CHAPTER XI.
Seamen's Wages.
Affected by desertion or absence;—by misconduct;—by imprisonment;—by capture;—by loss of vessel and interruption of voyage. Wages on an illegal voyage. Wages affected by death or disability.
Wages affected by Desertion or Absence.—It has been seen that if a seaman, at the commencement of the voyage, neglects to render himself on board at the time appointed, and an entry thereof is made in the log-book, he forfeits one day's pay for every hour's absence; and if he shall wholly absent himself, so that the ship is obliged to go to sea without him, he forfeits his advance and as much more.[199]And if at any time during the voyage he absents himself without leave, and returns within forty-eight hours, he forfeits three days' pay for every day's absence; but if he is absent more than forty-eight hours, he forfeits all the wages then due him, and all his clothes and goods on board at the time.[200]These forfeitures cannot be exacted against the seaman unless there is an entry made in the log-book on the same day that he left, specifying the name of the seaman, and that he was absent without leave.[201]
But independently of these regulations, and without the necessity of any entry, &c., a seaman forfeits his wages for deserting the vessel, or absenting himself wrongfully and without leave, by the general law of all commercial nations.[202]If, however, the seaman is absent without fault of his own,[203]or if he is obliged to desert by reason of cruel treatment, want of food, or the like, he does not forfeit his wages. But in such case, the seaman must prove that the treatment was such that he could not remain without imminent danger to his life, limbs, or health.[204]If the voyage for which he shipped has been abandoned, or there has been a gross and unnecessary deviation, he does not forfeit his wages for leaving the vessel; but then the change of voyage must have been actually determined upon and known to the seaman.[205]
Even if the seaman shall have clearly deserted without justifiable cause, or absented himself more than forty-eight hours, yet, if he shall offer to return and do his duty, the master must receive him, unless his previous conduct would justify a discharge.[206]And if he is so received back, and does his duty faithfully for the rest of the voyage, the forfeiture is considered as remitted, and he is entitled to his wages for the whole voyage.[207]If, however, the owner has suffered any special damage from the wrongful absence of the seaman, as, if the vessel has been detained, or a man hired in his place, all such necessary expenses may be deducted from the wages.[208]
A mere leaving of the vessel, though a wrongful absence, is not a desertion, unless it is done with the intention to desert.[209]A seaman is bound to load and unload cargo in the course of the voyage if required of him, and a refusal to do so is a refusal of duty.[210]If the voyage is at an end, according to the articles, and the vessel is safely moored at the port of discharge, the seamen are still bound to discharge the cargo if it is required of them. If they do not, their refusal or neglect does not, however, work a forfeiture of all their wages, but only makes them liable to a deduction, as compensation to the owner for any damage he may have suffered.[211]The custom in almost all sea-ports of the United States is, to discharge the crew, and not to require them to unload cargo at the end of the voyage. This custom is so strong that if the owner or master wishes to retain the crew, he must give them notice to that effect. Unless the crew are distinctly told that they must remain and discharge cargo, they may leave the vessel as soon as she is safely moored, or made fast. If they are required to remain and discharge cargo, they make themselves liable to a deduction from their wages for a neglect or refusal, but do not forfeit them.[212]The seaman must bear in mind, however, that this is only when the voyage is at an end, and the ship is at the final port of discharge. If he refuses to load or unload at any port in the course of the voyage, and before it is up, according to the articles, he does so at the risk of forfeiting all his wages.[213]
The master and owners of a vessel are allowed ten days after the voyage is up, before a suit can be brought against them for the wages of the crew.[214]This is in order to give them time to settle all accounts and discover delinquencies. If the crew are retained to unload, then the ten days begin to run from the time the vessel is completely unloaded. But if the crew are not retained for this purpose, but are discharged and allowed to leave the vessel, then the ten days begin to run from the day they are discharged.[215]
Wages affected by Misconduct.—A seaman may forfeit his wages by gross misconduct; and if not forfeited, he may be liable to have a deduction made from them, for any damage caused to the owner by such misconduct. To create a forfeiture, his misbehavior must be gross and aggravated.[216]A single act of disobedience, or a single neglect of duty, will not deprive him of his wages.[217]A refusal to do duty in a moment of high excitement caused by punishment will not forfeit wages, unless followed by obstinate perseverance in such refusal.[218]Wheredrunkennessis habitual and gross, so as to create a general incapacity to perform duty, it is a ground of forfeiture of wages. But occasional acts of drunkenness, if the seaman in other respects performs his duty, will not deprive him of his wages.[219]In this, as in all cases of neglect, disobedience, or wilful misconduct, which do not create a forfeiture, a deduction may be made if the owner has suffered any loss.[220]
