John Macdonell.

The law of master and servant. Part I.--Common law. Part II.-- Statute law online

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CHAPTER XL

SEAMEN.

Seamen have been the subject of many special acts (a).
The hxw in force as to them is, however, chiefly contained in
the Merchant Shipping Act, 1854 (17 & 18 Vict. c. 104), the
principal sections of which are here set out.

17 & 18 YICT. c. 104.
An Act to amend and consolidate the Acts relative to Merchant Shipping^

PART III.

Masters and Seamen.

Sect. 109 states that, " The whole of the third part of this Act shall
apply to all sea-goiiig ships registered in tlie United Kingdom, and also
to all ships registered in any British possession and employed in trading
or going between any place in the United Kingdom and any place
or places not situate in the possession in which such ships are regis-
tered, and to the owners, masters, and crews of such ships respectively,
wherever the same may l)e " (?>).

Sects. 110 — 121 provide for the constitution of local marine boards,
the ([ualification of voters for members of such lioards, and preparation
of list of voters.

Sects. 122 —130 provide for the establishment df shipping offices (by
the 25 & 26 Vict. c. 63, s. 15, called ]\Iercantile Marine Offices) and the
appointment of shipping masters (called superintendents).
* 124. It shall be the general business of shipjiing masters appointed as
aforesaid —

{a) See tlic Minerva, 1 llag. Ad. rmployocl in fisliins on the coasts of

347, for tlie histoiy of this legislation. the Uiiitfd Kingdom; (2) Seagoing

Tiie otliercliii't' .statutes in i'orce are 18 sliijis lich)n.L;iiig to any of the three

kVJ Vict. c. 91 ; 25 & 26 Viet. c. G3 ; general Lightlumse IJoards ; (3) Sca-

30 k 31 Viet. c. 121; 34 & 35 Vict. c. going sliips being ))leasure-yachts."

110 ; 35 & 36 Vict. c. 73 ; 36 & 37 Seetions 136, 143, 14.5, 147, 149,150,

Vict. c. 85 ; 39 & 40 Vict. c. 80 ; 43 161, 152, 153, ]54, 15.5, 157, 158,

& 44 Viet. c. 16. 161, 162, 166, 170, 171, 231, 2.56,

(//) Sec. 13 of 25 k 26 Vict. c. G3 279, 280, 281, 282, 283, 284, 285,

extends the operation of the tliird "IV-Cy, 287, do not aiiply to the three

jiart of the Act of 1854 to "(1) above classes of ships. See Cope v.

llegistered seagoing shii'S exclusively Uolicrly {libi), 27 L. J. Ch. 600.



SEAMKN'. 519

To afford facilities for eng;iging seamen liy keeping registries of tlicir

names and characters ;
To superintend and facilitate their engagement and discharge in

manner hereinafter mentioned ;
To jnovide means for securing the presence on Ijoard at tlie jjroper

times of men who are so engaged ;
To facilitate the making of apprenticeships to the sea service ;
To perform such other duties relating to merchant seamen and
merchant ships as are hereby or may hereafter under the
powers herein contained be committed to tliem.
Sects. 131 — 140 provide for certificates to be given after examinations
for master and mates ; and there are similar provisions in 25 & 2U A'ict.
c. 63, ss. 5 — 12, as to certificates for engineers.

136. No foreign-going ship or home trade passenger ship shall go to
sea from any port in the United Kingdom unless the master thereof, and
in the case of a foreign-going ship the first and second mates or only mate
(as the case may be), and in the case of a home trade passenger ship the
first or only mate (as the case may be), have obtained and possess valid
certiticates, either of competency or service appropriate to their several
stations in such ship, or of higher grade ; and no such ship, if of one
hundred tons burden or upwards, shall go to sea as aforesaid, unless at
least one officer besides the master has obtained and possesses a valid
certificate apj)ropriate to the grade of only mate therein or to a higher
grade ; and every person who, having been engaged to serve as master
or as first or second or only mate of any foreign-going ship, or as master
or first or only mate of a home trade passenger ship, goes to sea as afore-
said as such master or mate without being at the time entitled to and
possessed of such a certificate as hereinbefore required, or who employs
any person as master, or first, second, or only mate of any foreign-going
sliip, or as master or first or only mate of a home trade passenger ship,
without ascertaining that he is at the time entitled to and possessed of
such, certificate, shall for each such oftence incur a penalty not exceeding
fifty pounds."

Apprentkeshijjs to the Sea Service.

