owners. The master of a vessel has no power to bind the owner to pay a seaman three months' wages after the voyage has terminated and all services on his part have ceased, but if a seaman is hired in a foreign country, the master may bind the owners to pay him such sum as will enable him to return.2

SECTION III.

OF WAGES.

The contract between a seaman and the owner of the ship, or the master as his agent, is essentially a contract of hiring and service. All that is implied in such contracts by the law generally belongs to their contract; as, on the one hand, the doing the work faithfully, obeying all proper orders and directions, and possessing and exerting the knowledge, skill, and care requisite for doing in a proper way the service undertaken; and, on the other, good treatment, and due payment. All of these are somewhat modified by the peculiar nature of this contract or relation, and by the statutes to which it has given rise. But so far as these modifications or qualifications do not apply specifically, we find the general principles of the law in force.

Seamen may be hired and payment promised in four ways. They may be employed for a certain voyage, to receive a certain proportion of the freight earned; but we doubt whether this is ever practised in this country, unless, perhaps, in small coasting vessels. They may be hired for a certain voyage,5 or by the run, to be paid a round sum at the close; and this is not very un

1 Wait v. Gibbs, 4 Pick. 298. It would seem, however, that he could not bring an action on the shipping articles except against those whose names appeared on that instrument.

* Canizares v. The Santissima Trinidad, Bee, Adm. 353.

* The Dawn, Ware, 486, 494; The Brig Osceola, Olcott, Adm. 450, 461; The Cadmus, Blatchf. & H. Adm. 139; Brig Cadmus v. Matthews, 2 Paine, C. C.

229.

The Sarah Jane, Blatchf. & H. Adm. 401; Anonymous, 1 Pet. Adm. 205, note.

The Debrecsia, 3 W. Rob. 33.

• The Louisa Bertha, 1 Eng. L. & Eq. 665; Miller v. Kelly, Abbott, Adm. 564.

usual. They may be hired on shares, which is in practice confined to whaling and fishing voyages,2 with some exception in

1

1 Barney v. Coffin, 3 Pick. 115; Bishop v. Shepherd, 23 Pick. 492; Coffin v. Jenkins, 3 Story, 108; Joy v. Allen, 1 Sprague, 130, 2 Woodb. & M. 303; Allen v. Hitch, 2 Curtis, C. C. 147; The Sarah Jane, Blatchf. & H. Adm. 401; Reed v. Hussey, id. 525; Swain v. Howland, 1 Sprague, 424. The contract is one of hiring and not of partnership. Wilkinson v. Frasier, 4 Esp. 182; Mair v. Glennie, 4 M. & S. 240; The Frederick, 5 Rob. Adm. 8; Baxter v. Rodman, 3 Pick. 435; Grozier v. Atwood, 4 id. 234; Bishop v. Shepherd, 23 id. 492; Reed v. Hussey, Blatchf. & H. Adm. 525. In the above case of Barney v. Coffin, it was held that a usage that the master of a whaling ship should have a lien on the lays of the seamen for necessary clothing furnished during the voyage, was reasonable in its nature, and that the lien was not lost by putting the oil marked with the ship's mark on a wharf, whence part of it was taken by one of the owners of the vessel, but afterwards returned and delivered up to a general agent to be sold for the purpose of settling the voyage. In The Hibernia, 1 Sprague, 78, the owners claimed to charge the master's bills for slops furnished the men, without giving the items or any evidence of the same, on the ground that as the master had a lien upon the proceeds of the voyage for the slops, the owners must retain the nominal amount of the bills; but the court refused to allow the claim. In Jay v. Almy, 1 Woodb. & M. 262, it was held that the master of a whaling ship is not personally responsible for the wages of a seaman, when the vessel had been lost, and the cargo sent home. In Hussey v. Fields, 1 Sprague, 394, eight hundred barrels of oil had been sent home, and two thousand more taken when the ship put into a foreign port and was condemned and sold. The master settled with the men for their share on board, and gave them orders on the owners for their proportion of the eight hundred barrels. The other portion was handed over to the consul to be sent home, when it was illegally seized and sold. The owners claimed, that as the crew were only entitled to share the net profits of the voyage, the portion they had received should be debited to them as against the whole amount of oil realized by the voyage. But the court held that the captain, in making the disposition of the property, acted as the agent of the owners and not of the crew, and that the latter were entitled to their proportion of the eight hundred barrels. In Montgomery v. Tyson, U. S. D. C. Mass., Lowell, J., the vessel had been wrecked, and part of the oil saved and sent home. The articles contained a clause giving the owners of the vessel a right to sell the oil and bone. It was contended that this was a waiver of the lien of the seamen, if they originally had any. The court said that where goods belonged to the owners of a vessel, a reasonable sum would be considered as freight, and that in a whaling voyage "it may almost be said that the cargo to the extent of the owners' shares represents freight exclusively, having been earned in a long cruise by the use of the vessel and her outfits." On the question of the waiver the court held that, until a sale was actually made, the lien remained, and that only the net proceeds were liable. See also Reed v. Hussey, 1 Blatchf. & H. Adm. 525. In Jay v 'See Wait v. Gibbs, 4 Pick. 298; Knight v. Parsons, 1 Sprague, 279.

