Charles Edward Pollock Frederic Philip Maude.

Compendium of the law of merchant shipping online

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hoirA any ship. See the M. S. Act, EUworth t. Woolmore, 5 Esp. 84. The
1854,8.2. If any seaman, on or before later acts, however, are differently
being engaged, wilfully and fraudulently worded, and now, although a penalty is
makes a false statement of the name of incurred if the agreement is not in
his last ship, or of his own name, he is writing, a verbal agreement would pro-
liable to a penalty not exceeding 51^ bably be binding. Where a written
which may be deducted from his wages. agreement exists, the ordinary rule
lb. 8. 255. applies, that it must be taken to repre-

(b) See the decisions on the 31 Geo. sent the final contract between the
8, c 89, as to the sufficiency of the parties ; and terms which are verbaJly
description of the voyage. That act agreed upon before, or at the time of
required that the agreement should state the writing, but which are not contained



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THE CREW. 133

Every agreement must be so framed as to admit of stipula-
tions, to be adopted at the will of the master and seamen, as to
advance and allotment of wages, and may contain any other
stipulations which are not contrary to law. The statute also
provides, that if the master of any ship belonging to any British
possession has an agreement with his crew made in due form
according to the law of the possession to which the ship belongs
or in which her crew were engaged, and engt^es single seamen
in the United Kingdom, such seamen may sign the agreement
80 made, and it shall not be necessary for them to sign an agree-
ment in the form sanctioned by the Board of Trade (d).

Forms of agreement have been sanctioned and issued by the
Board of Trade in pursuance of these provisions (e).

Sect. 182 of the Merchant Shipping Act, 1864, also provides,
that every stipulation in any agreement inconsistent with any of
the provisions of the act, or by which any seaman consents to
abandon his right to wages in case of the loss of the ship, or to
abandon any right to salvage, is to be wholly inoperative (/).
It is also provided, by sect. 214 of this act, that all stipulations
in any agreement whereby any seaman is declared to incur any
forfeiture or loss in case he enters into the navy, are void.

By the forms now in use, the crew must agree to conduct
themselves in an orderly, foithful, honest and sober manner, and
to be at all times diligent in their respective duties, and to be
obedient to the lawful commands of the master, or of any per-
son who may lawfully succeed him, and of their superior officers,
in everything relating to the ship, and her stores and cai^o,
whether on board, in boats, or on shore; and in consideration of
tbis service the master must agree to pay to the crew as wages

in it, are not binding. Mere* y. Ansellj before the termination of the contem-

l Wils. 275 ; Goes v. Lord Nugent^ 6 B. plated voyage, quitted with the consent

& Ad. 58 ; The Isabella, 2 Rob. 241. of the captain who had been appointed

(i) As to what stipulations are am- b)r the new owner, it was held that he

biguous and contrary to the policy of might recover, against such new owner,

the statute, see Fraser ▼. Hatton, 2 C. wages pro raid. Robins v. Power, 4 C.

B., N. 8. 512, a decision on the corre- B., N. S. 778.

tpondinff section of the 13 & 14 Vict. {e) See forms post. Appendix, pp.

c. 93. Where a change of ownership ccxxx, ccxxxii.

in a British ressel takes place by sale (/) This section also provides that no

in this country while she b in a foreign seaman is, bv any agreement, to forfeit

port, the contract under which the his lien on tne ship, or to be deprived

crew were shipped is (quoad the new of any remedy for the recovery of his



owner) at an end. Where however one wages. All stipulations as to the allot-

of the crew continued to serve on board ment of wages, made at the commence-

the vessel at the request of an agent of ment of the voyage, must be inserted in

^e new owner, without entering into the agreement See sect. 168.
inj fresh articles, and afterwards and



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134 THE CREW.

the 8ums expressed in the agreement, and to supply them with
provisions according to a scale which must be annexed.

These forms also provide that any embezzlement, or wilfiil
or negligent destruction of any part of the ship's cargo or stores,
is to be made good to the owner out of the wages of the of- ,
fender ; and that if any person enters himself as qualified for a
duty which he proves incompetent to perform, his wages are to
be reduced in proportion to his incompetency ; and that if any
member of the crew considers himself to be aggrieved by any
breach of the agreement or otherwise, he is to represent the
same to the master or officer in charge of the ship in a quiet and
orderly manner, and the latter must thereupon take such steps
as the case may require.