In one instance a forfeiture of one half of a seaman's wages was decreed, in consequence of his striking the master. He did not forfeit the whole, because he had been otherwise punished.[221]
If the seaman is imprisoned for misconduct, he does not forfeit the wages that accrued during his confinement, nor, what amounts to the same thing, is he bound to pay those of a person hired in his place during his imprisonment.[222]
If the crime of a seaman is against the laws of the United States, and too great for the master's authority to punish, he must be confined and brought home to trial. But this does not forfeit his wages, though any loss or damage to the owner may be deducted.[223]
In all cases of forfeiture of wages for misconduct, it is only the wages due at the time of the misconduct that are lost. The wages subsequently earned are not affected by any previous misbehavior.[224]
If a seaman or officer is evidently incapable of doing the duty he shipped for, he may be put upon other duty, and a reasonable deduction may be made from his wages.[225]
Wages affected by Imprisonment.—If a seaman is imprisoned by a warrant from a judge or justice of the peace, within the limits of the United States, for desertion or refusal to render himself on board, he is liable to pay the cost of his commitment and support in jail, as well as the wages of any person hired in his place.[226]So, if a seaman is imprisoned in a foreign port by the authorities of the place for a breach of their laws, the costs and loss to the owner may be deducted from his wages; but not so if he is imprisoned at the request of the master.[227]The right of the master to imprison at all is a doubtful one, and dangerous of exercise; and if he does resort to it, he can never charge the expenses to the seamen, nor deduct their wages during imprisonment.[228]
Wages affected by Capture.—If a neutral ship is captured, it is the right and duty of the seamen to remain by the vessel until the case is finally settled.[229]If she is liberated, they are then entitled to their wages for the whole voyage; and if freight is decreed, they are entitled to their wages for as much of the voyage as freight is given.[230]And if at any future time the owners recover the vessel, or her value, upon appeal or by treaty, they are liable for wages.[231]] In order to secure his wages in these cases, the seaman must remain by the vessel until her sale or condemnation, and the master cannot oblige him to take his discharge.[232]The condemnation or sale of the vessel puts an end to his contract. If he leaves before the condemnation or sale, with the master's consent, he does not lose his chance of recovering his wages.[233]Even if the vessel is condemned, and the owner never recovers the vessel or its value, yet the seaman is entitled to his wages up to the last port of delivery, and for half the time she lay there.[234]
Wages affected by Loss of Vessel or Interruption of Voyage.—If a vessel meets with a disaster, it is the duty of the crew to remain by her so long as they can do it with safety, and to exert themselves to the utmost of their ability to save as much as possible of the vessel and cargo.[235]If they abandon the vessel unnecessarily, they forfeit all their wages; and if their leaving was necessary and justifiable, yet they lose their wages except up to the last port of delivery and for half the time the vessel was lying there, or for so long as she was engaged with the outward cargo.[236]This rule may seem hard, but its object is to secure the services of the crew in case of a disaster. If by their exertions any parts of the vessel or cargo are saved, they are entitled to wages, and an extra sum for salvage.[237]If the vessel is abandoned and nothing is saved, they lose their wages, except up to the last port of delivery and for half the time the vessel was lying there.[238]
The general rule is, that a seaman's wages are secure to him whenever the vessel has earned any freight, whatever may afterwards happen. And a vessel earns freight at every port where she delivers any cargo. For the benefit of seamen a vessel is held to earn freight whenever she goes to a port under a contract for freight, though she go in ballast.[239]A seaman also secures his wages wherever the ship might have earned freight but for the agreement or other act of the owner.[240]If a vessel is on a trading voyage from port to port, and is lost on the homeward passage, wages would probably be allowed for the outward passage, and for half the time she was engaged in trading with the old or new cargoes; the trading and going from port to port being considered the same as though she had been lying in port all the time, and discharging and receiving cargo. Or else, wages would be given up to the last port at which she took in any return cargo, and for half the time she was lying there.[241]
