serted from any other ship, shall forfeit 100l. Although this clause is contained in the statute regarding the West India trade, it is the opinion of Lord Tenterden in his book, that, as it seems to have no connection with the preamble of the Act, and is expressed in general' terms, it is not to be confined to the masters of ships Abbott, 436. engaged in that trade. By section 3, no master of any merchant ship shall hire any seaman or other person, at any port of His Majesty in the West Indies, at more wages or hire than according to the rate of double monthly wages contracted for with the seamen, &c. hired at the time of the ship's last departure from Great Britain, but being in the same degree in which such seaman, &c. shall be so hired as aforesaid. Unless the governor, chief magistrate, collector or comptroller of such port in the colonies shall think that' greater than the double monthly wages ought to be" given, and shall authorize such further payment under his hand; all contracts for such prohibited advance of wages are to be void, and the master who enters into them forfeits 100 l. s. 10. Nevertheless, if the seaman, &c. at the time of the 37 Geo. 3, C, 73, hiring, produce a certificate(y) under the hand of the captain with whom he has last served that he has been duly discharged; or, if very hazardous service, or extraordinary duty require such a contract, of which necessary proof must be made on oath before the chief magistrate of any port, or Justice of peace of the said colonies, the Act shall not apply; so as, however, the seaman have not deserted from his last ship; and, again, so as that the rate of wages be no greater than the double (y) Signed by one or more witnesses, and which certificate is to be granted under a penalty of 201., within three days after an application. Abbott,439 2 B. & P. 57, Rodgers v.Lacy. Id. 116, White v. Wilson. monthly wages, or the wages to be settled by the governor, &c. save in the cases of hazardous service or extraordinary duty. 66 The obscurity of this proviso is most obvious. The latter part of the clause seems to contradict the former, inasmuch as that after the declaration that a certificate of discharge shall prevent the statute from operating, there comes a second proviso, that save in cases of necessity no more than double the monthly wages shall be taken, which was the original enactment proposed to be excluded by the present clause in the very case. If, as at first appears, it was intended to allow the master to give "double wages without the authority of a magistrate "in two cases; namely, first, to mariners producing "a certificate of discharge from their last ship; and, "secondly, in the case of necessity, hazardous services, " or extraordinary duty, proved upon oath, to mariners "who have not deserted from their last ship, then the "last part of the clause will be ineffectual. If, on the "other hand, it was intended to allow this power to "the master only in the case of necessity, &c. so proved, "and to mariners who have not deserted, then the first part of the clause will be ineffectual." A licence was given to the master by the chief magistrate at Jamaica, "to procure men on such terms as he 66 can," &c. The plaintiff, a sailor, was hired at a greater rate than the double monthly rate by virtue of this licence, but in an action to recover his wages he was nonsuited because the licence should have regulated the precise sum. Under the agreements entered into as above prescribed, nothing in the nature of wages may be recovered except the sums of money or other rewards therein contracted for. Thus, the average price of a slave, a monthly See also 2 Rob. yond that mentioned in the ship's articles, &c. cannot be recovered unless specifically inserted in the articles. 241, The Isa bella. As we have seen, in salvage cases, that no extraordinary remuneration is due for the performance of duty, so a promise by the master to pay an extra sum for wages Peake, 72, Harwhen the ship was in distress could not be supported. ris v. Watson. An agreement was made on shore: some of the crew had deserted, and the captain promised to divide their wages among the rest; this agreement was held void for want of consideration, for, at setting out the crew were under an obligation to meet all the emergencies of the voyage, they had sold their services until the completion Stilk v. Myrick. of the voyage. An engagement for services, not consistent with the 2 Campb. 317, law of the country, must necessarily be void; one, for 6 Rob. 207, The instance, in contravention of the Slave Trade Acts. We have before observed, that the payment of wages is, in general, dependent upon the earning of freight (z). And it may be proper here to premise, that, under the statutes, if a seaman refuses to proceed on the voyage he has contracted for (a), he forfeits his title to wages, (z) Unseaworthiness will defeat the claim of the mariner, no freight being earned, though perhaps he might have a special action. 