Blanks are left in these forms to be filled up with any other
stipulations to which the parties may agree, and which are not
contrary to law, and for the incorporation in the agreement, by
reference, of some regulations for maintaining discipline, com-
prising a scale of punishments for minor offences which have
been sanctioned and published by the Board of Trade, in pur-
suance of this statute (g).

These forms have been adapted by slight variations to the
cases of home trade and foreign going ships, and also of vessels
engaged in the northern and southern whale fisheries, in which
the seamen are usually paid by a share in the adventure (A).

In foreign In the case of all foreign going ships, (that is to say, ships

going ships, employed in trading or going between a place in the United
Kingdom and a place beyond the coasts of the United Kingdom,
the islands of Guernsey, Jersey, Sark, Aldemey and Man, and
the continent of Europe between the Elbe and Brest inclusive,)
in whatever part of the Queen's dominions they may be regis-
tered; the following rules with respect to agreements are laid
down by the statute. Sect. 150 provides, that —

(1.) Every agreement made in the United Kingdom (except
in the case of agreements with substitutes which are
specially provided for) must be signed by each seaman
in the presence of a shipping master :

(g) See the forms, post. Appendix, Frazier, 4 Esp. 182; Dry v. Boswell, 1

pp. ccxxxiv, ccxxxv. Camp. 329 ; see also Pott v. Eytonj S

(h) Arrangements of this kind do not C. B. 32, where the same principle was

constitute a partnership. Wilkinson v. recognized.



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THE CREW.

(2.) The shipping master must cause the agreement to be
read over and explained to each seaman, or must other-
wise ascertain that each seaman understands the same
before he signs it, and he must attestceach signature :
(3.) When the crew is first engaged the agreement must be
signed in dupUcate, and one part must be retained by
the shipping master, and the other part must contain a
special place or form for the descriptions and signatures
of substitutes or persons engaged subsequently to the
first departure of the ship, and it must be delivered to the
master :
(4.) In the case of substitutes engaged in the place of seamen
who have duly signed the agreement, and whose services
are lost within twenty-four hours of the ship's putting to
sea by death, desertion, or other unforeseen cause, the
engagement must, when practicable, be made before a
duly appointed shipping master; and whenever it cannot
be so made, the master must, before the ship puts to sea,
if practicable, and if not, as soon afterwards as possible,
cause the agreement to be read over and explained to the
seamen ; and the seamen must thereupon sign the same
in the presence of attesting witnesses.
By sect. 151, in the case of foreign going ships making voy-
ages averaging less than six months in duration, running agree-
ments with the crew may be made to extend over two or more
voyages, but they must not extend beyond the following thirtieth
of June or thirty-first of December, or the first arrival of the ship
at her port of destination in the United Kingdom after such
date, or the discharge of cargo consequent upon such arrival ;
and every person entering into such an agreement, whether he
is engaged upon the first commencement of it or otherwise,
must enter into and sign it in the manner required for other
foreign going ships ; and if discharged in the United Kingdom,
he must be discharged in the manner required for the discharge
of seamen belonging to other foreign going ships.

By sect, 152, the master of any foreign going ship for which
a running agreement is made must, upon every return to a port
in the United Kingdom before the final termination of the agree-
ment, discharge or engage before the shipping master at this
port any seaman whom he is required by law to discharge or
engage; and the master is bound upon every such return to in-



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136 THE CREW.

dorse on the agreement a statement either that no such dis-
charges or engagements have been made or are intended to be
made before the ship again leaves port, or that all such dis-
charges or engagements have been duly made as required by
the act. The master is also bound to deUver the agreement so
indorsed to the shipping master. Any m^ter who wilfully
makes a false statement in such indorsement incurs a penalty
not exceeding twenty pounds; and the shipping master must
sign an indorsement on the agreement to the eflfect that the pro-
visions of the act have been compUed with, and re-deUver it to
the master (i).

