Charles Edward Pollock Frederic Philip Maude.

Compendium of the law of merchant shipping online

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letters of administration or confirmation to be taken out. When
the money and effects exceed 60L in value, the Board must,
after deducting the expenses, pay over the same to the personal
representatives.

These rules are, however, subject to the following pro-
visions : —

By sect. 200, if the deceased has lefl a will, the Board may
refuse to pay or deUver the wages or effects to any one claiming
under a will made on board ship, unless it is in writing, and
signed or acknowledged in the presence of and attested by the
master or first or only mate. And if the claim is put forward
under a will made elsewhere than on board ship, and by a person
not related to the deceased by blood or marriage, the Board
may refuse to deliver up the wages or effects, unless the will is
in writing, and signed or acknowledged in the presence of and
attested by two witnesses, one of whom must be a shipping
master, or a minister, or oj£ciating minister, or curate of the
place where it was made. If the will was made at a place where
there are no such persons, one of the witnesses must be a justice
of the peace, or consular oflBcer, or officer of customs (r).

The following are the rules laid down by the Merchant Ship- Payment of
ping Act, 1864, for the purpose of preventing fraud with reference ^!^d wamcn".
to the claims of creditors of deceased seamen and apprentices : —

By sect. 201, no creditor is entitled to claim from the Board
of Trade the wages and effects by virtue of letters of administra-
tion taken out by him, or confirmation in Scotland as executor
creditor; nor is any such creditor entitled, by any means what-
ever, to payment of his debt out of the wages or effects, if the debt
accrued more than three years before the death, or the demand

(r) When the claim under a will is if no will had been made. M. S. Act,
rejected under thene provisions, the 1854, s. 200.
wages and effects must he dealt with as



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168 THE CREW.

is not made within two years after the death. The steps to be
taken for procuring the payment of debts, subject to these pro-
yisionSy are as follows : — the creditor must deliver to the Board
of Trade an account, in writing, stating the particulars of his
claim; this account must mention the place of abode of the
creditor, and must be verified by declaration before a magis*
trate. If, before this demand is made, the claim of the widow,
or any child, or that of any person claiming under a will, or any
statute, or at common law, has been allowed by the Board,
notice of this is to be given, and the creditor thereupon acquires
the same rights and remedies against the person whose claim
has been tiliowed as if he or she had received the wages and
effects as the legal personal representative of the deceased.

By the same section it is provided that, where, before the credi-
tor's demand, no such claim has been allowed, the Board must
investigate the creditor's account, and may call for proof and
all the vouchers relating to it ; and if the Board is satisfied of
the justice of the demand, or any part of it, it must order it to
be paid, so far as the assets in its hands may extend. If the
Board is not satisfied, or the proper proof is not produced with-
out sufiicient reason, the demand must be disallowed. And in all
cases the Board may delay the investigation of any demand by
a creditor for a year; and if during that time a claim is substan-
tiated by the widow, or any child, or any one claiming under a
will, or statute, or at common law, the Board may allow such
claim; in which case the creditor is entitled, as against the other
claimant, to the remedies mentioned above.

By sect. 202, whenever no claim is made to wages and
effects in the hands of the Board within six years after their
receipt, the Board has an absolute discretion either to allow or
refuse any later claim (js).

By sect. 203, the statute subjects all persons who commit
forgery, or fraudulently alter any documents, or give or procure
any false evidence for the purpose of obtaining any money or
effects of deceased seamen or apprentices, to severe punish-
ment.

By sect. 204, whenever seamen are invalided or discharged
from any of the Queen's ships, and are sent home in merchant

(s) The money arising from un- of the Accountant-Oeneral of the Navy,
claimed wages and effects must be paid under sect. 204), into the Consolidated
over by the Board (subject to the claims Fund. M. S. Act, 1854, s. 202..