5 Esp. 6, Eaken v. Thom. But Lord Stowell has expressed an opinion that prevents the earning of wages from being always considered as co-existent with the gaining of freight: "Mr. Jacobsen, in his laborious and comprehensive work, "says, "It is a general rule that freight is the mother of "'wages; but to this there are several exceptions;' and he "enumerates some of them: there are others that are not so "enumerated; as the cases of ships going out in pursuit of freight, and returning disappointed without a cargo, in "which case it can never be said that the seamen are not "entitled to their wages, both on the outward and on the "return voyage, though no freight whatever was earned." 1 Hag. 232. (a) Should the owners of the ship decline the voyage, Vanguard. 2 Geo. 2, c. 36, 3 31 Geo. 3, c. 39, S. 3. 2 Geo. 2, c. 36, and he may moreover be apprehended by a Justice's warrant, and sent to the House of Correction for a space 31 Geo. 3, c. 39, of time not less than fourteen, nor exceeding thirty days. S. 4. S. 3. 1 Ld. Raym. 639, 739, Anonymous. 2 Show. 283, Anonymous. Abbott, 449. 8 East, 300, Appleby v. Dods. 3 B. & P. 405, Beale v. Thomp son; 4 East, 546. 4 East, 566, Johnson v. Bro derick. Where the voyages are consolidated, and the ship perishes, the seaman has no claim; where they are distinct, wages are due up to the delivery of the last cargo on the outward voyage. And so, though the ship be lost on the outward track, if there have been money advanced on the freight, the seamen become entitled to their wages in proportion to the freight advanced. It is now common for the mariners to give bonds that they will not claim any further wages than the impress money paid them in advance in case of the loss of the vessel, notwithstanding she may have broken bulk, or delivered goods (b). If London be fixed as the concluding port of the voyage, and the seamen agree that they are not to have wages till the ship reaches her port of discharge, the seamen cannot recover pro ratá if the ship be lost before her return to London. Yet, if the stipulation be for Wages at so much per month, and there be a detention of the vessel, proportionate wages will become payable during the period of such detention, whether the plaintiff be an Englishman or a foreigner. Independently, however, of special agreements, sailors will have their wages in proportion to the payment of freight; for example, if part of a cargo be saved: And, in other cases, where they have used remarkable endeavours to preserve their vessel, they may become entitled wages are due for the time the mariners have been on board. 2 Lord Raym. 1044, Wells v. Osman. (b) See 2 Vern. 727, Edwards v. Child and East India Company. to a recompense by way of salvage. Where a stranded ship was sold, no part of the cargo being saved, and the seamen had been very earnest in their exertions, and had not departed until dismissed by the master, the Court of Admiralty decreed them their wages out of the proceeds of the ship, although no freight had been earned; but here the wages were payable at the rate of so much by the month, and there was neither bond nor special agreement. 1 Hag. 227, The Neptune. 3 Esp. 37, Bergstrom v. Mills. Delamainer v. If a ship be recaptured, and reach her port, the sailors are entitled to their wages. If there be a hostile embargo, and the ship afterwards return home, having 4 Campb. 186, And in order to Winteringham. earned freight, the same right accrues. show that the sailor is not entitled to wages, the defendant 7 Taunt, 319, must prove that no freight was earned, the seaman will not be bound to adduce evidence to the contrary. if the vessel be captured no wages are due. But the A mariner who is disabled in the course of voyage, by accident or sickness, is entitled to his full wages. An objection was made to the sex of a woman who had performed very active services on board, but the Judge said, that as the work had been done, the performer was entitled to the common remuneration of such employment. If the seaman dies during the voyage, his representative, it seems, is entitled to any wages which may have fallen due. And it is no defence for the captain to say that, having accounted, upon oath, for the arrearages, he has paid them into the office of the sixpenny duty receiver at Greenwich Hospital (d), and that, if he were (c) Under an Act confined to the West India trade, 37 Geo. 3, c. 73, s. 7, if the wages are not demanded within three years, they shall go to the seamen's hospital at the port where the ship belongs, or if no hospital, to the old and Brown v. Milner; same case, 1 Moore, 65. 2 H. Black. 606, n. Chandler v. Grieves. |