Commentaries on American Law (1826-30)
Chancellor James Kent
Of the Persons Employed in the Navigation of Merchants’ Ships
(1.) Of the authority and duty of the master.
THE captain of a ship is an officer to whom great power, momentous interests, and enlarged discretion are necessarily confided, and the continental ordinances and jurists have, in a very special manner, required, that he should possess attainments suitable to the dignity and the vastness of his trust. He must be a person of experience and practical skill, as well as deeply initiated in the theory of the art of navigation. He is clothed with the power and discretion requisite to meet the unforeseen and distressing vicissitudes of the voyage; and he ought to possess moral and intellectual, as well as business qualifications, of the first order. His authority at sea is necessarily summary, and often absolute, and if he chooses to perform his duties, or to exert his power, in a harsh, intemperate, or oppressive manner, he can seldom be resisted by physical or moral force.
He must have the talent to command in the midst of danger, and courage and presence of mind to meet and surmount extraordinary perils. He must be able to dissipate fear, to calm disturbed minds, and inspire confidence in the breasts of all who are under his charge. In tempests, as well as in battle, the commander of a ship “must give desperate commands: he must require instantaneous obedience.” He must watch for the preservation of the health and comfort of the crew, as well as for the safety of the ship and cargo. It is necessary that he should maintain perfect order, and preserve the most exact discipline, under the guidance of justice, moderation, and good sense. Charged frequently with the sale of the cargo, and the re-investment of the proceeds, he must be fitted to superadd the character of merchant to that of commander; and he ought to have a general knowledge of the marine law, and of the rights of belligerents, and the duties of neutrals, so as not to expose to unnecessary hazard the persons and property under his protection.1
As the master is the confidential agent of the owners, he has an implied authority to bind them, without their knowledge, by contracts relative to the usual employment of the ship.2 This is a reasonable rule, and founded on just principles of commercial policy. It is to be traced to the Roman law, which gave to the master, on the voyage, in whatever matter concerned the ship, the powers of the exercitor or owner, and he could bind him by his acts as master; and all the foreign marine ordinances give this power. The master is appointed by the owner, and the appointment holds him forth to the public as a person worthy of trust and confidence. The master is always personally bound by his contracts, and the person who deals with the captain in a matter relative to the usual employment of the ship, or for repairs or supplies furnished her, has a double remedy: he may sue the master on his own personal contract, and he may sue the owner on the contract made on his behalf, by his agent, the master. The latter may, however, exempt himself from personal responsibility, by expressly confining the credit to the owner, and stipulating against his personal liability.3
If there was no special agreement in the case, the French law, both in the ordinance of 1681, and in the new code, gave to the owner the power to discharge the master in his discretion, and without being responsible in damages for the act. M. Delvincourt, and M. Pardessus, in their commentaries on the new code, condemn the existence of such a power, while M. Boulay Paty vindicates it, on the ground, that the appointment of the master is an act of pure and voluntary confidence, and the principal necessarily has that control over an agent, for whose acts he is accountable, and it is in the power of the master to provide for the case by a special contract for indemnity in case of dismission.4 In the Scottish admiralty it is also held, that ship owners may dismiss the master at any time, without cause assigned, and the majority may dismiss him in his character of master, even if he be a joint owner.5
The master may, by a charter party, bind the ship and freight. This het may do in a foreign port in the usual course of the ship’s employment; and this he may also do at home, if the owner’s assent can be presumed. The ship and freight are, by the marine law, bound to the performance of the contract.6 As the admiralty has no jurisdiction in this case, unless according to the unsettled doctrine in De Lovio v. Boit,7 and as the courts of common law cannot carry into effect the principle of the marine law, by which the ship itself, in specie, is considered as security to the charterer, it is supposed by Mr. Abbott, that the owners may be made responsible for the stipulations in a charter party so made by the master, by a special action on the case, or by a suit in equity.8
The master can bind the owners, not only in respect to the usual employment of the ship, but in respect to the means of employing her. His power relates to the carriage of the goods, and the supplies requisite for the ship, land be can bind the owner personally as to repairs and necessaries for the ship; and this was equally the rule in the Roman law. But the supplies must appear to be reasonable, or the money advanced for the purchase of them to have been wanting, and there must be nothing in the case to repel the ordinary presumption, that the master acted under the authority of the owners.9 If moneys be advanced to the. master while abroad, it will be incumbent on the creditor, if he means to charge the owner, to prove the actual necessity of the repairs or supplies for which the money was advanced; but if the money was fairly and regularly lent to supply the necessities of the ship, the misapplication of it by the master will not affect the lender’s claim upon the owner. This is equally the language of the civil law, and of all the foreign civilians.10 The great case of Carey v. White, which underwent much discussion, established the principle of personal responsibility of the owners, provided the creditor could show the actual existence of the necessity off those things which gave rise to his demand; and this, same doctrine is considered to be equally well established in-the jurisprudence of this country.11
Under the French ordinance of 1681, the master might hypothecate the ship and freight, and sell the cargo to raise moneys for the necessities of the ship in the course of the voyage but he could not charge the owners personally. He could only bind their property under his charge; and the new code of commerce has followed the same regulation. It declares, that the owner is civilly responsible for the acts of the master, in whatever relates to the vessel and the voyage, but the responsibility ceases on the abandonment of the vessel and freight. The power of the master is limited to raise money for the necessities of the voyage, by borrowing on bottomry, or pledging, or selling goods to the amount of the sum wanted.12 The French civilians are zealous in the vindication of the equity and wisdom of their law, which, on abandonment of the ship and freight, discharges the owners as to the contracts, -as well as to the defaults of the master. Emerigon bas bestowed an elaborate discussion on the point; and this was equally the maritime law of the middle ages.13 The law on this subject is the same in Holland as in France,14 and the learned Grotius, in a work where we should hardly have expected to find such a municipal provision,15 condemns the, rule in the Roman law making part owners personally bound, in solido, for these pecuniary contracts of the master, as very improperly introduced, and as being equally contrary to natural equity, and public utility.