141. All shipping masters appointed under this Act shall, if applied
to for the purpose, give to any board of guardians, overseers, or other
persons desirous of apprenticing boys to the sea service, and to masters
and owners of ships reijuiring apprentices, such assistance as is in their
power for facilitating the making of such a2)prenticeshii:)S, and may
receive from persons availing themselves of such assistance such fees as
may be determined in that behalf by the Board of Trade, with the con-
currence, so far as relates to pauper apprentices in England, of the Poor
Law Board in England, and so far as relates to pauper apprentices in
Ireland, of the Poor Law Commissioners in Ireland.

142. In the case of every boy bound apprentice to the sea service by



550 THE LAW OF MASTER AND SERVANT.

any guardians or overseers of the poor, or other persons having the
authority of guardians of the poor, the indentures shall he executed by
the boy and the person to whom he is bound in the presence of and shall
be attested by two justices of the peace, who shall ascertain that the boy
has consented to be bound, and has attained tlie age of twelve years, and
is of sufficient healtli and strength, and tliut the master to whom the boy
is to be bound is a proper person for the purpose (f).

143. All indentures of apj^renticeshii) to the sea service shall be exempt
from stamp duty {<l) ; and all such indentures shall be in duplicate ;
and every person to whom any boy whatever is boimd as an apprentice
to the sea service in the United Kingdom shall within seven days after the
execution of the indentures take or transmit the same to the Registrar
General of Seamen or to some shipping master ; and the said Registrar
or shipping master shall retain and record one copy, and shall endorse
on the other that tiie same has been recorded, and shall re-deliver the
same to the master of the a2:ii5rentice ; and whenever any such indenture
is assigned or cancelled, and whenever any such apprentice dies or
deserts, the master of the ajjprentice shall, within seven days after such
assignment, cancellation, death, or desertion, if the same happens within
the United Kingdom, or if the same happens elsewhere, so soon after-
wards as circumstances permit, notify the same either to the said
Registrar of Seamen or to some shijiping master to be recorded ; and
every person who fails to comj)ly with the provisions of this section shall
incur a penalty not exceeding ten pounds.

144. Subject to the jirovisions heieinbefore contained, all apprentice-
ships to the sea service made by any guardians or overseers of the poor,
or persons having the authority of guardians of the poor, shall, if made
in Great Britain, be made in the same manner and be subject to the
same laws and regulations as other apprenticeships made by the same
persons (e), and if made in Ireland shall be subject to the following
rules ....

145. The master of every foreign-going ship shall, before carrying
any apprentice to sea from any place in the United Kingdom, cause
such apprentice to appear belbre the shipping master before wliom
the crew is engaged, and shall j^roduce to him the indenture by
which such apprentice is bound, and the assignment or assignments
thereof (if any), and the name of such apprentice with the date of the
indenture, and of the assignment or assignments thereof (if any), and the
name of the i)ort or ports at which the same have been registered, shall
be entered on the agreement ; and for any default in obeying the provi-



(c) The twojufiticesiinistlic present (</) See 25 & 2G A'ict. c. 63, s. 13.

togetlier, and bo. uctiiig witliiii tlieir (r) See 43 Eliz. c. 2 ; 42 Geo.

jurisdiction. J!cx v. JluuisUtll Jlid- III. c. iQ ; 56 tJeo. III. c. 13<t ; 3&

ware (1789), 3 T. ]{. 380, imd V.Vy/. 4 ^Vill. IV. e. 63 ; 7 & 8 Vict. c.

V. Totness (1849), 11 Q. U. 80. 101 ; 14 & 15 Vict. c. 11.



bKAMEX. 551

sions of this section the master shall for eacli oflcnce incur a penalty not
exceeding live pounds (/).

Engagement of Seamen.

Sections 146 — 167 deal with engagement of seamen.
149. The master of ever^^ sliip, excej)t ships of less than eighty tons
registered tonnage exclusively employed in trading between <litferent
ports on the coasts of the United Kingdom, shall enter into an agreement
with every seaman whom he carries to sea from any port in the United
Kingdom as one of his crew in the manner hereinafter mentioned ; and
every such agreement shall be in a form sanctioned by the Board of
Trade (g), and shall be dated at the time of the first signature thereof,
and shall be signed by the master before any seaman signs the same, and
shall contain the following particulars as terms thereof ; (that is to say),
(1.) The nature, and, as far as practicable, the duration of the

intended voyage or engagement : (/i)
(2.) The number and description of the crew, sjiecifying how many

are engaged as sailors :
(3.) The time at which eacli seaman is to be on board or to begin

work :
(4.) The capacity in which each seaman is to seiTe :
(5.) The amount of wages which each seaman is to receive : {{)
(6.) A scale of the provisions wliicli are to be furnished to each
seaman :