the case of coasting vessels.1 But the fourth, which is by far the most common and well-established practice, is to hire them for a definite voyage or voyages, or sometimes for a definite period, on monthly wages.2

If a woman serves on board as a cook, or in any capacity, she is entitled to all the rights and is subject to all the disabilities of a seaman.3

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. The same rule would doubtAllen, 1 Sprague, 130, the vessel was wrecked, part of the oil shipped home by the master, and the rest sold by him and the proceeds fraudulently converted to his own use. Judge Sprague held that the master was the agent of the owners and not of the crew, and that the owners were liable as if the oil had actually come into their possession. In Montgomery v. Tyson, U. S. D. C. Mass., Lowell, J., said he should, until otherwise instructed by a superior court, adhere to the doctrine laid down by Judge Sprague, cited above, and added: "I am aware that some doubts were expressed upon this point by Mr. Justice Woodbury, in the same case, reported as Joy v. Allen, 2 Woodb. & M. 303, but it seems, on a careful examination of the judgment, that the decision did not turn upon this point, and I have reasons to believe that Judge Sprague did not consider the point as definitely settled against his opinion."

1 The Crusader, Ware, 437, 441.

The Brig Cadmus v. Matthews, 2 Paine, C. C. 229; The Cadmus, Blatchf. & H. Adm. 139. See also The Steamboat Hudson, Olcott, Adm. 396. It is sometimes important to determine whether the contract is for the entire voyage at so much per month, or for that rate so long as the party remains during the voyage. In Taylor v. Laird, 1 H. & N. 266, 38 Eng. L. & Eq. 281, the following letter was written to the plaintiff by the owner of the vessel: "I am willing to give you the command of the steamer destined for an exploring and trading voyage up the River Niger and its tributaries; your pay to be at the rate of £50 per month, commencing from the first of December, 1853, and a commission of twenty per cent on the net proceeds of the produce you may bring down." The plaintiff accepted the offer. Held, that this was not an entire contract for the whole voyage, but a contract which gave a cause of action for the salary as each month arose, and which, when once vested, was not subject to be lost or divested by the plaintiff's abandonment of the voyage.

The Jane & Matilda, 1 Hagg. Adm. 187; Wolverton v. Lacey, U. S. D. C. Ohio, 18 Law Rep. 672; Sageman v. Sch. Brandywine, 1 Newb. Adm. 5.

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

less 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. If a master discharges a seaman against his consent and without good cause, in a foreign port, he is liable to a fine of five hundred dollars or six months' imprisonment.2 And the seaman may recover, besides, full indemnity for his time lost or expenses incurred by reason of such discharge. And where a vessel was seized in a happen before the voyage is begun, the mariner should be paid a reasonable sum for any services actually rendered.

1 Parry v. The Peggy, 2 Browne, Civ. & Adm. Law, 533. The statement of this case 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.

* Act of 1825, c. 65, § 10, 4 U. S. Stats. at Large, 117. In United States v. Netcher, 1 Story, 307, Mr. Justice Story, speaking of the tenth section of the above act, said: “In my judgment, this section enumerates three distinct and independent offences. 1. The maliciously and without justifiable cause forcing any officer or mariner on shore in any foreign port. 2. The maliciously and without justifiable cause leaving such officer or mariner behind in any foreign port; and 3. The maliciously and without justifiable cause, refusing to bring home again all the officers and mariners of the ship in a condition to return, and willing to return on the homeward voyage." In United States v. Ruggles, 5 Mason, 192, "maliciously" in this act was held to mean an act wantonly done, that is, with a wilful disregard of right and duty, an act done contrary to a man's own convictions of duty. See also United States v. Coffin, 1 Sumner, 394; United States v. Lunt, 1 Sprague, 311.