Sir William Scott, in the case of the Gratitudine,16 doubts whether the master has authority, even in a case of consummate distress, and in a foreign port, to bind the owners beyond the value of the ship and freight. But he admits, in that case, after an admirable discussion of the principles and authorities in the marine law on the subject, that the master has power to hypothecate the cargo in a foreign port, in a case of severe necessity, for the repairs of the ship, and that the court of Admiralty would enforce the lien. However, from the case already referred to, it would seem to be settled in the English and American law, that the owner may be personally bound by the act of the master, in respect to the repairs and supplies necessary for the ship while abroad, and without other means to procure them; and if the, owner be personally bound, it must be, as it was in the Roman law, to the extent of the requisite advances. Emerging, while he admitted, that the master might hypothecate the ship, and sell the cargo, to raise money to meet the necessities of the ship, denied that he could bind the owners personally by a bill of exchange drawn on them for the moneys raised. But Valin held otherwise, and Boulay Paty is of opinion, that the new code gives the captain a discretion on this point, and he concurs with Valin, and the ancient nautical legislation.17
It has been a question of some doubt, and even contrariety of opinion in the books, whether the master had a lien on the ship or freight for his wages, supplies or advances on account of the ship, either at home or abroad. But the question appears to be now clearly and definitely settled in England, that the master contracts upon the credit of the owners, and not of the ship, and he has no lien on the ship, freight, or cargo, for any debt of his own, as for wages, or stores furnished, or repairs done at his expense, either at home or on the voyage. The principle was settled by Lord Mansfield, in the case of Wilkins v. Carmichael,18 against the master’s claim to a lien on the ship for wages, or money expended for stores, or repairs done in England, and it was there shown to have been the previous law and usage. It was afterwards solemnly adjudged in Hussey v. Christie,19 that the master had no lien on the ship for money expended, or debts incurred, by him, for repairs done to it on the voyage; and in Smith v. Plumer,20 it was decided by equal authority, that the master had no lien on the freight for his wages or disbursements on account of the ship during the voyage, or for the premiums paid by him abroad for the purpose of procuring the cargo.
The captain is distinguished from all other persons belonging to the ship, and he is considered as contracting personally with the owner, while the mate and mariners contract with the master on the credit of the ship. The rule has its foundation in policy, and the benefit of navigation, and it would be a great inconvenience, if, on the change of captain for misbehavior, or any other reason, he would be entitled to keep possession of the ship until he was paid, or to enforce the lien while abroad, and compel a sacrifice of the ship. Sir William Scott, in the case of the Favourite, observed, that it had been repeatedly decided, that the master could not sue in the admiralty for his wages, because he stood on the security of his personal contract with his owner, not relating to the bottom of the ship. The language of the case of Smith v. Plumer,21 was equally that he had no lien on the cargo for money expended, or debts incurred by him, for repairs, or the necessary purposes of the voyage. He can hypothecate and create a lien in favor of others, but he himself must stand on the personal credit of his owners.
The doctrine before us in the English law remains yet to be definitely declared and settled in this country.
The case of the ship Grand Turk,22 is a decision in the Circuit Court of the United States for New York, on the point, that the master’s wages and perquisites were no lien on the ship; and it was so ruled, also, in Fisher v. Willing.23 In those cases, the English authorities were reviewed and cited by the court, and the more enlarged principle advanced in them was not questioned, and seemed to be assumed as settled law. But, in the case of Gardner v. The Ship New Jersey.24 It was rather loosely mentioned, that the master’s claim for disbursements abroad was a lien on the ship; and much more recently, in the Circuit Court of the United States for Massachusetts,25 the rule was laid down, that the master had a lien upon the freight for all his advances abroad upon account of the ship, and it seemed to be the strong inclination of the court to acknowledge the master’s lien on the ship for the same object. The question, therefore, though considered to be settled in England, is still a vexed and floating one in our own maritime law.26
The civil law, and the law of those countries which have adopted its principles, give a lien upon the shin, without any express contract for such a claim, to the person who repairs, or fits out the ship, or advances money for that purpose, whether abroad or at home.27 The English law allows of such a lien, from the necessity of the case, for repairs and necessaries while the ship is abroad; but it has not adopted such a rule as to repairs made, and necessaries furnished to the ship while at home,28 accept it be in favor of the shipwright who has repaired her, and has not parted with the possession. In that case, he is entitled to retain possession until he is paid for his repairs. But if he has once parted with the possession of the ship, or has worked upon it without taking possession, he is not deemed a privileged. creditor, having a claim upon the ship itself.29
In this country, it was formerly, and rather loosely declared, in some of the admiralty courts of the United States, that the person who repaired, or furnished supplies for a ship, had a lien on the ship for his demand.30 But the doctrine was examined, and the rule declared, with great precision, by the Supreme Court of the United States, in the case of the General Smith,31 and reasserted in the case of the St. Jago de Cuba.32 The rule of the English common law is explicitly adopted, that material men, and mechanics, furnishing repairs to a domestic ship, have no particular lien upon the ship itself for the recovery of their demands, with the exception of the shipwright who has possession of the ship. The distinction is, that if repairs have been made, or necessaries furnished, to a foreign ship, or to a ship in the port of a state to which she does not belong, the general marine law, following the civil law, gives the party a lien on the ship itself for his security, and he may maintain a suit in rem, in the admiralty, to enforce his right. But in respect to repairs and necessaries in the port or state to which the ship belongs, the case is governed by the municipal law of that state, and no lien is implied, unless it has been recognized by that law.33 In New York, by statute,34 shipwrights, material men, and suppliers of ships, have a lien for the amount of their debts, whether the ship be owned within the state or not; but the lien ceases after due security is given, or after the expiration of twelve days from the time the vessel leaves the port.
