Charles Edward Pollock Frederic Philip Maude.

Compendium of the law of merchant shipping online

. (page 18 of 101)
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riages he must answer, and whom he may correct as the usage
18 at sea," and that their duties do not cease on the safe arrival
of the ship in port, until they have assisted in the mooring of
her, and in the delivery of the cargo (i).

We proceed to consider more in detail the breach of these Breaches of
dutiee, by disobedience, desertion, mutiny, and other mis- ^"'y-
conduct

Disobedience to a lawful command is an offence of the gravest Disobedience,
kind, and is not justified by an intemperate, or discourteous
exercise of authority (j). Although seamen cannot be required

(e) See ante, p. Ill, note (p). The Baltic Merchant, Edw. 86.

if) See tbe form of agreement sane- (h) B. 2, c. 8, s. 13 ; see also Bac.

tioned by the Board of Trade, under the Abr. tit Merchant and Merchandize, E.

M. S. Act, 1854, 8. 149, poit. Appendix, (•) See the authorities, supra, note («),

p.ccxxx. The forms of agreement issued and the M. S. Act, 1854, s. 243. Illness

under the earlier statutes were substan- is a sufficient excuse for leaving the

tially similar in these respects. ship before the delivery of the cargo.

ig) See the judgment of Sir C. Ro- The Test (2), 3 Hagg. 307.

bineon in The Cambridge, 2 Hagg. 243; {j) Robinett v. Ship Exeler, 2 Rob. 261.



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114 THE CREW.

to perform duties belonging to a character in which they have
not contracted to serve, or requiring a skill which they have
not professed, it is clear that, subject to this limitation, no
refusal to perform any of the inferior services of the ship, or any
portion of the work not generally allotted to the persons upon
whom it is sought to be imposed, would be justifiable, even
although the order might be harsh and, under the circumstances,
unreasonable ; for the Courts of law look with a necessary and
wise indulgence upon the exercise of the powers of the master,
and lean towards the support of authority and discipline (A).

The powers of the master to punish for disobedience have
been detailed in an earlier Chapter (Z). The statutory punish-
ments imposed in this respect, by the Merchant Shipping Act,
1854, 17 & 18 Vict. c. 104, will be mentioned in a subsequent
part of this Chapter (m).

Desertion. Desertion, which, in many cases, includes disobedience, con-

sists in an unlawfiil abandonment of the ship, or an unlawful
absence from her with the intention of not returning, occurring
during the voyage contemplated by the agreement (»). Refusing
to return after quitting the ship by permission (o), or leaving
her without waiting a reasonable time, when she cannot enter
the port by reason of its crowded state, amounts also to
desertion, independently of any statutory provision (p). If, how-
ever, the master violates the terms of the agreement by which
the mariners are engaged, and deviates from the stipulated
voyage, the seamen are justified in leaving the ship, and their
departure is not a desertion (7)*

A wider statutory meaning was attached to the word deser-
tion by the 7 & 8 Vict. c. 112. Under this statute every wilful
absence without permission within twenty-four hours imme-
diately preceding the sailing of the ship, either before the com-
mencement of the voyi^e, or during its progress, amounted to a
desertion. ITiis act was, however, repealed by the Merchant

(Ar) See the judgment in Rohinett v. rican) Rep. 373, and of Dr. Lushington

Ship Exeter, 2 Rob. 261, and Dana's in The Two SUteri^ 2 W. Rob. 125.

Seaman's Manual, Chap. Able Seamen^ (o) The Bulmer, 1 Hagg. 163 ; The

156. Jupiter, 2 Hagg. 221.

(0 Ante, p. 85. (p) The Pearl, 5 Rob. 224.

(m) Po*/,p. 118. (q) The Minerva, I Hagg. 64; The

(n) See the cases cited below, and Eliza, ib. 182; The George Home, ib.

the judgment of Mr. Justice Story in 370 ; The Countess of Hareourt, ib. 248 ;

Chutman ▼. Tunison, I Sumner ( Ame- The Cambridge, 2 ib. 243.



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THE CREW. 115

Shipping Repeal Act 1854, (17 & 18 Vict. c. 120,) and the
statute now in force, the Merchant Shipping Act, 1854, does not
treat absence without leave within twenty-four hours of the
ship's sailing as a desertion, but provides that this offence shall
be punishable by imprisonment, and forfeiture of a portion of
the wages (r).

