for the establishment of savings banks for seamen (i); and for charging upon the wages of absent seamen such relief as may be given out of poor rates to their families (k). Provision is also made, in the case of a ship not returning at once to the United Kingdom, for payment of the wages of seamen who have died, to the British consular officer, or officer of customs, should they require it; or if not, for their payment by the master within forty-eight hours after his arrival at his port of destination in the United Kingdom to the shipping master there, and for the rendering to them a complete account of the effects, money, and wages of any such seaman, in which no deductions shall be allowed but such as are verified by entries in an official log-book, or by such other vouchers as may reasonably be required (†). Wages and effects of scamen dying at home, of whatever amount, are to be paid and delivered to the shipping master of the port of discharge, or to the Board of Trade, or as it directs(m). A large discretion is given to the Board of Trade as to the payment and delivery of wages and effects to persons claiming under wills of seamen, unless such wills are in writing, and made and attested in the manner and by the persons prescribed by the Act; and whenever any claim under a will is rejected on this ground, the wages and effects of the deceased are to be dealt with as if no will had been made (n). Creditors of a deceased seaman are not to obtain a right to claim from the Board of Trade his wages and effects by taking out letters of administration, or by virtue of confirmation in Scotland, as executor creditor, nor by any means whatever, if the debt occurred more than three years before the demand is made, or is not claimed within two years after the death of the deceased. The steps to be taken by a creditor for obtaining payment of his debt are prescribed. The Board of Trade is to have power to require full proof of the debt, with vouchers, and to disallow the claim if not established. It may also delay the investigation of any demand made by a creditor for a year, in order to give legatees and relations the opportunity of disputing the claim. And if the Board pays to a legatce or relation, the creditor shall have the same rights and remedies against such person, as if he or she had received the same as the legal personal representative of the deceased (o). (i) Sec. 177. (1) Sec. 195. (m) Sec. 198. (n) Sec. 200. CHAPTER III. OF THE LOSS AND FORFEITURE OF WAGES; AND HEREIN. (Ss.) 1. Wages generally not payable unless Voyage performed. 2. Of the Wages payable in cases of Capture and Recapture. 3. Of Forfeiture of Wages by Desertion. 4. Forfeiture for refusing to assist the Master in defending the Ship against Pirates. 5. In case of Embezzlement by the Mariners. THE wages of seamen, whether hired by the month or for the voyage, are sometimes lost without any fault on their part; and sometimes forfeited by their misconduct. FIRST, as to the loss of wages. 1. In order to stimulate the zeal and attention of this class of persons, who are often engaged in very perilous services, the policy of all maritime states has made the payment of their wages to depend generally on the successful termination of the voyage (a). If in the course of the voyage a total loss or capture of the ship takes place, the seamen lose their wages. So if the ship become disabled on the voyage. But the wages are not lost by the hypothecation of the ship, nor even by the sale of it, unless the sale be made under the authority of a competent Court; and they are preferred to the claim of the holder of an hypothecation bond (b). It has been already observed, that they are not lost, though the ship be wrecked, if the seamen assist in saving from the wreck sufficient to pay them (c). Indeed, if the ship be not seaworthy at the outset, and the voyage be discontinued on that account, a seaman is not entitled to wages, though, perhaps, he may maintain a special action against the owner for the recovery of damages (d). * A distinction is also made between those accidents by which voyages may be interrupted and the interests of mariners affected, as dependent on their successful termination and other causes arising from the acts of the owners or masters, and it was held accordingly by Sir Christopher Robinson, that the condemnation of a vessel for illegal trading on the part of the master, to which the mariners were not parties, did not work a forfeiture of wages, or bar the * mariners' action against the owners (e). It was mentioned in a preceding chapter, that the payment of wages is divisible, and that if a ship has delivered its cargo at one place, the wages are so far due, although the ship be afterwards taken or sunk. But if a ship sail to one place in order to take in a cargo there, to be conveyed to another place, and having received the cargo accordingly, be taken before its arrival at the place of delivery, nothing is payable to the seamen for navigating the ship to the first place (ƒ). 2. I have mentioned in a former part of this Treatise (g), that in some foreign countries, where ransom is not contrary to law, the seamen belonging to a ship captured and ransomed are bound to contribute a portion of their wages towards the ransom by way of general average. This point is in itself of no importance in this country, because ransom is prohibited by our law; but the payment of salvage upon recapture is analogous to the payment of ransom, and was so considered by Lord Stowell in a case in the Court of Admiralty (h). In an action brought for the wages of a seaman after a capture and ransom of the ship, and which was tried before Chief Justice Holt, the Chief Justice is reported to have decided that the seaman was entitled to nothing, he being unable to prove that by the custom of merchants he was entitled pro ratâ, as was insisted on his behalf (i). But it seems to be the better opinion, that in the case of capture and recapture, if the ship perform her voyage and earn her freight, a mariner who has not been separated from her, is entitled to his wages upon the footing of the original contract (k), subject perhaps to a proportionate salvage. In conformity to this opinion, at the trial of a cause before Lord Eldon, when his lordship presided in the Court of Common Pleas, a seaman recovered his whole wages after capture and recapture of the ship (7). The owners did not insist upon any deduction as contribution to the salvage, but put their defence on another ground, which they failed to establish. In another case, a mariner, who had been hired for a voyage from Newcastle to London and back, at a certain sum, and was captured on board, two days after the ship's departure, and taken out and sent to France, instituted a suit in the Court of Admiralty for wages; the ship had been retaken, carried to the place of destination, and performed her voyage; the owner, however, had been obliged to hire another person at London to return to Newcastle with the ship, in the place of the claimant. Under the freight was ordered to be deducted be tween the owner and freighter. The Racehorse, White, 3 Rob. 101. (i) Chandler v. Meade, mentioned at the end of the case of Wiggins v. Ingleton, 2 Lord Raym. 1211. (k) Molloy, book 2, chap. 4, sec. 14, as to freight, which depends upon the same principle. But see the dictum of Eyre, Ch. J., in Curling v. Long, 1 Bos. & Pull. 637, which is contrary. (Bergstrom v. Mills, 3 Esp. N. P. C. 36. Delamainer v. Winteringham, 4 Campb. 