It is very clearly settled, that the master, when abroad, and in the absence of the owner, may hypothecate the ship, freight and cargo, to raise money requisite for the completion of the voyage.35 This authority is, however, limited to objects connected with the voyage, and it must appear, in this case, as well as when he binds the owner personally, that the advances were made for repairs, or supplies necessary for the voyage, or the safety of the ship, and that the repairs and supplies could not be procured upon reasonable terms, or with funds within the master’s control, or upon the credit of the owner, independent of the hypothecation. The master’s right exists only in cases of necessity, and when he cannot otherwise procure the money, and has no funds of the owner, or of his own, which he can command, and apply to the purpose. He is to act with a reasonable discretion, and is not absolutely bound to apply the money of others in hand, except it belong to the owner, in preference to a resort to bottomry; and it has been suggested by very high authority, that there may be special cases in which the master may raise money by hypothecation, even though he has his own money on board. But if he should raise money by bottomry in such a case, the admiralty will marshal the assets in favor of the shippers of the cargo, so as to bring their property last into contribution.36
The power of the master to charge the owners relative to the repairs and freight of the ship, does not exist when the owners are present, or when at their residence.37 But if only a minority of the owners are present or reside at the place, then the captain’s power remains good.38 It is incumbent upon the creditor who claims an hypothecation, to prove the actual existence of the necessity of those things which gave rise to his demand, though he need not see to the actual and bona fide application of the money. The loan must not exceed the necessity, and it must be made in a place, and under circumstances, to afford relief.39 This power of the master to borrow money on bottomry, and hypothecate the ship for there payment, may exist as well at the port of destination, as at any other foreign port, when the necessity for the exercise of the right becomes manifest.40 A doubt has been raised, whether an hypothecation would be valid when made to the consignee of the owner. The power in that instance would be very liable to abuse and collusion, and the averment of the necessity and integrity of the transaction ought to undergo a severer scrutiny.41
The master, in the course of the voyage, and when it becomes necessary, may also sell. part of the cargo, to enable him to carry on the residue; and he may hypothecate the whole of it, as well as the ship and freight, for the attainment of the same object. The law does not fix any aliquot part or amount of cargo which the master may sell; nor could any restraint of that kind be safely imposed. The, power must, generally speaking, be adequate to the occasion. The authority of the master must necessarily increase in proportion to the difficulties which he has to encounter. There is this limitation only to the exercise of the power, that it cannot extend to the entire cargo; for it cannot be presumed to be for the interest of the shipper, that the whole should be sold to enable the ship to. proceed empty to her port of destination. The hypothecation of the whole may, however, be for the benefit of the whole because it may enable the whole to be conveyed to the proper market.42 This power of the master to pledge or sell the cargo, is only to be exercised at an intermediate port, for the prosecution of the voyage; and if he unduly breaks up the voyage, he cannot sell any part of the cargo for repairs for a new voyage, and the power is entirely gone.43
But if the voyage be broken up in the course of it by ungovernable circumstances, the master, in that case, may even sell the ship or cargo, provided it be done in good faith, for the good of all concerned, and in a case of supreme necessity, which sweeps all ordinary rules before it.44 The merely acting in good faith, and for the interest of ail concerned, is not sufficient to exempt the sale of goods from the character of a tortious conversion, for which the ship owner, and the purchaser, are responsible, if the absolute necessity for the sale be not clearly made out. Nor will the sanction of a vice-admiralty court aid the sale when the requisite necessity was wanting.45 All the cases are decided and peremptory, and upon the soundest principles, in the call for that necessity. The master is employed only to navigate the ship; and the sale of it is manifestly beyond his commission, and becomes the unauthorized act of a servant, disposing of property which he was entrusted only to carry and convey.
