sea, from any port or place where he or they were entered or shipt, to proceed on any voyage to parts beyond the sea, without first coming to an agreement or contract with such seamen or mariners for their wages; which agreement or agreements should be made in writing, declaring what wages each seaman or mariner was to have, respectively, during the whole voyage, or for so long a time as he or they should ship themselves for; and also to express in the said agreement or contract, the voyage for which such seaman or mariner was shipt to perform the same; "under a penalty of 51. for each mariner carried to sea without such an agreement, to be forfeited by the master to the use of Greenwich Hospital (b). This agreement was to be signed by each mariner within three days after he should have entered himself on board the ship, and was, when signed, conclusive and binding upon all parties (c); but did not apply to a British seaman entering on board a foreign ship, in a British port (d). A subsequent statute extended these provisions to all his Majesty's colonies in America (e). The statute required the agreement to be signed only, and did not require it to be sealed. And at the trial of an action upon the case brought by a mariner for his wages against the master (a form not applicable by the law of England to a contract by deed), at which it appeared that seals were affixed to the names of the plaintiff and other mariners, at the foot of the articles, which in other respects were in the usual form : the learned Judge who tried the cause held the form of action proper notwithstanding the seal (f). A seal alone does not constitute a deed in the technical language of our law; delivery as a deed is essential to this purpose; but it did not appear that this instrument either had been, or was intended to be, so delivered.

By another statute a similar agreement in writing was required to be signed by the master and mariners of vessels of the burthen of one hundred tons or upwards, employed in the coasting trade from any port or place in Great Britain, to any other port or place in Great Britain, and going to open sea (g): but by the terms of that statute, the contract was to specify for what time or for what voyage or voyages the

mariner should contract.

The statute required the voyage to be mentioned, and it was held, this ought to be done with as much precision as could conveniently be introduced, and so as to give the mariner due notice of the adventure on which he embarked. In the case of a ship bound to New South Wales, where the voyage was expressed to be to New South Wales and India or elsewhere, and to return to a port in Europe, Lord Stowell

(b) 2 Geo. 2, c. 36, s. 1, made perpetual by 2 Geo. 3, c. 31. A similar agreement is required by an Act of Congress of the United States of America, 1790, c. 29, s. 1. (e) 2 Geo. 2, c. 36, s. 2.

(d) Dickman Benson, 3 Campb. 290. (e) 2 Geo. 3, c. 31, s. 2.

(f) Clement v. Gunhouse; at Guildhall, before Chambre, J., 5 Esp. N. P. C. 83. (g) 31 Geo. 3, c. 39, ss. 1, 2, and 10.

thought the words, or elsewhere, ought not to be taken in the indefinit latitude in which they were expressed, but must receive a reasonable construction conformable to a certain extent to the necessities of commerce, and would not authorize the master to proceed, as in fact he had done, from Port Jackson to New Zealand in search of a cargo; from thence to Valparaiso, and Lima, and Otaheite, and back to Sydney Cove, and from thence to Calcutta (h). And in another case, where the voyage was expressed to be from London to Batavia, to any ports and places, the East India seas or elsewhere, and until her final arrival at any port or ports in Europe, it appearing to have been the intention of the owners at the commencement of the voyage, that the ship should return from India to Cowes, and there receive orders as to the port of discharge; the same learned Judge considered the description of the voyage much too general to answer the beneficial purposes intended by the statute requiring the voyage to be mentioned in the contract, and thought the intention to come to Cowes for orders, as to the port of delivery, ought to have been mentioned (¿).

With regard to ships trading to the West Indies, it was among other things enacted, that after the first day of July, 1797, every seaman who should desert at any time during the voyage either out or home from any British merchant ship trading to or from his Majesty's colonies and plantations in the West Indies, should, over and above all punishments, penalties, and forfeitures, to which he was before by law subject, forfeit all the wages he might have agreed for, with, or be entitled to, during the voyage, from the master or owner of the ship, on board of which he should enter immediately after such desertion (k).

3. The only matters required to be specified by the first of these Acts of Parliament were the rate of wages and the voyage. Many special stipulations and clauses injurious to the interests of the seamen were, however, constantly introduced into the contracts in common use; and the general structure of ship's articles had become so faulty and irregular, that Lord Stowell, in a suit for mariner's wages, a short time before he retired from the Bench of the Court of Admiralty, said, that "it would take him a very inconvenient time to point out half the impertinences with which they were stuffed, and which it was high time should be corrected” (m).

A remarkable exposure of this species of injustice occurred in the case of the Minerva (1), where it appeared that an engagement to submit themselves to all the penalties and forfeitures of the 37 Geo. 3, c. 73, (an Act passed for the express regulation of the West India trade, in which a prevailing mischief had existed, to which strong preventives, confined exclusively to that commerce, were * opposed by the Legislature,) had become part of the settled printed

(h) The Minerva, Bell, 1 Hagg. 374. (i) The George Home, Young. See also Eliza, Ireland, 1 Hagg. 182, and Countess of Harcourt, Bunn, id. p. 248.

(k) 37 Geo. 3, c. 73, s. 1. The regulations

made on this subject in France are mentioned in Valin's Commentary on the French Ordin. tom. 1, p. 535.

(2) 1 Hagg. 347.

(m) The George Home, Young, 1 Hagg.370.