In inquiring whether, or not, a particular act amounts to a
desertion, the animus of the mariner who commits it must be
considered, since acts of irregular absence may occur without
coming within the terms by which this offence is defined ; thus,
where a sailor having gone ashore at a foreign port, got drunk,
and overstayed his leave of absence, but there was no evidence
of an intention or desire to quit the ship, the Court held that
this was not a desertion (s). There are other acts, besides a
deviation from the voyage agreed upon, which when done by
the master have been held to justify a desertion, or rather to
make that which would be otherwise a desertion a lawful
quitting of the ship. Thus, where a reasonable request by a
seaman to remain on shore to procure victuals was refused, and
he remained notwithstanding, and returned the next morning to
the ship, and offered to resume his duty, this was held not to
be a desertion (0. So, a want of provisions, amounting to a
substantial case of hardship, is a justification for leaving the
ship(tt); and desertion is excusable where the seaman cannot
remain without risk to his personal safety by reason of the
inhuman treatment and unreasonable severity and cruelty of the
master (c). In a case where, although the men had grossly
misconducted themselves, there was room for a belief that they
might have misunderstood the words of the master, and have
thought that they were discharged, the Court refused to con-
strue their absence as actual mutiny and desertion (tr).

It has been held, independently of any statutory enactment
in this respect, that if the master receives the mariner back the
unlawful absence will be puiged, at least so far as to prevent a
forfeiture of the wages (x). Leaving the ship for the purpose of

(r) M. S. Act, 1854, 8. 243. Beale v. Thompson, 4 East, 546 ; Train

(f) The Ealing Grove, 2 Hagg. 15. v. Bennett, 8 C. & P. 3. By the just

(<) Sigard v. Roberts, 3 Esp. 71. and merciful rule of the maritime law, if

(h) The CastUia, 1 Hagg. 59. the mariner repented and sought to

(v) Limland v. Stephens, 3 Esp. 269; return to his duty, the master was bound

Edward v. Trevellick, 4 £. & Bl. 59. to receive him. See the judgment of

(w) The Frederick, 1 Hagg. 21 1. Mr. J ustice Story in Cioutman v. Tunison,

(f) Miller v. Brant, 2 Camp. 590 ; 1 Sumner (American) Rep. 378.

i2



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116



THE CBBW.



Foreign de-
serters.



forthwith entering into the nary, is not a desertion (y); but a
wrongful abandonment of the ship is not purged by an entry
within twenty-four hours into the navy, which, apparently, was
not intended at the time of the desertion (z).

The Foreign Deserters' Act, 1862, provides, that where due
iacihties are given for recovering and apprehending seamen who
desert from British merchant ships in the territories of any
foreign power, the Queen may, by order in council, declare that
deserters from the ships of the foreign power (not being slaves)
vrithin the Queen's dominions or the territories of the East India
Company, may be apprehended and carried on board their
ships. And upon the publication of such an order, the English
authorities are bound to aid in the apprehension of foreign
deserters (a).



Mutiny. ^^ cases of mutiny we have already seen(i) that the master

possesses, and is bound to exercise, a summary authority over
the offenders, and that he may resort to violence even although
the mutiny be only threatened.

Punishment. Having mentioned the most usual and important breaches of
duty on the part of the crew, it will be convenient to consider
here the powers which exist by statute, and otherwise, for the
punishment of these offences, and of the minor acts of miscon-
duct of which the seamen may be guilty.



By statute. Numerous statutory provisions have been made from time to

time for this purpose. The earlier statutes relating to this sub-
ject were repealed by the 17 & 18 Vict. c. 120, and the act
which is now in force is the Merchant Shipping Act, 1854(c).
This statute contains the following provisions, for the purpose of
preventing misconduct and enforcing discipline on board ship.

By sect. 239, any master of or any seaman or apprentice be*
longing to any British ship who by wilful breach of duty or by



(y) See the M. S. Act, 1854, s. 214.
Any arrangement b? which the wages
are to be forfeited, it the seamen enter
into the navy, is void. lb. And see
sect 215, as to the payment of wages
and deliTering up of the clothes and
effects of seamen upon their volunteer-
ing into the navy.



(s) The Amphitrite, 2 Hagg. 40S.

(a) 15 Vict c. 26, 8S. 1 & 2.

(b) Ante, p. 85.

(c) See the M. S. Act, 1854, sects.
299—269, and the earlier statutes, now
repealed, the 7 & 8 Vict c. 112, and
the 18 & 14 Vict c 98.



