Part V. protection in case of accident or illness; his fair treatment and personal safety at home and abroad, to which it is the duty of the master to conform, and which can hardly be evaded without detection and punishment.

By the 17 & 18 Vict. c. 104, it is enacted, that if any master of a ship shall force on shore and leave behind, or otherwise wilfully and wrongfully leave behind, on shore or at sea, in any place in or out of H. M.'s dominions, any seaman or apprentice belonging to his ship before the return of such ship to the U. K., or before the completion of the voyage or voyages for which such person shall be engaged, every person so offending shall be deemed guilty of a misdemeanor (a).

It is further provided, that the master shall not discharge any of his crew, in any place situate in any British possession abroad (except the possession in which he was shipped), without the sanction in writing to be endorsed on the agreement of some superintendent of a mercantile marine office or other officer appointed by the local government in that behalf, or in the absence of such functionary, then of the chief officer of customs resident at or near the place where the discharge takes place, nor at any other place abroad without the sanction in writing of the British consular officer there, or in his absence, of two respectable merchants resident there, all which said functionaries and merchants are empowered to inquire in a summary way into the grounds of such proposed discharge, by examination on oath, and to grant or refuse such sanction as appears to them to be just (b). And no master shall leave behind at any place abroad, any person of his crew on any grounds whatever, without previously obtaining a certificate in writing from such functionary or merchant endorsed as aforesaid, stating the fact and the cause thereof, whether such cause be unfitness or inability to proceed to sea, or desertion, or disappearance, and if he do so, he is for each default to be deemed guilty of a misdemeanor (b).

The regulations of the statute for the registration of seamen, for the preservation of their health, for providing them with medicines and medical advice, in case of sickness or accident, have already been mentioned (c). The quantity of provisions each seaman is to receive per day is now required to be specified in the agreement, and if that quantity be reduced one-third or less, he is to receive 4d.; if more than one-third, 8d. per day, in addition to, and recoverable as wages; and if they be of bad quality and unfit for use, ls. a day (d).

Such are the principal clauses of this important statute, relating to the hiring and treatment of mariners. It contains other provisions, respecting the earning, payment, and forfeiture of wages, which will be noticed in the following chapters of this part: for binding and

(a) Sect. 207. See repealed enactments,

5 & 6 Will. 4, c. 19; 7 & 8 Vict. c. 112.
(b) Sect. 207.

(c) Ante, p. 143-145. As to medicines,

&c., to be provided, see 30 & 31 Vict. c. 124. As to rules for medical inspection of sea men, see 30 & 31 Vict. c. 124, s. 10.

(d) Sect. 223. The Josephine, Swa. 152.

turning over parish boys as apprentices to the sea service, and the Chap. 1. registration of their indentures and assignments, as well as those of apprentices not bound by the parish (e); for the keeping a list or muster roll of the crew, including master and apprentices, in a form prescribed by the Act, its delivery on the return of a foreign-going ship, or half-yearly if a home-bound ship, to the superintendent of the mercantile marine office (f), and the production of it, as well as of the ship's articles and log-book by the master, when required, to officers of H. M.'s ships, the collectors or chief officers of the customs at any place in H. M.'s dominions, to the superintendent of the mercantile marine office, and to the registrar and his assistants in the "general register of the merchant seamen" (g).

Any two justices of the peace residing at or near the port at which any ship shall arrive have power to hear and determine all claims, complaints, and disputes between masters of ships and their apprentices (h). And any master refusing to send on shore, in charge of the mate or some trustworthy person, any apprentice desirous of complaining to a justice of the peace, consular officer, or naval officer in command of any of H. M.'s ships, as soon as the service of the ship will permit it, is liable to a penalty of 107. (¿).

As to the obligation of a shipowner to crew with respect to using reasonable efforts to secure seaworthiness of ship, see 39 & 40 Vict. c. 80, s. 5 (k).

As to seamen's expenses in case of illness through neglect of owner or master, see 30 & 31 Vict. c. 127, s. 7.

4. Verbal agreement for Wages not absolutely void.

The statutes do not render a verbal agreement for wages absolutely void; but impose a penalty on the master, if a written agreement is not made. When a written agreement is made, it becomes the only evidence of the contract between the parties; and a mariner cannot recover any thing agreed to be given in reward for his service, which is not specified in the articles (7).

5. Seamen not entitled to increased Remuneration for extra

ordinary Service.

[A seaman, who has engaged to serve on board a ship, is bound to exert himself to the utmost in the service of the ship; and therefore a promise made by the master, when a ship was in distress, to]

Part V. [pay an extra sum to a mariner as an inducement to extraordinary exertion on his part, was at a trial before the late Lord KENYON esteemed to be wholly void (a). So where two of the crew deserted in the course of a voyage, and the master having in vain attempted to supply their places at Cronstadt, entered into an agreement with the rest of the crew at that place, to divide among them the wages of the deserters, if he should not be able to procure two other men at Gottenburgh, which in fact he could not do, Lord ELLENBOROUGH decided that the engagement was wholly void. It was attempted to distinguish this case from the foregoing, by suggesting that the agreement was made on shore, when the master could not be supposed to be under any restraint or apprehension, and not at sea, in a moment of peril, like the former case: an obvious answer to this would be, that if the master had not been apprehensive of further desertion, he would not have made such a promise; but the Chief Justice decided the case upon the general ground. "There was," said his lordship, "no consideration for the ulterior pay promised to the mariners, who remained with the ship; before they sailed from London, they had undertaken to do all they could under all the emergencies of the voyage; they had sold all their services till the voyage should be completed." "The desertion of a part of the crew is to be considered an emergency of the voyage as much as their death, and those who remain are bound by the terms of their original contract, to exert themselves to the utmost to bring the ship in safety to her destined port" (b).]

