when they are employed at their work; that is to say, it is not allowed
in the presence of an officer or of the master; and although, when two
or more men are together aloft, or by themselves on deck, a little low
conversation might not be noticed, yet if it seemed to take off their
attention, or to attract the attention of others, it would be
considered a misdemeanor. In this respect the practice is different in
different vessels. Coasters, fishermen, or small vessels on short
voyages, do not preserve the same rule; but no seaman who has been
accustomed to first class ships will object to a strictness as to
conversations and laughing, while at day's work, very nearly as great
as is observed in a school. While the crew are below in the forecastle,
great license is given them; and the severest officer will never
interfere with the noise and sport of the forecastle, unless it is a
serious inconvenience to those who are on deck. In working ship, when
the men are at their stations, the same silence and decorum is
observed. But during the dog-watches, and when the men are together on
the forecastle at night, and no work is going forward, smoking,
singing, telling yarns, &c., are allowed; and, in fact, a considerable
degree of noise and _skylarking_ is permitted, unless it amounts to
positive disorder and disturbance.
It is a good rule to enforce, that whenever a man aloft wishes anything
to be done on deck, he shall hail the officer of the deck, and not call
out, as is often done, to any one whom he may see about decks, or
generally to have a thing done by whoever may happen to hear him. By
enforcing this rule the officer knows what is requested, and may order
it and see that it is done as he thinks fit; whereas, otherwise, any
one about decks, perhaps a green hand, may execute the order upon his
own judgment and after his own manner.
STATIONS.--The proper place for the seamen when they are on deck and
there is no work going forward, is on the forecastle. By this is
understood so much of the upper deck as is forward of the after
fore-shroud. The men do not leave this to go aft or aloft unless ship's
duty requires it of them. In working ship, they are stationed
variously, and go wherever there is work to be done. The same is the
case in working upon rigging. But if a man goes aft to take the wheel,
or for any other purpose which does not require him to go to windward,
he will go on the lee side of the quarter-deck.
FOOD, SLEEP, &C.--The crew eat together in the forecastle, or on deck,
if they choose, in fine weather. Their food is cooked at the galley,
and they are expected to go to the galley for it and take it below or
upon the forecastle. The cook puts the eatables into wooden tubs called
"kids," and of these there are more or less, according to the number of
men. The tea or coffee is served out to each man in his tin pot, which
he brings to the galley. There is no table, and no knives nor forks to
the forecastle; but each man helps himself, and furnishes his own
eating utensils. These are usually a tin pot and pan, with an iron
spoon.
The usual time for breakfast is seven bells, that is, half past seven
o'clock in the morning. Consequently, the watch below is called at
seven bells, that they may get breakfast and be ready to take the deck
at eight o'clock. Sometimes all hands get breakfast together at seven
bells; but in bad weather, or if watch and watch is given, it is usual
for the watch below to breakfast at seven bells, and the watch on deck
at eight bells, after they are relieved. The dinner hour is twelve
o'clock, if all hands get dinner together. If dinner is got 'by the
watch,' the watch below is called for dinner at seven bells (half past
eleven,) and the other watch dine when they go below, at twelve.
If all hands are kept in the afternoon, or if both watches get supper
together, the usual hour is three bells, or half past five; but if
supper is got by the watch, three bells is the time for one watch and
four for the other.
In bad weather, each watch takes its meals during the watch below, as,
otherwise, the men would be liable to be called up from their meals at
any moment.
As to the time allowed for SLEEP; it may be said, generally, that a
sailor's watch below is at his own disposal to do what he chooses in,
except, of course, when all hands are called. The meal times, and time
for washing, mending, reading, writing, &c., must all come out of the
watch below; since, whether there is work going forward or not, a man
is considered as belonging to the ship in his watch on deck. At night,
however, especially if watch and watch is not given, it is the custom
in most merchant vessels, in good weather, to allow the watch to take
naps about the decks, provided one of them keeps a look-out, and the
rest are so that they can be called instantly. This privilege is rather
a thing winked at than expressly allowed, and if the man who has the
look-out falls asleep, or if the rest are slow in mustering at a call,
they are all obliged to keep awake. In bad weather, also, or if near
land, or in the track of other vessels, this privilege should not be
granted. The men in each watch usually arrange the helms and look-outs
among themselves, so that a man need not have a helm and a look-out
during the same watch. A man should never go below during his watch on
deck, without permission; and if he merely steps down into the
forecastle for an instant, as, to get his jacket, he should tell some
one, who may speak to him at once, if the watch is called upon.
PART III.
LAWS RELATING TO THE PRACTICAL DUTIES OF MASTER AND MARINERS.
CHAPTER I.
THE VESSEL.
Title. Bill of sale. Registry. Enrolment. License. Documents.
Certificate. Passport. Sea-letter. List of crew. Bill of health.
General clearance. Clearing manifest. Invoice. Bill of lading.
Charter-party. Log-book. Manifest. List of passengers and crew.
Remaining sea-stores. Medicine-chest. Provisions.
TITLE.--The bill of sale is the proper evidence of title to all
vessels. It is the instrument of transfer which is used in all maritime
countries, which courts of law look to for proof of title, and which is
in most cases absolutely required.[6]
[6] 5 Rob. Ad. 155. 1 Mason, 139; 2 do. 435; 4 do. 390. 16
Mass. 336. 7 Johns. 308. But see 8 Pick. 89. 16 Mass. 663.
Possession of the vessel should also accompany the bill of sale,
whenever it is practicable. If the bill of sale is transferred while
the vessel is at sea, possession should be taken immediately upon her
arrival in port. The fact of the bill of sale being with one person and
the actual possession of the vessel with another, after there has been
an opportunity to transfer it, will raise a presumption of fraud, and
make the parties liable to losses and difficulties in dealing with
creditors, and such as purchase in good faith.[7]
[7] 4 Mass. 663. 4 Mason, 183. 9 Pick. 4. 6 Mass. 422; 15 do.
477; 18 do. 389.
REGISTRY, ENROLMENT, AND LICENSE.--The laws of the United States have
given many privileges to vessels built, owned and commanded by our own
citizens. Such vessels are entitled to be registered, enrolled or
licensed, according to circumstances, and are thereupon considered
"vessels of the United States, entitled to the benefits and privileges
appertaining to such ships." The only vessels entitled to a register
are those built in the United States and owned wholly by citizens
thereof; vessels captured in war by our citizens, and condemned as
prizes; and vessels adjudged to be forfeited for breach of the laws of
the United States, being wholly owned by such citizens. No owner is
compelled to register his vessel, but unless registered (with the
exception of those enrolled and licensed in the coasting and fishing
trades) she is not entitled to the privileges and benefits of a "vessel
of the United States," although she be built, owned and commanded by
citizens thereof.[8]
[8] Act 1792, ch. 45, §1.
Vessels employed wholly in the whale-fishery, owned by an incorporated
company, may be registered, so long as they shall be wholly employed
therein.[9] If not so owned and registered, they must be enrolled and
licensed.[10]
[9] Act 1831, ch. 350, §1.
[10] 3 Sumner, 342. 2 Law Rep. 146 contra.
The name of every registered vessel, and the port to which she belongs,
must be painted on her stern, on a black ground, in white letters, of
not less than three inches in length. And if any registered vessel is
found without her name and the name of her port so painted, the owners
thereof forfeit fifty dollars.[11]
[11] Act 1792, ch. 45, §3.
In order to the obtaining of a register, oath must be made that the
master is a citizen of the United States.[12] If the master of a
registered vessel is changed, or if the vessel's name is altered, such
fact must be endorsed upon the register at the custom-house, otherwise
she will cease to be considered a vessel of the United States.[13]
[12] Do. §4, §12.
[13] Act 1792, ch. 45, §23.
If any certificate of registry is fraudulently or knowingly used for
any ship or vessel not at the time entitled to it, such ship or vessel,
with her tackle, apparel and furniture, shall be forfeited to the
United States.[14] If an enrolled or licensed vessel is about to
proceed on a foreign voyage, she must surrender her enrolment and
license, and take out a register, or she, together with her cargo, will
be liable to forfeiture.[15] In case of the loss of a register, the
master may make oath to the fact, and obtain a new one.
[14] Do. §27.
[15] Act 1793, ch. 52, §8.
All vessels engaged in the coasting and fishing trades, above twenty
tons' burden, in order to be entitled to the privileges of vessels of
the United States in those trades, must be enrolled and licensed; and
if less than twenty tons, must be licensed.[16] The same qualifications
and requisites in all respects are demanded in order to the enrolling
and licensing of a vessel, which are required for registering.[17] The
name must be painted on the stern in the same manner, under penalty of
$20.[18]
[16] Do. §1.
[17] Do. §2.
[18] Do. §11.
If any vessel licensed for the fisheries engages in any other business
not expressly allowed by the license, she is forfeited.[19] Vessels,
however, licensed for the mackerel trade are not forfeited in
consequence of having been engaged in catching cod, or other fish; but
they are not entitled to the bounty allowed to vessels in the cod
fisheries.[20] The officers and at least three fourths of the crew of
every fishing vessel must be American citizens, or they can recover
none of the bounties.[21]
[19] Act 1793, ch. 52, §32.
[20] Acts 1828, ch. 119, §1, and 1836, ch. 55, §1.
[21] Act 1817, ch. 204, §3.
DOCUMENTS.--Every registered vessel should have a _certificate of
registry_.[22] This is an abstract of the record of registry, showing
the names and residences of the owners, the place where the vessel was
built, with a particular description of the vessel. This document shows
the national character of the vessel, and is important to prove
neutrality in time of war between other powers. For the same reasons,
an enrolled vessel should have a _certificate of enrolment_.[23]
Vessels bound to Europe should have _passports_. A passport is a
permission from the government for the vessel to go upon her voyage,
and contains a description of the vessel, crew, &c., and the name of
the master. Vessels bound round Cape Horn or the Cape of Good Hope
should have _sea-letters_. These contain a description of the cargo,
&c., and are written in four languages--English, French, Dutch and
Spanish. The two latter documents are rendered necessary or expedient
by reason of treaties with foreign powers. Every vessel should have a
_list of crew_. This specifies the name, age, place of birth and
residence, &c., of each one of the ship's company; and is, of course,
very useful when sailing among belligerents. The other documents are
the _bill of health_, _general clearance_, _clearing manifest_,
_invoice_ and _bill of lading_ for the cargo, _charter-party_, if one
has been given, and the _log-book_. On entering at the custom-house,
the papers required in addition to these are the _manifest_, _list of
passengers_ and _crew_, and of _remaining sea-stores_.
[22] Act 1792, ch. 45.
[23] Act 1793, ch. 52.
MEDICINE-CHEST.--Every vessel belonging to citizens of the United
States, of the burden of one hundred and fifty tons or upwards,
navigated by ten or more persons in the whole, and bound on a foreign
voyage, must be provided with a medicine-chest, put up by some
apothecary of known reputation, and accompanied by directions for using
the same. This chest must be examined and refitted by the same or some
other apothecary at least once in a year.[24] The same rule applies to
vessels of seventy-five tons and upwards, navigated by six persons in
the whole, and bound to the West Indies.[25]
[24] Act 1790, ch. 56, §8.
[25] Act 1805, ch. 88, §1.
NATIONAL CHARACTER OF CREW.--In order to be placed upon the most
favorable footing as to duties, bounties, &c., it is necessary that the
master, officers, and two thirds of the rest of the crew of vessels in
the foreign trade, and officers and three fourths of the crew of
fishing and coasting vessels, should be citizens, or "persons not the
subjects of any foreign prince or state."[26] Nevertheless, while
foreigners are employed in our vessels, they are under the protection
of our laws as "mariners and seamen of the United States."[27]
[26] Act 1817, ch. 204, §3, 5, 6.
[27] 3 Sumner, 115.
