16. But as this power of the master amounts almost to Of Merchant Shipping and a complete dominion and disposal of the property of ano- Seamen. ther, the custom of all countries, and the law of our own amongst them, limits this hypothecation by the master to the circumstance of the vessel being in a foreign country, or in the course of her voyage, and not in the place of her owner's residence. But the courts have given a liberal interpretation to the term place of residence; and in two cases, as will be seen in the body of the Work, Ireland and Jersey have been deemed foreign ports, sufficiently to justify the master in taking up money upon bottomry. 17. If a ship, therefore, be in a state of necessity, and in the course of her voyage, whether she be in a foreign port, or in a port of one British island (the owners living in another) or even in a remote part of the same kingdom, the master may hypothecate ship, freight, and cargo, for her repairs and necessaries. But three circumstances must always exist in the condition of the ship at the time of hypothecation:-1. The state of necessity of the ship for repairs, stores, or money. 2. Such a remoteness from the owners as not to admit of awaiting their own advice or aid. And, 3dly, the impossibility, or extreme difficulty, of obtaining supplies on the personal credit of the master or owners. 18. Without such bonds of bottomry and hypothecation, the creditors of a ship can have no remedy on the ship, in specie, as the subject of a specific lien for repairs made, or necessaries supplied. Thus the master has no lien for his wages, nor even for money advanced by him for the necessaries of the ship. The reason may be briefly said to be, first, because a lien always presumes the possession of the subject matter of lien by the creditor; and, secondly, from the manifest mischief to commerce, and to individuals, in the delay which would be occasioned by applying such a practice to ships. But if a shipwright, who makes the repairs of the ship, have such vessel in his manual possession, that is, in his dock, and without the of the authomaster. rity of the Of Merchant Of the authority of the master. master and crew on board, he will of course have a lien for his repairs, unless there be a special custom of the port or place to the contrary; or unless the work be done upon an agreed credit. For with respect to lien, the general rule is, that it obtains only where a ready-money payment is due upon the completion of the work; and that where the parties contract for a particular time or mode of payment, the workman has not a right to set up a claim to the possession of a chattel, inconsistent with the terms of the contract. 19. As the master cannot hypothecate the ship but in a case of necessity; so there must be a still stronger necessity, which can authorise him to sell it. Indeed this necessity must be so supreme, as very rarely, and scarcely in practice, to occur. As the master is employed only to conduct and navigate the ship, the sale and disposal of it are manifestly beyond his commission; and are, therefore, the unauthorized acts of a servant disposing of that property of his master which he is entrusted only to carry and convey. This is, therefore, the principle not only in all customary cases, but in cases of common danger and ordinary necessity. In all such circumstances, therefore, the duty of the master (if the ship be stranded, and cannot be got off, or be so injured by tempests as to be beyond repair or safe return,) is to await, if possible, a communication with his owners. But if this be impossible in time for the preservation of the ship in bulk, the law will always presume an authority in agents and servants necessary to the conservation of the article, or to the preservation of as much of its value as the occasion may admit. The New Registry Act 4 Geo. 4. c. 41. § 7. has reference to this condition of a vessel. It enacts that if any ship or vessel, registered under the authority of this or any other act, shall be deemed or declared to be stranded or unseaworthy, and incapable of being recovered or repaired to the advantage of the owners, such ship may be sold by order or decree of any competent court for the benefit of the owners, or other persons interested therein, where Shipping and upon the same shall be taken and deemed to be a ship or of Merchant vessel lost or broken up, to all intents and purposes within Seamen. the meaning of this act, and shall never again be entitled to the privileges of a British built ship for any purposes of trade or navigation. The master, as we have before observed, is de jure the agent of the owner of the vessel: but he has no such extensive relation to the freighter, unless he be specially constituted his agent. Unless, therefore, in the case of an extreme necessity, no act of the master can affect the owner of the cargo. He may, under certain circumstances, hypothecate the cargo; or even sell a part to repair the ship: but as he can only act for the presumed benefit of the freighter, and as it can scarcely ever be for the benefit of the freighter that the entire cargo should be sold, and the adventure broken up, the power of sale cannot, except under an extreme state of things, extend to the whole cargo. THIRDLY, As to the seamen and their wages. 