CHAPTER VI.

OF SEAMEN.

WE have already in our first volume considered most of the topics which have arisen relative to the rights, duties, and liabilities of the master and crew. The subject of wages we, however, reserved to consider in this place, as coming more particularly within the scope of admiralty jurisdiction.

It has been settled that where seamen ship on board a privateer, and before the cruise begins, become disabled by sickness, and neither assist in making prizes actually or constructively, they are not entitled to any share in them.1 The same rule would doubtless be applied to a suit for wages in an ordinary case of a merchant ship. For the settled rule appears to be, that if the voyage is broken up, or the seamen are dismissed without cause before the voyage begins, they have their wages for the time they serve, and a reasonable compensation for special damages; and if wrongfully discharged, after the voyage begins, they have wages for the whole voyage.3 And in cases where the voyage is broken up by misfortune, so that the master

1 Ex parte Giddings, 2 Gallis. 56. In this case the libellant went on shore before the cruise began, and by so doing voluntarily abandoned the enterprise. It was admitted that if he had left the ship after the cruise began, he would have had a right to his share of the adventure. And the court said that if a disability happen before the voyage is begun, the mariner should be paid a reasonable sum, for any services actually rendered.

2 Parry v. The Peggy, 2 Browne, Civ. & Adm. Law, 533, is as follows: "The promovents had agreed for monthly wages, for a voyage to the West Indies. They worked on board the ship for some days in the harbor of Dublin; afterwards the owner of the ship, having changed his mind, determined to alter the voyage, and to postpone the sailing of the ship, whereupon the seamen were dismissed without their wages, who now libelled against the ship. As surrogate of the admiralty, I decreed for the seamen, on the reason of the thing, and the authority of Wells v. Osmond, 2 Show. 238." What wages were decreed does not appear.

8 See cases ante, Vol. I. p. 462, n. 5.

would be justified in discharging the crew, they would still be entitled to their wages. If the seaman is compelled to desert by the cruelty of the master he has his wages in full.2 If a person is disrated on account of being incompetent to fulfil the duties of his office, and discharges afterwards the duties of his inferior station with fidelity, it may not be quite certain on the authorities, how he should be rewarded, but on principle, we should say, that a reasonable deduction should be made from the agreed price while he filled the station for which he shipped, and that he would be entitled to the regular wages while he filled the lower station.3 A seaman is entitled to the whole of his wages, although disabled by sickness, even if by reason of that

1 In Bray v. Ship Atalanta, Bee, 48, the vessel struck in going over Charleston bar, and was obliged to put back to Charleston, where she was condemned as unseaworthy. Wages for the time the men were on board were decreed. In The Elizabeth, 2 Dods. 403, the vessel was at a foreign port in a state of distress. As it would have taken a long time to make the repairs, the master discharged the crew, as he alleged, with their consent, and paid their passage home. The seamen claimed wages to the time of the vessel's return. But the court held that although the discharge was justifiable under the circumstances, yet that the crew were entitled to their wages up to the time of their return home. The consent, on their part, to the discharge, was held not to be voluntary, as there was no alternative but starvation left. In The Fair American, Bee, 134, it was held that seamen who had been taken by a privateer from their vessel and rejoined her at the earliest opportunity, were entitled to their wages, as they were absent without any fault of their own, and that as the first voyage was defeated, the seamen were bound to continue with the vessel till the voyage in contemplation was ended, and at the same rate of wages, and that they should receive two thirds of what was due to them, and the remainder at next port of delivery.

2 Sherwood v. McIntosh, Ware, 109; The America, Blatchf. & H. Adm. 185; The Minerva, 1 Hagg. Adm. 347; Ward v. Ames, 9 Johns. 138; Limland v. Stephens, 3 Esp. 269; Prince Edward v. Trevellick, 4 Ellis & B. 59, 28 Eng. L. & Eq, 205. In Rice v. The Polly & Kitty, 2 Pet. Adm. 420, wages were only demanded for the time the seaman remained on board.