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THE CREW. 169

ship^y the monies and effects belonging to them, which are paid
over under the provisions of the act to the Board of Trade or
its agents^ must be paid over and disposed of as the Accountant-
General of the Navy may direct

It is not necessary to enter here at any length into the his- Recovery of
tory of the early remedies for wages. The right of the seamen ^^°^"*
to sue in the Courts of Admiralty on contracts made on shore
was a source of frequent contention between these Courts and
the Courts of common law. The latter denied the existence In Courts of
of this right, and, at last, acknowledged it with reluctance and J^Jalty. ^
jealousy, holding that it was a mere indulgence to the seamen
expressly against the statute (15 Rich. 2, c. 3), which ordained
that the Court of Admiralty should have no jurisdiction over
contracts arising within the bodies of the counties. This in-
dulgence, it was said, had been granted because the remedy in
the Admiralty was easier, and better ; easier, since the seamen
could in that Court sue jointly, instead of being obliged to sever
as in the Courts of common law (t) ; and better, since the ship
herself was in the Admiralty Court answerable for their claim.
The right to sue, moreover, when once conceded, was narrowed
by the Courts of law as much as possible, for although it was
held to include the mate, it was never extended to the master,
who was considered to contract on the credit of the owners,
and not, like the seamen, on that of the ship (u). Distinctions
were also made as to suits for real wages and for carpenter's
work done on shore (x), and the right of the Admiralty Courts
to proceed on contracts under seal was denied (y). These ques-
tions are not, however, now of any practical interest, for the
jurisdiction of the Courts of Admiralty over ordinary (2r) con-
tracts for wages has been long undisputed, and the Legislature
has, in cases of wages not exceeding 60/., provided a more
simple and summary remedy, to which the seamen are under
ordinary circumstances confined ; and the master has also now
similar remedies to those possessed by the seamen.

(/) See MoUoy, B. 2, c. 3, & 8. («) Where the contract was for a

(«) Molloy, ubi tup,; Clay v. Snel' specific sum for the Toyage, and in

grave, 1 Lord Rayni. 576 ; S. C. Salk. other respects special, the Court of Ad-

33 ; Comb. 74; Carth. 518. miralty held that it had no jurisdiction.

(x) MoUoy, B. 2, c. 3, s. 8. The Debrectia, 3 W. Rob. 33. See also

\fl) Ben* T. Parre, 2 Lord Raym. The Sydney Cove, 2 Dods. II ; The

1206. The earlier cases will be found Mona, 1 W. Rob. 1^1 \ The Riby Grow,

collected and commented on in MoUoy, 2 ib, 52.

«6t *¥p^ and in Abbott on Shipping.



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170



THE CREW.



The General Merchant Seamen's Act (7 & 8 Vict. c. 112)
provided, that where the wages did not exceed 20/. they might
be recovered in a summary way before a magistrate, and that
the amount might be levied by distress on the goods of the
party against whom the order was made, or on the ship, or on
her tackle or apparel, if she was within the jurisdiction (a). It
was held under this statute, that this remedy was confined to
seamen applying personally, and could not be used by an exe-
cutor or administrator of a deceased seaman (b) ; and also that
no distress could be levied under it upon a ship which had been
arrested in a cause of bottomry, and was in the custody of the
Court of Admiralty (c). This statute was, however, repealed by
the Merchant Shipping Repeal Act, 1864 (17 & 18 Vict c. 120),
and the provisions with respect to the remedies for the recovery
of wages which are contained in the statute now in force (the
Merchant Shipping Act, 1864) difier from the earlier enact-
ments, and are as follows : —



Summary re-
medy where
they do not
exceed 50L



By sect. 188 of this act, any seaman or apprentice, or any
person duly authorized on his behalf, may sue summarily for
any wages not exceeding 50L over and above the costs of the
proceedings, as soon as the wages become payable. This pro-
ceeding must be before any two justices acting in or near the
place at which the service terminated, or the seaman or appren-
tice was discharged, or at which the person on whom the claim
is made resides ; and the order of the justices in the matter is
final (rf).