PROVISIONS.--Every vessel of the United States bound on a voyage across
the Atlantic, shall, at the time of leaving the last port from which
she sails, have on board, well secured under deck, at least sixty
gallons of water, one hundred pounds of salted beef, and one hundred
pounds of wholesome ship bread, for every person on board, (over and
above any stores that the master or passengers may have put on board;)
and in like proportions for shorter or longer voyages. If any vessel is
not so provided, and the crew are put upon short allowance of bread,
flesh or water, they can recover an additional day's wages for every
day they are so allowanced.[28]
[28] Act 1790, ch. 56, §9.
PASSENGERS.--The same provision, with the addition of one gallon of
vinegar, must be made for every passenger; and if, in default of these,
the passengers are put on short allowance, each passenger can recover
three dollars for every day he is so allowanced.[29]
[29] Act 1819, ch. 170, §3.
If any vessel takes on board a greater number of passengers than two
for every five tons, custom-house measurement, the master forfeits $150
for every such passenger; and if the number by which they exceed two
for every five tons shall amount to twenty, the vessel becomes
forfeited.[30]
[30] Do. §1, 2.
CHAPTER II.
THE MASTER'S RELATION TO VESSEL AND CARGO.
Revenue duties and obligations. List of crew. Certificate. Sea letter.
Passport. List of passengers. Manifest. Sea stores. Unloading.
Post-office. Report. Citizenship. Coasting license. Power to sell and
hypothecate. Keeping and delivering cargo. Deviation. Collision. Pilot.
Wages and advances.
REVENUE DUTIES AND OBLIGATIONS.--The master of every vessel bound on a
foreign voyage, before clearance, must give to the collector of the
customs a list of the crew, specifying their names, places of birth and
residence, and containing a description of their persons; whereupon he
is entitled to a certified copy of the same from the collector. This
copy he must deliver, under a penalty of $400, to the first boarding
officer upon his arrival in the United States, and produce the persons
named therein, unless the same have been discharged in a foreign
country, with the consent of the consul or other commercial agent
thereto certified in writing under his hand and official seal; or by
showing that they have died or absconded, or been impressed into
foreign service.[31] The duplicate list of the crew shall be a fair
copy, in one uniform handwriting, without erasure or interlineation.[32]
[31] Act 1803, ch. 62, §1.
[32] Act 1840, ch. 28, §1.
The owners must also obtain from the collector of the customs a
certified copy of the shipping articles. This must be produced by the
master before any consul or commercial agent who may demand it, and all
erasures in it or writings in a different hand shall be deemed
fraudulent, unless satisfactorily explained.[33]
[33] Do.
The master of every vessel of the United States, on arriving at a
foreign port, must deposit with the consul, or other commercial agent,
his certificate of registry, sea letter, and passport (if he have one,)
under a penalty of $500. The consul returns them to him, upon his
obtaining a clearance.[34]
[34] Act 1803, ch. 62, §2.
Upon arriving in the United States, the master must report to the
collector a list of passengers, specifying their names, age, sex,
occupation, the country of which they are citizens, and that in which
they intend to reside. This is under a penalty of $500.[35]
[35] Act 1819, ch. 170, §4.
Vessels arriving from foreign ports must unlade and deliver their
cargoes between sunrise and sunset, unless by special permission of the
collector of the port.
In making out manifests of cargoes, the master must specify what
articles are to be deemed _sea stores_, and declare the same upon oath.
If the collector deems the amount excessive, he may charge them with a
duty. If the cargo is found to exceed the manifest, the excess is
forfeited to the government, and the master is liable to pay treble the
amount.[36]
[36] Act 1799, ch. 128, §45.
If the master land any of the _sea stores_, without first obtaining a
permit, such stores are forfeited, and the master becomes liable to pay
treble the value of them.[37]
[37] Act 1799, ch. 128, §45.
The master subjects himself to a fine of $200 if the vessel departs on
a foreign voyage without a _passport_.
It is the duty of the master, coming from a foreign port, to have a
_manifest_ of cargo and a copy of the same made out and ready for
delivery to any officer of the customs who may board the vessel within
four leagues of the coast.[38] Unless this manifest is produced, no
merchandise can be unloaded from the vessel. The manifest shall specify
the port where the merchandise was received, the port to which it is
consigned, the name, build and description of the vessel, with the name
of the master and owner, the marks and numbers of each package of
goods, with the name of the consignee; and also the names of the
passengers with their baggage, and the account of all remaining sea
stores.[39]
[38] Do. §23.
[39] Act 1819, ch. 170, §4.
If any goods are unladed within four leagues of the coast, or within
the limits of any district, without authority from the proper officer,
except in case of accident or necessity--which must be strictly
proved--such goods are forfeited, and the master and mate incur,
respectively, a penalty of $1000 for each offence.[40]
[40] Act 1799, ch. 128, §27.
If the master refuses to exhibit his manifest and deliver a copy of the
same to the boarding officer, or to inform him of the true destination
of the vessel, he incurs a penalty of $500 for each offence.[41]
[41] Do. §26.
The master must deposit all his letters in the post-office before
entering his cargo; and if he shall break bulk before depositing his
letters, he forfeits $100 for each offence.[42]
[42] Act 1825, ch. 275, §17.
If any merchandise is imported into the United States not contained in
the manifest, the master of the vessel forfeits a sum equal to the
value of such merchandise; and if any of it belongs or is consigned to
the master, or to any officer or seaman on board, it becomes forfeited;
unless it shall be made to appear that the omission occurred by
accident or mistake.[43]
[43] Act 1799, ch. 128, §24.
The master of a vessel arriving from a foreign port must report himself
to the collector within twenty-four hours, and within forty-eight hours
he must make a further and more particular report, in writing, under
penalty of $100; and if he shall attempt to leave the port without
entry he forfeits $400.[44]
[44] Do. §30.
If any articles reported in the manifest are not found on board, the
master forfeits $500, unless it shall be made to appear that the same
was caused by accident or mistake.
The master of every vessel bound on a foreign voyage must deliver a
manifest of cargo to the collector, and obtain a clearance, under
penalty of $500.[45]
[45] Do. §3.
The master of every vessel enrolled and licensed in the coasting trade
must be a citizen of the United States; and if the vessel trades to any
other than an adjoining state, three fourths of the crew must be
citizens. If the master of a coasting vessel is changed, such change
must be reported to the collector of the port where the change is
made.[46]
[46] Act 1793, ch. 52, §12.
The master of every coasting vessel must deliver up his license within
three days after it expired, or, if the vessel was then at sea, within
three days after her first arrival thereafter, under a penalty of $50.
The master of a coasting vessel departing from one great district to
another, must deliver to the collector duplicate manifests of all the
cargo on board, under penalty of $50; and within forty-eight hours
after his arrival at the port of delivery, and before breaking bulk, he
must deliver to the collector the manifest certified to by the
collector of the former port, under penalty of $100.[47] If the vessel
shall at any time be found without a manifest on board, the master
forfeits $20, and if he refuses to inform the officer of his last port
of departure, he forfeits $100.[48]
[47] Do. §17.
[48] Do. §18.
POWER TO SELL AND HYPOTHECATE.--The master has, in certain cases, power
to hypothecate the ship and cargo, and also to sell a part of the
cargo; and in certain extreme cases a sale of the ship and cargo, made
from necessity, and in the utmost good faith, will be upheld. His right
to do any of these acts is confined to cases of necessity, in distant
ports, where he cannot get the advice of the owner. The safest rule for
the master is, to bear in mind that his duty is to _prosecute the
voyage_, and that all his acts must be done for this purpose, and in
good faith. If a necessity arises in a foreign port for the repairing
or supplying of the ship, he must, in the first instance, make use of
any property of the owner he may have under his control, other than
cargo.[49] If, however, he has money of the owner in his hands, put on
board for the purpose of procuring a cargo, he is not bound to apply
this first; but must use his discretion, bearing in mind that all
repairs have for their sole object the prosecution of the voyage, which
might be defeated by making use of these funds.[50] His next recourse
should be to the personal credit of the owner, by drawing bills, or
otherwise.[51]
[49] 3 Mason, 255.
[50] Do.
[51] 2 Wash. C. C. 226.
If these means fail, he is next to hypothecate (that is, pledge) the
ship (bottomry,) or cargo (respondentia,) or freight, or sell part of
the cargo, according to circumstances. If the owner of the ship is also
owner of the cargo, the better opinion seems to be, that the master may
take whichever of these means can be adopted with the least sacrifice
of the owner's interest; though, probably, selling part of the cargo
would in almost all cases be the least favorable course for all the
purposes of the voyage.[52] If the owner of the ship is not owner of
the cargo, the master should bear in mind that he is agent of the
former, and has generally no further control over the cargo than for
safe keeping and transportation.[53] He should, therefore, first
exhaust the credit of the ship and freight by hypothecation; and if
these means fail, he then becomes, by necessity, agent for the owners
of the cargo for the purposes of the voyage, and may hypothecate the
whole, or sell a part, according to circumstances. As to selling part,
he should remember that his duty is to carry forward the objects of the
voyage, and that selling a large part would probably impair these
objects more than hypothecating the whole.[54]
[52] 2 Wash. C. C. 226.
[53] Do.
[54] 3 Mason, 255. 1 Wash. C. C. 49; 2 Do. 226. 3 Rob. 240.
In no case can any of the cargo be sold or hypothecated to repair or
supply the ship, unless these repairs and supplies are to be for the
benefit of the cargo. The strictest proof is always required that the
repairs were in the first place necessary, and, in the next place, that
they were for the benefit of the cargo, and not merely for the good of
the ship-owner.[55]
[55] 2 Wash. 226. 3 Rob. 240.
A further question arises, whether the master has ever, and when, the
right to sell the whole cargo and the ship itself. If it should be
impossible to repair the ship and send her on the voyage by any of the
means before mentioned, it then becomes the master's duty to forward
the cargo to the port of destination by some other conveyance. If
neither of these things can be done, then he becomes, from necessity,
agent of the owner of the cargo, and must make the best disposition of
it in his power. If the goods are perishable, the owner cannot be
consulted within a reasonable time, and has no agent in the port, and
something must be done with the cargo, and there is no one else to
act--then the master must dispose of it in such a way as best to
subserve the interest of its owner. He should take the advice of the
commercial agent or other suitable persons, should also use his own
judgment and act with good faith, and take care to preserve evidence
that he has so done. If all these requisites are not complied with, he
will incur the danger of having his acts set aside.[56]
[56] 2 Wash. C. C. 150. 3 Rob. 240.
The rule as to the sale of the ship is very nearly the same, except
that it is, perhaps, still more strict. If all means for repairing the
vessel and sending her on her voyage have failed, and a case of
absolute necessity arises, the master may make a sale of her. As a
prudent man, he should have the sale made, if possible, under the
authority of the judicial tribunals of the place. Even this will not,
of itself, render the sale valid, but will go far toward sustaining it.
He should consult the consul, or other suitable persons; should have a
survey made; should take care to have the sale conducted publicly and
with the best faith in all parties, and to preserve evidence of the
same. Although a person should buy in good faith, yet the sale will be
set aside unless it can be shown that there was the strictest necessity
for it. The master must not become a purchaser himself, and even if he
afterwards buys of one who purchased at the sale, this transaction will
be very narrowly watched, and he will be bound to show the very highest
good faith in all parties.[57]
[57] 5 Mason, 465. 2 Sumner, 206. Edwards, 117.
The strictness of these rules should not deter the master from acting,
where the interest of all requires it, but will show him the risk that
is run by acting otherwise than with prudence and entire honesty. He
should remember, too, that, in taking command of a vessel, he not only
covenants that he will act honestly and with the best of his judgment,
but also holds himself out as having a reasonable degree of skill and
prudence.[58]
[58] 1 Dallas, 184.
