OF PROCEEDINGS TO OBTAIN THE PAYMENT OF WAGES; AND HEREIN,

(Ss.)1. Proceedings by Suit in the Court of Admiralty against the Ship in Specie, when the Contract is in the usual form,

and not under Seal· In what Cases Prohibitions will be

granted.

2. Seaman's Claim for Wages is preferred in Admiralty to all
other Charges on the Ship.

3. By Action at Common Law against the Master or Owners.
4. Under 5 & 6 Wm. 4, c. 19, by Complaint on Oath to a
Magistrate.

HAVING, in the three preceding chapters, considered the contract for service on board a merchant ship; the cases in which the remuneration of such service is due, either wholly or in part; and those in which it is lost or forfeited; I propose in this last chapter to treat of the means of obtaining this remuneration by legal process.

1. According to the observation made in a former part of this Treatise (a), the jurisdiction of the Courts of Common Law can in this case be exercised only by suit against the person; but the jurisdiction of the Court of Admiralty may be exercised by process against the ship, or the proceeds of a sale thereof remaining in the Court. In this Court alone, therefore, that principle of the maritime law, which holds the ship in specie to be subject to the claim of wages earned by service in it, can be carried into effect. The Court of Admiralty was originally constituted for the adjudication of causes and disputes arising upon the high sea, and within the

jurisdiction of the Lord High Admiral, whose deputy [† 655] the judge of that Court formerly was. The proceedings therein, being according to the course of the Civil Law, appear to have been very unpopular in ancient times; and two statutes were made in the reign of King Richard the Second, upon the complaint of the Commons of England, to define the limits of its jurisdiction; by the first

(a) Part 2, chap. 3.

of which it is "accorded and assented, that the admirals and their deputies shall not meddle from henceforth of anything done within the realm, but only of a thing done upon the sea, as it hath been used in the time of the noble prince King Edward, grandfather of our Lord the King that now is " (b). By the other, "It is declared, ordained, and established, that of all manner of contracts, pleas, and quarrels, and all other things arising within the bodies of countries, as well by land as by water, and also of wreck of the sea, the Admiral's Court shall have no manner of cognizance, power, nor jurisdiction" (c). Considering these statutes with reference to the present subject, it is evident that, if the seaman's claim to wages be in reality founded on the performance of his service in the navigation of a ship on the high sea, the Court of Admiralty must have cognizance of the claim; and, on the other hand, that if the claim be in reality founded on the contract made for performance of such service, and such contract be, as it usually is, made on shore, or in a port or river, within the body of a county, the Court of Admiralty can have no cognizance of it. In this view of the subject, it is difficult to distinguish the case of the master from that of the persons employed under his command: the nature and place of the service, and the place of the hiring, are in both cases usually the same. Nevertheless, a distinction has long been made between them, and is now become a settled rule of law. (1) In pursuance of this distinction, the seamen have now in ordinary cases a threefold remedy: against the ship, the

(b) 13 Rich. 2, stat. 1, c. 5.

(c) 15 Rich. 2, c. 3.

(1) This distinction has been thought to be incorrect in principle in some of our Admiralty Courts. In the case of Willard v. Dorr, 3 Mason, R. 91, the jurisdiction of the Admiralty to maintain a suit in personam in favor of the master for his wages was expressly affirmed. See also The George, 1 Sumner, 151; Hammond v. Essex Fire & M. Insur. Co. 4 Mason, 196. It was at the same time admitted, that he had no remedy in rem. The same doctrine has been asserted in the District Court of New York by the late Judge Van Ness. See also The Grand Turk, 1 Paine, Cir. R. 73. The master has no remedy in rem, because it has been ruled, that he has no lien, and the suit in rem for wages lies only, where such lien exists for wages. Fisher v. Willing, 8 Serg. & Rawle, R. 118; The Ship Grand Turk, 1 Paine's Cir. R. 73. < Drinkwater v. Brig Spartan, Ware, 161; The Ship Packet, 3 Mason, 255; The Steamboat Orleans, 11 Peters, 175; Case v. Woolley, 6 Dana, 22. See also, 2 Brown, Civ. & Adm. Law, 95; Montgomery v. Wharton, &c. 2 Peters, Adm. R. 397; S. C. on appeal, 1 Dall. R. 49; Talbot v. Three Brigs, 1 Dall. R. 98. But Courts of Admiralty will allow payments to masters for advances and necessary disbursements abroad out of remnants and surplusages arising from the proceeds of a sale of the ship in their hands, because they partake of the nature of liens. Gardner . The Ship Jersey, 1 Peters, Adm. 223.

