John Macdonell.

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

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Court of Session in Scotland, or in any superior court of record in Her
j\Iajesty's dominions, unless the owner of the ship is adjudged bankrupt
or declared insolvent, or unless the ship is under arrest or is sold by the
authority of any such Court as aforesaid, or unless any justices acting
under the authority of this Act refer the case to be adjudged by such
Co\irt, or unless neither the owner nor master is or resides («) within
twenty miles of the place where the seaman or apprentice is discharged
or put ashore.

190. No seaman who is engaged for a voyage or engagement which is
to terminate in the United Kingdom shall be entitled to sue in any
court abroad for wages, unless he is discharged with such sanction as
herein retpiired and with the Avritten consent of the master, or proves
such ill-usage on the part of the master or by his authority as to warrant
reasonable apprehension of danger to the life of such seaman if he were
to remain on board ; but if any seaman on his return to the United
Kingdom proves that the master or owner has been guilty of any
conduct or default which but for this enactment would have entitled the
.seaman to sue for wages before the termination of the voyage or engage-
ment, he shall be entitled to recover in addition to his wages such
compensation not exceeding twenty pounds as the Court hearing the
case thinks reasonable.

191. Every master of a ship shall, so far as the case permits, have the
same rights, liens, and remedies for the recovery of his wages wliich l)y
this Act or by any law or custom any seaman, not being a master, has
for the recovery of his wages (x), and if in any proceeding in any Court

(0 See 24 Vict. c. 10, s. 10, and («) 'Y\\q Blakcnnj. (Place of occa-

31 & 32 Vict. c. 71, ss. 3 k 9. This sional business not a residence witliiu

section applies to master. The meaning of the section.)

lilakcncy (185'J), Swa. 428. (x) See as to this section the


of Admiralty or Vice-Admiralty touchiiii,' the claim of a master to wages
any right of set-off ((/) or counter-claim is set up, it shall be lawful for sucli
Court to enter into and adjudicate upon all (piestions and to settle all
accounts then arising or outstanding and unsettled between the jiarties
to the proceeding, and to direct payment of any balance which is found
to be due.

Sections 192, 1!);3 deal with relief to seamen's families out of pour

Sections 194 — 204 deal with the wages and etieots of deceased seamen.
IMasters are to take charge of or sell the elfects of deceased seamen which
are on board, and enter the same and a statenient of the wages due and
deductions, if any, in the olhcial log (sect. 194). Such effects and wages
are to be paid either to a consul or to a shipping master with full
accounts (sect. 195).

Sections 205 — 213 deal with leaving seamen abroad. On discharge of
seamen abroad by sale of ship or otherwise, and whenever the service
of any seaman or apprentice belonging to a British ship terminates at
anj^ place out of Her Majesty's dominions, the master shall give to any
such seaman or apprentice a certificate of discharge, and the seaman or
apprentice is to be sent home at the expense of the owner (sect. 205).
Forcing seamen on shore is made a misdemeanor (sect. 206). Distressed
Seamen found abroad may be relieved and sent home at the public
expense (sect. 211) (z), and masters of British ships are compelled to
take them (sect. 212).

Sections •214— 220 deal with volunteering into the Xavy. "Any
seaman may leave his ship forthwith for the purpose of entering into
the naval service of Her Majesty, and such leaving his ship shall not be
deemed a desertion therefrom, and shall not render him liable to any
punishment or forfeiture whatever" (sect. 214).

Provisions, Health, and Accommodation.

Sections 221 — 231 deal with provisions, health, and accommodation
221. A.n\ three or more of the crew of any British ship may complain
to any officer in command of any of Her Majesty's ships, or any British
consular officer, or any shipping master, or any chief officer of customs.

Rajah of Cochin (1859), S\v. 473. of a ship refused to pay waives due to

At Common Law a Tiiaster had no master, unless credited with certain

lien for wages. Smith v. Plummcr salvage money received by master

(1818), 1 B. & Aid. 574 ; Bristoiv under an award, and kept by him for

V. Whitinore (1861), 31 L. J. C'h. his share ; the master refused to

467. This section extends to masters account for a subsequent voyage

of foreign ships. Milford (1858), except on condition ot a settlement

Swa. 362. for former voyage without reference to

(y) The Darinrj (1868), L. R. 2 A. salvage money ; payment of wages

& E.260. (A counterclaim by owner improperly withheld.)
of cargo will not be entertained in a (~) 18 i*c 19 Vict. c. 91, .•:. 16, and

suit under this section.) The Princess 25 k 26 Vict. c. 63, s. 22.
Helena (1S61), Lush. 190. (Owners


that the |)rovisioiis or water for the nse of the crew are at any time of
bad ([uality, unfit for use, or deficient in quantity ; and such olficer may
thereupon examine the said provisions or water, or cause them to be
examined, &c.

