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CHAPTER IV.

OF THE MARINERS.

3

HAVING treated in a former Chapter of the owners, part-owners, of the duties and the masters of ships, we now proceed to the mariners, under of mariners. which head we shall consider, first, their general duties; secondly, their wages.

I. In order to regulate the duties of mariners, the Legislature has from time to time passed several acts of parliament, the principal of which are the 2 Geo. 2. c. 36. and 31 Geo. 3. c. 39. Upon a review of these statutes, the duties of mariners as required by law, and of masters in hiring them, may be stated as follows:

The first rule is, that the contract for service must be made Contract with with the master, by a written agreement, signed by him and the seamen must mariners, such agreement to express their wages, and the voyage and signed by

the master and for which they are hired. The contract, thus signed, becomes seamen. the articles by which the seamen are bound to the master; and if a mariner, after having signed them, either refuses to proceed on the voyage, or deserts in the course of it, he forfeits to the owner all wages then due to him; and a justice of the peace may, on complaint of the master, owner, or person having charge of the ship, issue a warrant to apprehend him; and in case he refuses to proceed on the voyage, and does not assign a sufficient reason for his refusal, may commit him to hard labour in the house of correction, for not more than thirty, nor less than fourteen days. Any absence from the ship without permission of the master, or other person acting in command, is punishable by the forfeiturc of two days' pay to Greenwich Hospital for every such day's absence. And whether the ship be upon a coasting or foreign voyage, if any seaman leave her without a written discharge from the master, or some person acting in authority for him, such seaman is to forfeit one month's wages to the chest at Greenwich. In a foreign voyage, the penalty attaches, if the mariner leave the ship at her port of delivery here, without such written discharge; and in a coasting voyage, if he leave her before the voyage is com.

pleted, and the cargo delivered. Seamen, however, entering on board any of his majesty's ships, are exempted from these pro

visions.(a) Articles of II. These articles of agreement between master and mariners agreement between master always contain an express clause, that every lawful command and mariners which the master shall think necessary to issue for the effectual justify reasonable cor- government of the vessel, and for suppressing immorality and rection.

vice of all kinds, be strictly obeyed, under the penalty of the person disobeying forfeiting his whole wages or hire, together with every thing belonging to him on board the vessel. Under this clause, added to the manifest necessity of the case, it has been adjudged that the master may exercise over his crew the authority of a master over his apprentices, and may give them reasonable and salutary correction; the law considering such correction to be a less punishment than the total forfeiture of wages stipulated by the articles. But on the other hand, the law having a due regard to the liberty of the subject, and to the different degree of the public interest concerned in the merchant and king's services, regards this exertion of authority with the greatest jealousy, and most strictly confines it within those limits, which are necessary to the safety of the ship, and the due progress of the voyage. Accordingly, in all cases, a seaman, who has been beaten or imprisoned by the master, may, upon his return to a British port, bring an action against him, to which the master niust plead specially that the seaman had committed some particular fault, (specifying such fault,) and that he had corrected him only moderately for it. In Watson v. Christie, (6) it appeared that the defendant was the captain of a ship, and the plaintiff one of his crew; that the plaintiff, whilst under the defendant's command, had been so severely beaten by order of the defendant, that he had ever since that time been in a state of extreme ill health, and was likely to continue so during the rest of his life, which was still in some danger in consequence of the assault. On the other hand, it was offered to be proved, that the beating in question was given by way of punishment for misbehaviour on board the ship; and it was insisted that, as the conduct of the defendant, at the time of the assault, was necessarily in evidence, such conduct proved misbehaviour, and justified the assault. Lord Eldon, Chief Justice, said, that although the beating in question, however severe, might possibly be justified on the ground of the necessity of maintaining

Watson v.
Christie.

(a) 2 Geo. 2. c. 36, s. 13.; and 31 Geo. 3. c. 99. s. 4.

(6) 2 Bos. and Pull. 224.

discipline on board the ship, yet that such a defence could not be resorted to unless put upon the record in the shape of a special justification.

III. Should any mutiny occur on board a merchant vessel, the Self-defence a captain may resort to every necessary means of self-defence, and for homicide of subduing his crew. Should any seaman be killed or wounded in suppressing

a mutiny. in the course of such conflict, it is regarded in law as an act of self-defence. But though the captain may confine or put in irons a mutinous seaman, whether for the purpose of preventing the effects of his mutiny, or for bringing him to trial in England, he must not punish beyond reasonable correction, that is to say, he must not punish in the nature of a penal satisfaction at law. By the 39 Geo. 3. c. 37., all offences on the high seas may be tried under the Admiralty commission, and punished as if committed on shore. And by the 43 Geo. 3. c. 160. s. 78., all justices of the peace may receive information of murder, piracy, or robbery on the sea, and commit the offenders for trial.