8 It is very obvious that he would not be allowed to obtain the rate of wages for which he shipped, if he were unfit for the station; nor would the wages of the inferior station be a criterion of the proper rate of recompense before he was disrated. Mr. Justice Ware, in Sherwood v. McIntosh, Ware, 109, 110, after stating for what a man might be disrated, said: "In such a case the master will also be justified, not in refusing altogether to pay him wages, but in making from them a reasonable deduction.” In The Elizabeth Frith, Blatchf. & H. Adm. 195, 210, it does not clearly appear what wages were allowed. The language of the court is: "The cook was properly degraded, and can only recover wages for the duties he performed, namely, those of an ordinary seaman." In Smith v. Jordan, U. S. C. C., Mass., 1857, 21 Law Reporter, 204, where a cooper was degraded to the position of a foremast hand, when the court considered he should have been tried as a cooper's mate, it was held that he should receive the wages of the latter office.

sickness he was obliged to be left at a foreign port,1 and a fortiori if sent ashore on the ship's business he there fall sick.2 But if he recover and may rejoin his ship, but does not, this stops his wages from the day when he could have joined her. Of course, if the sickness was caused by the fault of the seaman, he is not entitled to any wages during the time he is off duty.4

If a seaman wrongfully discharged and therefore claiming full wages, has earned other wages in another vessel, in an intermediate time, it would seem that the question whether these wages are to be deducted, would be affected, at least, if not determined, in this country, by the question whether the wages allowed, after the deduction, give him an adequate indemnity. So whether

1 Mahoon v. Brig Glocester, Bee, Adm. 395. In Chandler v. Grieves, 2 H. Bl. 606, note, the plaintiff shipped on a voyage from London to Honduras, thence to Philadelphia, and thence back to England. While in the bay of Honduras the plain tiff was injured while on duty, and was afterwards put ashore at Philadelphia, and his wages up to that time paid. This action was brought to recover wages for the whole voyage. The court were of the opinion that the rules of maritime law should govern, and directed an inquiry to be made in the courts of admiralty, whether, according to the usage there, a disabled seaman would, under similar circumstances, recover wages for the whole voyage. On an inquiry being made, it was found "that in every instance a seaman disabled in the course of his duty, was holden to be entitled to wages for the whole voyage, though he had not performed the whole." In Hainey v. The Tristram Shandy, Bee, Adm. 414, the libellant was sent in with a prize, and soon afterwards fell sick. The vessel during the cruise, came into the same port to refit, and a part of the crew left her, and the old cruise was broken up, and new articles entered into without the libellant's consent. Held that he was entitled to recover his share of all prizes taken before the time expired for which the original articles were signed, notwithstanding he was on shore, sick, at the time. See also, Nevitt v. Clarke, Olcott, Adm. 316; and cases ante, Vol. I. p. 456-458.

2 Hart v. The Littlejohn, 1 Pet. Adm. 115, 117, per Peters, J.

3 Williams v. The Hope, 1 Pet. Adm. 138.

↑ Johnson v. Huckins, U. S. D. C., Mass., 6 Law Reporter, 311. The libellant, in this case, admitted that the sickness was caused by his own fault, and deducted the amount which would have been due, while he was off duty. The court held that the respondents were also entitled to set off the amount due for board and subsistence during the sickness; but not wages paid a substitute, there being no evidence that these amounted to more than the wages deducted.'

5 Emerson v. Howland, 1 Mason, 45, 54; Hutchinson v. Coombs, Ware, 65. See Hoyt v. Wildfire, 3 Johns. 518. The principle laid down by Mr. Justice Story in the case first above cited is, that in no case are the wages earned in the intermediate time to be deducted from the wages due, but merely from the expenses of the return to the home port, and that even then they are not to be deducted, if such a course would deprive the seaman of his just indemnity. In Sheffield v. Page, U. S. D. C., Mass., 18 Law Reporter, 99, it was held that when an officer was tortiously discharged at a foreign port, he was not obliged to work his way home as an ordinary seaman, and

seamen should have wages to the end of a prosperous voyage, however long, or only wages to the time when they actually reached home, or might have reached home, must depend upon the circumstances and merits of each case. The right of the seamen is in fact a claim for damages for breach of contract, and there should be an indemnity. That is, they should be put into as good a condition as they would have been in, had the contract been performed.2 Thus, if the discharge is caused by a disaster which is almost a wreck, making the repairs expensive and of doubtful utility, the least expense and wages which will bring them home, would seem to be all they should have. If the master detains the clothes of the seaman, damages for the detention may be recovered in the libel for wages.+