222. If the officer to whom any such comjihvint as last aforesaid is made '
certifies in such statement as aforesaid that there was no reasonable
ground for such complaint, each of the parties so complaining shall be
liable to forfeit to the owner out of his wages a sum not exceeding one
week's wages.

223. In the following cases ; (that is to say),

(1.) If during a voyage the allowance of any of the provisions
which any seaman has by his agreement stipulated for is
reduced (except in accordance with any regulations for re-
duction by way of punishment contained in the agreement,
and also except for any time during which such seaman
wilfully and without sufficient cause refuses or neglects to
perform his duty, or is lawfully under confinement for mis-
conduct, either on board or on shore) ;
(2.) If it is shoAvn that any of such provisions are or have during
the voyage been bad in quality and unfit for use ;
The seaman shall receive by way of compensation («) for such reduction
or bad quality, according to the time of its continuance, tlie following
sums, to be paid to him in addition to and to be recoverable as wages ;
(that is to say),

(1.) If his allowance is reduced by any quantity not exceeding one-
third of the quantity specified in the agreement, a sum not
exceeding fourpence a day ;
(2.) If his allowance is reduced by more than one-third of such

quantity, eightpence a day ;
(3.) In respect of such bad quality as aforesaid, a sum not exceeding
one shilling a day :
But if it is sliown to the satisfaction of tlie Court before which tlie case
is tried that any provisions the allowance of which has been reduced
could not be procured or supplied in ])roper quantities, and that proper
and equivalent substitutes were su]iYjlied in lieu thereof, the Court shall
take such circumstances into consideration, and shall modify or refuse
compensation as the justice of the case may require.

Every master shall keep on board jjrojier weights and measures for
the purpose of determining the ([uantities of provisions and articles
served out (sect. 225). The Board of Trade and local marine boards
may appoint inspectors of medicines to see that ships are properly

{a) Tlie Josrphinc (1856). 1 Swa. S/rrl (18r)4), 3 E. & I!. 402; 2-3 L.

1.^2. (Crew kept on sliort allowance! J. (). B. 121 ; sne also 34 k 35 Vict.

oAvinp; to unexpected lenj^'tli of c. 110, s. 7, and 3G k 37 Vict. c. 85,

voynf^e, entitled to compensation.) s. 0.
As to Common Law right, Couch v.


provided (sect. 226). Section 228 provides for expenses of medical
attendance and .subsistence in case of illness, and of burial in case of
death, being defrayed by owner (h).

If any seaman or apprentice wliilston board a ship states to the master
that he desires to make complaint to a justice or consular officer or naval
officer he is to be allowed to '^d ashore (sect. 232).

Protection uf Semmn from Imposition.

Sections 233 — 238 are for the protection of seamen from imposition (c).

233. No wa,i,'es due or accruing to any seaman or apprentice shall be
subject to attachment or arrestment from any Court ; and every payment
of wages to seaman or apprentice shall be valid in law, notwitlistanding
any previous sale or assignment of such wages, or of any attachment
incumbrance, or arrestment thereon ; and no assignment or sjvle of such
wages or of salvage made prior to the accruing thereof shall bind the
party making the same ; and no power of attorney or authority for the
receipt of any such wages or salvage shall be irrevocable.

234. No debt exceeding in amount five shillings, incurred by any sea-
man after he has engaged to serve, shall be recoverable until the service
agreed for is concluded.


Sections 239—259 deal with discipline {d).

239. Any master of or any seaman or apprentice belonging to any
British ship who by wilful breach of duty, or by neglect of duty, or by
reason of drunkenness, does any act tending to the immediate loss, de-
struction, or serious damage of such ship, or tending (c) immediately to
endanger the life or limb of any person belonging to or on board of
such ship, or who by wilful breach of duty, or by neglect of duty, or by
reason of drunkenness, refuses or omits to do any lawful act proper and
re{[uisite to be done by him for preserving such ship from immediate
loss, destruction, or serious damage, or for preserving any person belonging
to or on board of such ship from immediate danger to life or limb, shall
for everv such offence be deemed guilty of a misdemeanour.

