not to do so, he would be liable to heavy penalties; the right of action still remains. But where a sailor took a promissory note for thirty guineas, payable provided he "proceeds, continues, and does his duty as second mate," &c. but before the completion of the voyage he died; the Court held, that before the note could be available, the whole duty must have been performed, and that could not be, because he never lived till the ship's arrival in port. Express enactments secure an impressed mariner his wages during his time of service, if the ship come safely into port (d). The Legislature has said, that by passing regulations with respect to merchant seamen, there was no intention to debar them from entering into His Majesty's service, snd that they should not forfeit in such a case the wages due during their service in a merchant ship, and that such an entry should not be a desertion (e). However, the seaman is not entitled to more. And Lord Ellenborough has holden, that a sailor, at monthly wages, cannot recover up to the time of his impressment or voluntary entry on board a King's ship, unless the voyage be completed (ƒ). disabled seamen at the port, and their families, to be distri buted at the discretion of the magistrates; s. 8. Penalties and forfeitures are to be distributed thus: one third as we have just mentioned, only that the persons having the direction of the merchant seamen's fund are to have the priority, and if no such establishment, the magistrates or overseer; one third is to go to Greenwich Hospital; one third to the informer. They are to be recovered in the usual way; s. 9. See, however, 4 Geo. 4, c. 25. (d) Under the common agreement. (e) This was the law before the statutes. (This must be where the seaman had agreed to serve for the whole voyage, as is usual.. A share of prizes was agreed on in lieu of wages, but a full six-months service was also stipulated for on pain of forfeiting such share; a seaman bound by this agreement, was impressed and accepted the bounty; it was held, that his share of a prize taken before the im- Abbott, 444, pressing was not forfeited. Paul v. Eden. 2 Geo. 2, c. 36, 3. 7. As to the time of payment (g): it is enacted, that the master shall pay the seaman within thirty days after the ship is entered at the Custom House, if the wages be demanded; save where a covenant to the contrary exist; or payment must be made at the time of discharge, if a demand be made. Power is then given to deduct any penalties or forfeitures accrued due under the acts, and 20s. over and above the wages of each is the penalty on the master for non-compliance, to be recovered in the same manner as the wages, and the payment so made shall be good and valid in law, notwithstanding any return, bill of sale, attachment, or incumbrance whatsoever. The coasting trade Act prescribes five days after the entry at the Custom House as the time of payment, 31 Geo. 3, c. 39, or the time of discharge. be S. 5. 2 Geo. 2, c. 36, 8.9. The penalties and forfeitures so deducted are to paid over to the receiver of the sixpenny duty at Greenwich Hospital except such as belong to the 5.7. owners. And it must be done within three months after the deduction on pain of forfeiting treble the value. 2 Geo. 2, c. 36, s. 10. 31 Geo. 3, c. 39, s. 8. See 4 Geo. 4, c. 25, s. 10. And by certain articles of agreement annexed to the West India Trade Statute, the seamen cannot have 37 Geo. 3, c. 73. their wages until they arrive at the ship's intended port of discharge, and delivery of the cargo has been (g) Notwithstanding the agreement for payment at the port of discharge, the seaman may sue directly if the master wrongfully dismiss him. 3 Esp. 71, Sigard v. Roberts. Abbott, 453. made, and if they are not employed in such delivery, not in less than twenty days. A prohibition against advancing more than a moiety of wages due abroad is imposed by 8 Geo. 1. c. 24, s. 7, under a penalty of double the money advanced, so that the port of discharge is considered in Lord Tenterden's book to be at the ship's return to this country, for, otherwise, it would be contrary to law to pay the full amount of wages. Where foreign seamen agreed that they would not institute any suit against the captain in foreign countries, 2 H. Black. 603, although their ship was confiscated; here it was held, Gienaru.Meyer; that they could not maintain any action for wages. In 4 Esp. 75, Hulle the case cited they were not prisoners. v. Heightman; 3 Campb. 44, Johnson v. Machielsne. 2 Star, 325, White v. Mattison. 11 & 12 W. 3r c. 7, s. 17. Abbott, 463. 2 Geo. 2, c. 36, 8. 2. Ante, p.181. 