We have already considered in what cases the three months' wages, payable to the American consul in case of the discharge abroad of an American seaman are due,5 and the seaman may, it is held, if the amount is not paid to the consul, recover it at home by a suit in admiralty, and the court will decree two months' wages to be paid over to him, retaining the other third for the United States. But it has been doubted whether it was, by the terms of the statute, payable anywhere or to any person, but the American consul, or recoverable at common law.8 If the money is paid over to the

that if he did so, not being able to obtain the situation which he had before held, wages thus earned, were not to be deducted. When this case came up on appeal, this point does not appear to have been controverted. Page v. Sheffield, 2 Curtis, C. C. 377. 1 See cases cited ante, Vol. I. p. 462, n. 5.

2 The Dawn, Ware, 485, 494, per Ware, J.

8 See The Elizabeth, 2 Dods. 403, cited ante, p. 574, n. 1.

4 Hutchinson v. Coombs, Ware, 65. In Nevitt v. Clarke, Olcott, Adm. 316, 321, it was held that in the absence of any proof, the court would not infer that a seaman's clothes were detained when he left the ship to be placed in a hospital, and the court said: "The inference that a sailor's wearing apparel is detained by the ship could never be raised, except in case of his desertion, or being forcibly put ashore or wrongfully abandoned by the master when ashore."

5 See ante, Vol. I. p. 460, n. 1; p. 461, n. 1.

6 Emerson v. Howland, 1 Mason, 45; Orne v. Townsend, 4 Mason, 541; Pool v. Welsh, Gilpin, 193. In the following cases it does not clearly appear whether the owners were held liable for more than two months' wages. The Dawn, Ware, 485; The Saratoga, 2 Gallis. 164; Wells v. Meldrun, Blatchf. & H. Adm. 342.

7 See Pool v. Welsh, Gilpin, 193.

8 In New York, the supreme court of the State has held that the seamen cannot

consul and he retains it, it has been held, that the owners having complied with the act of congress are no further liable.1

And if the libellant is named as an American seaman in the master's list of the crew, this entitles him to recover, although omitted to be named as such seaman in the list of the crew certified from the collector's office.2

If, by the shipping articles, the wages are not to be paid until the voyage is wholly ended, there is a difficulty in recovering them at common law, if the voyage be interrupted or broken up at any intermediate port. But none whatever in admiralty; for on a libel for wages, stating facts of this kind, and making out a case where the wages are not forfeited, but they, or compensation in some form, are earned, the court will decree either wages as such, or damages in the form or stead of wages.3

The owner is bound by a contract, made by a master, for services to be paid by shares as much as if by wages. But when a seaman who had contracted for wages, had been fraudulently induced to sign articles by which he was to have shares instead, it was held, even at common law, that the first contract was in force, and the latter not; and it would undoubtedly be so held in admiralty. A contract to serve as seaman for shares, either on a fishing or whaling voyage, does not constitute a partnership.

recover this amount at common law. Ogden v. Orr, 12 Johns. 143; Van Beuren v. Wilson, 9 Cow. 158.

1 Frederichsen v. 290 Barrels Sperm Oil, U. S. D. C., Mass., 1859. It appears from this case, that it is the universal custom of the American consul at Fayal to retain the three months' wages, on account of the United States, and to pay no part thereof to the seamen.

2 Orne v. Townsend, 4 Mason, 541.

8 The difficulty at common law, mentioned in the text, is not felt in admiralty, since it has been repeatedly decided that the seaman's right to wages flows from the service, and not from the contract or shipping articles. See Mahoon v. Brig Glocester, Bee, Adm. 395, where the point was decided in answer to a plea to the jurisdiction; and The Trial, 1 Blatchf. & H. Adm. 94, where the point was directly decided. Also in Moran v. Baudin, 2 Pet. Adm. 415, a seaman sued for his wages because the captain had deviated repeatedly from the voyage agreed upon, and although the parties were both Frenchmen, and the ship had not returned to the port to which she was to return, wages were decreed. It seemed to be on the ground, partly, of the French law. The Dawn, Ware, 485, will be found to be directly in point. The ship was sold by reason of a disaster, and though the two months' extra pay was not allowed, the wages were. 4 Baker v. Corey, 19 Pick. 496.