(/) The Albert Croshy ^860), Eob., p. 228. As to descriptions of

Lush 44. (An apprentice entitled to voyages, see the Elizuhct.h, (182?), 1

sue in the Admiralty Court the pro- Hag. 186, where the master iiisei ted

ceeds of ship in which he has served '"or elsewhere'"iinarticles;and6'ou/i/cA^>-

for wages, but not for the penalty (/7/rtrco/oY (1824), 1 Hag. 248. (On a

contained in the indenture.) contractto"V.-D. Land and elsewhere

{g) See Boyd's Merchant Shipping back to London," forfeiture of wages

Laws, p. 131. not incurred by refusal of seamen to

{h) hy 36 & 37 Yict. c. 85, s. 7, work during voyage to Kotterdam.)
the agreement may state "the Frazer v. Hatton (1857), 2 C. B.
niaxiniuni period of the voyage or N. S. 512. (Articles which required
engagement, and the places or parts ■ the plaintiff, a seaman, to go "from
of the world (if any) to which the Liverpool to the We.st Coast of
voyage or engagement is not to ex- Africa and back, or for a term not to
tend." As to agreements with fisher- exceed three j'ears," not invalid
men, 36 & 37 Vict. c. S:^, s. 8. under 13 & 14 Vict. c. 93 for
" The words ' nature of the voyage' being in tlie alternative; a pro-
must have such a rational construe- vision, "the crew, if required, to be
tion as to answer the main and lead- transferred to any other ship in the
ing pinpose for which they were same employ," not invalid.)
framed, namely, to give the mariner (/) In Annie Ulicricood (1S65), 12
a fair intimation of the nature of the L. '1'. N. S. 582, the Court refused to
service in which he was about to iuforce against a seaman a stipulation
engage himself when he signed the that he should be paid in United
ship's articles." J)r. Lushuigton in States currency, or its equivalent,
the Westmoreland (1841), in 1 "\V.



552 THE LAW OF MASTER AND SERVANT.

(7.) Any regulations as to conduct on board, and as to fines, short

allowance of provisions, or other lawful punishments for

misconduct, -which have heen sanctioned by the Board of

Trade as regulations proper to be adopted, and which the

parties agree to adopt : (/.)

And every such agveenieut shall be so framed as to admit of stipulations,

to be ado2)ted at the will of the master and seanum in each case, as to

advance and allotment of wages, and may contain any other stipulations

which are not contrary to law : Provided 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 such ship

belongs or in which her crew were engaged, and engages single seamen

in the United Kingdom, such seamen may sign the agreement so made,

and it shall not be necessary for them to sign an agreement in the form

sanctioned by the Board of Trade (/).

150. In the case of all foreign-going ships, in whate^•er part of Her
]\lajesty's dominions the same are registered, the following rules shall be
observed with respect to agreements ; (that is to say),

(1.) Every agreement made in the United Kingdom (except in such
cases of agreements with substitutes as are hereinafter speci-
ally provided for) shall be signed by each seaman in the
presence of a shipping master :
(2.) Such shipping master shall cause the agreement to be read over
and explained to each seaman, or otherwise ascertain that
each seaman understands the same before he signs it, and
shall attest each signature :
(3.) When the crew is tirst engaged the agreement shall be signed
in duplicate, and one part shall be retained by the shipping
master, and the other part shall contain a special place or
form for the descriptions and signatures of sub.stitutes or
persons engaged subsetiuently to the first departure of the
ship, and shall 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
shall, when practicable, be made before some shipping master
duly appointed in the manner hereinbefore specified ; and
Avhenever such last-mentioned engagement cannot be so
made, the master shall, before the ship puts to sea, if prac-
ticable, and if not, as soon afterwards as possible, cause the
a'Teement to be read over and explained tu the seamen ; and

(k) See IJoyd's Merchant Sliipiiing to obligation of sliipowner to crew

Laws, p. 137, ami 43 & 41 Vict. c. 16, to use reasonable cllorts to secure

,v;_ :j. seawortliineb.s.

(I) 39 k 40 Vict. c. 80, s. 5, as



SEAMEN.



553



the seamen shall thereupon sign the same in the presence uf

a witness, who shall attest their signatures.
1G5. Any seaman may bring forward evidence to prove the contents
of any agreement or otherwise to support his case, without producing or
giving notice to produce the agreement or any copy thereof.

166. The master shall at the commencement of every voyage or
engagement cause a legible copy of the agreement (omitting the signa-
tures) to be placed or posted up in such part of the ship as to be accessiljle
to the crew, and in default shall for each oifence incur a penalty not
exceeding live pounds.

