The Seaman's Friend Part 39

[125] 2 Pet. Ad. 268.

PILOTS.--When a pilot, who is regularly appointed, is on board, he has the absolute control of the navigation of the vessel.[126] He is master for the time being, and is alone answerable for any damage occasioned by his own negligence or default.[127]

[126] 1 Johns. 305.

[127] 1 Pet. Ad. 223. 1 Mason, 508.

A pilot may sue in admiralty for his wages.[128]

[128] 1 Mason, 508.

A pilot cannot claim _salvage_ for any acts done within the limits of his duty, however useful and meritorious they may have been.[129] If towing is necessary, pilots are bound to perform it, having a claim for compensation for damages done to their boats, or for extra labor.[130]

If extraordinary pilot service is performed, additional pilotage is the proper reward, and not salvage.[131] If, however, the acts done by the pilot are clearly without and beyond his duty as pilot, he may claim salvage.[132]

[129] Gilpin, 60. 10 Peters R. 108. 2 Hagg. 176.

[130] 2 Hagg. 176.

[131] 2 Hagg. 176.

[132] 1 Rob. 106. Gilpin, 60.

CHAPTER VII.

SEAMEN. SHIPPING CONTRACT.

Shipping contract--how formed--how signed. Erasures and interlineations. Unusual stipulations.

By the law of the United States, in all foreign voyages, and in all coasting voyages to other than an adjoining state, there must be an agreement in writing, or in print, with every seaman on board the ship, (excepting only apprentices and servants of the master or owner,) declaring the voyage, and term or terms of time, for which such seaman is hired.[133] This contract is called the _shipping-articles_, and all the crew, including the master and officers, usually sign the same paper; it not being requisite that there should be a separate paper for each man. If there is not such a contract signed, each seaman could, by the old law, recover the highest rate of wages that had been given on similar voyages, at the port where he shipped, within three months next before the time of shipment.[134] By the law of 1840, he may, in such case, leave the vessel at any time, and demand the highest rate of wages given to any seaman during the voyage, or the rate agreed upon at the time of his shipment.[135] A seaman not signing the articles, is not bound by any of the regulations, nor subject to the penalties of the statutes;[136] but he is, notwithstanding, bound by the rules and liable to the forfeitures imposed by the general maritime law.[137]

[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.

These shipping-articles are legal evidence, and bind all parties whose names are annexed to them, both as to wages, the nature and length of the voyage, and the duties to be performed.[138] Accordingly, seamen have certain rights secured to them with reference to these papers. In the first place, the master must obtain a copy of the articles, certified to by the collector of the port from which the vessel sails, to take with him upon the voyage. This must be a fair and true copy, without erasures or interlineations. If there are any such erasures or interlineations, they will be presumed to be fraudulent, and will be set aside, unless they are satisfactorily explained in a manner consistent with innocent purposes, and with the provisions of laws which guard the rights of mariners. These articles must be produced by the master before any consul or commercial agent to whom a seaman may have submitted a complaint.[139]

[138] 3 Mason, 161. Act 1840, ch. 23, --3.

[139] Act 1840, ch. 23, --2, 19.

Every unusual clause introduced into the shipping-articles, or anything which tends to deprive a seaman of what he would be ent.i.tled to by the general law, will be suspiciously regarded by the courts; and if there is reason to suppose that any advantage has been taken of him, or if the contract bears unequally upon him, it will be set aside. In order to sustain such a clause, the master or owner must show two things: first, that the seaman's attention was directed toward it, and its operation and effect explained to him; and, secondly, that he received some additional compensation or privilege in consideration of the clause. Unless the court is satisfied upon these two points, an unusual stipulation unfavorable to a seaman will be set aside.[140] For instance, seamen are ent.i.tled to have a medicine-chest on board, and in certain cases to be cured at the ship's expense; and the court set aside a clause in the shipping-articles in which it was stipulated that the seamen should bear all the expense, even though there were no medicine-chest on board.[141] Another clause was set aside, in which the voyage was described as from Baltimore to St. Domingo and _elsewhere_, on the ground that seamen are ent.i.tled to have their voyage accurately described.[142]

[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.

Some clauses which are not such as to be set aside, will yet be construed in favor of seamen, if their interpretation is at all doubtful.[143] A clause providing that no wages should be paid if the vessel should be taken or lost, or detained more than thirty days, was set aside, seamen being ent.i.tled to wages up to the last port of delivery.[144] If the amount of wages merely be omitted in the articles, there seems to be some doubt as to the introduction of other evidence to show the rate agreed upon, and as to the seaman's being ent.i.tled by statute to the highest rate of wages current.[145] If a seaman ships for a general coasting and trading voyage to different ports in the United States, and the articles provide for no time or place at which the voyage shall end, the seaman may leave at any time, provided he does not do so under circ.u.mstances peculiarly inconvenient to the other party.[146]

[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.

If, however, the voyage is accurately described, and the wages specified, the seaman cannot be admitted to show that his contract was different from that contained in the articles.[147]

[147] Gilpin, 305.

It is no violation of the contract if the vessel departs from the voyage described, by accident, necessity, or superior force.[148]

[148] 2 Hagg, 243.

CHAPTER VIII.

SEAMEN--CONTINUED.

Rendering on board. Refusal to proceed. Desertion or absence during the voyage. Discharge.

RENDERING ON BOARD.--If, after having signed the articles, and after a time has been appointed for the seaman to render himself on board, he neglects to appear, and an entry to that effect is made in the log-book, he forfeits one day's pay for every hour of absence; and if the ship is obliged to proceed without him, he forfeits a sum equal to double his advance.[149] These forfeitures apply to the commencement of the voyage, and cannot be exacted unless a memorandum is made on the articles, and an entry in full in the log-book. A justice of the peace may, upon complaint of the master, issue a warrant to apprehend a deserting seaman, and commit him to jail until the vessel is ready to proceed upon her voyage. The master must, however, first show that the contract has been signed, and that the seaman departed without leave, and in violation of it.[150]

[149] Act 1790, ch. 56, --2.

[150] Do. --7.

REFUSAL TO PROCEED.--If, after the voyage has begun, and before the vessel has left the land, the first officer and a majority of the crew shall agree that the vessel is unfit to proceed on the voyage, either from fault or deficiency in hull, spars, rigging, outfits, provisions, or crew, they may require the master to make the nearest or most convenient port, and have the matter inquired into by the district judge, or two justices of the peace, taking two or more of the complainants before the judge. Thereupon the judge orders a survey, and decides whether the vessel is to proceed, or stop and be repaired and supplied; and both master and crew are bound by this decision. If the seamen and mate shall have made this complaint without reason, and from improper motives, they are liable to be charged with the expenses attending it.[151]

[151] Do. --3.

If, when the vessel is in a foreign port, the first or any other officer and a majority of the crew shall make complaint, in writing, to the consul, that the ship is unfit to proceed to sea, for any of the above reasons, the consul shall order an examination, in the same manner; and the decision of the consul shall bind all parties. If the consul shall decide that the vessel was sent to sea in an unsuitable condition, by neglect or design, the crew shall be ent.i.tled to their discharge and three months' additional pay; but not if it was done by accident or innocent mistake.[152]