As to the safe keeping, transportation, and delivery of the cargo, the
master's duties and obligations are those of a common carrier upon
land. He is bound to the strictest diligence in commencing and
prosecuting the voyage, a high degree of care both of vessel and goods,
and is held liable for all losses and injuries not occasioned by
inevitable accident, or by the acts of public enemies. He is answerable
also for unnecessary delays and deviations, and for the wrongful or
negligent acts of all persons under his command. At the termination of
the voyage, he must deliver the goods to the consignee or his agents. A
landing upon the wharf is a sufficient delivery, if due notice be given
to the parties who are to receive them. He is not, however, bound to
deliver until the freight due is paid or secured to his satisfaction,
as he has a lien upon the goods for his freight; but the consignee can
require the goods to be taken from the hold, in order that he may
examine them, before paying freight. In such case they should not go
out of the possession of the master or his agents.
DEVIATION.--The master must not deviate from the course of the voyage.
By a _deviation_ is meant, technically, any alteration of the risk
insured against, without necessity or reasonable cause. It may be by
departing from the regular and usual course of the voyage, or by any
unusual and unnecessary delay. A deviation renders the insurance void,
whether the loss of the vessel is caused by the deviation or not. It is
not a deviation to make a port for repairs or supplies, if there be no
unnecessary delay, nor to depart from the course of the voyage in order
to succor persons in distress, to avoid an enemy, or the like.
It is the master's duty, within twenty-four hours after arriving at his
first port, to make a _protest_ in case of any accident or loss
happening to vessel or cargo. The log-book also should be carefully
kept, without interlineations or erasures. The master must also enter a
protest in case any American seaman is impressed, and transmit a copy
of the same to the secretary of state, under a penalty of $100.[59]
[59] Act 1796, ch. 36, §5.
COLLISION.--A vessel having the wind free must make way for a vessel
close-hauled. The general practice is, that when two vessels approach
each other, both having a free or fair wind, the one with the starboard
tacks aboard keeps on her course, or, if any change is made, she luffs,
so as to pass to windward of the other; or, in other words, each vessel
passes to the right. This rule should also govern vessels sailing on
the wind and approaching each other, when it is doubtful which is to
windward. But if the vessel on the larboard tack is so far to windward
that if both persist in their course the other will strike her on the
lee side, abaft the beam, or near the stern; in such case, the vessel
on the starboard tack must give way, as she can do so with less loss of
time and greater facility than the other. These rules are particularly
intended to govern vessels approaching each other under circumstances
that prevent their course and movements being readily discerned with
accuracy, as at night or in a fog. At other times, circumstances may
render it expedient to depart from them. A steamer is considered as
always sailing with a fair wind, and is bound to do whatever would be
required of a vessel going free.[60]
[60] Report of Benjamin Rich and others to District Court of
Mass.
PILOT.--The master must take a pilot when within the usual limits of
the pilot's employment.[61] If he neglects or refuses so to do, he
becomes liable to the owners, freighters, and insurers. If no pilot is
at hand, he must make signals, and wait a reasonable time. The master
is to be justified in entering port without a pilot only by extreme
necessity. After the pilot is on board, the master has no more control
over the working of the ship until she is at anchor.[62]
[61] 6 Rob. 316. 7 T. R. 160.
[62] 2 B. & Ad. 380. 3 Kent's Com. 175 c.
WAGES, ADVANCES, &C.--The master has no lien upon the ship for his
wages.[63] He is supposed to look to the personal responsibility of the
owner. He has a lien on freight for wages, and also for his advances
and necessary expenses incurred for the benefit of the ship.[64] He can
sue in admiralty _in personam_, but not _in rem_;--that is, he can sue
the owner personally, but cannot hold the ship. It does not seem to be
settled in the United States whether the master has a lien on the ship
for advances made abroad for the benefit of the vessel.[65] In case of
sickness, the master's right to be cured at the expense of the ship
seems to be the same as that of the seamen.[66]
[63] 3 Mason, 91. 11 Pet. R. 175.
[64] Ware, 149. But see 5 Wend. 314.
[65] 3 Mason, 255.
[66] 1 Sumner, 151.
CHAPTER III.
THE MASTER'S RELATION TO PASSENGERS AND OFFICERS.
Treatment of passengers. Removal of officers.
PASSENGERS.--The contract of passengers with the master is not for mere
ship-room and personal existence on board, but for reasonable food,
comforts, necessaries, and kindness. In respect to females, it extends
still further, and includes an implied stipulation against obscenity,
immodesty, and a wanton disregard of the feelings. An improper course
of conduct in these particulars will be punished by the court, as much
as a personal assault would be.[67]
[67] 3 Mason, 242.
OFFICERS.--The master may remove either of his officers from duty for
fraudulent or unfaithful conduct, for gross negligence and
disobedience, or for palpable incapacity. But the causes of removal
must be strong and evident;[68] and much more so in the case of the
chief mate than of the second mate. Any temporary appointments, made by
the master, are held at his pleasure, and stand upon a different
footing from those of persons who originally shipped in the character
in question.[69]
[68] 4 Wash. 334.
[69] Gilpin, 83.
When a man ships in a particular capacity, as carpenter, steward, or
the like, he is not to be degraded for slight causes. He stipulates for
fair and reasonable knowledge and due diligence, but not for
extraordinary qualifications.[70]
[70] 4 Mason, 84. Abbott Shipp. 147 n. Ware, 109.
The right of the master to compel an officer, who has been removed, to
do duty as a seaman before the mast, has never been completely
established; but the better opinion would seem to be that he may do it
in a case of necessity. Merchant vessels have no supernumeraries, and
if the master can show that the officer was unfit for the duties he had
undertaken, and thus made it necessary to take some one from the
forecastle to fill his place, and that, by this means, the ship had
become short-handed, he may turn the officer forward, assuming the
responsibility for the act, as well as the risk of justification. He
would be required to show a much stronger cause for removing the chief
mate than would be insisted upon in the case of a second mate; and
probably this necessity for exacting seaman's duty would be held to
extend no further than an arrival at the first port where other hands
could be shipped.
Nothing but evident unfitness or gross and repeated misconduct will
justify the master in turning a person forward who shipped in another
capacity, as carpenter, cook, or steward. But in such cases, he
undoubtedly may do so. Still, when before the mast, he cannot require
of them the duty of able seamen, unless they are such in fact.
CHAPTER IV.
THE MASTER'S RELATION TO THE CREW.
Shipment. Shipping papers. Discharge. Imprisonment. Punishment.
SHIPMENT.--The master of every vessel of the United States, bound on a
foreign voyage, and of all coasting vessels of fifty tons burden, must
make a contract in writing (shipping articles) with each seaman,
specifying the voyage, terms of time, &c.; and in default thereof shall
forfeit $20 for every case of omission, and shall be obliged to pay
every such seaman the highest rate of wages that have been paid for
such voyages at the port of shipment within three months previous to
the commencement of the voyage.[71] And when the master ships a seaman
in a foreign port, he must take the list of crew and the duplicate of
the shipping articles to the consul or commercial agent, who shall make
the proper entries thereupon; and then the bond originally given for
the return of the men shall embrace each person so shipped. All
shipments made contrary to this or any other act of Congress shall be
void, and the seaman may leave at any time, and claim the highest rate
of wages paid for any man who shipped for the voyage, or the sum agreed
to be given him at his shipment.[72]
[71] Act 1790, ch. 56, §1.
[72] Act 1840, ch. 23, §1.
At the foot of every such contract there shall be a memorandum of
writing of the day and hour on which such seaman shall render himself
on board. If this memorandum is made and the seaman neglects to render
himself on board at the time specified, he shall forfeit one day's pay
for every hour he is so absent, provided the master or mate shall, on
the same day, have made an entry of the name of such seaman in the
log-book, specifying the time he was so absent. And if the seaman shall
wholly neglect to render himself on board, or, after rendering, shall
desert before sailing, so that the vessel goes to sea without him, he
then forfeits the amount of his advance and a further sum equal
thereto, both of which may be recovered from himself or his surety.[73]
[73] Act 1790, ch. 56, §2.
There is no obligation upon the master to make these memorandums and
entries, other than that the forfeitures cannot be inflicted upon the
seamen unless they have been made literally according to the form of
the statute.
If any seaman who has signed the articles shall desert during the
voyage, the master may have him arrested and committed to jail until
the vessel is ready to proceed, by applying to a justice of the peace
and proving the contract, and the breach thereof by the seaman.[74]
[74] Do. §7.
Every vessel bound on a foreign voyage shall have on board a duplicate
list of the crew, and a true copy of the shipping-articles, certified
by the collector of the port, containing the names of the crew, which
shall be written in a uniform hand, without erasures or
interlineations. This copy the master must produce to any consul or
commercial agent of the United States who shall require it; and it
shall be deemed to contain all the conditions of the contract. All
erasures and interlineations shall be deemed fraudulent unless proved
to be innocent and bonâ fide. Every master who shall go upon a foreign
voyage without these documents, or shall refuse to produce them when
required, shall forfeit one hundred dollars for each offence, beside
being liable in damages to any seaman who may have been injured
thereby.[75]
[75] Act 1840, ch. 23, §1.
DISCHARGE.--If the master discharges any seaman in a foreign port, with
his own consent, he shall pay to the consul three months' wages for
every such seaman, in addition to the wages then due to him, two-thirds
to go to the seaman upon his taking passage for the United States, and
the remainder to be retained by the consul to make a fund for the
relief of destitute seamen.[76] The master of every vessel bound to the
United States shall, upon the request of the consul, take on board any
seaman and transport him to the United States, on terms not exceeding
ten dollars for each seaman, under penalty of one hundred dollars for
every refusal. He is not, however, bound to receive more than two men
to every hundred tons.[77]
[76] Act 1803, ch. 62, §3. See also Act 1840, ch. 23, §5.
[77] Act 1803, ch. 62, §4.
The whole policy of the United States discourages the discharge of
seamen in foreign ports. If the seaman is discharged against his
consent, and without justifiable cause, he can recover his wages up to
the time of the vessel's return, together with his own expenses. The
certificate of the consul will not, of itself, prove the sufficiency of
the cause of discharge. Though the seaman shall have made himself
liable to be discharged, yet if he repents and offers to return to
duty, the master must receive him, unless he can show a sufficient
cause of refusal.[78] If the master alleges, as a cause for discharging
a seaman, that he was a dangerous man, it must be shown that the danger
was such as would affect a man of ordinary firmness.[79]
[78] Ware, 65. 4 Mason, 541, 84.
[79] Ware, 9.
In addition to the master's liability to the seaman, he is criminally
liable to the government for discharging a mariner without cause. The
statute enacts that if the master shall, when abroad, force on shore or
leave behind any officer or seaman without justifiable cause, he shall
be fined not exceeding five hundred dollars, or imprisoned not
exceeding six months, according to the aggravation of the offence.[80]
[80] Act 1825, ch. 276, §10.
Notwithstanding these liabilities, the master may discharge a seaman
for gross misconduct; yet the right is very strictly construed.[81]
[81] Abbott on Shipp., 147, note.
IMPRISONMENT.--The master has the right to imprison a seaman in a
foreign port, in a case of urgent necessity, but the power has always
been very closely watched by courts of law. "The practice of
imprisoning seamen in foreign jails is one of doubtful legality, and is
to be justified only by a strong case of necessity."[82] "The master is
not authorized to punish a seaman by imprisonment in a foreign jail
unless in cases of aggravated misconduct and insubordination."[83] If
he does so punish him, he is not permitted to deduct his wages during
the time of imprisonment, nor charge him with the expense of it.[84] If
the imprisonment is without justifiable cause, the master is not
excused by showing that it was ordered by the consul.[85] And,
generally, the advice of a consul is no justification of an illegal
act.[86]
[82] Gilpin, 31. Ware, 19.
[83] Ware, 503.
[84] Ware, 9, 503.
[85] Ware, 367.
[86] Gilpin, 31.
