SPEECH IN THE SENATE, ON INTRODUCING A BILL TO SECURE WAGES TO
SEAMEN IN CASE OF WRECK, FEBRUARY 12, 1855.
On the 26th of December, 1854, Mr. Sumner introduced the following
resolution:--
"_Resolved_, That the Committee on Commerce be directed to consider
if any legislation be needed in order to secure the wages of
merchant seamen in the case of wreck."
On the 12th of February, 1855, Mr. Sumner followed up this resolution
by introducing a bill, which was read twice and referred to the
Committee on Commerce, as follows:--
"_A Bill to secure Wages to Seamen in case of Wreck._
"_Be it enacted_, &c., That, in case of wreck or loss of any ship
or vessel of the United States, every seaman belonging thereto
shall be entitled to his wages up to the period of such wreck
or loss, whether such ship or vessel shall or shall not have
previously earned freight, provided such seaman shall have exerted
himself to the utmost to save the ship, cargo, and stores; and in
any trial of the question of services, the master, although a party
to the suit, shall be a competent witness on this question.
"SEC. 2. _And be it further enacted_, That every stipulation, by
which any seaman shall consent to abandon his wages, in case of
wreck or loss of the ship or vessel, or in case of the failure to
earn freight, shall be wholly void."
On this bill Mr. Sumner spoke as follows.
Mr. President,--In introducing this bill, I desire to make a brief
explanation, which shall, at least, be a record of my views with regard
to it.
The bill proposes an amelioration of the existing Maritime Law in
respect to the wages of merchant seamen, which, so far as England is
concerned, has been made already by Act of Parliament, and in our
country can be accomplished only by Act of Congress.
By existing Maritime Law, the seaman's wages depend upon a technical
rule, which sometimes occasions hardship. Freight is compendiously said
to be the mother of wages. In conformity with this fanciful idea, wages
are made to depend upon the earning of freight, unless the freight is
waived by agreement of the owner, or the voyage or freight is lost by
negligence, fraud, or misconduct of the owner or master, or voluntarily
abandoned. In case of wreck, the sailor has simply the chance of
something under the name of salvage, if the fragments saved happen to
be of any value; but if the loss be total, then he is without remedy.
In wrecks, which occur with melancholy frequency, on our churlish
winter coast, this hardship adds even to the sorrows of disaster. Thus,
as in a case which has actually arisen, a crew may commence service at
Calcutta, may navigate the Indian Ocean, double the Cape of Good Hope,
and bring their ship safely within sight of land, and then, by total
loss of ship and cargo, from acknowledged perils of the sea, they may
lose everything, even their right to wages, and may find themselves
in a strange port, the prey of poverty. Nor can any merit, either
throughout the protracted voyage or in the hour of peril and shipwreck,
prevent the operation of this technical rule.
There is also another circumstance which constrains the poor sailor.
The owner may insure his ship, and also his freight, so that he may
lose nothing but the premium he pays; but the sailor is not allowed to
protect himself by insurance from loss of wages: his loss is literally
total.
Now this technical rule, which fastens the wages of the sailor to the
fortunes of the vessel, or, in other words, makes the right dependent
on the successful issue of the enterprise for which he is hired, must
be considered an offshoot of Mediæval Maritime Law. It is not found
in the Roman Law, nor in the maritime legislation of the Eastern
Empire, nor in that early compilation which goes under the name of
the Rhodian Laws. An eminent American judge, who sheds great light
upon maritime jurisprudence,--I refer to the learned and able Judge
Ware, of the District Court of Maine,--says, in a judicial opinion,
that "it owes its origin to the necessities and peculiar hazards which
maritime commerce had to encounter in the Middle Ages, when to the
dangers of the winds and waves were added the more formidable perils
of piracy and robbery."[170] The rule, having been thus established,
was preserved in the maritime jurisprudence of Europe, when the special
exigencies in which it had its birth ceased to exist. It has outlived
the circumstances and excuses of its origin, and now survives to vex,
oppress, and disappoint the most needy, if not the most meritorious, of
all concerned in the business of the seas.
[170] _The Dawn_, Daveis, 133.
This hard rule survives with us, but not everywhere. The greatest
commercial nation of the world has led the way in its abolition, and
set an example to the United States. The Act of Parliament, of 7th and
8th Victoria, ch. 112, sec. 17 (at the close),--called "The Merchant
Seamen's Act,"--provides that
"In all cases of wreck or loss of the ship, every surviving seaman
shall be entitled to his wages up to the period of the wreck or
loss of the ship, whether such ship _shall or shall not have
previously earned freight_: provided the seaman shall produce a
certificate from the master or chief surviving officer of the ship,
to the effect that he had exerted himself to the utmost to save the
ship, cargo, and stores."