owners, and the master. (1) The master, whether appointed to that office at the commencement (d), or having succeeded to it in the course (e) of the voyage, can only sue the owners personally in a Court of Common Law. But as he generally receives the freight and earnings of the ship, and may pay himself out of the money in his hands, he has not [† 656] often occasion †for the aid of a Court of justice to obtain his right. (2) The suit of the seamen in the Court of Admiralty is frequently spoken of as an excepted

(d) Rogg v. King, 2 Stra. 858; 1 Bern. 297, and King v. Player, there cited. Clay . Sudgrave, or Snellgrave, Salk. 33; Lord Raym. 576; 12 Mod. 405;

(1) Bronde v. Haven, 1 Gilpin, 592.

Carth. 518.

(e) Read v. Chapman, 2 Stra. 937 ; The Favorite, De Jersey, 2 Rob. Ad. Rep.

232.

The owner of a vessel, although his name is not stated in the shipping articles, is liable for the wages of a seaman. Bronde v. Haven, 1 Gilpin, 592. The owners of the vessel are liable for the wages of a seaman, employed by the master, notwithstanding he may have had a complement of men without him. Luscomb v. Osgood, U. States Dist. Ct. June, 1844, Boston; 7 Law Rep. 132. The sale of a vessel by the owner, subsequent to the making of the shipping articles, does not discharge his liability for the wages of a seaman; even though the voyage was not terminated, or the wages were not demanded, previous to the sale. Bronde v. Haven, 1 Gilpin, 592. See Aspinwall v. Bartlett, 8 Mass. 483; Lamb v. Durant, 12 Mass. 54; Brooks v. Dorr, 2 Mass. 39; Hussey v. Allen, 6 Mass. 163; ante, 33, note.

Poland v. The freight and cargo of Brig Spartan, Ware, 134, was a libel against the freight and cargo of a vessel for the mariners' wages; and the Court held, that the seamen had a lien, by the maritime law, on the freight as well as on the vessel for their wages; and that this lien is not taken away by the statute of the U. States for the government of seamen in the merchant service, which allows process against the vessel. The Court also held in the same case, that when a ship is taken by a charterparty, by the terms of which the charterers are to bear the expense of victualling and manning, and they become the owners for the voyage, the seamen have a lien for their wages on the cargo shipped on the account of the charterers, for a charge in the nature of freight. The case was regarded by the Court as a novel one in its form. But the principle seems to be perfectly familiar in the maritime law. See Sheppard v. Taylor, 5 Peters, 675; Brown v. Lull, 2 Sumner, 443; Pitman v. Hooper, 3 Sumner, 50; The Lady Durham, 3 Hagg. Adm. 200. The seaman's wages are nailed to the last fragment of the freight, as well as to the last plank of the ship. Pitman v. Hooper, 3 Sumner, 50, 286; Sheppard v. Taylor, 5 Peters, 675; Brown v. Lull, 2 Sumner, 443. See also ante, 621, note.