PUNISHMENT.--The master may inflict moderate correction on a seaman for
sufficient cause; but he must take care that it is not disproportionate
to the offence. If he exceeds the bounds of moderation he is treated as
a trespasser, and is liable in damages.[87] In respect to the mode of
correction, it may be by personal chastisement, or by confinement on
board ship, in irons, or otherwise.[88] But there must not be any
cruelty or unnecessary severity exercised. The mode, instruments or
extent of the punishment are not laid down by law. These must depend
upon circumstances. In cases of urgent necessity, as of mutiny, weapons
may be used which would be unlawful at other times; but even in these
cases, they must be used with the caution which the law requires in
other cases of self-defence and vindication of rightful authority.[89]
[87] 1 Peters' Ad. 186, 172. 2 Do. 420. 1 Wash. 316.
[88] 1 Peters' Ad. 186, 168. 15 Mass. 365.
[89] Same cases.
It is not necessary that the punishment should be inflicted to suppress
the offence at the time of its commission. It may be inflicted for past
offences, and to promote good discipline on board. But the reference to
by-gone acts should be very clear and distinct, or they will be
presumed to have been forgiven.[90] In many cases prudence may require
a postponement of the proper punishment. The authority of the master,
being in its nature parental, must be exercised with a due regard to
the rights and interests of all parties. He has a large discretion, but
is held to answer strictly for every abuse of it.[91] The law enjoins
upon him a temperate demeanor and decent conduct towards seamen. He
risks the consequences if he commences a dispute with illegal conduct
and improper behavior.[92] In all his acts of correction, he must
punish purely for reformation and discipline, and never to gratify
personal feelings.[93] If a master generally permits or encourages
disorderly behavior in his ship, he is less excusable for inflicting
unusual punishment on account of misconduct arising out of that
disorder.[94] If the case admits of delay, and the master does not make
proper inquiry before punishing, he takes the consequences upon
himself.[95]
[90] 1 Hagg. 271.
[91] 15 Mass. 365. 3 Day, 294.
[92] 4 Wash. 340.
[93] 1 Pet. Ad. 168, 173, note.
[94] Bee, 239.
[95] 1 Hagg. 271.
This power over the liberty and person of a fellow man, being against
common right, and intrusted to the master only from public policy,
regarding the necessities of the service, is to be sparingly used, and
a strict account will be required of its exercise. The master is
responsible for any punishment inflicted on board the vessel, unless in
his absence, or when he is prevented by force from interfering.[96]
Neither will absence always be an excuse. If he had reason to suppose
that such a thing might be done, and did not take pains to be present
and interfere, he will be liable. Neither, (as is often supposed,) will
the advice, or even the personal superintendence or orders of a consul,
or any foreign authority, relieve the master of his personal
responsibility.[97] He may ask advice, but he must act upon his own
account, and is equally answerable for what he does himself, and what
he permits to be done on board his vessel by others. The seaman is
entitled to be dealt with by his own captain, under whom he shipped,
and whom he may hold responsible at the end of the voyage; and this
responsibility is not to be shaken off by calling in the aid of others.
In case of an open mutiny, or of imminent danger to life and property,
the master may make use of the local authorities; but then he is to
remember that he can use them no further than for the purpose of
quelling the mutiny, or of apprehending the felon. As soon as his
authority is restored, the parental character is again thrown upon him,
and all acts of punishment must be upon his own responsibility. He has
no right to punish criminally. He has no judicial power. If a seaman
has committed an offence further than against the internal order and
economy of the ship, and which moderate correction is not sufficient to
meet, the master must bring him home, (in confinement, if necessary,)
or send him immediately by some other vessel, to be tried by the laws
and by a jury of his country.[98]
[96] 2 Sumner, 1. Ware, 219.
[97] Ware, 367. Gilpin, 31.
[98] 1 Pet. Ad. 168.
The practice of subjecting American seamen to foreign authority, or to
persons whom they cannot well hold answerable,--like that of foreign
imprisonment,--is an odious one, and must be justified by an
overpowering necessity.
A recent statute[99] makes it the duty of consuls to exert themselves
to reclaim deserters and discountenance insubordination, and authorizes
them to employ the local authorities, where it can usefully be done,
for those purposes. But this will unquestionably be restricted to the
apprehension of the deserter, and the quelling of the revolt or mutiny;
and as soon as these ends are attained, the sole responsibility of the
master in dealing with the crew will re-attach.
[99] Act 1840, ch. 23, §1.
If the master is present while the mate, or any subordinate officer,
inflicts punishment upon any of the crew, or if it is inflicted under
such circumstances as would raise a presumption that the master was
knowing of it, and he does not interfere, he will be held to have
adopted it as his own act, and will be answerable accordingly.[100]
[100] 2 Sumner, 1.
In addition to the master's liability to the seamen in damages for
abuse of power, he is also liable, as a criminal, to fine and
imprisonment. A recent statute enacts, that "if any master, or other
officer, of an American vessel, shall, from malice, hatred, or revenge,
and without justifiable cause, beat, wound, or imprison any one or more
of the crew of such vessel, or withhold from them suitable food or
nourishment, or inflict on them any cruel or unusual punishment, every
such person so offending shall, on conviction thereof, be punished by
fine not exceeding one thousand dollars, or by imprisonment not
exceeding five years, or by both, according to the nature and
aggravation of the offence."[101] It is held that the word 'crew,' in
this statute, includes officers; and accordingly a master was punished
for unjustifiably confining and otherwise mal-treating his chief
mate.[102]
[101] Act 1835, ch. 313, §3.
[102] 3 Sumner, 209.
To constitute 'malice' in the above statute, it is not necessary to
show malignity as it is commonly understood, or brutality; but the
term, in law, requires no more than a 'wilful intention to do a
wrongful act.' An offence is punishable under this act, even although
no bad passions came into play, (as hatred, or revenge,) for the term
'malice,' in law, covers all cases of intentional wrong, in their
mildest form.[103]
[103] 2 Sumner, 584.
If a seaman desires to lay any complaint before a consul in a foreign
port, the master must permit him to land for that purpose, or else
inform the consul immediately of the fact, stating his reasons in
writing for not allowing the man to land. If he refuses to do this, he
forfeits one hundred dollars, and is liable to the seaman in
damages.[104]
[104] Act 1840, ch. 23, §1.
CHAPTER V.
PASSENGERS.
Provisions. Treatment. Passage-money. Deportment. Services.
In Chapter I. of the Third Part, under the title "Provisions," it will
be seen that the vessel must have on board, well secured under deck, at
least sixty gallons of water, one hundred pounds of salted beef, one
hundred pounds of wholesome ship bread, and one gallon of vinegar for
each passenger, on a voyage across the Atlantic, and in like proportion
for shorter or longer voyages. This, too, must be in addition to the
private stores of the master or passengers.[105]
[105] Act 1819, ch. 170, §3.
The master is also forbidden to take on board more than two passengers
for every five tons.[106]
[106] Do. §1.
The contract of passengers with the master is not for mere ship-room
and personal existence on board, but for reasonable food, comforts,
necessaries, and kindness. In respect to females it extends yet
farther, and includes an implied stipulation against obscenity,
immodesty, and a wanton disregard of the feelings. A course of conduct
oppressive and malicious in these respects will be punished by the
court, as well as a personal assault.[107]
[107] 3 Mason, 342.
No passage-money is due to a ship upon an engagement to transport a
passenger, before the arrival of the vessel at the port of destination.
Where the passenger has paid in advance, he can reclaim his money if
the voyage is not performed. If a voyage is partially performed, no
passage-money is due, unless the expenses of the passenger, or the
means of proceeding to the place of destination, are paid or tendered
to him; in which case, passage-money in proportion to the progress in
the voyage is payable.[108]
[108] 1 Pet. Ad. 126.
A passenger must submit to the reasonable rules and usages of the ship.
He has no right to interfere with its discipline and internal
regulations. Indeed, in a case of necessity, and for the order and
safety of the ship, the master may restrain a passenger by force; but
the cause must be urgent, and the manner reasonable and moderate.
In case of danger and distress, it is the duty as well as the interest
of the passenger to contribute his aid, according to his ability, and
he is entitled to no compensation therefor. He is not, however, bound
to remain on board in time of danger, but may leave the vessel if he
can; much less is he required to take upon himself any responsibility
as to the conduct of the ship. If, therefore, he performs any
extraordinary services, he becomes entitled to salvage.[109]
[109] 2 B. and P. 612. 1 Pet. Ad. 70. 2 Hagg. 3.
CHAPTER VI.
MATES AND SUBORDINATES.
Mates included in the 'crew.' Removal. Succession. Log-book Wages.
Sickness. Punishment. Subordinates. Pilots.
In all the statutes which entitle the 'crew,' or the 'seamen,' of a
vessel to certain privileges as against the master or owner, these
words, 'crew' and 'seamen,' are construed to include the mates; as, for
instance, the statute requiring a certain amount of provisions to be on
board; the statute requiring a medicine-chest, and that which punishes
the master for illegal and cruel treatment of any of the crew. In all
these cases the mates are entitled to the same privileges and
protection with the seamen.[110]
[110] 1 Sumner, 151; 3 do. 209. 4 Mason, 104.
The _chief mate_ is usually put on board by the owner, and is a person
who is looked to for extraordinary services and responsibility.
Accordingly, he cannot be removed by the master, unless for repeated
and aggravated misconduct, or for palpable incapacity.[111] He acts in
the stead of the master in case the latter dies, and whenever he is
absent.[112] He is then entrusted with the care of the ship, and the
government of the crew. If he is appointed to act as mate by the master
during the voyage, he holds his office at the master's pleasure;[113]
but if he originally shipped in that capacity, he cannot be removed
without proof of gross and flagrant misconduct, or of evident
unfitness. Nor will one or two single instances of intemperance,
disobedience or negligence, be sufficient; the misconduct must be
repeated, and the habit apparently incorrigible.[114]
[111] 1 Pet. Ad. 244. 4 Wash. 338.
[112] 4 Mason, 541. 1 Sumner, 151.
[113] Gilpin, 83.
[114] 1 Pet. Ad. 244. 4 Wash. 338.
The second mate and other inferior officers do not stand upon so firm a
footing as the chief mate; yet they cannot be removed by the master,
unless for gross and repeated acts of disobedience, intemperance,
dishonesty or negligence, or for palpable incapacity.
In case of the death or absence of the master, the chief mate becomes
master by operation of law, but the second mate does not necessarily
become chief mate. It lies with the new master to appoint whom he
pleases to act as chief mate; though, in most cases, it should be the
second mate, unless good reason exists for the contrary course. The
second mate cannot, however, be degraded by the new master for any
other cause than would have justified the former in so doing.
LOG-BOOK.--It is the duty of the chief mate to keep the log-book of the
ship. This should be neatly and carefully kept, and all interlineations
and erasures should be avoided, as they always raise suspicion. The
entries should be made as soon as possible after each event takes
place, and nothing should be entered which the mate would not be
willing to adhere to in a court of justice. (See page 145.)
In Chapter III. of the Third Part, under the title, "Master's relation
to Officers," page 188, will be found a discussion of the question,
whether the master can compel an officer to do duty before the mast.
In Chapters VIII., X., XI. and XII. of Part III., under the titles,
"Revolt," "Forfeiture," "Desertion," &c., will be found the laws upon
those subjects relating to seamen. And it may be generally remarked,
that all those laws apply as well to the officers as to the foremast
men. An officer forfeits his wages by desertion, and is criminally
liable for mutiny, revolt, &c., like a common seaman. As to the
questions what constitutes a revolt, mutiny, &c., and when absence or
leaving a vessel is excusable, and when it works a forfeiture, and as
to when wages are due, I would refer the reader to those titles in
Chapters VIII., X., XI. and XII. of Part III., above referred to.
WAGES.--Officers may sue in admiralty for their wages, and may arrest
the ship, into whoseever hands it may have passed;[115] which is not
the case with the master, who is supposed to look solely to the
personal responsibility of the owners.