20. The first rule is, that the contract of the seamen for Of the seamen. service must be made with the ship-owner, or master, by a written agreement signed by him and the mariners; such agreement to express their wages, and the voyage for which they are hired. The contract thus signed becomes the articles by which the seamen are bound to the master. If a seaman, after having signed the articles, refuse to proceed, or desert, he may be summarily arrested and punished by a justice of the peace. Absence from the ship, without permission of the proper officer, is punishable by forfeiture of two days' wages for every day of such absence. Leaving the ship without a written discharge from the proper officer is punishable by forfeiture of a month's wages, and disobedience to any lawful command of the master by forfeiture of the whole wages. 21. These articles of agreement have been deemed to justify the reasonable correction of the seamen by the master; namely, such correction and authority as a master may exercise over his apprentices; such as may be necessary for the purpose of the government of the ship, and Of Merchant Of the wages of the seamen. for the suppressing immorality and vice of all kinds. 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 for the safety of the ship and the due progress of the voyage. Accordingly in all cases a seaman, who has been beaten and imprisoned by the master, may, upon his return to a British port, bring an action against him; to which the master must plead specially upon the record that the seaman had committed some particular fault, (specifying such fault) and that he had corrected him only moderately for it. 22. As respects the wages of seamen, the principal points of consideration are, how and when they are earned; and by what means they are recoverable in law. As regards the earning of wages by the seamen, the general rule is, that if the voyage be completed, the freight earned, and the labour of the seamen be not rendered useless by the loss of the vessel by sea or capture, the sailors have earned their full wages. If the vessel be lost or taken, the seamen lose their wages; but not by sickness or accident during the voyage. And as the seamen are bound to the master, so is the master to the seamen; and he cannot discharge any of them during the voyage, unless for misconduct amounting to mutiny or general disobedience of orders. And that the contract of merchant seamen may not interfere with the public service, it is expressly provided, that an impressed sailor shall be entitled to his wages up to the time of his impressment, if the ship earn freight; and that entering into the king's service shall not be deemed a breach of articles. 23. As the wages of a seaman are not due till the completion of the voyage, and a voyage frequently consists of several parts, there is sometimes a difficulty to determine, whether a seaman be entitled to his wages for any part, where the whole has not been safely concluded. The Shipping and principle is this; the general rule of law being that freight Of Merchant is the mother of wages, the seamen are to be deemed to Seamen. have earned their wages in all cases in which the vessel has earned its freight. If a voyage, therefore, consist of parts, such as an outward and homeward voyage, or several parts successively, the freight for each part being due when it is finished, the wages for that part would likewise be due, unless (as is usually the case) the contract stipulates for all the parts as for one voyage. of the seamen. 24. In the case of capture and recapture, if the sea- Of the wages man continue on board, and complete the voyage, so that freight be earned, he is entitled to his wages during the whole time. And as a precautionary embargo is not a capture, seamen violently detained by an embargo, and separated from the ship, but afterwards restored, and navigating the ship home, are entitled to their wages during the whole of their detention; the ship having earned her freight. 25. As the master by the articles has hired all the service of a seaman, the seaman cannot claim any extra remuneration, even though the master may have promised it, such seaman having nothing to give to which the master was not before entitled. Therefore, where a master in a storm promised an extra reward to his crew for doing their duty, the court decided that such promise could not be enforced, so far as respected the earning of wages. The 26. As respects the payment of seamen's wages, the rule is, that the seamen, with the exception of the master only, have a three-fold remedy for their wages,-against the ship, against the owners, or against the master. master's contract is personal with the owners; and he must, therefore, bring his action in the Court of Common Law. He cannot sue in the Admiralty Courts with the seamen, nor has he any lien on the ship for his wages or disbursements; he trusts his owners, and must look to them personally. But the seamen, either singly or altogether, may sue in the Court of Admiralty; and may arrest |