167. Any seaman who has signed an agreement, and is afterwards
discharged before the commencement of the voyage, or before one
month's wages are earned, without fault on his part justifying such dis-
charge (7?i) and without his ccmsent, shall be entitled to receive from the
master or owner, in addition to any wages he may have earned, due
compensation for the damage thereby caused to him, not exceeding one
month's wages, and may, on adducing such evidence as the Court
hearing the case deems satisfactory of his having been so improperly
discharged as aforesaid, recover such compensation as if it were wages
duly earned (?()•

Allotment of Wages.

168. All stipulations for the allotment of any part of the wages of a
seaman during his absence which are made at the commencement of the
voyage shall be inserted in the agreement, and shall state the amounts
and times of the payments to be made ; and all allotment notes shall
be in forms sanctioned by the Board of Trade (o).

169. The wife {})), or the father or mother, or the grandfather or grand-
mother, or any child or grandchild, or any brother or sister of any
seaman in whose favour an allotment ncjte of part of the wages of such

{m) See Iluhinett v. The Exdcr Q)) Meiklcrcid v. West (1876), L.

(1799), 2 C. Hob. 263, as to drmikcii- E. 1 Q. B. D. 428 ; 45 L. J. M. C.

ness, neglect of duty, and disobe- 91 ; 34 L. T. 353 ; 24 W. K. 713.

dience, being grounds of discharge. (Appellant, registered owner of a

See as to forfeiture of wages, p. 5(50. sliip, entered into a charter party with

(?i) Sec. 188. H. by which he demised a ship to H.

(o) See Boyd's Merchant Shipping for a stipnhited i)eriod, and parted

Laws, 155. This does not atlect with all control over it. H. took

advance notes (43 & 44 Yict. c. 16, possession of tlie ship, and appointed

s. 2 (3). As to payment of allotment a master, who engaged the respond-

notes, McKunc v. Joynson (1858), 5 ent's husband, and gave her an allot-

C. B. N. S. 218, where (Willes, J., dis- meut note, reijuiring the charterer

senting) it was held that a person wlio to pay her £6 out of her husband's

had given for an advance note £3 15.s'. wages. H. paid several instalments,

in cash, and £2 15s. in clothes, was but became insolvent : heUl tliat the

entitled to sue on a note "to i)ay to appellant, though registered owner,

any person who shall advance to II. was not liable to pay the arrears due

H. on this agreement the sum of £6." under the note.)



554 THE LAW OF MASTER AND SERVANT.

seaman is niailo, may, \nik'ss the seaman is sluiwn in manner hereinafter
mentioned to have forfeited or ceased to he entitled to the wages out ot"
Avliich the aUotment is to he paid, and subject, as to the wife, to the
provision hereinafter contained, sue for and recover the sums allotted
by the note when and as the same are made payable, Avith costs, from
the oAvner or any agent who has authorized the drawing of the note,
either in the County Court or in the summary manner in which seamen
are by this Act enabled to sue for and recover wages not exceeding fifty
pounds ; and in any such proceeding it shall be suthcient for the
claimant to prove that he or she is the person mentioned in the note,
and that the note was given by the owner or by the master or some
other authorized agent ; and the seaman shall be presumed to be duly
earning his wages, unless the contrary is shown to the satisfaction of the
Court, eitlier by the otiiciul statement of the change in the crew caused
by his absence made and signed by the master, as by this Act is rei^uired,
or by a duly certified copy of some entry in the official log book to the
effect that he has left the ship, or by a credible letter from the master
of the ship to tlie same effect, or by such other evidence, of whatever
description, as the Court in its absolute discretion considers sufficient
to show satisfactorily that the seaman has ceased to be entitled to the
wages out of which the allotment is to be paid : Pi-ovided that the wife
of any seaman who deserts her children, or so misconducts herself as to
be undeserving of support from her husband, shall thereupon forfeit all
right to further payments of any allotment of his wages which has been
made in her favour.

Discluirgc and Payment of Wages.

Sections 170 — 17G deal with the discharge of seamen and payment of
wages. Discharge of seamen in the United Kingdom from foreign-going
ships is to be made, and such seamen are to receive their wages, in the
2)resence of a shijiping master (sect. 170). Every master before paying
off or discharging any seaman shall deliver a full and true account of
wages and all deductions (sect. 171, and 43 ifc 44 Vict. c. 116, s. 4).
Upon the discharge of any seaman, or uiiou i)ayment of his wages, the
master shall sign and give a certificate of discharge in a form sanctioned
by the Board of Trade (sect. 172 ; see also 43 & 44 Vict. c. 16, s. 4).