[115] 1 Pet. Ad. 246.
SICKNESS.--The right of an officer to be cured at the ship's expense is
the same as that of a seaman.[116] The law upon that subject will be
found in Chapter IX., title "Sickness," page 207.
[116] 1 Sumner, 151.
PUNISHMENT.--The laws of the United States provide that if any master
or officer shall unjustifiably beat, wound, or imprison any of the
crew, or withhold from them suitable food and nourishment, or inflict
upon them any cruel and unusual punishment, he shall be imprisoned not
exceeding five years, and fined not exceeding $1000 for each
offence.[117] The officers, as part of the 'crew,' are entitled to the
protection of this statute, against the master's acts; and, on the
other hand, they are liable under it for any abuse of a seaman.[118]
[117] Act 1835, ch. 313, §3.
[118] 4 Mason, 104. 3 Sumner, 209.
The law as to the officer's right to punish a seaman has been clearly
settled, and is very simple. The sole authority to punish, for
correction and discipline, resides with the master.[119] An officer has
no right to use force with a seaman, either by chastising or confining
him, except in a single class of cases; that is, upon an emergency
which admits of no delay, and where the use of force is necessary for
the safety of life and property. If a seaman is about to do an act
which may endanger life or property, and instant action is required,
the officer may confine him, or use force necessary to prevent him. So,
if the immediate execution of an order is important, and a seaman, by
obstinacy or wilful negligence, prevents or impedes the act, the
officer may use force necessary to secure the performance of the duty.
In these cases there must be a pressing necessity which will not admit
of delay; for if delay is practicable, the officer must report to the
master, and leave the duty of correction with him. A mate can in no
case punish a seaman for the general purposes of correction and
discipline, and still less for personal disrespect to himself.[120] If
the master is not on board, and cannot be called upon, the authority of
the officer is somewhat enlarged; but, even in this case, so far as a
delay is practicable, he must leave the seaman to be dealt with by the
master when he returns. Except in the cases and in the manner before
mentioned, the officer is liable as a trespasser for any force used
with a seaman.
[119] 2 Sumner, 584.
[120] Do. 1. 584.
If the officer acts under the authority, express or implied, of the
master, he will not be held liable, even though the punishment should
be excessive and unjustifiable; for he is, in such cases, only the
agent of the master, who is responsible for the act.[121] Yet, if the
punishment be so excessive as to show malice or wantonness on the part
of the officer, or there be anything in his conduct to imply the same,
he will be liable in some measure himself.
[121] Ware, 219.
SUBORDINATES.--There are a number of men, usually, in merchant vessels,
who are not in any respect officers, but who differ from the common
seamen in that they ship in particular capacities, and to perform
certain duties. These are the carpenter, steward, cook, &c. Such
persons are not to be degraded for slight causes, though the master
unquestionably has the power to do so, upon sufficient grounds.[122] He
may also require them to do duty, if necessary, before the mast. He may
require them to take the place of persons who have been obliged to do
their work,[123] but he cannot exact from them the duty of able seamen,
unless they are such in fact. Repeated acts of disobedience,
intemperance, and gross negligence, and evident incapacity for the
duties undertaken, are justifying causes of removal.[124] In all other
respects this class of persons stands upon the same footing with common
seamen. They have the same privileges, and are under the same
obligations and penalties.[125]
[122] 4 Mason, 84. Ware, 109.
[123] Ware, 109.
[124] Ware, 109.
[125] 2 Pet. Ad. 268.
PILOTS.--When a pilot, who is regularly appointed, is on board, he has
the absolute control of the navigation of the vessel.[126] He is master
for the time being, and is alone answerable for any damage occasioned
by his own negligence or default.[127]
[126] 1 Johns. 305.
[127] 1 Pet. Ad. 223. 1 Mason, 508.
A pilot may sue in admiralty for his wages.[128]
[128] 1 Mason, 508.
A pilot cannot claim _salvage_ for any acts done within the limits of
his duty, however useful and meritorious they may have been.[129] If
towing is necessary, pilots are bound to perform it, having a claim for
compensation for damages done to their boats, or for extra labor.[130]
If extraordinary pilot service is performed, additional pilotage is the
proper reward, and not salvage.[131] If, however, the acts done by the
pilot are clearly without and beyond his duty as pilot, he may claim
salvage.[132]
[129] Gilpin, 60. 10 Peters R. 108. 2 Hagg. 176.
[130] 2 Hagg. 176.
[131] 2 Hagg. 176.
[132] 1 Rob. 106. Gilpin, 60.
CHAPTER VII.
SEAMEN. SHIPPING CONTRACT.
Shipping contract--how formed--how signed. Erasures and
interlineations. Unusual stipulations.
By the law of the United States, in all foreign voyages, and in all
coasting voyages to other than an adjoining state, there must be an
agreement in writing, or in print, with every seaman on board the ship,
(excepting only apprentices and servants of the master or owner,)
declaring the voyage, and term or terms of time, for which such seaman
is hired.[133] This contract is called the _shipping-articles_, and all
the crew, including the master and officers, usually sign the same
paper; it not being requisite that there should be a separate paper for
each man. If there is not such a contract signed, each seaman could, by
the old law, recover the highest rate of wages that had been given on
similar voyages, at the port where he shipped, within three months next
before the time of shipment.[134] By the law of 1840, he may, in such
case, leave the vessel at any time, and demand the highest rate of
wages given to any seaman during the voyage, or the rate agreed upon at
the time of his shipment.[135] A seaman not signing the articles, is
not bound by any of the regulations, nor subject to the penalties of
the statutes;[136] but he is, notwithstanding, bound by the rules and
liable to the forfeitures imposed by the general maritime law.[137]
[133] Act 1790, ch. 56, §1.
[134] Act 1790, ch. 56, §1.
[135] Act 1840, ch. 23, §10.
[136] Act 1790, ch. 56, §1.
[137] 1 Pet. Ad. 212.
These shipping-articles are legal evidence, and bind all parties whose
names are annexed to them, both as to wages, the nature and length of
the voyage, and the duties to be performed.[138] Accordingly, seamen
have certain rights secured to them with reference to these papers. In
the first place, the master must obtain a copy of the articles,
certified to by the collector of the port from which the vessel sails,
to take with him upon the voyage. This must be a fair and true copy,
without erasures or interlineations. If there are any such erasures or
interlineations, they will be presumed to be fraudulent, and will be
set aside, unless they are satisfactorily explained in a manner
consistent with innocent purposes, and with the provisions of laws
which guard the rights of mariners. These articles must be produced by
the master before any consul or commercial agent to whom a seaman may
have submitted a complaint.[139]
[138] 3 Mason, 161. Act 1840, ch. 23, §3.
[139] Act 1840, ch. 23, §2, 19.
Every unusual clause introduced into the shipping-articles, or anything
which tends to deprive a seaman of what he would be entitled to by the
general law, will be suspiciously regarded by the courts; and if there
is reason to suppose that any advantage has been taken of him, or if
the contract bears unequally upon him, it will be set aside. In order
to sustain such a clause, the master or owner must show two things:
first, that the seaman's attention was directed toward it, and its
operation and effect explained to him; and, secondly, that he received
some additional compensation or privilege in consideration of the
clause. Unless the court is satisfied upon these two points, an unusual
stipulation unfavorable to a seaman will be set aside.[140] For
instance, seamen are entitled to have a medicine-chest on board, and in
certain cases to be cured at the ship's expense; and the court set
aside a clause in the shipping-articles in which it was stipulated that
the seamen should bear all the expense, even though there were no
medicine-chest on board.[141] Another clause was set aside, in which
the voyage was described as from Baltimore to St. Domingo and
_elsewhere_, on the ground that seamen are entitled to have their
voyage accurately described.[142]
[140] 2 Sumner, 443. 2 Mason, 541.
[141] 2 Mason, 541.
[142] 1 Hall's Law Jour. 207. 2 Gall. 477, 526. 2 Dods. 504.
Gilp. 219.
Some clauses which are not such as to be set aside, will yet be
construed in favor of seamen, if their interpretation is at all
doubtful.[143] A clause providing that no wages should be paid if the
vessel should be taken or lost, or detained more than thirty days, was
set aside, seamen being entitled to wages up to the last port of
delivery.[144] If the amount of wages merely be omitted in the
articles, there seems to be some doubt as to the introduction of other
evidence to show the rate agreed upon, and as to the seaman's being
entitled by statute to the highest rate of wages current.[145] If a
seaman ships for a general coasting and trading voyage to different
ports in the United States, and the articles provide for no time or
place at which the voyage shall end, the seaman may leave at any time,
provided he does not do so under circumstances peculiarly inconvenient
to the other party.[146]
[143] 1 Pet. Ad. 186, 215.
[144] 2 Sumner, 443.
[145] Gilpin, 452. Abb. on Shipp. 434, note. Act 1840, ch.
23, §10.
[146] Ware, 437.
If, however, the voyage is accurately described, and the wages
specified, the seaman cannot be admitted to show that his contract was
different from that contained in the articles.[147]
[147] Gilpin, 305.
It is no violation of the contract if the vessel departs from the
voyage described, by accident, necessity, or superior force.[148]
[148] 2 Hagg, 243.
CHAPTER VIII.
SEAMEN--CONTINUED.
Rendering on board. Refusal to proceed. Desertion or absence during the
voyage. Discharge.
RENDERING ON BOARD.--If, after having signed the articles, and after a
time has been appointed for the seaman to render himself on board, he
neglects to appear, and an entry to that effect is made in the
log-book, he forfeits one day's pay for every hour of absence; and if
the ship is obliged to proceed without him, he forfeits a sum equal to
double his advance.[149] These forfeitures apply to the commencement of
the voyage, and cannot be exacted unless a memorandum is made on the
articles, and an entry in full in the log-book. A justice of the peace
may, upon complaint of the master, issue a warrant to apprehend a
deserting seaman, and commit him to jail until the vessel is ready to
proceed upon her voyage. The master must, however, first show that the
contract has been signed, and that the seaman departed without leave,
and in violation of it.[150]
[149] Act 1790, ch. 56, §2.
[150] Do. §7.
REFUSAL TO PROCEED.--If, after the voyage has begun, and before the
vessel has left the land, the first officer and a majority of the crew
shall agree that the vessel is unfit to proceed on the voyage, either
from fault or deficiency in hull, spars, rigging, outfits, provisions,
or crew, they may require the master to make the nearest or most
convenient port, and have the matter inquired into by the district
judge, or two justices of the peace, taking two or more of the
complainants before the judge. Thereupon the judge orders a survey, and
decides whether the vessel is to proceed, or stop and be repaired and
supplied; and both master and crew are bound by this decision. If the
seamen and mate shall have made this complaint without reason, and from
improper motives, they are liable to be charged with the expenses
attending it.[151]
[151] Do. §3.
If, when the vessel is in a foreign port, the first or any other
officer and a majority of the crew shall make complaint, in writing, to
the consul, that the ship is unfit to proceed to sea, for any of the
above reasons, the consul shall order an examination, in the same
manner; and the decision of the consul shall bind all parties. If the
consul shall decide that the vessel was sent to sea in an unsuitable
condition, by neglect or design, the crew shall be entitled to their
discharge and three months' additional pay; but not if it was done by
accident or innocent mistake.[152]
[152] Act 1840, ch. 23, §12--15.
It is no justification for refusing to do duty and proceed upon the
voyage, that a new master has been substituted in place of the one
under whom the seaman originally shipped;[153] and if a blank is left
for the name of the master, the seaman is supposed to ship under any
who may be appointed.[154] The same rule applies to the substitution or
appointment of any other officer of the ship during the voyage.
[153] 1 Mason, 443. Bee, 48. 2 Sum. 582.
[154] 6 Mass. 300.