Statutory limi-
tation of juris-
diction of
Courts of law
and Admiralty.



By sect. 189 of the same statute, wages under the sum of 60/.
cannot be recovered in any Court of Admiralty or Vice- Admi-
ralty, or in the Court of Session in Scotland, or in any Superior
Court of Record in the Queen's dominions, unless the owner is
adjudged bankrupt or declared insolvent, or the ship is under
arrest, or is sold by the authority of any of these Courts, or
unless any magistrate shall, under the act, have referred the case
to be adjudged by these Courts, or unless it happens that neither
the owner nor the master is or resides within twenty miles of



(a) 7&8Victc 112, s. 15.

(b) HolUngnoorth v. Palmer, 4 Exch.
267.

(c) The Weitmoreland, 2 W. Rob.
394.



(d) In Scotland, the proceedings
must be either before such justices, as
are above mentioned, or before the
sheriff of the county within which the
place is situated. M. S.Act, 1854, s. 188.



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THE CREW. 171

the place where the seaman or apprentice was discharged or
put ashore (e).

An important provision in this respect is also contained in the Suits not to
Merchant Shipping Act, 1864. By sect 190 no seaman whose abroad?^ *
^^y^c or engagement is to terminate in the United Kingdom is
oititled to sue abroad for his wages, unless he is dischai^ed
with the sanctions required by the act (/), and with the written
consent of the master, or unless he proves such ill-usage on the
part of the master, or by his authority, as to warrant reason-
able apprehension of danger to his life, if he had remained on
board ; but if any seaman on his return proves that the master
or owner has been guilty of any conduct or default which
but for the statute would have entitled him to sue for wages
before the termination of the voyage or engagement, he is en-
titled to recover, in addition to his wages, such compensation
not exceeding 20Z. as the Court hearing the case may think
reasonable.

Where any Court or mj^strate has power to direct the pay-
ment of wages, if the person ordered to pay them is the master
or owner, and the same are not paid as directed, the Court may
direct the amount to l)e levied by distress and sale of the ship,
and of her tackle, furniture, and apparel {g).

The right of suing in the Admiralty Court for wages ex-
tended, independently of any statute, to every person upon the

(f) It is declared by sect 109 of this diction of their governments. In Bums

statute, that the third part of the act (of v. Chapman^ & C. B., N. S., 481, it was

which these provisions as to wages form doubted whether sect. 189 of the M. S.

a part) shall, unless the context requires Act, 1854, applied to a claim for wages

a different application, apply to all sea earned on board an American sh p.

foing ships registered in the United Somewhat similar provisions as to the

lin«lom, (except ships exclusively recovery of wages were contained in the

employed in fishing on the coasts of the 7 & 8 Vict c 112, though the limit

United Kingdom, and ships belonging placed by that act, on the right of suing

to the Trinity House, the Commis- for wages in the Admiralty Courts, &c.,

sioners of Northern Lighthouses, or the was 20^ It was considered under the

P<»t of Dublin Corporation, and plea- last-mentioned statute that where the

tore yachts,) and also to all ships claim for wages was under this sum, the

registered in any British possession Admiralty Court could not entertain it

trading or going between any place in unless it was apparent that justice could

the United Kingdom and any place or not be fully and efficiently administered

placet not situated in this possession, by a magistrate. See the judgrment of

and to the owners, masters, and crews Dr. Lushington in The King Wiiliamt 2

of these ships, wherever they may be. W. Rob. 231.

These provisions also apply to all ships (/) See, as to this, M. S. Act, 1854,

regi st ered in the Queen's dominions sects. 205 — 207.
al^ad, when they are out of the juris* {g) lb, sect 523.



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172 THE CRBW.

ship, except the master (i), and in this Court the claim for
mariners' wages is preferred to that of the holders of bottomry
bonds (A).