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THE CBEW. 117

neglect of duty, or by reason of drunkenness does any act tend-
ing to the immediate loss^ destruction or serious damage of the
ship, or tending immediately to endanger the life or limb of any
person belonging to or on board of the ship, or who by wilfiil
breach of duty or by neglect of duty, or by reason of drunken-
nesSy refuses or omits to do any lawful act proper and requisite
to be done by him for presemng the ship from immediate loss,
destruction or serious damage, or for preserving any person be-
longing to or on board of the ship from immediate danger to life
or limb, is guilty of a misdemeanor.

By sect 243, whenever any seaman who has been lawfully
engaged or any apprentice to the sea sendee commits any of
the following offences, he is liable to be punished summarily
as follows (^):
(1.) For desertion he is liable to imprisonment for any
period not exceeding twelve weeks, with or without hard
labour, and also to forfeit all or part of the clothes and
effects he leaves on board, oxxd all or any part of the
wages or emoluments which he has then earned. If the
desertion takes place abroad, he is also liable, at the dis-
cretion of the Court, to forfeit all or any part of the wages
or emoluments he may earn in any other ship in which
he may be employed until his next return to the United
Kingdom, and to satisfy any exoess of wages paid by the
master or owner of the ship from which he deserts to
any substitute engaged in his place at a higher rate of
wages than the rate stipulated to be paid to him :
(2.) For n^lecting or refusing, without reasonable cause,
to join his ship, or to proceed to sea in his ship, or for
absence without leave at any time within twaity-four
hours of the blip's sailing from any port eith^ at the
commencement or during the progress of any voyage, or
for absence at any time without leave and without suffi-
cient reason fbom his ship, or from his duty, not amount-
ing to desertion or not treated as such by the master, he
is liable to imprisonment for any period not exceeding
ten weeks, with or without hard labour, and also, at the
discretion of the Court, to forfeit out of his wages a sum

id) In addition to the list of punish- cipline, to which a loss of pay is attached,
mentioned in the text, the Board See post, App. p. ocxxxiv. If thb list



of Trade has sanctioned and published, is adopted m the agreement it becomes
ia pursuance of this act, a list of minor obligatory.
acts of misconduct and breaches of dis-



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ii8



THE CREW.

not exceeding the amount of two clays' pay, and in ad-
dition for every twenty-four hours of absence either a
sum not exceeding six days' pay, or any expenses which
have been properly incurred in hiring a substitute :

(3.) For quitting the ship without leave after her arrival at
her port of delivery and before she is placed in security,
he is liable to forfeit out of his wages a sum not exceed-
ing one month's pay :

(4.) For wilful disobedience to any lawful command he is
liable to imprisonment for any period not exceeding four
weeks, with or without hard labour, and also, at the dis-
cretion of the Court, to forfeit out of his wj^es a sum
not exceeding two days' pay :

(5.) For continued wilful disobedience to lawful commands,
or continued wilful neglect of duty, he is liable to impri-
sonment for any period not exceeding twelve weeks, with
or without hard labour, and also, at the discretion of the
Court, to forfeit for every twenty-four hours' continuance
of such disobedience or neglect either a sum not exceed-
ing six days' pay, or any expenses which have been pro-
perly incurred in hiring a substitute :

(6.) For assaulting any master or mate he is liable to im-
prisonment for any period not exceeding twelve weeks,
with or without hard labour :

(7.) For combining with any other or others of the crew
to disobey lawful commands, or to neglect duty, or to
impede the navigation of the ship or the progress of the
voyage, he is liable to imprisonment for any period not
exceeding twelve weeks, with or without hard labour :

(8.) For wilfully damaging the ship, or embezzling or wil-
fully damaging any of her stores or cargo, he is liable to
forfeit out of his wages a sum equal in amount to the
loss thereby sustained, and also, at the discretion of the
Court, to imprisonment for any period not exceeding
twelve weeks, with or without hard labour :

(9.) For any act of smuggling of which he is convicted,
and whereby loss or damage is occasioned to the master
or owner, he is liable to pay to the master or owner a
sum sufficient to reimburse the master or owner for the
loss or damage ; and the whole or a proportionate part
of his wages may be retained in satisfaction or on ac-



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THE CREW.

count of this liability, without prejudice to any fiirther
remedy.