240. Any Court having Admiralty jurisdiction in any of Her Majesty's
dominions may, upon application by the owoier of any ship being within
the jurisdiction of such Court, or by the part owner or consignee, or by
the agent of the owner, or by any certificated mate, or by one-third or

(b) See Orqan v. Brodir (1854), 10 Lcary v. Lloyd (1860), 6 .lur. N. S.

Ex. 449 ; 24' L. J. Ex. 70. As to 1246j 29 L. J. M. C. 194 ; 3 E. i

this section, Secretary of Board of E. 178.

Trade v. SundJwIm, 4 Asp. 196. ('') B'^iJ. v. Gardner (1859), 1 F.

(<■•) 43 & 44 Vict. c. 16. & F. 669. (Act " tending? to, &c,"

{d) The sections relating to disci- need not be followed by actual

pline apply to British ships only. loss.)



mort' cf tlie crew of such ship, and upon proof on oath to the satisfaction
of such Court that the (/) removal of the master of such ship is neces-
sary, rcnuive him atconliiigly ; and may also, with the consent of the
owner or his agent, or the consignee of the ship, or if there is no owner
or agent of the owner or consignee of the slii]) within tlie jurisdiction of
the Court, then without such consent, api)oint a new master in his stead ;
and may also make such order, and nuiy recjuirc such security in respect
of costs in the matter, as it thinks tit.

The Board of Trade nuiy cancel or suspend certificates of master or
mate in certain specified cases (sect. 242).

243. Whenever any seaman who has been lawfully eugaged or any
apprentice to the sea service commits any of the following [otfences
he shall be liable to lie punished summarily as follows ; (that is
to say),

(1.) Fordesertion (g) he shall Ije liable [to imprisonmeut for any period

(/) The RoijaUst (1863), 32 L. J.
P. 105. (An attempt to defraud by
master justifies removal. The power
under this section is not contiiied to
cases mentioned in s. 239. See 25 it
26 Vict. c. 63, s. 23.)

(f/) 43 & 44 A'ict. c. 16, s. 10.
Desertion' and For.FEirrKE. —
Limland v. Stcplicn (1801), 3 Esp.
265. (No desertion or forfeiture of
wages where a sailor cannot remain
without personal danger from the
violence of master.) The Pcnrl
11804), 5 C. Eob. 224. (Wages for a
run to Hull forfeited by leaving sliip in
the Hnmber before arrival at Hull,
though master consented. ) Dcla-
maincr v. JFlnfcriucjhnm (1815), 4
Camp. 186. (The whole wages due
when vessel detained abroad by em-
bargo, and when freight was earned,
thougli plaintiff im]nisonfd on sliore
during embargo. "> CantiUa (1822), 1
Hag. Ad. 59. (No forfeiture for leav-
inc vessel if provisions insufficient.)
The Buhnn-{\9,-l'i), 1 Hag. 163. (For-
feiture of wages of a sailor, wlio,
lieing allowed to perf<n'm services on
.sliore, refuses to return.) The Mi-
oicrra (1825), 1 Hag. 347. (No for-
feiture of wages -when seamen, taken
ujton a voyage to •which they have
not a<n-eed, go ashore without leave.)
Train V. Jlmy.H (1827), 3 C. k P. 3.
(No forfeiture wlien captain acted
improjierly, and set crew to work
after refusal, so as to waive forfei-
ture, if any. " A master of a sliip is

not by his own conduct to induce a
forfeiture of the men's wages ; " Tenter-
den. VJ. The Test (1836)', 3 Hag. 307.
(No deduction of wages when seaman
went ashore before delivery of cargo or
legal discharge, his illness being
a rensonalili' excuse.) 'J'he Blulx
(1839), 1 W. Roll. 73. (No for-
feiture of wages for gross insubordi-
nation, the crew being intoxicated,
and drinking not having been
jn-evented by master and officers.
Dr. Lushington dissented from Lord
Stowcll's dictum tliat "any cause
wliich will justify a master in dis-
chaiging a seaman during tlie voyage,
will also dejirive the seaman of hi.s
wages.") The IFcstmorcland {1841),
1 \V. Kob. 216. (No desertion when
.sailors, being of opinion that they were
not bound to proceed to Holland, as
ordered, went on shore to seek ad-
vice.) Edirard v. TrcvcU ick (1854),
4 E. & H. 59. (No desertion wlien
sailor left, having just and reason-
ahle cause to fear that he would be
punished with great and unreason-
able cruelty.) Button v. Thompson
(1869), L. k. 4 C. P. 330. (Plaintiff,
a mate on defendant's vessel, engaged
to serve on voyage " not expected to
exceed twelve months, under articles
in pursuance of s. 104 ; " amount of
wages jier calendar month £5 10s. ;
guilty of drunkenness and insuhordi-
nation on voyage, and left liehiud at
Suliiia owing to his negligenc<' ; no de-
sertion : held by Pyles antl ilontague