Suite by fo- Foreign seamen, even although they are alien enemies, may

reign seamen, pp^^^g^j j^ ^j^jg Court against foreign ships coming to this country
under a British licence ; but the Court is unwilling to interfere
in these cases without the consent of the representative of the
nation to which the parties belong ; and, although his consent
is not necessary, the rule acted upon is, that notice of the pro-
ceedings must be given to him {I). Where an owner had em-
ployed American seamen (at a period when they were alien
enemies) in order to make his vessel pass for an American ship
he was not allowed to set up that &ct in answer to a claim in
the Admiralty Court for wages (m). The right to sue for wages
was also recognized in a case where the seamen, who were
alien enemies, had earned their wages on a voyage under the
protection of a British licence (n).

It is to be observed that where no statute has interfered the
rights of action which belong to the ordinary contract of hire
may be narrowed by the express agreement between the parties.
Thus, it was held that no action could be,brought in the Courts
of this country for wages by foreign seamen who had entered
into an agreement not to sue for wages in a foreign counlry,
even although the ship and cargo were confiscated in an EngUsh
port, and the voyage was thereby ended (o). And where a sea-
man entered into articles by which he agreed not to sue any of
the owners for wages except one of them who was the captain,
it was held, that he could not sue the others, although they had

(t) See antet p. 169. TTie Prince of the voyage, but not for the additional

George, 3 Hagg. 876. The surgeon may wages due to him as master. The Fa-

sue; Mills v. Long, 1 Sayer» 136 ; The vourite, 2 Rob, 232.

Wharton, 3 Hagg. 148, note (n); the (k) The Madonna d* Tdra, lDod8.87;

carpenter; The Lord Hobart, 2 Dods. The Sydney Qm, 2ib, 11.

104 ; the boaUwain ; Ragg v. King, 2 {I) The Vrow Mina, 1 Dods. 284 ;

Str. 858. So, a woman, who has acted The Golubchick, 1 W. Rob. 143. See

as cook and steward and keeper of the also as to the interference of our Courts

ship and stores in harbour and as a for the protection of foreign mariners,

mariner may recover her wages in this TTie Madonna d^Idra, 1 Dods. 37 ; The

Court. The Jane and Matilda, 1 Hagg. HHlhelm Frederick, 1 Hagg. 188.

187. Where a mate became master (m) The Frederick, 1 Dods. 266.

during the voyage, by the removal of («) The Maria Theresa, 1 Dods. 266,

the master, it was held before the ex- 803.

tension by statute of the master's reme- (o) Oienar ▼. Meyer, 2 H. Bl. 608 ;

dies, that he might sue in the Admiralty Johnson v. Machielsne, 8 Camp. 44.
for his wages as mate during the whole



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THE CREW.



173



received the proceeds of the cai^o, and one of them was the
managing owner^ who adjusted the wages and settled with the
seamen (p). Where a seaman elected to take from the ship's
agent a bill of exchange for his wages drawn on the owners,
it was held that he had lost his right to proceed against the ship
in the Court of Admiralty (7).

Where the voyage is illegal, as, for instance, where it is in Effect of ille-
violation of the Slave Trade Acts, or is an unauthorized expedi- ^yage!
tion of a naval or military character, the seamen, unless they
are in no way implicated in the illegal act, cannot recover their
wages (r).

The master may be sued for the wages, both in the common Liability of
law and Admiralty Courts, where he has not contracted so as ""** ^' ^^^*
to incur no personal obligation {s).

The mariners have a lien upon the ship and freight for their Lien for
wages. This lien extends over the whole ship, and even over ^^°'^*'
those parts of her which are separated by a storm, if they are
recovered (t) ; and it is not destroyed by the hypothecation of
the ship, or even by her sale, unless it takes place under the
authority of a competent Court (ti). We have already seen that
under the Merchant Shipping Act, 1854, 'there is a statutory
power of distress over the ship in respect of the mariners'
wages (r).