When part of the cargo is sold by the master at an intermediate port, to raise money for the necessities of the voyage, the general rule has been, to value the goods at the clear price they would have fetched at the poet of destination. But, in Richardson v. Nourse,46 the price which the goods actually sold for at the port of necessity was adopted, and the court did not think that such a criterion of value was clearly erroneous in point of law; and with respect to these contracts of hypothecation for necessaries, made by the master in a foreign port, it is the universal understanding and rule, that they are to be made in the absence of the owner, and not at his place of residence, where he may exercise his own judgment. If the liens be created at different periods of the voyage, and the value of the ship be insufficient to discharge them all, the last loan is entitled to priority in payment, as being the means of saving the ship. The contract does not transfer the property of the ship, but it gives the creditor a privilege or claim upon it, which may be enforced with all the expedition and efficacy of the admiralty process.47
It may be here observed, that it is the duty of the master engaged in a foreign trade, to put his ship under the charge of a pilot, both on his outward and homeward voyage, when he is within the usual limits of the pilot’s employment.48 The pilot, while on board, has the exclusive control of the ship. He is considered as master pro hac vice, and if any loss or injury be sustained in the navigation of the vessel while under the charge of the pilot, through his default, negligence, or unskillfulness, the owner would be responsible to the party injured for the act of the pilot, as being the act of his agent.49 Some doubt has been thrown on the point, by the dictum of Ch. J. Mansfield in Boucher v. Nordstrom,50 but the weight of authority, and the better reason is, that the master, in such a case, would not be responsible as master, though on board, provided the crew acted in regular obedience to the pilot.51
(2.) Of the rights and duties of seamen.
We come next to treat of the laws applicable to seamen; and it will appear, for obvious reasons, that in the codes of all commercial nations they are objects of great solicitude anti of paternal care. They are usually a heedless, ignorant, audacious, but most useful class of men, exposed to constant hardships, perils, and oppression. From the nature of their employment, and their “home on the deep,” they are necessarily excluded, in a great degree, from the benefits of civilization, and the comforts and charities of domestic life. Upon their native clement they are habitually buffeted by winds and waves, and wrestling with tempests; and in time of war they are exposed to the still fiercer elements of the human passions. In port they are the ready and the dreadful victims of temptation, fraud, and vice.52 It becomes, therefore, a very interesting topic of inquiry; to see what protection the laws have thrown around such a houseless and helpless race of beings, and what special provisions have been made for their security and indemnity.
The seamen employed in the merchant’s service, are made subject to special regulations, prescribed by statute. Shipping articles are contracts in writing, or in print, declaring the voyage and the term of time for which the seamen are shipped, and when they are to render themselves on board; and the articles are to be signed by every seaman or mariner, on all voyages from the United States to a foreign port, and, in certain cases, to a port in another state, other than an adjoining one. If there be no such contract, the master is bound to pay to every seaman who performs the voyage, the highest wages given at the port for a similar voyage, within the three next preceding months, besides forfeiting for every seaman a penalty of twenty dollars. The seamen are made subject to forfeitures, if they do not render themselves on board according to the contract, or if they desert the service; and they are liable to summary imprisonment for desertion, and to be detained until the ship be ready to sail.
If the mate and a majority of the crew, after the voyage is begun, but before the vessel has left the land, deem the vessel unsafe, or not duly provided, and shall require an examination of the ship, the master must proceed to, or stop at the nearest or most convenient port, where an inquiry is to be made, and the master and crew must conform to the judgment of the experienced persons, selected by the district judge or a justice of the peace. If the complaint shall appear to have been without foundation, the expense and reasonable damages, to be ascertained by the judge or justice, are to be deducted from the wages of the seamen. But if the vessel be found or made seaworthy, and the seamen shall refuse to proceed on the voyage, they are subjected to imprisonment until they pay double the advance made to them on the shipping contract.53 Fishermen engaged in the fisheries are liable to the like penalties for desertion; and the fishing contract must be in writing, signed by the shipper and the fishermen, and countersigned by the owner.54 The articles do not determine exclusively who are the owners; and the seamen may prove, by other documents, the real and responsible owners. The object of the articles is to place the crew of a fishing vessel upon a footing with seamen in the merchants’ service, and to make them liable to the same restrictions, and entitled to the same remedies.55
Provision is made for the prompt recovery of seamen’s wages, of which one third is due at every port at which the vessel shad unlade and deliver her cargo, before the voyage be ended; and at the end of the voyage, the seamen may proceed in the District Court, by admiralty process, against the ship, if the wages be not paid within ten days after they are discharged. The seamen having like cause of complaint, may all join in one suit, and they may proceed against the vessel within the ten days, if she be about to proceed to sea; but this remedy, in rem, does not deprive the seamen of their remedy at common law for the recovery of their wages.56 The statutes further provide for the safety and comfort of the seamen, by requiring that every ship belonging to a citizen of the United States, of the burden of one hundred and fifty tons, or upwards, navigated by ten or more persons, and bound to a foreign port; or of the burden of seventy tons, or upwards, and navigated with six or more persons, and bound from the United States to any port in the West Indies, shall be provided with a medicine chest, properly supplied with fresh and sound medicines; and if bound on a voyage across the Atlantic ocean, with requisite stores of water, and salted meat, and wholesome ship bread, well secured under deck.57