IV. With respect to offences committed by mariners against Three offences the ship and cargo, they are of three kinds; namely, the offence and cargo; ie. of wilfully destroying the ship, of running away with the ship or the destroying cargo, or exciting a mutiny, and of not resisting pirates or ene- running away mies.

with the ship,

and voluntarily V. The first offence, that of destroying the ship, having origi- yielding it up nated in the temptation afforded by the practice of insuring, was enemies, very early made felony by several successive acts of Charles, Anne, and George the First : (a) but the verbal description of the offence in these acts having been found insufficient in the case of Easterby v. Macfarlane, (b) they were all repealed, and the statute of 43 Geo. 3. c. 113. passed in their place. By this statute it is enacted, Destroying. “That if any person or persons shall, from and after the 16th day felony by 43 of July, 1803, wilfully cast away, burn, or otherwise destroy, any Geo. 3. c. 113. ship or vessel, or in anywise counsel, direct, or procure the same to be done, and the same be accordingly done, with intent or design thereby wilfully and maliciously to prejudice any owner or owners of such ship or vessel, or any owner or owners of any goods loaden on board the same, or any person or persons, body politic or corporate, that hath or have underwritten or shall underwrite any policy or policies of insurance upon such ship or vessel, or on the freight thereof, or upon any goods loaden on

(a) 22 & 23 Car. 2. c. 11. s. 12.; 1 Ann. stat. 2. c. 9. S. 4.; 4 Geo. 1. c. 12. s. 3.; 11 Geo. I. c. 29. s, 5, 6,

&7. And see ante,

(6) East. P. C. Addenda, p. 26.

43 Geo.3.

c. 113.

board the same, the person or persons offending therein, being thereof lawfully convicted, shall be deemed and adjudged a principal felon or felons, and shall suffer death, as in cases of felony, without benefit of clergy.” It is further enacted by the second section, " That if any ship or vessel shall, from and after the 16th day of July, in the year of our Lord 1803, be wilfully cast away, burnt, or otherwise destroyed, within the body of any county of this realm, that then the said several offences, as well in wilfully casting away, burning, or otherwise destroying such ship or vessel, as in counselling, directing, or procuring the same to be done as aforesaid, shall and may be respectively enquired of, tried, determined, and adjudged in the same courts, and in such manner and form, as felonies done within the body of any county, by the laws of this realm now are to be, or by virtue of this act hereafter may be, enquired of, tried, determined, and adjudged; and if any such ship or vessel shall be wilfully cast away, burnt, or otherwise destroyed on the high seas, then that the said several offences, as well in wilfully casting away, burning, or otherwise destroying any such ship or vessel, as in counselling, directing, and procuring the same to be done as aforesaid, shall and may be respectively enquired of, tried, determined, and adjudged, before such court, and in such manner and form as in and by an act made in the 28th year of the reign of King Henry VIII., instituted for pirates, is appointed and directed for the enquiring, trying, determining, and adjudging of felonies upon the high seas."

VI. “ And whereas it is convenient that accessories to felonies committed within the body of any county within the realm should be by law liable to be tried, as well in the county wherein the principal felony was committed, as in the county in which they so became accessories, and also that accessories to felonies conmitted upon the high seas should be by law liable to be tried by such court, and in such manner as by the act made in the 28th year of the reign of the late King Henry VIII., is directed in respect to felonies done upon the high seas;" it is further enacted, “ that from and after the said 16th day of July, in the said year of our Lord 1803, in all cases whatsoever in which any person persons shall hereafter procure, direct, counsel, or command any other person or persons to commit, or shall abet any other person or persons in committing any felony whatsoever, or shall in any wise whatsoever become an accessory or accessories before the fact to any felony whatsoever, whether such principal felony be committed within the body of any county within this realm, or

43 Geo. 3. c. 113.

or c. 113.

upon the high seas, and whether such procuring, directing, coun- 43 Geo- 3. selling, commanding, and abetting, or otherwise becoming accessory or accessories before the fact shall have been committed or done within the body of any county within this realm, or upon the high seas, that then, and in all such cases, the offence of the person or persons so procuring, directing, counselling, commanding or abetting such felony, or so in any wise becoming accessory or accessories before the fact to such felony, shall and may be enquired of, tried, determined, and adjudged, in case such principal felony shall have been committed within the body of any county within this realm, by the course of the common law, either within such county wherein the said principal felony shall have been committed, or within the county wherein the said offence in procuring, counselling, commanding, and abetting, or otherwise becoming accessory or accessories before the fact shall have been committed or done; and in case the said principal felony shall have been committed upon the high seas, then the said offence in procuring, directing, counselling, commanding, or abetting, such felony, or of so becoming an accessory or accessories before the fact to the same, shall and may be enquired 43 Geo. 3. of, in and by such court, and in such manner and form, as in and by the said act made in the 28th year of the reign of King Henry VIII., is appointed and directed for the trying, determining, and adjudging of felonies done upon the high seas.” The act, however, contains a provision that if an offender be tried by one jurisdiction, he shall not be again tried by another.

VII. The second offence, that of running away with the ship Running away or cargo, or creating a mutiny, is likewise a capital felony. It with ship or is so made by an act of William III., and a further statute of making a

revolt in the George I. (a) which enacts, in substance, that if any master or ship. seaman shall betray his trust, and turn pirate, and feloniously run away with a ship or merchandize, or shall voluntarily yield his vessel up to any pirate, or shall lay hands upon his captain, to prevent him from fighting in his defence, or shall confine his captain, and endeavour to make a revolt in the ship, he shall be deemed a pirate, felon, and robber, without benefit of clergy.

VIII. The third offence, that of not resisting enemies or pirates, Not resisting is punished by an act of Charles II., (b) which incapacitates any enemies. master from having the future charge of any English vessel, who shall not have defended his vessel from pirates, such ressel being

c. 113.

(a) 11 and 12 Will. 3. c. 7. and 6 Geo. 1. c. 12.

(0) 16 Car. 2. c. 6., and 22 and 23 Car. 2. c. 11. s. 10.

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