3 Crapo v. Allen, 1 Sprague, 184. In Emerson v. Howland, 1 Mason, 45, 53, Mr. Justice Story said: "In some adjudged cases, indeed, wages up to the successful termination of the voyage have been allowed; in others, wages up to the return of the seaman to the country where he was originally shipped, without reference to the termination of the voyage. The Beaver, 3 Rob. Adm. 92; Robinett v. The Ship Exeter, 2 Rob. Adm. 261; Hoyt v. Wildfire, 3 Johns. 518; Brooks v. Dorr, 2 Mass. 39; Ward v. Ames, 9 Johns. 138; Sullivan v. Morgan, 11 Johns. 66; Rice v. The Polly and Kitty, 2 Pet. Adm. 420, 423, note; Mahoon v. The Glocester, 2 Pet. Adm. 403, 406, note; The Littlejohn, 1 Pet. Adm. 115, 119, 120. But these apparent contrarieties are easily reconcilable, In all the when the circumstances of each case are carefully examined.

foreign port for a debt of its owner and sold by order of a State court, and the seamen remained by the vessel until the sale, and were obliged to obtain food at their own expense, the owner having made no provision for their subsistence, wages were allowed up to the time of sale, the expense of board, and $10 for each of the libellants for his time and expense in returning home.1 And in cases where the voyage is broken up by misfortune, so that the master would be justified in discharging the crew, they would still

cases, a compensation is intended to be allowed, which shall be a complete indemnity for the illegal discharge, and this is ordinarily measured by the loss of time, and the expenses incurred by the party. It is presumed that after his return home, or after the lapse of a reasonable time for that purpose, the seaman may, without loss, engage in the service of other persons, and where this happens to be the case, wages are allowed only until his return, although the voyage may not then have terminated. On the other hand, if the voyage have terminated before his return, or before a reasonable time for that purpose has elapsed, wages are allowed up to the time of his return, for otherwise he would be without any adequate remedy. Cases, however, may occur of such gross and harsh misbehavior, or wanton injustice, as might require a more ample compensation than could arise from either rule." See also Jones v. Sears, 2 Sprague, 43; The Union, Blatchf. & H. Adm. 545; Farrell v. French, Blatchf. & H. Adm. 275; The Maria, id. 331; Brunent v. Taber, 1 Sprague, 243; Nevitt v. Clarke, Olcott, Adm. 316; The Nimrod, Ware, 9; Hutchinson v. Coombs, id. 65; Ex parte Giddings, 2 Gallis. 54. No deductions are made, except that the wages earned on the homeward voyage are to be deducted from the expenses allowed for the return. Emerson v. Howland, 1 Mason, 45, 54; Hutchinson v. Coombs, Ware, 65. In Sheffield v. Page, 1 Sprague, 285, the mate was tortiously discharged at Calcutta. No situation was offered him as mate, and he came home before the mast. Held, that the wages thus earned by him should not be deducted from the amount decreed against the owner. See Hoyt v. Wildfire, 3 Johns. 518; Nevitt v. Clarke, Olcott, Adm. 316, 320. Where seamen were turned off from a privateer without lawful cause, they were held to be entitled to their proportion of the prizes taken during their absence. Mahoon v. The Glocester, 2 Pet. Adm. 403.— As a general rule of law a breach of a statute by a master, which subjects him to a penalty, does not take away the right of a seaman, who has been injured in consequence of such breach. Couch v. Steel, 3 Ellis & B. 402, 24 Eng. L. & Eq. 77. In Burke v. Buttman, U. S. D. C. Mass., Lowell, J., it was claimed that the seamen might have come home in a vessel belonging to the same owners. It appeared that before the seamen were discharged they were, against their consent, transferred to this vessel, and that while there they had a controversy with the master, in which he was in the wrong. Held, under the circumstances, that they were not obliged to come home in this vessel after they were discharged.

1 The Gazelle, 1 Sprague, 378. See also Anderson v. Sloop Solon, Crabbe, 17.