SEAMEN. .501

not exceeJiu^' t\velve"\veek>i, witli oi' witliout lianl laljoni'] Hi),
and also to forfeit all or any part of the clotlies and effects liu
leaves on boanl, and all or any part of the wages or eniohi-
ments which he has then earned, and also, if such desertion
takes place abroad, at tlie discretion of tlie Court, to foi'l'eit
all or any part of tin; wages or emoluments he may earn in
any other ship in which he may he employed until his next
return to the United Kingdom, and to satisfy any excess 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 neglecting or refusing, without reasonable cause, to join
his ship, or to jn'oceed to sea in his ship, or for absence with-
out leav^e at any time within twenty-fcjur hours of the ship's
sailing from any port either at the commencement or during
the progress of any voyage, or for absence at any time witli-
out leave and without sulHcient reason from his ship or from
his duty not amounting to desertion or not treated as such by
the master, he shall be liable [to imprisonment for any period
not exceeding ten weeks, with or without hard labour,
and also, at the discretion of the Court] (i), to forfeit out
of his wages a sum not exceeding the amount of two days'
pay, and in addition for every twentj^-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 shall
be liable to forfeit out of his wages a sum not exceeding one
month's pay :

("4.) For wilful disobedience to any lawful command he shall be
liable to imprisonment for any period not exceeding four
weeks, with or without hard lal)0ur, and also, at the discre-
tion of the Court, to forfeit out of his wages a sum not
exceeding two days' pay :

(5.) For continued wilful disobedience to lawful commands, or con-
tinued wilful neglect of duty, he shall be liable to imprison-
ment 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 exceeding six days'
pay, or any expenses which have been properly incurred in
hiring a substitute :

Smith, J.J., that he was entitled to 16, s. 12.

receive wages iu.1 to time of being lut't (0 Itcpcaled by 43 & 44 Yict. c.

behind ; Brett, J., dissenting.) 16, s. 12.
(A) Repealed by 43 & 44^ Viet. c.


(6.) For assuiiltiiiLT any master oi" mate lie shall he liable to im-
prisonment for any period not exceeding twelve weeks, with
or without hard lahour :
(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 shall
be liable to imprisonment for any period not exceeding
twelve weeks, with or without hard labour :
(8.) F(U- wilfully damaging the ship, or embezzling or wilfully
damaging uny (jf her stores or cargo, he shall be liable to
forfeit out of his wages a sum eipial 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 shall
be liable to pay to such master or owner such a sum as is
sufiicient to reimburse the master or owner for such loss or
damage ; and the whole or a proportionate part of his wages
maybe retained in satisfaction or on account of such liability,
without prejuilice to any further remedy.
Entry of offences enumerated in sect. 243 shall be made in the official
log-book, and the offender shall be furnished with a copy of the entry,
or it shall be read over to him, and his reply, if any, shall also be
entered (sect. 244). The master, or mate, or o^ner may apprehend
<leserters without warrant (sect. 246) (k), and deserters may be sent on
board in lieu of being imprisoned (sect. 247) {!).

Sects. 260 — 266 provide for the summoning of Naval Courts on the
liigli seas or abroail. Such courts have power to sujiersede the master ;
to discharge a seaman ; to forfeit wages ; to decide disputes as to wages,
lines, or forfeitures ; to direct costs incurred by master or owner in pro-
curing the imprisonment of a seaman or ajiprentice to be paid out of
wages, &c. (sect. 263).

Sects. 267 — 270 deal with crimes committed on the high seas or
abroad. All offences committed by British seamen abroad, either ashore
or afloat, are witliin Admiralty jurisdiction.

Rcfjidration nf aiul Jicturns Bcspecting Seamen.

Sects. 271 — 279 deal with registration and returns respecting sea-
men. For all ships lists are to be made out containing certain par-
ticulars, and, among otliers—

(3.) The Christian names, surnames, ages, and ]ilaces of birth ot
all the crew, including the master and ajipreiitices ; their

(k) Scots. 246 and 248, repealed by U) See 43 .<^ 44 Yict. c. 16, .«s, 10

43 & 44 Vict. c. 16, .«. 12. and 12.