186. these circumstances Lord Stowell held, that the claimant was not entitled to anything; but it seems from the language of the report, that if he had remained on board, his interest would have been thought to have revived upon the recapture (m). In a case before Lord Kenyon, the master of a vessel, which had been seized and restored, claimed his wages for the period of detention, although during that time he had been separated from her, she having afterwards earned her freight. The wages for the voyage, exclusive of that period, were paid without dispute; and the defendant is reported to have acquiesced under a verdict given against him for the further sum, by reason of a strong opinion expressed by his lordship at the trial in favour of the claim (n). The ground of decision in this case was fully discussed and considered, on the occasion of the seizure and detention of several British ships in Russia, by the Emperor Paul, in the year 1800. I allude to the case of Beale v. Thompson, which has been incidentally mentioned before. Beale, an Englishman, was hired to serve as a seaman in a British ship, called the Aquilon, whereof Thompson was owner, at monthly wages, for a voyage from Hull to Petersburgh, and from thence to London; and signed articles in the usual form. The ship went out to Petersburgh, in ballast, to bring a cargó to London; and the freight was to be paid by the ton. On the fifth of November, 1800, which was soon after this vessel arrived at Petersburgh, the Emperor commanded an embargo to be laid on all English ships in the ports of his empire, until a supposed convention relating to the island of Malta should be fulfilled. To enforce this order, guards were stationed along the shore to prevent the crews from quitting their ships. On the tenth of the same month they were taken from their ships by a Russian guard; such of the seamen as were subjects of other countries were liberated at the request of their consuls; but the British masters and mariners were marched in parties into the interior of the country, and treated as prisoners of war. A convention hostile to Great Britain was formed between Russia, Sweden, and Denmark, and an embargo was imposed in this country on the vessels of those nations. Upon the death of Paul, and the succession of the Emperor Alexander, peace was re-established, and the ships that had been detained on both sides were mutually restored. This restitution took place in Russia at the end of May, 1801. Beale and the rest of the crew re-embarked on board the Aquilon, without entering into any new articles with the master, and returned to London with the ship, which brought her cargo and earned her freight. Thompson, the owner, paid the wages at the rate mentioned in the articles, exclusive of the time of the ship's detention; and Beale brought his action to recover his wages for that time. In support of the claim, it was contended that this conduct of the Russian government partook more of the nature of an embargo than of a capture, and that considering it as an embargo, the original (m) The Friends, Bell, 4 Rob. 143. In this case, the learned Judge seems to consider a claim for wages, after capture and recapture, to be subject to salvage. (n) Pratt v. Cuff cited in Thompson v. Rowcroft, 4 East, 43. contract for wages subsisted, as had been decided in the case of a contract of affreightment (o). And that the mariner's absence from the ship under these circumstances did not occasion a forfeiture by the operation of those clauses of the articles which provide for the continuance of the seamen on board their ship, because it was involuntary on his part. On the other hand it was insisted, that this was a case of hostile seizure and temporary capture, which put an end to the original contract, and left the mariner a right proportionate only to the services he had actually performed. And further, that if it were to be considered only as an embargo, yet as the seaman had not during the period of it done any duty on board the ship, or for the benefit of the owners, he was not entitled to any payment; and it was urged, that if the force of the Russian government furnished an excuse to the mariner on the one hand for not performing his contract by continuing on board the ship, so on the other hand it ought to exempt the owner from paying for what he had not received. The learned Judges of the Court of Common Pleas were divided in opinion as to the character to be attributed to these acts of the Russian government, upon which the determination of the question between the parties was thought principally to depend (p). The cause was brought before the Court of King's Bench by writ of error, and after consideration the judgment of the Court was delivered by Lord Ellenborough in favour of the claim of Beale, the mariner. It is impossible to give the full effect of the very learned judgment pronounced by the Chief Justice in an abstract, nor does the plan of this Treatise allow me to transcribe the whole; I must, therefore, refer the reader, who is desirous of full information, to the report (q), and content myself with stating, that the Court thought it unnecessary to decide in this case, whether or no the dissolution of contracts for freight and wages is the necessary effect of perfect and complete capture, where the right of the original proprietor is not revested by subsequent recapture, nor recognised as continuing in force by any judgment or authoritative act of restitution on the part of the capturing nation; considering this as a case of hostile seizure, with a view to measures of retaliation, if they should ultimately be thought just and necessary, but of subsequent restitution and abandonment of the right of seizure, on the part of the power by which the seizure had been made; and observing that there was no case where property so dealt with had been considered as captured, or the contract for freight or wages dissolved; and holding, therefore, that the plaintiff's claim was not defeated on the supposed ground of a dissolution of the contract. The Court also thought, that the seaman had not, in this case, forfeited his wages under any of the clauses of the articles, because the language of the articles, construed, as it ought to be, with reference to the Acts of Parliament, imported a departure from the ship by the unauthorized act of the party, and did not apply to a seaman taken out (0) See before, p. 429. (p) Beale v. Thompson, 3 Bos. & Pull. 405. |