Sections 177 to 180 deal with the remittance of wages of seamen and
apprentices to their relatives or other persons by means of money orders,
and with the establishment of savings lianks for seamen.

Legal 1 lights to 11' ages.

181. A seaman's right to wages and ]iro\isions shall be taken to com-
mence either at the time at which he commences work or at the time
specified in the agreement for his conimencement of worlc or jiresence
on board, whichever first happens.

182. No seaman shall by any agreement forfeit his lien upon tlie shiji,



SEAMEN. bbi)

or be deprived of any reraedj' for the recovery of his wages to whitdi lie
would olherwise have been entitled ; and eA'ery stii^ulatiou in any agree-
ment inconsistent with any provision of this Act, and every stipulation
by which any seaman consents to abandon his right to Avages in the avse
of the loss of the ship, or to abandon any right which he may have or
obtain in the nature of salvage, shall be wholly inoperative (r).

183. No right to wages shall be dependent on the earning of freight ;
and every seaman and apprentice who Avould be entitled to dt-mand and
recover any wages if the shii) in which he has served had earned freight,
shall, subject to all other rules of law and conditions applicable to the
case, be entitled to claim and recover the same, notwithstanding that
freight has not been earned ; but in all cases of wreck or loss of the ship,
]iroof that he has not exerted himself to the utmost to save the ship,
cargo, and stores shall bar his claim.

18(5. No seaman or apprentice shall be entitled to wages for any
period during which he unlawfully refuses or neglects to work when
required, whether before or after the time fixed by the agreement for his
beginning work, nor, unless the Court hearing the case otherwise directs,
for any period during which he is lawfully imprisoned for any offence
committed by him.

187. The master or owner of every ship shall pay to every seaman (.s)
his wages within the respective periods following ; (that is to say), in the
case of a home trade ship within two days after the termination of the
agreement or at the time when such seaman is discharged, whichever
first hajipens ; and in the case of all other ships (except ships employed
in the Southern Whale Fishery or on other voyages for which seamen
by the terms of their agreement are wholly compensated by shares in
the profits of the adventure) within three days after the cargo has been
delivered, or within five days after the seaman's discharge, whichever
first happens ; and in all cases the seaman shall at the time of his dis-
charge Ije entitled to be paid on account a sum equal to one-fourth part
of the balance due to him ; and every master or owner who neglects
or refuses to make payment in manner aforesaid, without sulhcient
cause, shall pay to the seaman a sum not exceeding the amount of two
days' pay for each of the days, not exceeding ten daj's, during which
payment is delayed beyond the respective j)eriods aforesaid, and such
sum shall be recoverable as wages.

(r) See s. 18 of 25 & 26 Yict. c. The Ganges (1869), L. R. 2 A. & E.

63. Tliis section is aimed against 370 ; see as to liens having priority

assignment of riglits after as over seameus, the L'liii (1S82), 51 L.

well as before salvage services J. P. &. A. 77.

rendered. The Fiosarw (1876), L. (s) Master within this section,

R. 2 P. D. 41; 46 L. J. A. 52. Pruiccus Helena (1861), Lush. 191.

This section does not fetter the dis- The Fleur dc Lis (1865), L. E. 1 A.

cretiou of the Court as to such agree- & E. 49. (A master ought to furnish

ments ; they are in the same position accounts before bringing liis suit for

as they were before any legislation. wages and disbursements.)



556 THE LAW OF MASTER AND SERVANT.



Mode of liecoverimj JFages.

188. Any seaman or apprentice, or any person duly autliorizecl on Lis
behalf, may sue in a summary manner before any two justices of the
peace acting in or near to the place at which the service has terminated,
or at whicli the seaman or apprentice has been discharged, or at whicli
any person upon whom the claim is made is or resides, or in Scotland
eitliLT before any such justices or before the sheriff of the county within
wliich any such place is situated, for any amount of wages due to such
seaman or apprentice not exceeding tifty pounds over and above the costs
of any proceeding for tlie recovery thereof, so soon as the same becomes
payable ; and every order made by such justices or sheriff in the matter
shall be final.

189. No suit (0 or proceeding for the recovery of wages under the sum
of fifty pounds shall be instituted Ijy or on behalf of any seaman or
apprentice in any Court of Admiralty or Vice-Admiralty, or in the



Online LibraryJohn MacdonellThe law of master and servant. Part I.--Common law. Part II.-- Statute law → online text (page 58 of 77)