This lien may be enforced against the freight, by seizing it in the hands of the master, or in the hands of the merchant before it is paid. See Poland v. The Freight and Cargo of the Brig Spartan, Ware, 134; The Lady Durham, 3 Hagg. Adm. 200. But see respecting the right of seamen, who have libelled and sold the ship for their wages, to resort to the cargo for the balance, Holmes v. Bigelow, 3 Desaus. 497, where it was held, that such resort could not be had, but they must sue the master or owners. > (2) It seems, that it is now settled in England, contrary to the principle of our law, that the master has no lien on the freight as against the owner, and therefore the latter may intercept it, although the ship is greatly indebted to the master for disbursements. See ante, page 139, and note, ibid., and 147, and notes, and page 377, note, and page 655, note. See also The Ship Grand Turk, 1 Paine, Cir. R. 73; Lane v. Pen42; Lewis v. Hancock, 11 Mass. 72; Cowing v. Snow, 11 ib. 415;

niman 4 Mass.

case (ƒ), and an indulgence granted to them on account of the convenience and advantage of proceeding in a Court in which all may join in one suit, and payment may be obtained out of the value of the ship; and of the presumption that they who contract with the master, contract with him on the credit of the ship; (1) whereas the master, who contracts with the owners, is presumed to trust to their personal credit. (2)

(f) In the cases cited in the two last notes.

Shaw v. Gooking, 7 N. Hamp. 19; Milward v. Hallet, 2 Caines, 77; Ingersoll v. Van Bokkelin, 7 Cowen, 670; S. C. 5 Wendell, 314; Drinkwater v. Brig Spartan, Ware, 163. >

(1) The right of the seamen to sue the master, the owner, or the ship, is recognised in our Courts. Farrel v. McClea, 1 Dall. R. 392; Smith v. Leand, Hopkinson's Cases, 199; Aspinwall v. Bartlett, 8 Mass. R. 483; The Margaret, 3 Hagg. Adm. 238; Goodridge v. Lord, 10 Mass. R. 483; Moore v. Jones, 15 Mass. R. 424; Carey v. The Kitty, Bee's Adm. R. 254; Post, page 663; Bronde v. Haven, 1 Gilpin, 592; Wysham v. Rossen, 11 John. 72; Wait v. Gibbs, 4 Pick. 298. > But the right of seamen to sue in the Admiralty has never been considered in our Courts as a matter of indulgence, but of absolute right in point of jurisdiction. See De Lovio v. Boit, 2 Gallis. R. 398; Willard v. Dorr, 3 Mason, R. 91. And seamen may not only sue in rem, but in personam in the Admiralty against the owner and master for their wages. The practice is quite familiar.

< The pilot, engineer, and firemen, on board of a steamboat, are entitled to sue in the Admiralty for their wages. Wilson v. The Ohio, 1 Gilpin, 505.

But musicians on board of a vessel, who are hired and employed as such, cannot enforce the payment of their wages by a suit in rem in the Admiralty, their services not contributing to the preservation of the vessel, or those employed in her navigation. Trainer v. The Superior, 1 Gilpin, 516. >

The right of seamen to proceed against the ship in the Admiralty is expressly provided for by the Act of Congress of 1790, ch. 29, § 6. And the same right is given to fishermen in the bank and cod fisheries. Act of 1813, ch. 2.

But though the master is personally liable to the seamen for wages, it is a liability founded on contract. And therefore if he has not made the original contract, but merely succeeds to the place of master in the course of the voyage by reason of the death, or any other cause of removal of the former master, he is not liable for the wages antecedently earned, but only for those earned while he is master. Wysham v. Rossen, 11 John. R. 72; Mayo v. Harding, 6 Mass. R. 300.

And an owner is only liable for wages earned, while he is actually owner; and if he has chartered the vessel for the voyage, and the charterer hires the crew, and is to pay the master and crew, and victual the ship, he, and not the original owner, is liable for the wages. See Aspinwall v. Bartlett, 8 Mass. R. 483.