It is further provided by statute, for the just and benevolent purpose of affording certain and permanent relief to sick and disabled seamen, that a fund be raised out of their wages, earned on board of any vessel of the United States, and be paid by the master to the collector of the port, on entry from a foreign port, at the rate of twenty cents per month for every seaman. The like assessment is to he made and paid on the new enrolment or license for carrying on the coasting trade, and also by persons navigating boats and rafts on the Mississippi. The moneys so raised are to be expended for the temporary relief and maintenance of sick and disabled seamen, in hospitals or other proper institutions established for such purposes; and the surplus moneys, when sufficiently accumulated, shall be applied to the erection of marine hospitals, for the accommodation of sick and disabled seamen. These hospitals, as far as it can be done with convenience, are to receive sick foreign seamen on a charge of seventy-five cents per day, to be paid by the master of the foreign vessel.58
And to relieve American seamen who may be found destitute in foreign ports, it is made the duty of the American consuls and commercial agents, to provide for them, and for their passages to some port in the United States, in a reasonable manner, at the expense of the United States; and American vessels are bound to take such seamen on board, at the request of the consul, but not exceeding two men to every hundred tons burden of the ships, and transport them to the United States, on such terms, not exceeding ten dollars for each person, as may be agreed on. So, if an American vessel be sold in a foreign port, and her company discharged, or a seaman be discharged with his consent, the master must pay to the consul or commercial agent at the place, three months pay, over and above the wages then due, for every such seaman, two thirds of which is to be paid over to every seaman so discharged, upon his engagement on board of any vessel to return to the United States; and the other third to be retained, for the purpose of creating a fund for the maintenance and return of destitute American seamen in such foreign port.59
The act of Congress of March 3d, 1813, declared, that no seaman who was not a citizen or native of the United States, should be employed on board of any public or private vessel of the United States. But the provision against the employment of foreign seamen, is probably without any efficacy, for it applies only to those nations who shall, in like manner, have prohibited the employment of American seamen.
Greenwich hospital, in England, is a noble asylum for decayed and disabled seamen belonging to the royal navy; but another national establishment was wanting for seamen maimed or disabled by sickness or accidental misfortunes, or worn out by age, in the merchants’ service. This was provided for by the statute of 20 Geo. II. which created a corporation, and laid the foundations of a magnificent charity, with liberal, careful, and minute provisions, some of which have been copied into our own statutes; and it is sustained by an assessment similar to our own, of six pence sterling per month out of seamen’s wages. In one respect, the English charity is much broader than ours, for it reaches to the poor widow, and infant children of every seaman who perishes in the service, and who shall be found to be proper objects of charity.
With respect to the behavior of the master and seamen, and the discipline on board of merchant ships, it is held, that the master is personally responsible in damages for any injury or loss to the ship or cargo, by reason of his negligence or misconduct. Being responsible over to others for his conduct as master, the law, as well on that account, as from the necessity of the case, has entrusted him with great authority over the mariners on board. Such authority is requisite to the safe navigation of the ship, and the preservation of good order and discipline. He may imprison, and also inflict reasonable corporal punishment upon a seaman, for disobedience to reasonable commands, or for disorderly, riotous, or insolent conduct; find his authority, in that respect, is analogous to that of a master on land over his apprentice or scholar.60 The books unite in the lawfulness and necessity of the power. Without it authority could not be maintained, nor navigation made safe. Subordination is essential to be strictly enforced, among a class of men whose manners and habits partake of the attributes of the element on which they are employed. Disobedience to lawful commands is a must noxious offense, and the most dangerous in its nature, for it goes at once to the utter annihilation of all authority. But care must be taken that the punishment be administered with due moderation. The law watches the exercise of discretionary power with a jealous eye. If the correction be excessive or unjustifiable, the seaman is sure to receive compensation in damages on his return to port, in an action at common law.61 The master may also confine a passenger who refuses to submit to the necessary discipline of the ships.62
The master has also the right to discharge a seaman for just cause, and put him ashore in a foreign country, and he is responsible in damages if he discharges him without just cause.63 This power of discharge extends to the mate and subordinate officers, as well as to the seamen, for the master must be supreme in the ship, and subordination and discipline are indispensable to the safety and welfare of the service. But it would require a case of flagrant disobedience, or gross negligence, or palpable want of skill, to authorize the captain to displace a mate, who is generally chosen with the consent of the owners, and with a view to the better safety of the ship, and the security of their property.64 The marine law requires the master to receive back a seaman whom he has discharged, if he repents and offers to return to his duty and make satisfaction; and if the master refuses, the seaman tray follow the ship, and recover his wages for the voyage.65
It was a question which received a profound discussion and led to a learned research, in Harden v. Gordon,66 whether a seaman who became sick and disabled on the voyage, was entitled to medical advice and aid at the expense of the ship. It was there shown and decided, that the expense of caring a sick seaman in the course of the voyage, was a charge upon the ship according to the maritime law of Europe, and the rule recommended itself as much by its intrinsic equity and sound policy, as by the sanction of its general authority. Such an expense was in the nature of additional wages during sickness, and it constituted a material ingredient in the just remuneration of seamen for their labor and services. The statute law of the United States had not changed the maritime law, except so far as respects medicines and medical advice, when there was a proper medicine chest, and medical directions, on board the ship; and it did not apply to nursing. diet and lodging, if the seamen be carried ashore. The claim for such expenses, equally with a claim for wages, may be enforced in the courts of admiralty; and Judge Story, in the case last referred to, with great force, and moving on solid principle, vindicated the admiralty jurisdiction over the whole compensation, in all its varied forms, when due to seamen for their maritime services.