In home trade In the case of home trade ships (that is to say, ships employed
'^*' in trading or going within the following Umits:— the United

Kingdom, the islands of Guernsey, Jersey, Sark, Aldemey and
Man, and the continent of Europe between the Elbe and Brest
inclusive) the statute contains the following provisions on this
subject : —

By sect. 155, crews or single seamen may, if the master thinks
fit, be engaged before a shipping master in the manner directed
by the act with respect to foreign going ships ; and in every case
in which the engagement is not so made, the master must, before
the ship puts to sea, if practicable, and if not, as soon after as
possible, cause the agreement to be read over and explained to
each seaman, and the seaman must thereupon sign it in the
presence of an attesting witness.

By sect. 166, where several home trade ships belong to the
same owner, the agreement with the seamen may be made by
the owner instead of by the master, and the seamen may be en-
gaged to serve in any two or more of the ships, if the names of
the ships and nature of the service are specified in the agree-
ment; subject, however, to this exception, all the provisions of
the act, as to ordinary agreements for home trade ships, are
applicable to agreements made in the manner last mentioned.

In the case of home trade ships of more than eighty tons
burthen, it is provided by sect. 162, that no agreement may ex-

(«) In cases in which running agree- the expiration of the agreement, as the

ments are made, the duplicate agree- Board of Trade may direct. M. S. Act,

ment retained by the shipping master 1854, s. 153. See also sect. 154, as to

upon the first engagement of the crew the mode of determining die fees to be

must be either transmitted to the Re- paid on the engagement and discharge

gistrar-General of Seamen immediately, of seamen belonging to ships whidi

or be kept by the shipping master until have running agreements.



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THE CREW. 137

tend beyond the next following 30th of June, or 31 Bt of Decem-
ber, or the first arrival of the ship at her final port of destination
in the United Kingdom after that date, or the discharge of the
crew consequent thereon.

If these provisions as to agreements are disregarded, the
master, and in the case of home trade ships the owner also, is
liable to penalties (J).

Sect. 159 of the act enacts, that whenever seamen are engaged
in any British possession for a ship registered in the United
Kingdom, or belonging to any other British possession, they
must be engaged before the shipping master or other officer
appointed for the purpose of shipping seamen, if there be such
an officer ; and if not, before an officer of customs. The pro-
visions of the act as to engagements in the United Kingdom are
applicable to these engagements. By sect. 159, the shipping
master or other officer must indorse on the agreement an attesta-
tion, showing that it has been signed in his presence, and made
as required by the act, and if such an attestation is not made
the burthen of proving that the seamen were duly engaged is
thrown on the master. The statute also provides by sect. 160,
that whenever seamen are engaged for British ships at any place
out of the Queen's dominions, the engagement must be made
before the British consular officer of the place, and his sanction
must be obtained before the seamen are carried to sea. In these
cases also the statute requires that the agreements shall be
entered into and attested in a manner similar to that already
mentioned with respect to engagements in the colonies.

The rules laid down in the statute as to the production of the
agreements by the master to the shipping or consular officers in
the case of foreign going and home trade ships have been
aheady mentioned {k).

The following important provisions are contained in the Effect of alte-
statute with reference to alterations in the agreements : — a^emente! ^^

By sect 163, every erasure, interlineation or alteration in any
agreement (except additions made for shipping substitutes or
persons engaged subsequently to the first departure of the ship)
is wholly inoperative, unless proved to have been made with the
consent of all the persons interested in it by the written attesta-

U) M. S. Act, 1854, 8. 157. (Ar) Ante, p. 86. M. S. Act, 1854, ss.

161, 162.



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138



THE CREW.



tion (if made in the Queen's dominions) of some shipping master,
justice, officer of customs, or other public functionary, or (if
made out of the Queen's dominions) of a British consular
officer, or, where there is no such officer, of two respectable
British merchants.

By sect. 164, every person who fraudulently alters, assists in
fraudulently altering, or procures to be fraudulently altered, or
makes, or assists in making, or procures to be made, any false
entry in, or delivers, assists in delivering, or procures to be de-
livered, a false copy of any agreement, is to be deemed guilty of
a misdemeanor.