DESERTION OR ABSENCE DURING THE VOYAGE.--If, during the voyage, the
seaman absents himself without leave, for less than forty-eight hours,
and an entry thereof is made in full in the log-book, he forfeits three
days' pay for each day's absence. But if the absence exceeds
forty-eight hours, he forfeits all his wages then due, and all his
goods and chattels on board the vessel at the time, and is liable to
the owner in damages for the expense of hiring another seaman.[155] If
he deserts within the limits of the United States, he is liable to be
arrested and committed to jail, until the vessel sails.[156] If he
deserts or absents himself in a foreign port, the consul is empowered
to make use of the authorities of the place to reclaim him. If,
however, the consul is satisfied that the desertion was caused by
unusual or cruel treatment, the seaman may be discharged, and shall
receive three months' additional wages.[157] It is not a desertion for
a seaman to leave his vessel for the purpose of procuring necessary
food, which has been refused on board; nor is a seaman liable if the
conduct of the master has been such as to make it dangerous for him to
remain on board,[158] or if the shipping-articles have been
fraudulently altered.[159] Even in a clear case of desertion, if the
party repents, and seeks to return to his duty within a reasonable
time, he is entitled to be received on board again, unless his previous
conduct had been such as would justify his discharge.[160]
[155] Act 1790, ch. 56, §5.
[156] Act 1790, ch. 56, §7.
[157] Act 1840, ch. 23, §9.
[158] 1 Hagg. 63.
[159] Do. 182.
[160] 1 Sumner, 373.
As to the effect of desertion upon wages, and what is desertion in such
cases, see the subject, "Wages affected by Desertion," Chapter XI.
DISCHARGE.--By referring to Chapter IV., "Master's Relation to Crew,"
the seaman will find that, though the master has power to discharge a
seaman for gross and repeated misconduct, yet that this right is
closely watched, and any abuse of it is severely punished. He will also
find there a statement of his own rights and privileges, with reference
to a discharge. It has been seen that he may demand his discharge of
the consul, if the vessel is not fit to proceed, and is not repaired,
or if he has been cruelly and unjustifiably treated.[161]
[161] Act 1840, ch. 23, §9, 14.
If a vessel has been so much injured that it is doubtful whether she
can be repaired, or the repairs cannot be made for a long time, during
which it would be a great expense to the owners to support the seamen
in a foreign country, it is held that the crew may be discharged, upon
the owners' paying their passage home, and their wages up to the time
of their arrival at the place of shipment.[162]
[162] 2 Dodson, 403.
As to discharge at the end of the voyage, see "Wages affected by
Desertion," Chapter XI.
CHAPTER IX.
SEAMEN--CONTINUED.
Provisions. Sickness. Medicine-chest. Hospital money. Relief in foreign
ports. Protection.
PROVISIONS.--For the benefit of seamen it has been enacted that every
vessel bound on a voyage across the Atlantic, shall have on board, well
secured under deck, at least sixty gallons of water, one hundred pounds
of wholesome ship bread, and one hundred pounds of salted flesh meat,
over and above the stores of master or passengers, and the live stock.
And if the crew of any vessel not so provided shall be put upon short
allowance of water, flesh, or bread, such seaman shall recover from the
master double wages for every day he was so allowanced.[163] The same
rule applies to other voyages than those across the Atlantic, and the
amount of provisions stowed below must be in proportion to the length
of the voyage, compared with one across the Atlantic.[164] It also
applies to seamen shipped in foreign ports, as well as to those shipped
in the United States.[165] It has been thought that if the articles
enumerated cannot be procured, the master may substitute other
wholesome provisions; but it is doubtful whether even this will free
him from the penalty; at least it will not unless he can show that it
was impossible to procure them at the last port of departure.[166]
[163] Act 1790, ch. 56, §9.
[164] Do.
[165] 1 Pet. Ad. 223.
[166] 1 Pet. Ad. 229, 223. Bee, 80 Abb. 135, note. Ware, 454.
Besides this special enactment, a seaman may always recover damages of
a master who unnecessarily and wantonly deprives him of sufficient food
and nourishment.[167] If, however, the short allowance is caused by
inevitable accident, without any fault of the master or owner, or is a
matter of fair discretion in a case of common danger, the master is not
liable. Another law of the United States provides that if any master or
other officer shall wilfully and without justifiable cause withhold
suitable food and nourishment from a seaman, he shall be fined not
exceeding $1000 and imprisoned not exceeding five years.[168] The
master may at any time, at his discretion, put the crew upon an
allowance of water and eatables; but if it is a short allowance, he
must be able to give a justifying reason.
[167] 2 Pet. Ad. 409.
[168] Act 1835, ch. 313, §3.
SICKNESS. MEDICINE-CHEST.--Every vessel of one hundred and fifty tons
or upwards, navigated by ten or more persons in all, and bound on a
voyage beyond the United States, and every vessel of seventy-five tons
or upwards, navigated by six or more persons in the whole, and bound
from the United States to any port in the West Indies, is required to
have a chest of medicines, put up by an apothecary of known reputation,
and accompanied by directions for administering the same. The chest
must also be examined at least once a year, and supplied with fresh
medicines.[169]
[169] Act 1790, ch. 56, §8; 1805, ch. 88, §1.
In case of dispute, the owner must prove the sufficiency of the
medicine-chest. It does not lie with the seaman to prove its
insufficiency.[170]
[170] 2 Mason, 541.
If a vessel has a suitable medicine-chest on board, it would seem that
the ship is not to be charged with the medicines and medical advice
which a seaman may need. But the ship is still liable for the expenses
of his nursing, care, diet, and lodging.[171] Accordingly, if a seaman
is put on shore at a hospital or elsewhere, for his cure, the ship is
chargeable with so much of the expense as is incurred for nursing,
care, diet, and lodging; and unless the owner can specify the items of
the charge, and show how much was for medical advice, and how much for
other expenses, he must pay the whole.[172] The seaman is to be cured
at the expense of the ship, of a sickness or injury sustained in the
ship's service;[173] but if he contracts a disease by his own fault or
vices, the ship is not chargeable.[174] A sick seaman is entitled to
proper nursing, lodging, and diet. If these cannot be had, or are not
furnished on board the vessel, he is entitled to be taken on shore to a
hospital, or to some place where these can be obtained. It is often
attempted to be shown that the seaman was put on shore at his own
request. This is no defence. He is entitled to be put on shore if his
disease requires it; and it is seldom that proper care can be taken of
a seaman on board ship.[175]
[171] 2 Mason, 541. 1 Sumner, 151.
[172] 1 Pet. Ad. 256, note.
[173] 1 Sumner, 195.
[174] Gilpin, 435. 1 Pet. Ad. 142, 152.
[175] 1 Pet. Ad. 256, note.
If a seaman requires further medicines and medical advice than the
chest and directions can give, and is not sent ashore, it would seem
that the ship ought to bear the expense; but this point has never been
decided.[176] If the medicine-chest can furnish all he needs, the ship
is exempted.[177]
[176] Gilpin, 435. 1 Pet. Ad. 142, 152, 255.
[177] 2 Mason, 541.
HOSPITAL MONEY.--Every seaman must pay twenty cents a month, out of his
wages, for hospital money. This goes to the establishment and support
of hospitals for sick and disabled seamen.[178]
[178] Act 1798, ch. 94, §1.
RELIEF IN FOREIGN PORTS.--If a vessel is sold in a foreign port and her
crew discharged, or if a seaman is discharged with his own consent, he
can receive two months' extra wages of the consul, who must obtain it
of the master.[179] This applies only to the voluntary sale of the
vessel, and not when the sale is rendered necessary by shipwreck. If,
however, after the disaster the vessel might have been repaired at a
reasonable expense and in a reasonable time, but the owner chooses to
sell, the two months' pay is due. To escape the payment, the owner must
show that he was obliged to sell.[180]
[179] Act 1803, ch. 62, §3.
[180] Ware, 485. Gilpin, 198.
It is also the duty of the consuls to provide subsistence and a passage
to the United States for any American seamen found destitute within
their districts. The seamen must, if able, do duty on board the vessel
in which they are sent home, according to their several abilities.[181]
[181] Act 1803, ch. 62, §4.
The crew of every vessel shall have the fullest liberty to lay their
complaints before the consul or commercial agent in any foreign port,
and shall in no respect be restrained or hindered therein by the master
or any officer, unless sufficient and valid objection exist against
their landing. In which case, if any seaman desire to see the consul,
the master must inform the consul of it forthwith; stating, in writing,
the reason why the seaman is not permitted to land, and that the consul
is desired to come on board. Whereupon the consul must proceed on board
and inquire into the causes of complaint.[182]
[182] Act 1840, ch. 23, §1.
PROTECTION.--Every American seaman, upon applying to the collector of
the port from which he departs, and producing proof of his citizenship,
is entitled to a letter of protection. The collector may charge for
this twenty-five cents.[183]
[183] Act 1796, ch. 36, §4.
CHAPTER X.
SEAMEN--CONTINUED.
Punishment. Revolt and mutiny. Embezzlement. Piracy.
PUNISHMENT.--As to the right of the master to punish a seaman by
corporal chastisement, imprisonment on shore, confinement on board,
&c., and the extent of that right, and the master's liability for
exceeding it,--the seaman is referred to Chapter IV., "The Master's
relation to the Crew," title, "Imprisonment" and "Punishment." He will
there see that the master possesses this right to a limited extent, and
that he is strictly answerable for the abuse of it. Disobedience of
orders, combinations to refuse duty, dishonest conduct, personal
insolence, and habitual negligence and backwardness, are all causes
which justify punishment in a greater or less degree.
The contract which a seaman makes with the master, is not like that of
a man who engages in any service on shore. It is somewhat military in
its nature.[184] The master has great responsibilities resting upon
him, and is entitled to instant and implicit obedience. To ensure this,
regular and somewhat strict discipline must be preserved. The master,
also, cannot obtain assistance when at sea, as any one can who is in
authority upon land. He must depend upon the habits of faithful and
respectful discharge of duty which his crew have acquired, and if this
fails, he may resort to force. He is answerable for the safety of the
ship, and for the safe keeping and delivery of valuable cargoes, and in
almost all cases he is the first person to whom the owner of the vessel
and cargo will look for indemnity. Considering this, the seamen will
feel that it is not unreasonable that the master should have power to
protect himself and all for whom he acts, even by force if
necessary.[185] A good seaman, who is able and willing to do his duty
faithfully and at all times, and treats his officers respectfully, will
seldom be abused; and if he is, the master is liable to him personally
in damages, and is also subject to be indicted by the government and
tried as a criminal. A seaman should be warned against taking the law
into his own hands. If the treatment he receives is unjustifiable, he
should still submit to it, if possible, until the voyage is up, or
until he arrives at some port where he can make complaint. If he is
conscious that he is not to blame, and an assault is made upon him
unjustifiably and with dangerous severity, he may defend himself; but
he should not attempt to punish the offender, or to inflict anything in
the way of retaliation.[186]
[184] Ware, 86. 3 Wash. 515.
[185] Ware, 219.
[186] Do. 3 Wash. 552.
In Chapter VI., title, "Mates," the reader will see how far any
inferior officer of a vessel may use force with a seaman.
REVOLT AND MUTINY.--If any one or more of the crew of an American
vessel shall by fraud or force, or by threats or intimidations, take
the command of the vessel from the master or other commanding officer,
or resist or prevent him in the free and lawful exercise of his
authority, or transfer the command to any other person not lawfully
entitled to it; every person so offending, and his aiders and
abbettors, shall be deemed guilty of a revolt or mutiny and felony; and
shall be punished by fine not exceeding $2000, and by imprisonment and
confinement to hard labor not exceeding ten years, according to the
nature and aggravation of the offence.[187] And if any seaman shall
endeavor to commit a revolt or mutiny, or shall combine with others on
board to make a revolt or mutiny, or shall solicit or incite any of the
crew to disobey or resist the lawful orders of the master or other
officer, or to refuse or neglect their proper duty on board, or shall
assemble with others in a riotous or mutinous manner, or shall
unlawfully confine the master or other commanding officer,--every
person committing any one or more of these offences shall be imprisoned
not exceeding five years, or fined not exceeding $1000, or both,
according to the nature and aggravation of the offence.[188]
[187] Act 1835, ch. 313, §1.