But the sailor was not completely protected by this provision.
Experience in England showed that the cunning of agents was able to
introduce into the shipping articles an agreement waiving the right
to wages in case of loss, which the unthrifty sailor signed, ignorant
or careless of its import. To remedy this abuse, a further Act of
Parliament, of 13th and 14th Victoria, ch. 93, sec. 53,--known as "The
Mercantile Marine Act,"--
"No seaman shall, by reason of any agreement, forfeit his lien
upon the ship, or be deprived of any remedy for the recovery of
his wages, to which he would otherwise have been entitled; and
every stipulation which is inconsistent with any provision of this
Act, or of any other Act relating to merchant seamen, and every
stipulation by which any seaman consents _to abandon his right to
wages in the case of the loss of the ship_, or to abandon any right
which he may have or obtain in the nature of salvage, _shall be
wholly inoperative_."
The bill which I now introduce is grounded on the provisions quoted
from the two Acts of the British Parliament, and contains two
principles: _first_, that seamen shall be paid their wages down to the
time of the loss of the ship, in case they serve faithfully to the
last; and, _secondly_, that they shall not be permitted to lose their
wages through any agreement in the shipping articles.
In some details I have departed from the British Act. It does not
seem advisable to make the wages dependent on "a certificate from
the master or chief surviving officer of the ship," but to leave the
question of services open to proof in any way, according to received
rules of evidence. Therefore I have said that the wages shall be paid,
"_provided_ the seaman shall have exerted himself to the utmost to
save the ship, cargo, and stores." The reasons for this course are
clear. Masters are often part owners of American ships, and thus have
a personal interest adverse to the sailor. In a mood of selfishness
or recklessness, they might refuse the certificate, even though well
earned. Now, in constructing a protection to the sailor, it does
not seem prudent to make his wages dependent upon any such quarter.
Indeed, it is hardly just to take from him the right to establish
his claim before the Admiralty Court, merely because an interested
master refuses a certificate, when, perhaps, plenary proof might be
furnished _aliunde_. Moreover, if the question were put in control of
the master, he might obtain an improper influence over the minds of the
crew, inducing them even to sacrifice truth in the event of litigation
between owners and underwriters.
There can be no harm in leaving the question of fact to be proved by
competent witnesses, like every other question of fact: and the seamen
should be competent witnesses for each other. A sagacious court will
know how to weigh their testimony, should it come in conflict with that
of the officers. It seems proper that the master, too, though a party
to the suit,--as in the case of a libel against him _in personam_, or
in a suit at Common Law,--should be competent to testify to the conduct
of the libellant or plaintiff,--in other words, whether he has "exerted
himself to the utmost"; and I have introduced into the bill a provision
accordingly.
The British Act of 7th and 8th Victoria contains another defect. It
limits the wages to "every surviving seaman." I can see no good
reason why the wife and children of the sailor who has perished in the
forlorn hope perhaps, in the cause of all, should be deprived of the
humble wages so dearly earned by their natural protector, and thus be
compelled to feel a new deprivation added to their bereavement. In the
proposed bill there is no such limitation.
Beyond this brief statement, I need not on this occasion add another
word. Already Congress has shown a disposition to modify the rigorous
Maritime Law in some of its provisions. In 1851 it made a change in the
liability of ship-owners as common carriers. But this very liability
originated, to a certain extent, in the same principles from which is
derived the liability of the seamen, if they fail to bring the ship and
cargo to port. Ship-owners and sailors were both treated as insurers.
This was in the age of force, before the contract of insurance had
spread its broad protection over commerce in every sea. The seaman
should share this protection. He should be treated as not necessarily
either pirate or coward.
In the discussions of the Senate on the proposed change in the
liability of ship-owners, it was effectively urged by my immediate
predecessor, a distinguished Senator from Massachusetts, the late
Robert Rantoul, Jr., that, if the United States failed to adopt that
measure, the other maritime nations would have an advantage in the
carrying trade. It is equally true, that, unless we adopt the measure
now proposed, Great Britain will have the advantage of us in the rate
of seamen's wages; for, under her existing laws, the seaman can afford
to work cheaper on board a British ship than under the American flag.
The measure now proposed is of direct importance to the hundred and
fifty thousand seamen constituting the mercantile marine of the United
States. It also concerns the million of men constituting the mercantile
marine of the civilized world, any of whom, in the vicissitudes of the
sea, may find themselves in American bottoms. I commend it as a measure
of enlightened philanthropy, and also of simple justice.
I ask that the bill, having been read twice, be referred to the
Committee on Commerce.
The motion was agreed to.