1 Hag. Adm. 163, Bulmer ship. If the master admit certain wages to be due, a claim in the ship's articles fixing the time for payment cannot be used as a defence. The offence of desertion, which, by the maritime law, deprives a seaman of his wages, comes next to be considered. For the prevention of seamen deserting merchant ships abroad in parts beyond the seas, all such seamen, &c, who shall desert, being hired for the voyage, shall incur a forfeiture of their wages. Any seaman who shall desert in parts beyond the seas, or shall desert generally, shall lose his wages. And the like punishment is awarded for desertion as we have already seen for refusing to proceed on the voyage after subscribing the contract. The like forfeiture is ordered by the statute for preventing such desertion in the West India trade. If a mariner quit his ship with leave of the master, but refuse to return when ordered, he is within the forfeiture. So, where certain seamen left their ship the day after their arrival in the roadstead of Hull, with the the Pearl. master's leave, but against the positive orders of the But it is not an act of desertion to go in quest of food as a matter of necessity, provided the party be afterwards willing to return to the ship. Nor if the seaman quits the ship in consequence of his captain's ill-treatment of him; for the captain's behaviour makes a dissolution of the contract necessary. Nor if it be required that the mariner should embark upon a voyage different from that he has contracted to engage in, as where there was a refusal to proceed on a voyage not specified in the articles. 3 Esp. 71, Si gard v. Roberts. Id. 269, Lim land v.Stephens. 1 Hag. Adm. 182, Eliza shíp ; Id. 248, Coun tess of Harcourt ship. And where the owners allege desertion as a ground for Id. 168. withholding wages, they must produce the contract. So where there was a clause in the agreement that, if the ship were in port in perfect safety the seaman might leave at the end of three months, but there followed these words "of which [the ship's safety] the captain is to be "the sole judge;" the Court held this condition repugnant to that part of the clause which authorized a de- 2 N. Rep. 408, parture after three months, and the wages sought for Neave v. Pratt. were recovered. And upon a common principle, if the master consent to receive the seaman again after such an absence as has occasioned the forfeiture of his wages, 2 Campb. 590, the master must be taken to have overlooked the offence, Miller v. Brant. and cannot revert to the forfeiture. Such a forfeiture, however, as the statute contemplates is not incurred if the sailors navigate the ship into port, although they 3B. & P. 302, quit her before she is moored; but by the maritime law Frost. the forfeiture attaches, and there are penalties for this conduct which will be immediately mentioned; thus, if any seaman not entering into the King's service, shall Frontine v. leave his ship without a discharge in 2 Geo. 2, c. 36, the captain, or other person in charge s. 5. 3 B. & P. 302, Frontine v. Frost. 2 Geo. 2, c. 36, 3.9. 31 Geo. 3, c. 39, S. 7. writing (i) from of the vessel, he shall forfeit one month's pay (k). And the master should debit himself for the amount, which he is entitled to deduct from the wages, in the Greenwich Hospital book, or he cannot avail himself of the deduction. We have seen, that the statute respecting the coasting trade punishes mariners who neglect or refuse to proceed on their voyage with forfeiture, but it does not punish desertion in any other manner than by a penalty of one 31 Geo. 3, c. 39, month's pay, which, like the other, is given to Greenwich Hospital. 5. 4. 3. 5. The next offence by mariners is the absenting them2 Geo. 2, c. 36, selves without leave. Both the statutes are express 31 Geo. 3, c. 39, upon this subject, and prescribe a forfeiture of two days pay to the use of the same hospital for each day's wilful absence. And by the Coasting Act, the computation of time in cases of forfeiture shall be by the lunar month. 8. 4. Id. s. 9.. Baltic merchant ship. These are the forfeitures by statute, but, as has been already suggested, it is an offence against the maritime law to desert, and whether in or out of port, the Court of Admiralty has the power of punishing by decreeing the forfeiture of wages, and will do so, if reason be shown. 1 Edw. 86, The As where a carpenter, having deserted his ship after her entry into the port of London, but before the delivery of her cargo, instituted a suit for wages, and contended that the utmost penalty he could be liable to undergo would be the forfeiture of a month's wages to Greenwich Hospital, but the Judge of the Admiralty said, that it was a flagrant case, that the Legislature, by superadding this forfeiture in favour of the hospital, never intended to deprive the owner of his ancient remedy, and that (i) Such a discharge will be presumed, unless the contrary be shown. |