[188] Do. §2.
It will be seen that the first of these laws applies only to cases
where seamen actually throw off all authority, deprive the master of
his command, and assume the control themselves, which is to make a
revolt. The last is designed to punish endeavors and combinations to
make a revolt, which are not fully carried out.
Every little instance of disobedience, or insolent conduct, or even
force used against the master or other officer, will not be held a
revolt or an endeavor to make a revolt. There must be something showing
an intention to subvert the lawful authority of the master.[189] It
does not excuse seamen, however, from this offence, that they confined
their refusal to one particular portion of their duty. If that duty was
lawfully required of them, it is equally a subversion of authority as
if they had refused all duty.[190]
[189] 4 Wash. 528. 1 Pet. Ad. 178.
[190] 4 Mason, 105.
If the crew interfere by force or threats to prevent the infliction of
punishment for a gross offence, it is an endeavor to commit a
revolt.[191]
[191] 1 Sumner, 448.
To constitute the offence of confining the master, it is not necessary
that he should be forcibly secured in any particular place, or even
that his body should be seized and held; any act which deprives him of
his personal liberty in going about the ship, or prevents his doing his
duty freely, (if done with that intention,[192]) is a confinement.[193]
So is a threat of immediate bodily injury, if made in such a manner as
would reasonably intimidate a man of ordinary firmness.[194]
[192] 4 Wash. 428.
[193] 4 Mason, 105. 4 Wash. 548. 1 Sumner, 448. 3 Wash. 525.
[194] Pet. C. C. 213.
In all these cases of revolt, mutiny, endeavors to commit the same, and
confinement of the master, it is to be remembered that the acts are
excusable if done from a sufficient justifying cause. The master may so
conduct himself as to justify the officers and crew in placing
restraints upon him, to prevent his committing acts which might
endanger the lives of all the persons on board. But an excuse of this
kind is received with great caution, and the crew should be well
assured of the necessity of such a step, before taking it, since they
run a great risk in so interfering.[195]
[195] 4 Mason, 105. 1 Sumner, 448. Pet. C. C. 118.
EMBEZZLEMENT.--If any of the crew steal, or appropriate, or by gross
negligence suffer to be stolen, any part of the cargo, or anything
belonging to the ship, they are responsible for the value of everything
stolen or appropriated.
It is necessary that the fraud, connivance, or negligence of a seaman
should be proved against him, before he can be charged with anything
lost or stolen; and in no case is an innocent man bound to contribute
towards a loss occasioned by the misconduct of another. If, however, it
is clearly proved that the whole crew were concerned, but one offender
is not known more than another, and the circumstances are such as to
affect all the crew, each man is to contribute to the loss, unless he
clears himself from the suspicion.[196]
[196] 1 Mason, 104. Gilpin, 461.
PIRACY.--If the master or crew of a vessel shall, upon the high seas,
seize upon or rob the master or crew of another vessel; or if they
shall run away with the vessel committed to their charge, or any goods
to the amount of $50; or voluntarily yield them up to pirates; or if
the crew shall prevent the master by violence from fighting in the
defence of vessel or property; such conduct is piracy, and punishable
with death.[197]
[197] Act 1790, ch. 36, §8; 1820, ch. 113, §3.
It is also piracy, and punishable with death, to be engaged in any
foreign country in kidnapping any negro or mulatto, or in decoying or
receiving them on board a vessel with the intention of making them
slaves.[198]
[198] Act 1820, ch. 113, §4, 5.
CHAPTER XI.
Seamen's Wages.
Affected by desertion or absence;--by misconduct;--by imprisonment;--by
capture;--by loss of vessel and interruption of voyage. Wages on an
illegal voyage. Wages affected by death or disability.
WAGES AFFECTED BY DESERTION OR ABSENCE.--It has been seen that if a
seaman, at the commencement of the voyage, neglects to render himself
on board at the time appointed, and an entry thereof is made in the
log-book, he forfeits one day's pay for every hour's absence; and if he
shall wholly absent himself, so that the ship is obliged to go to sea
without him, he forfeits his advance and as much more.[199] And if at
any time during the voyage he absents himself without leave, and
returns within forty-eight hours, he forfeits three days' pay for every
day's absence; but if he is absent more than forty-eight hours, he
forfeits all the wages then due him, and all his clothes and goods on
board at the time.[200] These forfeitures cannot be exacted against the
seaman unless there is an entry made in the log-book on the same day
that he left, specifying the name of the seaman, and that he was absent
without leave.[201]
[199] Act 1790, ch. 56, §2.
[200] Do. §4.
[201] Gilpin, 83, 140, 207. Ware, 309.
But independently of these regulations, and without the necessity of
any entry, &c., a seaman forfeits his wages for deserting the vessel,
or absenting himself wrongfully and without leave, by the general law
of all commercial nations.[202] If, however, the seaman is absent
without fault of his own,[203] or if he is obliged to desert by reason
of cruel treatment, want of food, or the like, he does not forfeit his
wages. But in such case, the seaman must prove that the treatment was
such that he could not remain without imminent danger to his life,
limbs, or health.[204] If the voyage for which he shipped has been
abandoned, or there has been a gross and unnecessary deviation, he does
not forfeit his wages for leaving the vessel; but then the change of
voyage must have been actually determined upon and known to the
seaman.[205]
[202] Ware, 309.
[203] 1 Mason, 45. Bee, 134, 48. Gilpin, 225.
[204] 1 Pet. Ad. 186. Gilpin, 225. 2 Pet. Ad. 420, 428. Ware,
83, 91, 109.
[205] Gilpin, 150. 2 Pet. Ad. 415.
Even if the seaman shall have clearly deserted without justifiable
cause, or absented himself more than forty-eight hours, yet, if he
shall offer to return and do his duty, the master must receive him,
unless his previous conduct would justify a discharge.[206] And if he
is so received back, and does his duty faithfully for the rest of the
voyage, the forfeiture is considered as remitted, and he is entitled to
his wages for the whole voyage.[207] If, however, the owner has
suffered any special damage from the wrongful absence of the seaman,
as, if the vessel has been detained, or a man hired in his place, all
such necessary expenses may be deducted from the wages.[208]
[206] 1 Sumner, 373.
[207] 2 Wash. 272. Gilpin, 145. 1 Sumner, 373. 1 Pet. Ad.
160.
[208] Gilpin, 145, 298, 98.
A mere leaving of the vessel, though a wrongful absence, is not a
desertion, unless it is done with the intention to desert.[209] A
seaman is bound to load and unload cargo in the course of the voyage if
required of him, and a refusal to do so is a refusal of duty.[210] If
the voyage is at an end, according to the articles, and the vessel is
safely moored at the port of discharge, the seamen are still bound to
discharge the cargo if it is required of them. If they do not, their
refusal or neglect does not, however, work a forfeiture of all their
wages, but only makes them liable to a deduction, as compensation to
the owner for any damage he may have suffered.[211] The custom in
almost all sea-ports of the United States is, to discharge the crew,
and not to require them to unload cargo at the end of the voyage. This
custom is so strong that if the owner or master wishes to retain the
crew, he must give them notice to that effect. Unless the crew are
distinctly told that they must remain and discharge cargo, they may
leave the vessel as soon as she is safely moored, or made fast. If they
are required to remain and discharge cargo, they make themselves liable
to a deduction from their wages for a neglect or refusal, but do not
forfeit them.[212] The seaman must bear in mind, however, that this is
only when the voyage is at an end, and the ship is at the final port of
discharge. If he refuses to load or unload at any port in the course of
the voyage, and before it is up, according to the articles, he does so
at the risk of forfeiting all his wages.[213]
[209] 1 Sumner, 373. Ware, 309.
[210] 1 Pet. Ad. 253.
[211] 1 Sumner, 373. Gilpin, 208. Ware, 454. 2 Hagg. 40.
[212] 1 Sumner, 373. Gilpin, 208.
[213] 1 Pct. Ad. 253.
The master and owners of a vessel are allowed ten days after the voyage
is up, before a suit can be brought against them for the wages of the
crew.[214] This is in order to give them time to settle all accounts
and discover delinquencies. If the crew are retained to unload, then
the ten days begin to run from the time the vessel is completely
unloaded. But if the crew are not retained for this purpose, but are
discharged and allowed to leave the vessel, then the ten days begin to
run from the day they are discharged.[215]
[214] Act 1790, ch. 56, §6.
[215] 1 Pet. Ad. 165, 210. Ware, 458. Dunl. Ad. Pr. 99.
WAGES AFFECTED BY MISCONDUCT.--A seaman may forfeit his wages by gross
misconduct; and if not forfeited, he may be liable to have a deduction
made from them, for any damage caused to the owner by such misconduct.
To create a forfeiture, his misbehavior must be gross and
aggravated.[216] A single act of disobedience, or a single neglect of
duty, will not deprive him of his wages.[217] A refusal to do duty in a
moment of high excitement caused by punishment will not forfeit wages,
unless followed by obstinate perseverance in such refusal.[218] Where
_drunkenness_ is habitual and gross, so as to create a general
incapacity to perform duty, it is a ground of forfeiture of wages. But
occasional acts of drunkenness, if the seaman in other respects
performs his duty, will not deprive him of his wages.[219] In this, as
in all cases of neglect, disobedience, or wilful misconduct, which do
not create a forfeiture, a deduction may be made if the owner has
suffered any loss.[220]
[216] 4 Mason, 84. Bee, 148.
[217] 4 Mason, 84.
[218] Do.
[219] 2 Hagg. 2. 4 Mason, 541.
[220] 4 Mason, 541. I Sumner, 384. Bee, 237. 2 Hagg. 420.
Gilpin, 140. 1 Pet. Ad. 168.
In one instance a forfeiture of one half of a seaman's wages was
decreed, in consequence of his striking the master. He did not forfeit
the whole, because he had been otherwise punished.[221]
[221] Bee. 184.
If the seaman is imprisoned for misconduct, he does not forfeit the
wages that accrued during his confinement, nor, what amounts to the
same thing, is he bound to pay those of a person hired in his place
during his imprisonment.[222]
[222] Gilpin, 83, 140, 33. Ware, 9.
If the crime of a seaman is against the laws of the United States, and
too great for the master's authority to punish, he must be confined and
brought home to trial. But this does not forfeit his wages, though any
loss or damage to the owner may be deducted.[223]
[223] 1 Pet. Ad. 168.
In all cases of forfeiture of wages for misconduct, it is only the
wages due at the time of the misconduct that are lost. The wages
subsequently earned are not affected by any previous misbehavior.[224]
[224] 4 Mason, 84.
If a seaman or officer is evidently incapable of doing the duty he
shipped for, he may be put upon other duty, and a reasonable deduction
may be made from his wages.[225]
[225] Ware, 109.
WAGES AFFECTED BY IMPRISONMENT.--If a seaman is imprisoned by a warrant
from a judge or justice of the peace, within the limits of the United
States, for desertion or refusal to render himself on board, he is
liable to pay the cost of his commitment and support in jail, as well
as the wages of any person hired in his place.[226] So, if a seaman is
imprisoned in a foreign port by the authorities of the place for a
breach of their laws, the costs and loss to the owner may be deducted
from his wages; but not so if he is imprisoned at the request of the
master.[227] The right of the master to imprison at all is a doubtful
one, and dangerous of exercise; and if he does resort to it, he can
never charge the expenses to the seamen, nor deduct their wages during
imprisonment.[228]
[226] Gilpin, 223.
[227] Gilpin, 223.
[228] Ware, 18, 503, Gilpin, 83, 233.