Upon the commission of any of the eflfences which have been
just mentioned, it is also provided by sect. 244 of the Merchant
Shipping Act, 1854, that an entry must be made in the official
log-book, and signed by the master and also by the mate or one
of the crew ; and the offender, if still in the ship must, before
the next subsequent arrival of the ship at any port, or if she is
at the time in port, before her departure therefrom, either be
furnished with a copy of the entry or have the same read over
distinctly and audibly to him, and he may thereupon make any
reply thereto which he thinks fit; and a statement that a copy
of the entry has been so furnished or read over, and the reply
made by the offender must Hkewise be entered and signed in
the manner mentioned above ; and in any subsequent legal pro-
ceeding these entries must, if practicable, be produced or
proved, and in default of their production or proof, the Court
hearing the case may, at its discretion, refuse to receive evi-
dence of the offence.

Sect. 245 provides, that every seafaring person whom the
master of any ship is compelled to take on board and convey,
under the authority of this act, or of any other act of parliament,
and every person who goes to sea in any ship without the consent
of the master or owner, or other person entitled to give consent,
shall be, so long as he remains in the ship, subject to the same
laws and r^ulations for preserving discipline, and to the same
penalties and punishments for offences constituting or tending to
a breach of discipline, to which he would be subject if he were
a member of the crew, and had signed the agreement.

It is provided by sect. 246, that whenever, either at the com-
mencement or during the progress of any voyage, any seaman
or apprentice neglects or refuses to join, or deserts from, or re-
fuses to proceed to sea in any ship in which he is duly engaged
to serve, or is found othei-wise absenting himself therefrom with-
out leave, the master or any mate, or the owner, ship's-husband
or consignee may, in any place in her Majesty's dominions,
with or without the assistance of the local police officers or con-
stables, who are bound to give the same, if required, and also at
any place out of her Majesty's dominions, so far as the laws in
force at this place will permit, apprehend him without first pro-



119



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120 THE CREW.

curing a warrant, and may thereupon in any case, and must if
required so to do, and it is practicable, convey him before some
Court capable of taking cognizance of the matter, to be decdt
with according to law, and may, for the purpose of conveying
him before such Court, detain him in custody for a period not
exceeding twenty-four hours, or such shorter time as may be
necessary, or may, if he does not so require, or if there is no
such Court at or near the place, at once convey him on board.
If, however, any apprehension appears to the Court before
which the case is brought to have been made on improper, or
on insufficient grounds, the master, mate, owner, ship's-husband
or consignee who made it or caused it to be made, is liable to
a penalty not exceeding twenty pounds ; but this penalty is a
bar to any action for false imprisonment in respect of the same
apprehension.

By sect. 247, whenever any seaman or apprentice is brought
before any Court on the ground of his having neglected or re-
fused to join or proceed to sea in any ship in which he is
engaged to serve, or of having deserted, or otherwise absented
himself therefrom without leave, the Court may, if the master,
or the owner or his agent requires it, instead of committing the
offender to prison, cause him to be conveyed on board, for the
purpose of proceeding on the voyage, or deUver him to the mas-
ter, or any mate of the ship, or the owner or his agent, to be by
them so conveyed, and it may, in such case, order any costs and
expenses properly incurred by or on behalf of the master or
owner, by reason of the offence, to be paid by the offender, and,
if necessary, to be deducted from any wages which he has then
earned, or which, by virtue of his then existing engagement, he
may afterwards earn.

Sect. 248 of this act provides, that if any seaman or appren-
tice is imprisoned on the ground of his having neglected or re-
fused to join or to proceed to sea in any ship in which he is
engaged to serve, or of his having deserted or otherwise absented
himself therefrom without leave, or of his having committed any
other breach of discipline, and if during such imprisonment, and
before his engagement is at an end, his services are required on
board his ship, any justice may, at the request of the master, or
of the owner or his agent, cause such seaman or apprentice to
be conveyed on board his ship for the purpose of proceeding on



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THE CREW. 121

the Toyage, or may cause him to be delivered to the master or
iny mate of the ship, or to the owner or his agent, to be by
them 80 conveyed, notwithstanding that the termination of the
period for which he was sentenced to imprisonment has not
arrived.