It is said, that where a ship is abandoned to underwriters in the course of the voyage, they are not personally liable to the seamen for their wages; and they must look to their employers. Brooks v. Dorr, 2 Mass. R. 39; Richardson v. The Marine F. & M. Ins. Co., 6 Mass. R. 102. This is doubtless true as to the wages earned antecedently to the period, to which the abandonment, if effectual, relates. But as to wages subsequently earned, the underwriters are the owners of the ship, and as such would seem liable therefor. Hammond v. Essex Fire & M. Ins. Co. 4 Mason, 196; Case v. Davidson, 5 Maule & S. 79; McBride v. Mar. Ins. Co. 7 John. 431; Coolidge v. Glou. Ins. Co. 15 Mass. 341. See 8 Mass. 483. >

(2) If the master of a steamboat is employed by the year, and is compelled before the expiration of the year to abandon the boat in consequence of the illegal conduct of

The clear result of the several decisions (g) upon this subject is, that if the hiring be on the usual terms, and made by word, or by writing only, and not by deed, the seamen, or any one or more of them, and every officer, (1) except the master, (2) may sue in the Court of Admiralty; and may, by the process of that Court, arrest the ship as a security for their demand, or cite the master or owners personally to answer to them. In a suit against the owners, the master is a competent witness on their behalf (h).

And the seamen may sue there not only for the wages earned in the course of a voyage, but for those earned in rigging and fitting out a ship for a voyage, on which they have engaged to proceed, if the owners do not afterwards think proper to send the ship on the intended voyage (i). And it seems also that they may sue there for the wages contracted to be paid to them for navigating a ship from one port of this country to another (k). (3) And if a suit be there

(g) As to the seamen, after sentence, Winch. 8; before sentence, Alleson v. Mursh, 2 Vent. 181; Anon. 3 Mod. 379; Bens v. Parre, 2 Lord Raym. 1206; The Boatswain, King v. Ragg, 2 Stra. 858; 1 Barn. 297; The Carpenter, Wheeler v. Thomson, 1 Stra. 707; The Surgeon, Sayer, 136; The Mate, Bayley v. Grant, 1 Lord Raym. 632; Salk. 33; Read v.

Chapman, 2 Stra. 937.

(h) The Lady Ann, Wardell, 1 Edw.

235.

(i) Wells v. Osman, 2 Lord Raym. 1044; 5 Mod. 238. See also Mills and Another v. Gregory, Sayer, 127.

(k) Anon. 1 Vent. 343. The application for a prohibition was after sentence. See 31 Geo. 3, c. 39, s. 6.

one of the owners, he is entitled to full wages, and may claim them from all or either of the owners. Hynes v. Kirkman, 4 Louis. 17. >

(1) The mate, succeeding to the command of the ship upon the death of the master, does not thereby lose his character as mate; but may sue in the Admiralty for his wages. The Brig George, 1 Sumner, 151. >

(2) See ante, 655, note. >

(3) This point has been expressly decided in Ireland. Parry v. The Peggy, 2 Brown, Adm. Law, App. 533. Our law is without doubt the same. The Act of Congress of 1790, ch. 56, [29] expressly extends to vessels of fifty tons engaged in the coasting trade, between any other than adjoining states. But it has been expressly decided, that seamen cannot sue in the Admiralty in rem, except where the service has been substantially performed at sea, or upon waters within the ebb and flow of the tide. The Thomas Jefferson, 10 Wheaton, R. 428. It is no objection to the jurisdiction, that the voyage begins and terminates at some place beyond the reach of tide water, if the services are essentially maritime. (Ibid.) See Stone v. Godet, cited Bee's Adm. R. 93; Montgomery v. Henry, 1 Dall. R. 50. See The Steamboat Orleans v. Phœbus, 11 Peters, 175; Peyroux v. Howard, 7 Peters, 234; Thackarey v. Farmer, 1 Gilpin, 526; Smith v. The Pekin, 1 Gilpin, 203; Davis v. A new Brig, 1 Gilpin, 477. Steamboats and lighters engaged in trade or commerce on tide water and the seamen employed on board, are within the Admiralty jurisdiction; but not ferry-boats or those engaged in ordinary traffic along the shores. Thackarey v. The Farmer, 1 Gilpin, 532.

A contract for the payment of labor, on board of a vessel employed in carrying fuel to the city of Philadelphia, from the opposite shore of the Delaware river, cannot be enforced by a suit in rem in the Admiralty. Thackarey v. The Farmer, 1 Gilpin, 524. But a contract for wages on a voyage between ports of adjoining states, and in the