By sect. 165, seamen may bring forward evidence to prove
the contents of any s^eement, or otherwise to support their
case, without producing or giving notice to produce the agree-
ment or any copy of it; and by sect. 166, the master is bound
at the commencement of any voyage or engagement to cause a
legible copy of the agreement (omitting the signatures) to be
placed on board so as to be accessible to the crew.



Discharge be-
fore the com-
mencement of
the voyage.



It is also provided by sect. 167 of this act, that any seaman
who has signed an agreement and is afterwards discharged be-
fore the voyage commences, or one month's wages are earned,
is entitled (if the discharge was without his consent, and without
fault on his part justifying it) to receive from the master or
owner, in addition to any wages earned, due compensation for
the damage thereby caused to him, not exceeding, however, one
month's wages ; and this compensation may be recovered as if
it were wages duly earned.



Protection
against aban-
donment
abroad.



The statute also contains, in sect. 205, provisions for the pur-
pose of protecting seamen from being wrongfully discharged or
lefl behind abroad. Thus, it is provided that whenever any
British ship is transferred or disposed of at any place out of the
Queen's dominions,, and any seaman or apprentice belonging
thereto does not, in the presence of some British consular officer,
or, if there is no such consular officer there, in the presence of
one or more respectable British merchants residing at the place,
and not interested in the ship, signify his consent in writing to
complete the voyage, and also, whenever the service of any
seaman or apprentice belonging to any British ship terminates
at any place out of the Queen's dominions, the master must



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THE CREW.

give to each seaman or apprentice a certificate of discharge, in
a form sanctioned by the Board of Trade. In the case of any
certificated mate, whose certificate he has retained, he must
also return it to him. The master must also, besides paying
the wages to which the seaman or apprentice is entitled,
either provide him with adequate employment on board some
other British ship, bound to the port in the Queen's dominions
at which he was originally shipped, or to such other port in
the United Kingdom as may be agreed upon by him, or he
must fiirnish the means of sending him back to such port, or
provide him with a passage home, or deposit vrith the consular
officer or merchants such a sum as may be by such officer or
merchants deemed sufficient to defitty the expenses of his sub-
sistence and passage home. The consular officer or merchants
must indorse upon the agreement of the ship the particulars of
the payment, provision, or deposit ; and if the master refuses or
neglects to comply with these requirements, the expenses, if de-
frayed by the consular officer, or by any other person, are made,
unless the seaman or apprentice has been guilty of barratry, a
charge upon the ship, and upon the owAer for the time being ;
and they may be recovered, with costs, at the suit of the consular
officer or other person. If the expenses have been allowed to
the consular officer out of the public monies, they may be
recovered as a debt due to the Crown, and if they have been
defrayed by the seaman or apprentice they are recoverable as
wages due to him.

It is also provided, by sect. 206 of the statute, that any master,
or any other person .belonging to any British ship, who wrong-
fiilly forces on shore and leaves behind, or otherwise wilfully
and wrongfully leaves behind in any place, on shore or at sea,
in or out of the Queen's dominions, any seaman or apprentice
belonging to the ship, before the completion of the voyage for
which he was engaged, or the return of the ship to the United
Kingdom, shall be guilty of a misdemeanor.

And by sect. 207, the following acts, if committed by the
master of any British ship, amount to a misdemeanor, and may
be enquired into summarily on the spot by the functionaries
whose sanction or certificate is required for the discharge of
seamen abroad:—

(1.) The discharge of any seaman or apprentice, in any place



139



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140



THE CREW.