And by sect. 249 it is enacted, that in all cases of desertion
from a ship in a place abroad, the master must produce the
entry of the desertion in the official log-book to the persons
required (e) to indorse on the agreement a certificate of the de-
sertion ; and these persons must thereupon make and certify a
copy of the entry, and also a copy of the certificate of desertion ;
and if the person is a public functionary, he, and in other cases
the master, must forthwith transmit their copies to the Regis-
trar-General of Seamen in England ; and the registrar must, if
required, cause them to be produced in any legal proceeding ;
and the copies, if purporting to be so made and certified, and
certified to have come from the custody of the registrar, are
evidence of the entries therein in any legal proceedings relating
to the desertion.

It must be remembered that beyond the specific statutory At common
punishments mentioned above, the master has in all cases of *^*
ofiences by seamen a common law power of inflicting discre-
tionary punishment.

The effect of desertion and other acts of misconduct in causing
a forfeiture of wages, will be considered more fully in a later
part of this Chapter (/).

The Merchant Shipping Act, 1854, also provides by sect 267,
that any person who persuades or attempts to persuade any
seaman or apprentice to neglect or refiise to join or proceed to
sea in or to desert from his ship, or otherwise to absent himself
from duty, shall be liable to a penalty not exceeding ten pounds ;
and every person who wilfully harbours or secretes any seaman
or apprentice who has deserted, or who has wilfully neglected
or refused to join his ship, knowing the fact or having reason to
believe it, is liable to a penalty not exceeding twenty pounds.

It is provided by sect. 520 of the Merchant Shipping Act, jurisdiction
1854, that for purposes of jurisdiction all ofiences under the act ^1}^ Maunder*

statute.
(«) See M. S. Act, 1854, s. 279. (/) Post, p. 156.



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122 THE CREW.

are to be deemed to have been committed, and all causes of
complaint to have arisen, either where actually committed or
where the complaint arose, or in any place in which the
offender may be (g); and by sect. 621, the jurisdiction of the
Courts and magistrates of the adjoining districts is extended
over all ships and boats lying or passing off any coast, or
being in or near any bay, channel, lake, river or navigable
water, and over all persons on board or belonging to the ships
or boats.

Offences on This statute also contains some important provisions with

hiffh MAS Und . \ rr* .-I ii»i

abroad. respect to cnmes and offences committed on the high seas or

abroad.

By sect. 267, all offences against property or person com-
mitted in or at any place either ashore or afloat out of the
Queen's dominions by any master, seaman or apprentice who at
the time when the offence was committed is, or within three
months previously had been, employed in any British ship, are
to be treated and punished as if committed within the jurisdic-
tion of the Admiralty of England ; and the costs and expenses
of the prosecution may be directed to be paid as in cases of
offences within this jurisdiction.

By sect. 268, the following rules are to be observed with re-
spect to these offences : —

(1.) Whenever any complaint is made to a British consular
officer of any of the offences in question, or of any
offence on the high seas having been committed by any
master, seaman or apprentice belonging to any British
ship, the consular officer may inquire into the case upon
oath, and may, if the case so requires, take any steps in
his power for the purpose of placing the offender under
necessary restraint, and of sending him as soon as prac-
ticable in safe custody to the United Kingdom, or to an/

(g) See also the Merchant Shipping mitted within its ordinary jurisdiction:
Act Amendment Act, IS & 19 Vict. c. a similar power is given by this act to
91, 8. 21, by which it is enacted that try any person, not being a British sub-
any court of justice in the Queen's do- ject. for any offence committed on board
minions may try any British subject a British ship on the high seas. See
found within itsjurisdiction, and charged also the 12 & 13 V^ict c 93, an act to
with any offence committed on board a provide for the prosecution and trial, in
British ship on the high seas, or in any the colonies, of offences commi ted
foreign hnrbour, if the court would have within the jurisdiction of the Admiralty,
had cognizance of the offence if corn-



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THE CREW. 123

British possession in which there is a Court capable of
taking cognizance of the offence, in any ship belonging to
the Queen or to any of her subjects, to be there pro-
ceeded against according to law :
(2.) For this purpose the consular officer may order the
master of any ship belonging to any subject of the
Queen, bound to the United Kingdom or to such British
possession as is mentioned above, to receive and afford
a passage and subsistence during the voyt^e to any
offender and to the witnesses, so that the master be not
required to receive more than one offender for every one
hundred tons, or more than one witness for every fifty
toris of the ship's registered tonnt^e ; and the consular
officer must indorse upon the agreement of the ship any
particulars with respect to any offenders or witnesses



Online LibraryCharles Edward Pollock Frederic Philip MaudeCompendium of the law of merchant shipping → online text (page 18 of 101)