These rules apply only to cases where the voyage is broken up by inevitable accidents, as by perils of the seas, capture, war or superior force. If the voyage is broken up by the fault of the seamen, they lose all their wages. If, on the other hand, the seamen are compelled to leave, or the voyage is broken up by the fault of the master or owner, as by cruel treatment, want of provisions, or the like, the crew would be justly entitled to wages for the whole voyage contracted for. If the vessel is sold, or the voyage altered or abandoned by the master or owner, not from inevitable necessity, but for their own interest and convenience, then the crew are entitled, by statute, to wages for all the time they were on board, and two months' extra pay.[242]And, by the general law, they would always receive some extra wages as a compensation for the loss of the voyage, and as a means of supporting themselves and procuring a passage home; or, perhaps, full wages for the voyage.[243]
Wages on an Illegal Voyage.—A seaman has no remedy for his wages upon an illegal voyage; as, for instance, in the slave trade.[244]Wages have, however, been allowed, where it was proved that the seaman was innocent of all knowledge of, or participation in, the illegal voyage.[245]
Wages affected by Death or Disability.—If a seaman dies during the voyage, wages are to be paid up to the time of his death.[246]A seaman is entitled to all his wages during sickness, and during any time he was disabled from performing duty. But if his sickness or disability is brought on by his own fault, as by vice or wilful misconduct, a deduction may be made for the loss of his services.[247]So, where the death of a seaman was caused by his own unjustifiable and wrongful acts, his wages were held forfeited.[248]If a seaman, at the time he ships, is laboring under a disease which incapacitates or is likely to incapacitate him during the voyage, and he conceals the same, no wages will be allowed him, or a deduction will be made from them, according to the nature of the case.[249]If, in consequence of sickness, a seaman is left at a foreign port, he is still entitled to wages for the whole voyage.[250]
CHAPTER XII.
SEAMEN—CONCLUDED.
Recovery of wages. Interest on wages. Salvage.
Recovery of Wages.—A seaman has a threefold remedy for his wages: first, against the master; secondly, against the owners; and, thirdly, against the ship itself and the freight earned.[251]He may pursue any one of these, or he may pursue them all at the same time in courts of admiralty. He has what is called alienupon the ship for his wages; that is, he has a right, at any time, to seize the vessel by a process of law, and retain it until his claim is paid, or otherwise decided upon by the court. This lien does not cease upon the sailing of the ship on another voyage; and the vessel may be taken notwithstanding there is a new master and different owners.[252]A seaman does not lose his lien upon the ship by lapse of time. He may take the ship whenever he finds her; though he must not allow a long time to elapse if he has had any opportunity of enforcing his claim, lest it should be considered a stale demand. In common law courts a suit cannot be brought for wages after six years have expired since they became due. This is not the case in courts of admiralty.[253]
The lien of the seaman for wages takes precedence of every other lien or claim upon the vessel.[254]The seaman's wages must be first paid, even if they take up the whole value of the ship or freight. The wreck of a ship is bound for the wages, and the rule in admiralty is, that a seaman's claim on the ship is good so long as there is a plank of her left.[255]If, after capture and condemnation, the ship itself is not restored, but the owners are indemnified in money, the seaman's lien attaches to such proceeds.[256]
Besides this lien upon the ship, the seaman has also a lien upon the freight earned, and upon the cargo.[257]He may also sue the owner or master, or both, personally. They are, however, answerablepersonallyonly for the wages earned while the ship was in their own hands.[258]But a suit may be brought against theshipafter she has changed owners.[259]
A seaman does not lose his lien upon the vessel by taking an order upon the owner.[260]
After a vessel is abandoned to the underwriters, they become liable for the seamen's wages, from the time of the abandonment.[261]
If, at the end of the voyage, the crew are discharged and not retained to unload, their wages are due immediately;[262]but they cannot sue in admiralty until ten days after the day of discharge.[263]If they are retained to unload, then the owner is allowed ten days from the time the cargo is fully discharged. If, however, the vessel is about to proceed to sea before the ten days will elapse, or before the cargo will be unloaded, the seaman may attach the vessel immediately.[264]If the owner retains his crew while the cargo is unloading, he must unload it within a reasonable time. Fifteen working days has frequently been held a reasonable time for unloading, and the ten days have been allowed to run from that time.[265]
The longest time allowed by law for unloading vessels is twenty days, if over 300 tons, and ten days, if under that tonnage. Probably seamen would not be held bound to the vessel for a longer time than is thus allowed by law for unloading.