SEAMEN. ■')n3

fpalities on board, tlieir last ships, or other employments,
and the dates and i)laces of their joining the ship :
(4.) The names of any members of the crew who have died or other-
wise ceased to belong to the ship, with the times, places,
causes, and circurastunces thereof :
(5.) The names of any members of the crew who have been
maimed or hurt, with the times, places, causes, and circum-
stances thereof :
(G.) The wages due to any of the crew who have dietl, at the time

of their respective deaths :
(7.) The clothes and other effects belonging to any of the crew who
have *died, with a statement of the manner in which they
have been dealt with, and the money for which any of them
have been sold (sect. 273).
Sects. 280—287 deal witli official logs. They are to be kept in forms
sanctionetl by the Board of Trade (sect. 280). The entries ren^iired in
the otticial log include every legal conviction of any memlx-r of the crew,
every offence committed by any member of the crew for which it is
intended to prosecute or enforce a forfeiture, punishments, con-
duct of each of crew, illness or injury happening to every member of the
crew, names of seamen or apprentices quitting the ship, amount of wages
due to men entering the navy, amount of wages due to deceased seamen,
sale of ch'ceased men's effects (282).

30 & 31 VICT. c. 124 (Isr.T).
An Act to amend " The Merchant Sliippinri Act, 1854."

Sect. 4. (1.) The Board of Trade shall from time to time issue and
cause to be published scales of medicines and medical stores siiitaltle for
different ships and voyages, and shall also prepare or sanction a book or
books containing instructions for dispensing the same : (2.) Tlie owners
of every ship navigating between the United Kingdom and any place
out of the same shall provide and cause to be kejit on board sucli ship a
supply of medicines and medical stores in accordance with the scale
appropriate to the said ship, and also a copy of the said book or of one of
the said books containing instructions : (3.) No lime or lemon juice
shall be deemed fit and proper to be taken on board any such ship, for
the i;se of the crew or passengers thereof, unless the .same has been
obtained from a bonded warehouse for and to be shipped as stores, &c.

7. Whenever it is shown that any seaman or apprentice who is ill
has, through the neglect of the master or owner, not been provided with

o o 2


])ro])er fdod and water atcovdiiig to liis agreement, or with such accom-
modation, medicines, medical stores, or anti-scorbutics as are ri'i|uired
by the principal Act or by this Act, then, unless it can be shown that tin*
illness has been produced by other causes, the owner or master shall be
liable to pay all expenses properly and necessarily incuiTed by reason
of such illness (not exceeding in the whole three months' Avages), &c.

8. Where a seaman is by reascm of illness incapable of performing liis
duty, and it is proved that such illness has been caused by his own wilful
act or default, he shall not be entitled to Avages for the time during
which he is by reason of such illness incapable of perfornung his duty.

9. The following rules shall be observed with respect to accommoda-
tion on board British ships (that is to say),

(1.) Every place in any ship occupied by seamen or apprentices,
and appropriated to their use, shall have for eveiy such sea-
man or apprentice a space of not less than seventy-two cubic
feet, and of not less than twelve superficial feet, measured on
the deck or floor of such place :

(2.) Every such place shall ))e such as to make the space aforesaid
availalde for the proper accommodation of the men who are
to occupy it, shall be securely constructed, properly lighted
and ventilated, properly protected from weather and sea, and
as far as practicable properly shut off and protected from
effluvium which may be caused by cargo or bilge water.

10. (1.) At any ]>ort where there is a local marine board the local
marine board, and at other ports in tlie United Kingdom the Board of
Trade, may appoint a medical inspector of seamen. (2.) Such medical
inspector of seamen shall, on application by the owner or master of any
ship, examine any seaman api)lying for employment in such ship, and
shall give to the superintendent of the mercantile marine oftice a report
under his hand stating whether such seaman is in a fit state for duty at
sea, &c.

34 & 35 VICT. ('. no (1871).
An Art to amend the Merchant Shijijnnn Acts.

Masters and Seamen (Part HI. of "Merchant Shipjnng Act, 1854").

Sect. 7. Whenever in any proceeding against any seaman or apprentice
belonging to any .shi]i for desertion, or for neglecting or refusing to join
or to ])roceed to sea in his ship, or for being absent from or quitting
the same without leave, it is allegeil by one-fourth of the seamen

Online LibraryJohn MacdonellThe law of master and servant. Part I.--Common law. Part II.-- Statute law → online text (page 59 of 77)