But the continuance of a voyage under circumstances in which unusual danger of life (a question of degree for a jury) from inadequate equipment or unseaworthiness would be incurred, is not incumbent on a crew, and a contract for an increase of wages between the master and mariners was held binding, the jury having found that it was unreasonable for the vessel, one of 1,045 tons, to proceed to sea, on a voyage from Port Philip, in Australia, to Bombay, with a crew of only nineteen hands (c).

In Carter v. Hall (d), Lord ELLENBOROUGH held that a purser's steward on board a King's ship could not recover wages from the purser, on an implied contract for his services, he being a person known in the service and receiving pay from the Crown, although proof was given that it was usual for pursers to allow their stewards an annual salary.

(a) Harris v. Watson, Peake's N. P. C. 72.

(b) [Stilk v. Myrick, 2 Campb. 317. Sec Thompson v. Havelock, 1 Campb. 527.] Dafter v. Cresswell, 7 D. & R. 650. England v. Davison, 11 Ad. & E. 856. The Araminta, 1 E. & A. 224. But see Yates v. Hall, where the service for which additional wages were contracted for was of an unusual and exceptional character, viz., becoming an hostage. If the original con tract of hiring is dissolved, the sailor may enter into a new agreement for a higher

rate of wages. Harris v. Carter, 23 L. J. Q. B. 205; 3 E. & B. 599. So he may be entitled to a higher rate of wages by a sailor during a voyage, entering upon and fulfilling the duties of a post superior to that he commenced with. The Providence, 1 Hagg. 391. Hanson v. Royden, L. R. 3 C. P. 47; 37 L. J. C. P. 66.

(c) Hartley v. Ponsonby, 7 E. & B. 872; 26 L. J. Q. B. 232. See the Mobile, 8wab. 256. Frazer v. Hatton, 2 C. B. (N.S.) 512. (d) 2 Starkie, 861.

In Clutterbuck v. Coffin (e), the plaintiff, at the request of the Chap. 1. defendant, a captain in the Royal Navy, agreed to enter on board his ship as captain's cook, the defendant undertaking to pay him wages over and above the government pay, to which the rating would entitle him. The plaintiff having performed the service, it was held, that there was a sufficient consideration to enable him to bring an action for such wages.

This case, it will be observed, differs from others above cited, in the circumstance that in them the contracts were made by persons who were not at the time competent to contract, having already bound themselves to give their entire services under a prior existing contract:-here there was an agreement for service entered into while the plaintiff was in another employment, and perfectly free to contract in the manner he did. There being no plea but non assumpsit, the objection to the contract, on the ground of illegality, was not open to the defendant.

In this, as in all other cases, an engagement for service, made in contravention of the rules of the common or statute law, will be void (f).

As to claims by the crew for salvage, see post, Part VI., Chap. 2.

6. Provisions of 17 & 18 Vict. c. 104, for the licensing by the Board of Trade of persons authorized to procure Seamen for Merchant Ships.

We have seen that to guard the mariner from the frauds to which he is exposed, through the cupidity of dishonest persons, the Board of Trade is empowered to license persons to engage seamen and apprentices for service in merchant ships (g), and it is enacted that no person, unless duly licensed under this Act, or the owner or master or mate of a ship, or some person who is bona fide the servant and in the constant employ of the owner, or a superintendent of a mercantile marine office, shall procure seamen for a ship in which he is not interested (h); that no person interested in a ship shall knowingly receive any seaman hired to serve therein, contrary to these provisions (i), and that every person guilty of such offences shall, on conviction thereof, for every seaman or apprentice so engaged or supplied, forfeit a sum not exceeding 201. (i). The like penalty, in addition to the forfeiture of his license, is imposed on any licensed person employing an unlicensed person to engage seamen (i).

The like penalty is also imposed on any person, not being in H. M.'s service or duly authorized by law, going on board a merchant vessel before her arrival in dock, or at her place of discharge, without permission of her master, who is authorized to take any person so

Part V. offending into custody, and deliver him to a constable to be taken before a magistrate, and dealt with according to the Act (a). Persons, who on board a ship, within 24 hours of her arrival, shall solicit any seaman to become a lodger at the house of any person letting lodgings for hire, or remove his effects from the ship, except under his personal direction, or without permission of the master, shall, for every such offence, forfeit the sum of 57. (b). And by demanding or receiving remuneration for the board of sailors for a longer period than is due, and by neglecting to return monies or effects belonging to them, a penalty of 101. is incurred (c). And it is enacted that the word seaman in the Act shall include every person (except masters, pilots, and apprentices duly indentured and registered) employed or engaged in any capacity on board any ship (d).

(a) Sect. 237. Attwood v. Case, L. R. 1

Q. B. D. 137.

(b) Sect. 238.

(c) Sects. 235, 236.

(d) Sect. 2.