Interest on Wages.—In suits for seamen's wages, interest is allowed from the time of the demand; and if no demand is proved, then from the time of the commencement of the suit.[266]
Salvage.—If a vessel is picked up at sea abandoned, or in distress, and any of the crew of the vessel which falls in with her go on board, and are the means of saving her, or of bringing her into port, they are entitled to salvage.[267]In this case, all the crew who are ready and willing to engage in the service are entitled to a share of the reward, although they may not have gone on board the wreck.[268]The reason is, that where all are ready to go, and a selection is made, there would be injustice and favoritism in allowing any one the privilege more than another. Besides, those who remain have an extra duty to perform in consequence of the others having gone on board the wreck.[269]
Crews are not ordinarily entitled to salvage for services performed on board their own vessel, whatever may have been their perils or hardships, or the gallantry of their services in saving ship and cargo;[270]for some degree of extra exertion to meet perils and accidents, is within the scope of a seaman's duty. In case of shipwreck, however, where, by the general law, wages are forfeited, the court will allow salvage, considering it as in the nature of wages due. In one instance salvage was refused to a part of a crew who rescued the ship from the rest who had mutinied; for this was held to be no more than their duty.[271]
Yet seamen may entitle themselves to salvage for services performed on board their own vessel, if clearly beyond the line of their regular duty; as, when the crew rise and rescue the vessel from the enemy after she has been taken.[272]So, where a ship was abandoned at sea, and one or two men voluntarily remained behind, and by great exertions brought her into port.[273]If an apprentice is a salvor, he, and not his master, is entitled to the salvage.[274]If one set of men go on board a wreck, but fall into distress and are relieved by others, they do not lose their claim for salvage, but each set of salvors shares according to the merit of its services. If the second set take advantage of the necessity and distress of the first salvors to impose terms upon them, as, that they shall give up all claim for salvage, such conditions will not be regarded by the court.[275]
Footnotes
[1]The royal breast-backstay may be used as the fall of the purchase.
[2]If only one yard-arm is loosed at a time, let the lee one be loosed first. l breast-backstay may be used as the fall of the purchase.
[3]Be careful to pass the turns clear of the topgallant sheets.
[4]It will assist this operation to keep hold of the outer leech until the sail is clear of the top.
[5]See Totten's Naval Text Book, Letter XX.
[6]5 Rob. Ad. 155. 1 Mason, 139; 2 do. 435; 4 do. 390. 16 Mass. 336. 7 Johns. 308. But see 8 Pick. 89. 16 Mass. 663.
[7]4 Mass. 663. 4 Mason, 183. 9 Pick. 4. 6 Mass. 422; 15 do. 477; 18 do. 389.
[8]Act 1792, ch. 45, §1.
[9]Act 1831, ch. 350, §1.
[10]3 Sumner, 342. 2 Law Rep. 146 contra.
[11]Act 1792, ch. 45, §3.
[12]Do. §4, §12.
[13]Act 1792, ch. 45, §23.
[14]Do. §27.
[15]Act 1793, ch. 52, §8.
[16]Do. §1.
[17]Do. §2.
[18]Do. §11.
[19]Act 1793, ch. 52, §32.
[20]Acts 1828, ch. 119, §1, and 1836, ch. 55, §1.
[21]Act 1817, ch. 204, §3.
[22]Act 1792, ch. 45.
[23]Act 1793, ch. 52.
[24]Act 1790, ch. 56, §8.
[25]Act 1805, ch. 88, §1.
[26]Act 1817, ch. 204, §3, 5, 6.
[27]3 Sumner, 115.
[28]Act 1790, ch. 56, §9.
[29]Act 1819, ch. 170, §3.
[30]Do. §1, 2.
[31]Act 1803, ch. 62, §1.
[32]Act 1840, ch. 28, §1.
[33]Do.
[34]Act 1803, ch. 62, §2.