The act of Congress requires, that in seamen’s shipping articles, the voyage, and term of time for which the seamen may be shipped, be specified.67 The regulation relates to voyages from a port in the United States, and it does not apply to a voyage commencing from a foreign port to the United States. The voyage within the intendment of the statute, means one having a definite commencement and end. The terminus a quo, and the terminus ad quem must be stated precisely; and in a case of a general adventure, the term of service must be specified. A voyage from New York to Curacao and elsewhere, means, in shipping articles, a voyage from New York to Curacao, and the word elsewhere is rejected as being void for uncertainty.68
Seamen, in the merchant service, are usually hired at a certain sum, either by the month, or for the voyage. In the fishing trade the seamen usually serve under an engagement to receive a portion of the profits of the adventure. The share, or profits of the voyage, are a substitute for regular wages; and the act of Congress,69 extends the admiralty jurisdiction to the cognizance of suits for shares in whaling voyages, in the same form and manner as in ordinary cases of wages in the merchant’s service.
Every seaman engaged to serve on board a ship, is bound, from the nature and terms of the contract, to do his duty in the service to the utmost of his ability, and, therefore, a promise made by the master when the ship is in distress to pay extra wages, as an inducement to extraordinary exertion, is illegal and void. It would be the same if some of the crew had deserted, or were sick, or dead, and peculiar efforts became requisite; for the general engagement of the seamen is to do all that they can for the good of the service, under all the emergencies of the voyage. Lord Kenyon puts the illegality of such a promise on the ground of public policy, and Lord Ellenborough on the want of consideration.70 It requires the performance of some service not within the scope of the original contract, as by becoming a voluntary hostage upon capture, to create a valid claim, on the part of the seamen, to compensation, on a promise by the master, beyond the stipulated wages.71 So, no wages can be recovered when the hiring has been for an illegal voyage, or one in violation of a statute. The law will not countenance a contract ex turpi causa, nor permit any one to lay claim to the wages of iniquity.72
A seaman is entitled to his whole wages for the voyage, even though he be unable to render his service by sickness, or bodily injury, happening in the course of the voyage, and while he was in the performance of his duty. This is not only the invariable usage in the English admiralty, but a provision of manifest justice, pervading all the commercial ordinances.73 He will equally be entitled to his wages to the end of the voyage, when wrongfully discharged by the master in the course of it.74 The marine law very equitably distinguishes between the cases in which seamen’s services are not rendered in consequence of a peril of the sea, and in which they are not rendered by reason of some illegal act, or misconduct, or fraud, of the master or. owner, interrupting and destroying the voyage. In the latter case, the seamen are entitled to their wages, and the rule of the French ordinance, is just and reasonable. It declares, that if the seamen be hired for the voyage, they shall, in such case, be paid the entire wages for the voyage, and if they be hired by the month, they shall be paid for the time they served, with the allowance of a reasonable time for their return to the port of departure.75 If a seaman be wrongfully discharged on the voyage, the voyage is then ended with respect to him, and he is entitled to sue for his full wages for the voyage.76
The general principle of the marine law is, that freight is the mother of wages, and if no freight be earned, no wages are due. This principle protects the owner, by making the right of the mariner to his wages commensurate with the right of the owner to his freight; but that the rule may duly apply, the freight must not he lost by the fraud or wrongful act of the master. The policy of the rule applies to cases of loss of freight by a peril of the sea; and it was truly and distinctly stated by the Court of K. B. in the time of Charles II.77 that if the ship perish by tempest, fire, enemies, etc., the mariners lose their wages; “for if the mariners were to have their wages in such cases, they would not use their endeavors, nor hazard their lives, for the safety of the ship.” If the voyage and the freight be lost, because the ship was seized for debt, or for having contraband or prohibited goods on board, or for any other cause proceeding from misconduct in the master or owner, it would be unreasonable and unjust that the innocent seamen should be deprived of compensation for their services, and the marine law holds them still entitled to their wages.78 The wages are, in such cases, allowed pro tanto to the time of the loss of the voyage, and with such additional allowance as shall be deemed reasonable under the circumstances.79 Seamen’s wages, in trading voyages, are due pro rata itineris. This has been so decided in the Scottish courts, and upon principles of controlling equity.80
If a seaman dies on the voyage, there is no settled English rule on the subject of his wages, In one case, the court intimated, that his representatives might be entitled to a proportion of the wages tip to his death, when the hiring was by the month, and there was no special contract in the way;81 and a similar opinion was mentioned by one of the judges of the C. B. in another case.82 In a still later case,83 et was assumed by the Court. of C. B., that the wages of a seaman, who died on the voyage in which wages arose, were due to his representatives; but the case was silent as to the precise time to which they were to be computed. In this country, there have been contradictory decisions on the point. In the Circuit and District Courts of the United States, in Pennsylvania, it was decided, upon the authority of the laws of Oleron, that the representatives of the seamen dying during the voyage, were entitled to full wages to the end of the voyage.84 On the other hand, it was subsequently decided, in the District Court of the United States for South Carolina,85 and in the District Court in Massachusetts,86 that full wages, by the marine law, meant only full wages up to the death of the mariner; and in this last case, a very able and elaborate review was taken of all the marine ordinances and authorities applicable to the subject. The Court examined critically the provisions in the Consolato del Mare, and in the Laws of Oleron, of Wisbuy, and of the Hanse Towns, the ordinances of Charles V and Lewis XIV, the commentaries of Cleirac, Valin, and Pothier, and all that had been said and decided in England or Massachusetts, in relation to the question. If the two decisions in Pennsylvania outweigh, in point of American authority, the opposite adjudications are best supported in the appeal to those ordinances of European wisdom and policy, in which we discern the deep foundations of maritime jurisprudence.87
As the payment of wages, in general, depends upon the earning of freight, if a ship delivers her outward cargo, and perishes on her return voyage, the outward freight being earned, the seamen’s wages on the outward voyage are consequently due.88 By the custom of merchants, seamen’s wages are due at every delivering port, and their wages are not affected. without their special agreement, by any stipulation between the owners and the charterer, making the voyages out and home one entire voyage, and the freight to depend on the accomplishment of the entire voyage out and in.89 The owners may waive or modify their claim to freight as they please, but their acts cannot deprive the seamen, without their consent, of the rights belonging to them by the general principles of the marine law.