WAGES AFFECTED BY CAPTURE.--If a neutral ship is captured, it is the
right and duty of the seamen to remain by the vessel until the case is
finally settled.[229] If she is liberated, they are then entitled to
their wages for the whole voyage; and if freight is decreed, they are
entitled to their wages for as much of the voyage as freight is
given.[230] And if at any future time the owners recover the vessel, or
her value, upon appeal or by treaty, they are liable for wages.[231] In
order to secure his wages in these cases, the seaman must remain by the
vessel until her sale or condemnation, and the master cannot oblige him
to take his discharge.[232] The condemnation or sale of the vessel puts
an end to his contract. If he leaves before the condemnation or sale,
with the master's consent, he does not lose his chance of recovering
his wages.[233] Even if the vessel is condemned, and the owner never
recovers the vessel or its value, yet the seaman is entitled to his
wages up to the last port of delivery, and for half the time she lay
there.[234]
[229] 2 Sumner, 443. 1 Pet. Ad. 128.
[230] 2 Gall. 178. 2 Sumner, 443.
[231] 3 Mason, 161.
[232] 1 Mason, 45.
[233] 1 Mason, 45.
[234] 1 Pet. Ad. 203.
WAGES AFFECTED BY LOSS OF VESSEL OR INTERRUPTION OF VOYAGE.--If a
vessel meets with a disaster, it is the duty of the crew to remain by
her so long as they can do it with safety, and to exert themselves to
the utmost of their ability to save as much as possible of the vessel
and cargo.[235] If they abandon the vessel unnecessarily, they forfeit
all their wages; and if their leaving was necessary and justifiable,
yet they lose their wages except up to the last port of delivery and
for half the time the vessel was lying there, or for so long as she was
engaged with the outward cargo.[236] This rule may seem hard, but its
object is to secure the services of the crew in case of a disaster. If
by their exertions any parts of the vessel or cargo are saved, they are
entitled to wages, and an extra sum for salvage.[237] If the vessel is
abandoned and nothing is saved, they lose their wages, except up to the
last port of delivery and for half the time the vessel was lying
there.[238]
[235] Ware, 49. 1 Pet. 204.
[236] Pet. C. C. 182. 3 Sumner, 286.
[237] Ware, 49. Gilpin, 79. 2 Mason, 319. I Hagg. 227.
[238] 2 Mason, 329. 1 Pet. Ad. 204, 130; 2 do. 391. 11 Mass.
545.
The general rule is, that a seaman's wages are secure to him whenever
the vessel has earned any freight, whatever may afterwards happen. And
a vessel earns freight at every port where she delivers any cargo. For
the benefit of seamen a vessel is held to earn freight whenever she
goes to a port under a contract for freight, though she go in
ballast.[239] A seaman also secures his wages wherever the ship might
have earned freight but for the agreement or other act of the
owner.[240] If a vessel is on a trading voyage from port to port, and
is lost on the homeward passage, wages would probably be allowed for
the outward passage, and for half the time she was engaged in trading
with the old or new cargoes; the trading and going from port to port
being considered the same as though she had been lying in port all the
time, and discharging and receiving cargo. Or else, wages would be
given up to the last port at which she took in any return cargo, and
for half the time she was lying there.[241]
[239] 2 Mason, 319. 1 Pet. Ad. 207.
[240] 3 Sumner, 286. 2 Mason, 319. 2 Hagg. 158.
[241] Pet. C. C. 182. 2 Pet. Ad. 390.
These rules apply only to cases where the voyage is broken up by
inevitable accidents, as by perils of the seas, capture, war or
superior force. If the voyage is broken up by the fault of the seamen,
they lose all their wages. If, on the other hand, the seamen are
compelled to leave, or the voyage is broken up by the fault of the
master or owner, as by cruel treatment, want of provisions, or the
like, the crew would be justly entitled to wages for the whole voyage
contracted for. If the vessel is sold, or the voyage altered or
abandoned by the master or owner, not from inevitable necessity, but
for their own interest and convenience, then the crew are entitled, by
statute, to wages for all the time they were on board, and two months'
extra pay.[242] And, by the general law, they would always receive some
extra wages as a compensation for the loss of the voyage, and as a
means of supporting themselves and procuring a passage home; or,
perhaps, full wages for the voyage.[243]
[242] Act 1803, ch. 62, §3.
[243] 2 Pet. Ad. 264. Bee, 48. 2 Gall. 182. 3 Johns. R. 518.
WAGES ON AN ILLEGAL VOYAGE.--A seaman has no remedy for his wages upon
an illegal voyage; as, for instance, in the slave trade.[244] Wages
have, however, been allowed, where it was proved that the seaman was
innocent of all knowledge of, or participation in, the illegal
voyage.[245]
[244] 9 Wheat. 409. 6 Rob. 207. 2 Mason, 58. Edw. 35.
[245] 9 Wheat. 409.
WAGES AFFECTED BY DEATH OR DISABILITY.--If a seaman dies during the
voyage, wages are to be paid up to the time of his death.[246] A seaman
is entitled to all his wages during sickness, and during any time he
was disabled from performing duty. But if his sickness or disability is
brought on by his own fault, as by vice or wilful misconduct, a
deduction may be made for the loss of his services.[247] So, where the
death of a seaman was caused by his own unjustifiable and wrongful
acts, his wages were held forfeited.[248] If a seaman, at the time he
ships, is laboring under a disease which incapacitates or is likely to
incapacitate him during the voyage, and he conceals the same, no wages
will be allowed him, or a deduction will be made from them, according
to the nature of the case.[249] If, in consequence of sickness, a
seaman is left at a foreign port, he is still entitled to wages for the
whole voyage.[250]
[246] Bee, 254, 441.
[247] 1 Pet. Ad. 142, 138.
[248] Do. 142.
[249] 2 Pet. Ad. 263.
[250] Bee, 414. 2 Gall. 46. 1 Pet. Ad. 117.
CHAPTER XII.
SEAMEN--CONCLUDED.
Recovery of wages. Interest on wages. Salvage.
RECOVERY OF WAGES.--A seaman has a threefold remedy for his wages:
first, against the master; secondly, against the owners; and, thirdly,
against the ship itself and the freight earned.[251] He may pursue any
one of these, or he may pursue them all at the same time in courts of
admiralty. He has what is called a _lien_ upon the ship for his wages;
that is, he has a right, at any time, to seize the vessel by a process
of law, and retain it until his claim is paid, or otherwise decided
upon by the court. This lien does not cease upon the sailing of the
ship on another voyage; and the vessel may be taken notwithstanding
there is a new master and different owners.[252] A seaman does not lose
his lien upon the ship by lapse of time. He may take the ship whenever
he finds her; though he must not allow a long time to elapse if he has
had any opportunity of enforcing his claim, lest it should be
considered a stale demand. In common law courts a suit cannot be
brought for wages after six years have expired since they became due.
This is not the case in courts of admiralty.[253]
[251] Bee, 254. 2 Sumner, 443. 2 Gall. 398.
[252] 2 Sumner, 443. 5 Pet. R. 675.
[253] 2 Gall. 477. Paine C. C. 180. 3 Mason, 91.
The lien of the seaman for wages takes precedence of every other lien
or claim upon the vessel.[254] The seaman's wages must be first paid,
even if they take up the whole value of the ship or freight. The wreck
of a ship is bound for the wages, and the rule in admiralty is, that a
seaman's claim on the ship is good so long as there is a plank of her
left.[255] If, after capture and condemnation, the ship itself is not
restored, but the owners are indemnified in money, the seaman's lien
attaches to such proceeds.[256]
[254] Ware, 134, 41.
[255] Sumner, 50. 1 Ware, 41.
[256] 5 Pet. R. 675.
Besides this lien upon the ship, the seaman has also a lien upon the
freight earned, and upon the cargo.[257] He may also sue the owner or
master, or both, personally. They are, however, answerable _personally_
only for the wages earned while the ship was in their own hands.[258]
But a suit may be brought against the _ship_ after she has changed
owners.[259]
[257] Ware, 134. 5 Pet. R. 675.
[258] 11 Johns. 72. 6 Mass. 300; 8 do. 483.
[259] 5 Pet. R. 675. 2 Sumner, 443.
A seaman does not lose his lien upon the vessel by taking an order upon
the owner.[260]
[260] Ware, 185.
After a vessel is abandoned to the underwriters, they become liable for
the seamen's wages, from the time of the abandonment.[261]
[261] 4 Mason, 196.
If, at the end of the voyage, the crew are discharged and not retained
to unload, their wages are due immediately;[262] but they cannot sue in
admiralty until ten days after the day of discharge.[263] If they are
retained to unload, then the owner is allowed ten days from the time
the cargo is fully discharged. If, however, the vessel is about to
proceed to sea before the ten days will elapse, or before the cargo
will be unloaded, the seaman may attach the vessel immediately.[264] If
the owner retains his crew while the cargo is unloading, he must unload
it within a reasonable time. Fifteen working days has frequently been
held a reasonable time for unloading, and the ten days have been
allowed to run from that time.[265]
[262] Ware, 458. Dunl. Ad. Pr. 99. 1 Pet. Ad 165, 210.
[263] Act 1790, ch. 56, §6.
[264] Do.
[265] 1 Pet. Ad. 165. Abb. Shipp. 456, n.
The longest time allowed by law for unloading vessels is twenty days,
if over 300 tons, and ten days, if under that tonnage. Probably seamen
would not be held bound to the vessel for a longer time than is thus
allowed by law for unloading.
INTEREST ON WAGES.--In suits for seamen's wages, interest is allowed
from the time of the demand; and if no demand is proved, then from the
time of the commencement of the suit.[266]
[266] 2 Gall. 45.
SALVAGE.--If a vessel is picked up at sea abandoned, or in distress,
and any of the crew of the vessel which falls in with her go on board,
and are the means of saving her, or of bringing her into port, they are
entitled to salvage.[267] In this case, all the crew who are ready and
willing to engage in the service are entitled to a share of the reward,
although they may not have gone on board the wreck.[268] The reason is,
that where all are ready to go, and a selection is made, there would be
injustice and favoritism in allowing any one the privilege more than
another. Besides, those who remain have an extra duty to perform in
consequence of the others having gone on board the wreck.[269]
[267] Ware, 477. 1 Pet. Ad. 306.
[268] Ware, 477. 2 Pet. Ad. 281.
[269] 2 Dodson, 132.
Crews are not ordinarily entitled to salvage for services performed on
board their own vessel, whatever may have been their perils or
hardships, or the gallantry of their services in saving ship and
cargo;[270] for some degree of extra exertion to meet perils and
accidents, is within the scope of a seaman's duty. In case of
shipwreck, however, where, by the general law, wages are forfeited, the
court will allow salvage, considering it as in the nature of wages due.
In one instance salvage was refused to a part of a crew who rescued the
ship from the rest who had mutinied; for this was held to be no more
than their duty.[271]
[270] 10 Pet. R. 108. 1 Hagg. 227.
[271] 2 Dods. 14.
Yet seamen may entitle themselves to salvage for services performed on
board their own vessel, if clearly beyond the line of their regular
duty; as, when the crew rise and rescue the vessel from the enemy after
she has been taken.[272] So, where a ship was abandoned at sea, and one
or two men voluntarily remained behind, and by great exertions brought
her into port.[273] If an apprentice is a salvor, he, and not his
master, is entitled to the salvage.[274] If one set of men go on board
a wreck, but fall into distress and are relieved by others, they do not
lose their claim for salvage, but each set of salvors shares according
to the merit of its services. If the second set take advantage of the
necessity and distress of the first salvors to impose terms upon them,
as, that they shall give up all claim for salvage, such conditions will
not be regarded by the court.[275]
[272] 1 Pet. Ad. 306.
[273] 2 Cr. 240. 1 Pet. Ad. 48.
[274] 2 Cr. 240. 2 Pet. Ad. 282.
[275] 1 Sumner, 400.
End of Project Gutenberg's The Seaman's Friend, by Richard Henry Dana