[35]Act 1819, ch. 170, §4.
[36]Act 1799, ch. 128, §45.
[37]Act 1799, ch. 128, §45.
[38]Do. §23.
[39]Act 1819, ch. 170, §4.
[40]Act 1799, ch. 128, §27.
[41]Do. §26.
[42]Act 1825, ch. 275, §17.
[43]Act 1799, ch. 128, §24.
[44]Do. §30.
[45]Do. §3.
[46]Act 1793, ch. 52, §12.
[47]Do. §17.
[48]Do. §18.
[49]3 Mason, 255.
[50]Do.
[51]2 Wash. C. C. 226.
[52]2 Wash. C. C. 226.
[53]Do.
[54]3 Mason, 255. 1 Wash. C. C. 49; 2 Do. 226. 3 Rob. 240.
[55]2 Wash. 226. 3 Rob. 240.
[56]2 Wash. C. C. 150. 3 Rob. 240.
[57]5 Mason, 465. 2 Sumner, 206. Edwards, 117.
[58]1 Dallas, 184.
[59]Act 1796, ch. 36, §5.
[60]Report of Benjamin Rich and others to District Court of Mass.
[61]6 Rob. 316. 7 T. R. 160.
[62]2 B. & Ad. 380. 3 Kent's Com. 175 c.
[63]3 Mason, 91. 11 Pet. R. 175.
[64]Ware, 149. But see 5 Wend. 314.
[65]3 Mason, 255.
[66]1 Sumner, 151.
[67]3 Mason, 242.
[68]4 Wash. 334.
[69]Gilpin, 83.
[70]4 Mason, 84. Abbott Shipp. 147 n. Ware, 109.
[71]Act 1790, ch. 56, §1.
[72]Act 1840, ch. 23, §1.
[73]Act 1790, ch. 56, §2.
[74]Do. §7.
[75]Act 1840, ch. 23, §1.
[76]Act 1803, ch. 62, §3. See also Act 1840, ch. 23, §5.
[77]Act 1803, ch. 62, §4.
[78]Ware, 65. 4 Mason, 541, 84.
[79]Ware, 9.
[80]Act 1825, ch. 276, §10.
[81]Abbott on Shipp., 147, note.
[82]Gilpin, 31. Ware, 19.
[83]Ware, 503.
[84]Ware, 9, 503.
[85]Ware, 367.
[86]Gilpin, 31.
[87]1 Peters' Ad. 186, 172. 2 Do. 420. 1 Wash. 316.
[88]1 Peters' Ad. 186, 168. 15 Mass. 365.
[89]Same cases.
[90]1 Hagg. 271.
[91]15 Mass. 365. 3 Day, 294.
[92]4 Wash. 340.
[93]1 Pet. Ad. 168, 173, note.
[94]Bee, 239.
[95]1 Hagg. 271.
[96]2 Sumner, 1. Ware, 219.
[97]Ware, 367. Gilpin, 31.
[98]1 Pet. Ad. 168.
[99]Act 1840, ch. 23, §1.
[100]2 Sumner, 1.
[101]Act 1835, ch. 313, §3.
[102]3 Sumner, 209.
[103]2 Sumner, 584.
[104]Act 1840, ch. 23, §1.
[105]Act 1819, ch. 170, §3.
[106]Do. §1.
[107]3 Mason, 342.
[108]1 Pet. Ad. 126.
[109]2 B. and P. 612. 1 Pet. Ad. 70. 2 Hagg. 3.
[110]1 Sumner, 151; 3 do. 209. 4 Mason, 104.
[111]1 Pet. Ad. 244. 4 Wash. 338.
[112]4 Mason, 541. 1 Sumner, 151.
[113]Gilpin, 83.
[114]1 Pet. Ad. 244. 4 Wash. 338.
[115]1 Pet. Ad. 246.
[116]1 Sumner, 151.
[117]Act 1835, ch. 313, §3.
[118]4 Mason, 104. 3 Sumner, 209.
[119]2 Sumner, 584.
[120]Do. 1. 584.
[121]Ware, 219.
[122]4 Mason, 84. Ware, 109.
[123]Ware, 109.
[124]Ware, 109.
[125]2 Pet. Ad. 268.
[126]1 Johns. 305.