The doctrine of wages was discussed at the bar, and upon the bench, in the case of the Two Catharines,90 with distinguished force and research; and it was held, that where a ship sailed from the United States to Gibralter, and there landed her cargo, and went in ballast to Ivica, and after taking in a return cargo, was lost on the voyage back to the United States, the seamen were entitled to wages up to the arrival, and stay at Ivica. It made no difference that the vessel was in ballast in the intermediate voyage. The voluntary neglect of the owner will not operate, in such a case, to the injury of the seamen. They are entitled to wages, not only when the owner earns freight, but when, unless for his own act, he might earn it. The wages are due by an arrival at a port of destination, when no cargo is on board, or when the owner chooses to bring the cargo back again, and when the port of destination be not, in point of fact, the port of delivery. Even if the ship perishes on the outward voyage, yet, if part of the outward freight has been paid, the seamen are entitled to wages in proportion to the amount of the freight advanced, for there is an inseparable connection between freight and wages.91
Capture by an enemy extinguishes the contract for seamen’s wages; and Sir William Scott, in the case of The Friends,92 held, that the recapture of the vessel did not revive the right, or restore him to his connection with the ship, inasmuch as he was not on board at the recapture, and did not render any subsequent service. The doctrine of this case was overruled in Bergstrom v. Mills;93 and the American decisions have fully discussed the question, and they lay down a different rule, and proceed on the just principle, that the owner recovers his freight, and that is the parent of wages. They, accordingly, allow to the seamen taken prisoners by the captor, and detained, their wages for the whole voyage, with a rateable deduction for the expenses of salvage. Nothing can be more equitable than to allow to seamen suffering in the service, their compensation, when the fund out of which it was to arise is ultimately recovered and enjoyed by the owner.94 And, upon the same principle, if a foreign power seizes the ship, and imprisons the seamen, and they be afterwards released, and reassume, and complete the voyage, and earn freight, their wages are continued during the interruption of the voyage, in like manner as in case of capture and recapture. The Court of K. B. declared the law to this effect in Beale v. Thompson,95 and they proceeded on the sound and incontestible principle of the marine law, that the title to wages depended on the ship earning her freight for the voyage, connected with the further fact, that the mariners were not guilty of any breach of duty. So, in the case of shipwreck, if any proportion of freight be paid for the cargo saved, wages of seamen are to be paid in the same proportion.