(p) M'JuUffe ▼. Biekneil, 2 C, M. &
R.263.

(9) The miliam Money, 2 Hagg. 136.

(r) See the judgment of Sir C. Ro-
binson in The Fanguardf 6 Rob. 207,
and The Malta, 2 Hagg. 168. Where
the |>ro«ecution of the voyage becomes
illegal b^ reason of war it has been held
in America that no wages are due. The
Seraicga, 2 Gallison (American) Rep.
164.

(5) Buck ▼. Rawlinvm, 1 Bro. P. C.
137 : Boylff V. Grant, 1 Salk. 83 ; The
Jack Park, 4 Rob. 308, ante, p. 102.

(/) See the Consolato, c. 93, and per
Lord Stowell, in The Neptune, 1 Hagg.
238; The Golubchick, 1 W. Rob. 143;
The Juliana, 2 Dods. 504. As against
the cargo, qud car^, there is no lien.
See the judgmenu in The Lady DurJuun,
3 Hagg. 200, and The Riby Grove, 2 W.
Rob. 59. In America the seamen have
a lien upon the ship for their wages.
Skeppardy, Taylor, 5 J^eten (American)



Rep. 676. Wages are not entitled to
priority in the Admiralty Court where
a vessel has been pronounced liable for
damages for collision. The Linda Flor,
4 Jur. N. S. 174. Where a subject of
the United States was mate on board a
vessel of that country, during a voyage
from California to Great Britain, and by
the death of the master during the
voyage he became in possession of the
ship as master, and afterwards proceeded
in the British Court of Admiralty
a^inst the freight for wages due to
him, it was held that the lex fori must
govern the case, and that he had a lien
on the freight. The Mi{ford, 4 Jur.
N. S. 417, Adm.

(u) The Sydney Cove, 2 Dods. 13;
The Batavia, ib. 500 ; The Margaret, 3
Hagg. 238. See also the judgment in
Brown v. Lull, 2 Sumner (American)
Rep. 443.

(v) Ante, p. 171.



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174



THE CREW.



Statutes of
Limitation.



Actions for wages, when brought in the common law Courts,
must be brought within six years, except where the agreement
is under seal, in which case the limitation is twenty years (x).
Suits for wages in the Admiralty Courts must also be brought
within six years. In both these cases, however, there formerly
was an exception in favour of persons under disability or absent
beyond the seas(y). But this is no longer the case(z). In
causes of wages the Courts of Admiralty have, as we have seen,
jurisdiction by statute to decide all questions of title to ships (a).



Charitable

CORPORA-
TIONS FOR
RELIEF OF
SICK SEAMEN,
&C.



It may be useful to mention here that by the 20 Geo. 2, c. 38,
a corporation was created, called " The President and Go-
vemors for the relief and support of sick, maimed, and disabled
seamen, and of the vndows and children of such as shall be
killed, slain, or droumed in the Merchant Service,'^ for the pur-
pose of reUeving and supporting maimed and disabled seamen,
and the widows and children of those who had been killed in
this service (6). The 37 Geo. 3, c. 73, the 4 & 6 Will. 4, c. 62,
the 6 & 7 Will. 4, c. 15, and the 7 & 8 Vict. c. 1 12, also contained
provisions for the support and regulation of this institution.

Under these acts all the masters and owners in the merchant
service navigating their own ships, and all the seamen employed
in it, were compelled to contribute at stated periods, and ac-
cording to a fixed rate, towards a fund called the Merchant
Seamen's Fund, out of which the corporation was empowered to
relieve disabled or decrepit seamen, and those who had been
shipwrecked, or taken by the enemy, and also the widows and
children of seamen who had been killed or drowned.