[127]1 Pet. Ad. 223. 1 Mason, 508.
[128]1 Mason, 508.
[129]Gilpin, 60. 10 Peters R. 108. 2 Hagg. 176.
[130]2 Hagg. 176.
[131]2 Hagg. 176.
[132]1 Rob. 106. Gilpin, 60.
[133]Act 1790, ch. 56, §1.
[134]Act 1790, ch. 56, §1.
[135]Act 1840, ch. 23, §10.
[136]Act 1790, ch. 56, §1.
[137]1 Pet. Ad. 212.
[138]3 Mason, 161. Act 1840, ch. 23, §3.
[139]Act 1840, ch. 23, §2, 19.
[140]2 Sumner, 443. 2 Mason, 541.
[141]2 Mason, 541.
[142]1 Hall's Law Jour. 207. 2 Gall. 477, 526. 2 Dods. 504. Gilp. 219.
[143]1 Pet. Ad. 186, 215.
[144]2 Sumner, 443.
[145]Gilpin, 452. Abb. on Shipp. 434, note. Act 1840, ch. 23, §10.
[146]Ware, 437.
[147]Gilpin, 305.
[148]2 Hagg, 243.
[149]Act 1790, ch. 56, §2.
[150]Do. §7.
[151]Do. §3.
[152]Act 1840, ch. 23, §12—15.
[153]1 Mason, 443. Bee, 48. 2 Sum. 582.
[154]6 Mass. 300.
[155]Act 1790, ch. 56, §5.
[156]Act 1790, ch. 56, §7.
[157]Act 1840, ch. 23, §9.
[158]1 Hagg. 63.
[159]Do. 182.
[160]1 Sumner, 373.
[161]Act 1840, ch. 23, §9, 14.
[162]2 Dodson, 403.
[163]Act 1790, ch. 56, §9.
[164]Do.
[165]1 Pet. Ad. 223.
[166]1 Pet. Ad. 229, 223. Bee, 80 Abb. 135, note. Ware, 454.
[167]2 Pet. Ad. 409.
[168]Act 1835, ch. 313, ß3.
[169]Act 1790, ch. 56, §8; 1805, ch. 88, §1.
[170]2 Mason, 541.
[171]2 Mason, 541. 1 Sumner, 151.
[172]1 Pet. Ad. 256, note.
[173]1 Sumner, 195.
[174]Gilpin, 435. 1 Pet. Ad. 142, 152.
[175]1 Pet. Ad. 256, note.
[176]Gilpin, 435. 1 Pet. Ad. 142, 152, 255.
[177]2 Mason, 541.
[178]Act 1798, ch. 94, §1.
[179]Act 1803, ch. 62, §3.
[180]Ware, 485. Gilpin, 198.
[181]Act 1803, ch. 62, §4.
[182]Act 1840, ch. 23, §1.
[183]Act 1796, ch. 36, §4.
[184]Ware, 86. 3 Wash. 515.
[185]Ware, 219.
[186]Do. 3 Wash. 552.
[187]Act 1835, ch. 313, §1.
[188]Do. §2.
[189]4 Wash. 528. 1 Pet. Ad. 178.
[190]4 Mason, 105.
[191]1 Sumner, 448.
[192]4 Wash. 428.
[193]4 Mason, 105. 4 Wash. 548. 1 Sumner, 448. 3 Wash. 525.
[194]Pet. C. C. 213.
[195]4 Mason, 105. 1 Sumner, 448. Pet. C. C. 118.
[196]1 Mason, 104. Gilpin, 461.
[197]Act 1790, ch. 36, §8; 1820, ch. 113, §3.
[198]Act 1820, ch. 113, §4, 5.
[199]Act 1790, ch. 56, §2.
[200]Do. §4.
[201]Gilpin, 83, 140, 207. Ware, 309.
[202]Ware, 309.
[203]1 Mason, 45. Bee, 134, 48. Gilpin, 225.
[204]1 Pet. Ad. 186. Gilpin, 225. 2 Pet. Ad. 420, 428. Ware, 83, 91, 109.
[205]Gilpin, 150. 2 Pet. Ad. 415.
[206]1 Sumner, 373.
[207]2 Wash. 272. Gilpin, 145. 1 Sumner, 373. 1 Pet. Ad. 160.