Whenever freight is earned, wages are due, and must be paid, and every agreement that goes to separate the validity and equity of the demand for wages, from the fact of freight being earned, is viewed with distrust and jealousy, as being an encroachment on the rights of seamen. The courts of maritime law extend to them a peculiar protecting favor and guardianship, and treat them as wards of the admiralty; and though they are not incapable of making valid contracts., they are treated in the same manner that courts of equity are accustomed to treat young heirs dealing with their expectancies, wards with their guardians, and cestui que trusts with their trustees. They are considered as placed under the influence of men who have naturally acquired a mastery over them. Every deviation from the terms of the common shipping paper, (which stands upon the general doctrines of maritime law,) is rigidly inspected; and if additional burdens or sacrifices are imposed upon the seaman without adequate remuneration, the courts will interfere, and moderate or annul the stipulation. It has, accordingly, under the influence of these just and humane considerations, been held, that an additional clause to the shipping articles, by which the seamen engage to pay for all medicines, and medical aid, further than the medical chest afforded, was void, as being grossly inequitable, and contrary to the policy of the act of Congress.96 It has likewise been decided, that a stipulation that the wages of the seamen, earned in the intermediate periods, should depend upon the ultimate successful termination of a long and divided voyage, was inoperative and void.97
Mariners are bound to contribute out of their wages for embezzlements of the cargo, or injuries produced by the misconduct of any of the crew. But the circumstances must be such as to fix the wrong upon some of the crew; and then, if the individual be unknown, those of the crew upon whom the presumption of guilt rests, stand as sureties for each other, and they must contribute rateably to the loss. Some of the cases in the books have established a general contribution from all the crew for such embezzlements, even when some of them were in a situation to repel every presumption of guilt; but neither public policy, nor principles of justice extend the contribution or forfeiture of wages for such embezzlements beyond the parties immediately in delicto. This just limitation of the rule was approved of by the English Court of C. B., in Thompson v. Collins,98 in their construction of the clause in the usual shipping articles, inserted to enforce this regulation of the marine law. It was also adopted by the Supreme Court of this state, in Lewis v. Davis,99 and afterwards most ably and thoroughly vindicated, even against the high authority of Valin, by the Circuit Court of the United States for the district of Massachusetts, in the case of Sparr v. Pearson.100
The doctrine of that case is so moral and so just, that it may be said to rest on immovable foundations. The substance of it is, that where the embezzlement has arisen from the fault, fraud, connivance, or negligence, of any of the crew, they are bound to contribute to the reparation of the loss, in proportion to their wages. If the embezzlement be fixed on any individual, he is solely responsible; and where it was made by the crew, butt the particular offender is unknown, and from the circumstances of the ease, strong presumptions of guilt apply to the whole crew, all must contribute. Where no reasonable presumption is shown against their innocence, the loss Must be borne exclusively by the owner or master. In no case are the innocent part of the crew to contribute for the misdemeanors of the guilty; and in a case of uncertainty, the burden of the proof of innocence does not rest on the crew, but the guilt of the parties is to be established beyond all reasonable doubt, before the contribution can be demanded.
In case of shipwreck, and there be relics or materials of the ship saved, many of the old ordinances, as well as the new commercial code of France, allow a compensation to the seamen, out of the remains which they had contributed to preserve.101 There were no English decisions on the point, when Lord Tenterden published the third edition of his work;102 but some of the decisions in this country seem to consider the savings of the wreck as being bound for the arrears of the seamen’s wages, and for their expenses home; and Lord Stowell has, since the Pennsylvania decisions, allowed to the seamen, by whose exertions part of a vessel had been saved, the payment of their wages, as far as the fragments of the materials would form a fund, although there was no freight earned by the owners.103 I apprehend, however, with great deference to the suggestions of that eminent judge, that in such cases where the voyage is broken up by vis major, and no freight earned, no wages, co nomine, are due; and that the equitable claim which seamen may have upon the remains of the wreck, is a claim for salvage, and that it is incorrectly denominated in the books a title to wages. Wages, in such cases, would be contrary to the great principle in marine law, that freight is the mother of wages, and the safety of the ship the mother of freight.104
By the act of Congress,105 one third of the seamen’s wages is due at every port where the ship unlades and delivers her cargo, unless there be an express stipulation to the contrary; and when the voyage is ended, and the cargo or ballast fully discharged, the wages are due, and if not paid within ten days thereafter, admiralty process may be instituted. But there is no fixed period of time by the marine law, within which mariners must proceed to enforce their lien for wages. It does not, like other liens, depend upon possession. Seamen’s wages are hardly earned, and liable to many contingencies, by which they may be entirely lost, without any fault on their part. Few claims are more highly favored and protected by law; and when due, the vessel, owners, and master, are all liable for the payment of them.
The seamen need not libel the vessel at the intermediate port where they are discharged. They may disregard bottomry bonds, and pursue their lien for wages afterwards, even against a subsequent bona fide purchaser. Their demand for wages takes precedence of bottomry bonds, and is preferred to all other demands, for the same reason that the last bottomry bond is preferred to those of a prior date. Their claim is a sacred lien, and as long as a single plank of the ship remains, the sailor is entitled, as against all other persons, to the proceeds, as a security for his wages.106 In the French law, the seamen’s lien upon the vessel is extinguished after a sale, and a voyage, in the name, and at the risk, of the purchaser; and the preference of the seamen’s claim is confined to the wages of the seamen employed in the last voyage.107
Desertion from the ship without just cause, or the justifiable discharge of a seaman by the master, for bad conduct, will wont a forfeiture of the wages previously earned; and this is a rule of justice, and of policy, which generally pervades the ordinances-of the maritime nations. By the English statute law,108 and by the act of Congress,109 desertion is accompanied with a forfeiture of all the wages that are due; and whatever unjustifiable conduct will warrant the act of the master in discharging a seaman during the voyage, will equally deprive the seaman of his wages. But the forfeiture is saved if the seaman repents, makes compensation, or offer of amends, and is restored to his duty.110 Public policy and private justice here move together, and the maritime ordinances unite in this conclusion.
So, if the seaman quits the ship involuntarily, or is driven ashore by reason of cruel usage, and for personal safety, the wages are not forfeited.111 On the other hand, it is the duty of seamen to abide by the vessel as longs as reasonable hope remains, and if they desert the ship under circumstances of dander or distress from perils of the sea, when their presence and exertions might have prevented damage, or restored the ship to safety, they forfeit their wages, and are answerable in damages.112 And even when a seaman might well have been discharged in the course of the voyage, for gross misbehavior, if the master refuses to discharge him, and leaves him in imprisonment abroad, he will, in that case, be entitled to his wages until his return to the United States, after deducting from the claim his time of imprisonment.113