situate in any British possession abroad (except the pos-
session in which he was shipped), without previously
obtaining the sanction in writing, indorsed on the agree-
ment, of some public shipping master, or other officer
duly appointed by the local government in that behalf,
or (in the absence of any such functionary) of the chief
officer of customs resident at or near the place where the
discharge takes place :
(2.) The discharge of any seaman or apprentice at any place
out of the Queen's dominions, without previously obtain-
ing the sanction, indorsed as above mentioned, of the
British consular officer there, or (in his absence) of two
respectable merchants resident there :
(3.) The leaving behind any seaman or apprentice at any
place situate in any British possession abroad, on any
ground whatever, without previously obtaining a certifi-
cate in writing, indorsed as above mentioned, stating the
fact and the cause of it, whether the cause be unfitness
or inability to proceed to sea, or desertion or disappear-
ance:
(4.) The leaving behind any seaman or apprentice at any
place out of the Queen's dominions, on shore or at sea,
on any ground whatever, without previously obtaining
the certificate, indorsed as mentioned above, of the
British consular officer there, or (in his absence) of two
respectable merchants, if there be any such at or near
the place where the ship then is (k).
Whenever seamen or apprentices are left on shore abroad
under a certificate of unfitness or inability, the master is also
bound, imder sects. 209 and 210 of this statute, to deUver to
the fiinctionaries mentioned above a fiill and true account of all
the wages which are due, which must be then paid either in
money or by a bill on the shipowner.

By sect. 211, the governors, consular officers and other officers
of the Queen in foreign countries are bound to provide for the
subsistence of all seamen or apprentices, being subjects of the

(k) Upon any trial for discharging or By the French law, the captain can in

wrongfully leaving behind any seaman, no case discharge a seaman in a foreign

it must be proved by the person charged country. Code de Commerce, Art. 270.

with the offence that the sanction or By the American law, the master has

certificate mentioned in the text was tl\e right to discharge a seaman for just

obtained, or that it was impracticable cause, and to put him ashore in a foreign

to obtain it; M. S. Act, 1854, s. 208. country. 3 Kent Comm. 183.



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THE CREW. 141

Queen, who have been shipwrecked, discharged or left behind
at any place abroad, whether from any ship employed in the
merchant service, or from any of the Queen's ships, or who
have been engaged by any person acting either as principal or
agent to serve in any ship belonging to any foreign power or to
the subject of any foreign state, and who are in distress in any
place abroad, until they are able to provide them with a passage
home, and for this purpose they must cause the seamen or ap-
prentices to be put on board some ship belonging to a British
subject bound to any port of the United Kingdom, or to the
British possession to which they belong (as the case may re-
quire), which is in want of men to make up its complement,
and in default of any such ship they must provide them with a
passage home as soon as possible in some ship belonging to a
British subject bound as mentioned above. And in places where
there are no such governors or oflBcers these powers may be
exercised by any two resident British merchants. The par-
ticulars of the case must be indorsed on the £^eement of the
ship on board of which the seamen are put, and the expenses
of their subsistence may be paid out of any monies granted by
Parliament for the relief of distressed British seamen.

By sect. 212, the masters of all British ships bound as afore- Relief of dis-
said are obliged, under heavy penalties, to afford a passage and ^®**®" seamen.
subsistence to all seamen or apprentices, not exceeding one for
every fifty tons burthen, whom they are required to take on
board, under the circumstances mentioned above. They must
provide the seamen or apprentices during the passage with a
proper berth or sleeping place effectually protected against sea
and weather ; and they are subsequently entitled to receive out
of the fund already mentioned such sums per diem in respect of
the subsistence and passage of the seamen or apprentices as the
Board of Trade may appoint (/).

By sect. 213, whenever any seaman or apprentice belonging
to any British ship is discharged or left behind at any place out
of the United Kingdom, without a full compliance on the part of
the master with all the provisions mentioned above, and becomes
distressed and is relieved under the statute, and whenever any
British subject, after having been engaged by any person (whether

(/) This section mentions Brithh ships; the previous section refers to ships
belonging to British subjects.



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142 THE CREW.

acting as principal or agent) to serve in any ship belonging to
any foreign power, or to the subject of any foreign power, be-
comes distressed and is relieved as is mentioned above, the wages
due to the seaman or apprentice, and all the expenses incurred for
his subsistence, necessary clothing, conveyance home, and burial,
in case he should die abroad before reaching home, constitute a
charge upon the ship, whether British or foreign, to which he
belonged ; and the Board of Trade may in the Queen's name
(besides suing for any penalties which may have been incurred)
sue for and recover the wages and expenses, with costs, either
from the master of the ship or from the person who is owner



Online LibraryCharles Edward Pollock Frederic Philip MaudeCompendium of the law of merchant shipping → online text (page 20 of 101)