DURING THE VOYAGE.

23

As a greater security against fraud it is provided, that the certified copy of the list to be furnished the master by the collector shall be a fair copy in one uniform handwriting, without erasure or interlineation. And all interlinea

tions, erasures, or writing in a different hand from that in which such copy was originally made, will be deemed fraudulent alterations, working no change in the paper, unless satisfactorily explained in a manner consistent with innocent purposes, and the provisions of the law which guard the rights of seamen.1

Whenever any master ships a seaman in a foreign port, he must forthwith take the list of his crew and the shipping articles to the Consul, or person who discharges the duties of the office of that port, who shall make the proper entries in these documents, setting forth the contract, and describing the person of the seaman. This having been done, the master is bound for the return of this seaman in the same manner that he is for the others, that is, such seaman is then included in the bond given by the master for the return of the seamen.2

If any master should neglect this duty when he ships a seaman in a foreign port, he would be liable to any person who was injured thereby, and also be liable to pay a fine of one hundred dollars for each offence, to be recovered by any person suing therefor in any court of the United States, where the master may reside, or be found.3

It is further provided, that if the master of any vessel, belonging in whole or in part, to any citizen of the United States, shall, during his being abroad, maliciously, and without justifiable cause, force any officer or seaman of such vessel on shore, or leave him behind in any foreign port or place, or refuse to bring home again all such of the officers and seamen of such vessel, whom he carried out with him, as are in a condition to return, and willing to return, when he shall be ready to proceed on his homeward voyage, every master, so offending, shall, on conviction, be punished by fine, not exceeding five hundred dollars, or by imprisonment, not exceeding six months, according to the aggravation of the offence.4

It will be seen hereafter that even where the conduct of the sailor is such as to justify the master in discharging him,

(1) Act 1840, ch. 23, sec. 1, 4.—(2) Act 1840, ch. 23, sec. 8.23,sec. 19. (4) Act 1825, ch. 276, sec. 10.

-(3) Act 1840, ch.

yet if he repents and offers amends, he is ordinarily entitled to be received on board again. (See pages 44, 45.)

Rights of Seamen Wrongfully Discharged —It is a general rule, that a seaman who is discharged without a justifiable cause and without his own consent, is entitled to full wages for the whole voyage, and the expenses incurred by him in returning home. And any wages he may earn in the meantime are to be deducted from the expenses of his return, though not from the wages due. This is not always the case, as will be seen hereafter in the chapter on "Wages," where the subject has been fully treated. (See page 37.)

Discharge of Seamen by their own consent.-By an Act of Congress it is provided, that whenever any seaman who is a citizen of the United States is discharged with his own consent in a foreign country, the master shall produce the list of his crew to the Consul, vice-Consul, commercial agent, or vice-commercial agent, and pay to him for every American seaman so discharged, three months' wages over and above the wages which may be due such seaman. Two of the three months' wages thus received, are to be paid to the discharged seaman upon his engagement on board any vessel to return to the United States; the other month's wages is to be kept by the Consul, to be used for the maintenance of any American seamen who may be destitute in that port.2

This law has since been altered, and the Consul may, if he thinks it expedient, permit the master to discharge a seaman with his own consent, without requiring him to pay three months' extra wages, or any other sum of money; and the Consul may permit the discharge of the sailor on such terms as will, in his judgment, save the United States from the liability to support the discharged seaman.3

Discharge of Seamen when the Vessel is sold in a Foreign Port-Whenever a vessel, belonging to a citizen of the United States, is sold in a foreign country, and the crew discharged, it is the duty of the master to produce to the Consul, or person who discharges the duties of the office at that port, the list of the ship's company, and to pay to the Consul for every American seaman so discharged, who is named in the list, three months' wages, over and above the wages which are then due such seamen. Out of this sum

(1) Ware's R. 65.- -(2) Act 1803, ch. 62, sec. 3.-(3) Act 1840, ch 23, sec. 5,6.

DESTITUTE SEAMEN IN FOREIGN PORTS.

25

the Consul is to pay each seaman two months' wages upon his engagement on board of any vessel to return to the United States; the other month's wages is to be retained by him, to be used for the support of any American seamen who may be destitute in that port.1

The above provision applies only to the case of a voluntary sale of the vessel; if the vessel is sold because the master cannot proceed with her, she being wrecked or greatly injured by storms or otherwise, the seamen are not entitled to the three months' extra wages. But the owners will be liable to pay the extra wages, unless they can prove that the vessel could not be repaired at a reasonable expense, and in a reasonable time.2