In consequence, however, of this fund having been, to some
extent, diverted from its original purpose, and of other causes
having reduced the funds of the institution considerably below
its expenditure, it became necessary in 1861 to provide for the
winding up of the fund, and for its collection and distribution
in the mean time. This was done by the 14 & 16 Vict c. 102,
which provided that contributions to the fund should, for the
future, cease to be compulsory, and that no one should be



{x) 21 Jac. \, c. 16, B. 38; 3 & 4 Hudson, 8 E. & B. 429.



Will. 4, c 42, s. 3.

(y) 4 Anne, c. 16, s. 17.

{%) See the Mercantile Law Amend-
ment Act, 1856, s. 10. As to the con-
struction of this section, see ComiU v.



(a) Ante, p. 19 ; 3 & 4 Vict c 65, s.
4.

(6) A somewhat similar system is
established in America. See 8 Kent,
Comm. pp. 179, 181.



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THE CREW. 175

allowed to contribute to it who was not a contributor at the time
of the passing of the act.

Andy finally, the Merchant Shipping Repeal Act, 1854 (17
4 18 Vict c. 120), repealed these statutes and put an end to
the system established by the earlier acts.

Another institution for the benefit of merchant seamen, namely,
" The Seamen's Hospital Society," was established in 1821, and
afterwards incorporated by the 3 & 4 Will. 4, c. 9. This society
is now supported by voluntary contributions. For some years
it was also entitled, under the 14 & 15 Vict c. 102, to receive
the proceeds of the unclaimed effects and wages of deceased
seamen, and to certain annual contributions for a limited period
by the Board of Trade out of the Merchant Seamen's Fund (c).
But these provisions have either expired or have been repealed
by the Merchant Shipping Repeal Act, 1854 (rf).

(e) See the 14 & 15 Vict c. 102, ss. (d) See the Schedule to the 17 & IS

»-W. 51, 61. Vict. c. 120.



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( 176 )



CHAPTER V.



THE PILOT.



Nature op

OFFICE.



PAGE

NATTjaB OF Office. ... 176
extbkt of contbol . . .177
Tbinity Housb and Cinqub

Port Pilots 178

Pilot AGB Authorities . .178
Powers of General Pi-
lotage Authorities . . 178

Bye-Laios 179

Returns to the Board of

Trade 181

Pilot Licences 182

Pilot Boats 182

Compulsory Pilotage . , ,183
Certificates of bervice or

Competency 184

Licensing of Masters and

Mates 186

Exemption of Qjneen^s Ships. 187
Of Ships in Distress ... 187

Foreign Vessels 187

Remuneration op Pilots . 187
Rights and Privileges of

Pilots 188

Offences of Pilots • . . 190



PAGE

Trinity House Pilotage . 192
PowersofTrifdty House. . 193

Bond 194

Revocation and Suspension of

JUcence 194

Compulsory Pilotage (Trinity

Exemptions from .... 196
Rates of Pilotage and Pilot

Fund {Trinity House) . . 196
Sub^ Commissioners of Hull

and Newcastle .... 197
Liability of Pilot for Neg-
ligence, &o 197

Liability of Masters and
Owners FOR Acts OF Pilot 198
At Common Law .... 198
Where Pilot taken under

Statute 198

Under the Merchant Shipping

Act, 1854 199

Where Master or Crew are

in Fault 201

Where Act not within Pilot's

Duty 201

Foreign Vessels 202



Pilots are persons who, in consequence of their special
knowledge of particular waters, are taken on board to superin-
tend the steering of the vessel where the navigation is difficult
and dangerous (a). During the period of their chaise, the whole
responsibility of the safe conduct of the vessel devolves upon
them. Hence, ^I maritime countries have endeavoured to
maintain their efficiency, by affording to them means of instruc-
tion, and by punishing them for misconduct or incapacity {b).



(a) Sect 2 of the M. S. Act, 1854,
provides that the word " pilot," in that
act, shall mean "any person not be-
longing to a ship who has the conduct



Online LibraryCharles Edward Pollock Frederic Philip MaudeCompendium of the law of merchant shipping → online text (page 24 of 101)