Relief of Destitute Seamen in Foreign Ports.-Great solicitude has been manifested by our government for the protection of seamen in foreign countries. It is made the duty of American Consuls and commercial agents, to provide subsistence for any seaman of the United States who may be found destitute in their districts, and to procure a passage for them to some port in the United States, in a reasonable manner, and at the expense of the United States. And the master of any American vessel bound to a port in the United States is bound to take such seamen on board of his vessel, at the request of the Consul or commercial agent, and to carry them to the port of the United States to which his vessel is bound, for such a sum, not exceeding ten dollars for each person, as may be agreed between the master and the Consul. The Consul cannot, however, compel the master to take more than two seamen for every hundred tons' burthen of the ship. If the master refuses, he forfeits one hundred dollars for every seaman so refused, to be recovered for the benefit of the United States.3

Foreigners, while employed as seamen in the merchant ships of the United States, are held entitled to the benefit of the above provision, so long, at least, as they manifest an intention of remaining in the American service, and do not engage in foreign service. And, in one case, where a foreigner, employed on board an American vessel, deserted, and became destitute, it was held that he was entitled to the protection of the Consul, and to be sent to some port in the

(1) Act 1803, ch. 62, sec. 3. -(2) Ware's R. 485; Gilpin's R. 193.-(3) Act 1803, ch. 62, sec. 4.

L. OF S.

3

United States, according to the above provision; and that the fact of his desertion, unless followed up by engaging in some foreign service, did not deprive him of his right.

All seamen who are thus placed on board of a vessel by the Consul to be carried to a port in the United States, must, if they are able, perform duty on board the vessel, according to their several abilities;2 and while on board would seem to be subject to the same rules and regulations as the other seamen, and are liable, like articled seamen, to be punished for offences committed against any law of the United States.3

Seamen not bound to proceed on a Voyage different from that named in the Articles.-It will be seen hereafter, when the subject of Wages is treated, that where a seaman refuses to proceed on a voyage not named in the articles, and deserts, his wages are not forfeited. So, if the master has an avowed intention to go on a different voyage previous to the completion of the voyage for which a seaman had signed the shipping articles, such an intended departure will be sufficient to justify the seaman leaving the ship, and suing for his wages during the time he served on board. (See page 44.)

It is provided by an Act of Congress, that, when any seaman believes that the voyage is continued contrary to his agreement, or that he has fulfilled his contract, he may complain to the Consul, or other commercial agent performing like duties, who shall examine into the same by an inspection of the articles of agreement; and if on the face of them he finds the complaint to be well founded, he shall discharge the seaman, if he desires it, and require of the master an advance, beyond the lawful claims of the mariner, of three months' wages; and if the lawful claims of the seaman are not paid upon his discharge, the arrears shall from that time bear an interest of twenty per cent. Provided, however, if the Consul, or other commercial agent shall be satisfied the contract has expired, or the voyage been protracted by circumstances beyond the control of the master, and without any design on his part to violate the articles of shipment, then he may, if he deems it just, discharge the mariner without exacting the three months' pay.4 (See page 29.)

(1) I Sumiter, 115.. (2) Act 1803, ch. 62, sec. 4.(4) Act 1840, ch. 23, sec. 9.

-(3) 1 Pet. C. C. R. 118.

RIGHT TO SALVAGE.

27

Of the three months' extra wages which the master may be required to pay, only two months' would be paid to the sailor, the other month being retained by the Consul for the purpose of relieving destitute seamen.1

In the case of a deviation from the voyage described in the articles, occasioned by accident, or necessity, (as where the vessel is driven from her course by a storm, or is compelled to put into a port out of the course of the voyage, for the purpose of making necessary repairs, &c.), the seamen will not be justified in deserting.2

Right to Salvage.-It has been a question whether, when a vessel in the course of her voyage falls in with a wreck, the master has a right to compel the crew to assist in attempting to save it. It is extremely doubtful whether seamen are bound to obey an order directing a portion of the crew to leave their own vessel, and go on board of another for the purpose of carrying the vessel to port, and thus earning salvage. This is a duty which the sailor, as it would seem, has not stipulated to perform in his contract; it, has, however, been thought by one judge, that the customs and usages of the sea authorize a master in such cases to employ his vessel and crew in rescuing from destruction property thus exposed.3

Where salvage is earned, all the crew who are ready and willing to engage in the service, as well those who remain on board their own vessel, as those who were employed in saving the property, are entitled to a share of the reward.4

If any sailor refuses to lend assistance in rescuing the property, he will not be entitled to any share in the salvage.5 What portion of rescued property is to be allowed as salvage, must depend in a great degree upon the circumstances of each case. The value of the property saved, and the difficulties and dangers encountered in saving it, are the facts most to be considered in estimating the share to be paid the salvors. In cases of derelict, (that is, where the vessel or property has been abandoned by the master and crew, without any intention to return to it,) the courts seldom, if ever, award less than one-third, or more than one-half of the property saved.

In what proportions the salvage money is to be divided

(1) Act 1940, ch. 23, sec. 29-(2) 2 Hagg. 213.-(3) Ware's R. 447.(4) Ibid.(5) Ibid. ; 2 Dods. Adm. 132.-(6) 1 Sumner, 400.