John Macdonell.

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

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belonging to such ship, or, if the number of such seamen excee<l twenty,



SKAMEN. -'jOO

by not less than five such seamen, that such ship is liy reason of unsca
Avorthiness, overloading, improper loading, defective equipment, or for
any other reason, not in a fit condition to proceed to sea, or that the
axonimodation in such ship is insufficient, the Court having cogni-
z ince of the case shall take such means as may be in their power to
sitisfy themselves concerning the truth or untruth of such allegation,
and shall for that purpose receive the evidence of the person or persons
making the same and shall have power to simimon any other witnesses
whose evidence they may think it desirable to hear ; the Court shall
thereupon, if satisfied that the allegation is groundless, proceed to
adjudicate, but if not so satisfied shall cause such ship to be surveyed.

Provided that no seaman or a])prentice charged with desertion, or with
(quitting his ship without leave, [shall have any right to apply for a
survey under this section unless previously to his (juitting his ship he
has complained to the master of the circumstances so alleged in
justification, &c.

8. Any naval court may, if they think fit, direct a survey of any ship
•which is the subject of an investigation held before them, &c.



3G & 37 VICT. C. 85 (1873).

An Act to amoul the Merchant Shipping Acts.

Masters and Sramen {Part III. of "Merchant Shipinwj Act, 1854").

Sect. 9. If a seaman or apprentice belonging to any ship is detained
on a charge of desertion or any kindred offence, and it upon a survey oi
the ship being made imder section seven of the "Merchant Shipping Act,
1871," it is proved that she is not in a fit condition to proceed to sea, or
that her accommodation is insufficient, the owner or master of the ship
shall be liable to pay to sucli seaman or apprentice such compensation
for his detention as the Court having cognizance of the proceedings may
award.



5(i(i THE LAW OF MASTER AND SERVANT.

?>0 & AO VICT. c. 80 (187G).
A71 Act to ameiid the Merchant Shipping Acts.

Unseaworthy Ships.

Sect. 5. In every contract of service, expressed or implied, Ijetweeu
the owner of a ship and the master or any seaman thereof, and in every
in.strnnient of apprenticesship -vvhereljy any person is bound to serve as an
a])prentice on hoard any ship, there shall he implied, notwithstanding,'
any atfreement to the contrary, an obligation on the owner of the sliij)
that the owner of the ship, and the master, and every agent cliarged
with the loading of the ship, or tlae preparing thereof for sea, or the
sending thereof to sea, shall use all reasonable means to insure the sea-
worthiness of the ship for the voyage at the time when the voyage com-
mences, and to keep her in a seaworthy condition for the voyage during
the same : Provide], that nothing in this section shall subject the owner
(jf a ship to any liability by reason of the ship being sent to sea in an-
unseaworthy state where, owing to special circumstances, the so sending
thereof to sea is reasonable and justifiable (tn).



43 & 44 YICT. c. 16.



An Act to amend the law rclatinu to the Paijinent of Jfages and Rating
of Merchant Seamen. [2nd August, 1880.]

Sect. 2. (1.) After the first day of August, one thousand eight hundred
and eighty-one, any document authorising or promising, or purporting to
authorise or promise, the future payment of money on account of a
seaman's wages conditionally on his going to sea from any jjort in the
United Kingdom, and made before those wages liave been earned, shall
be void.

(2.) No money paid in satisfaction or in respect of any such docu-
ment shall be deducted from a seaman's wages, and no person shall have
any right of action, suit, or set-olf against the seaman or his assignee in
respect of any money so paid or purporting to have been so paid.

(3.) Nothing in tliis section shall atlVct any allotment note made under
the Merchant Shipping Act, 185-i.

3. (1.) Every agreement with a seaman which is re(iuired by the

(m) No sucli implied coiitn.ct at 3 E. k 15. 402 ; 23 L. J. Q. 15. 121.
Coiiiiuon Law. Cvuchv. AfccZ(lS54),



bEAJlliN. oG7

Morcliant Sliippin;< Act, 1854, to be iiuide iu the Ibrui .sauctiuned by ti.e
lioard of Tiiule sliuU, if the .seaman so require, stipulate for tlie alloi -
ment of any jjart not exceeding' one-half of the wages of tlie seaniau in
favour of one or more of tlie persons mentioned in section one hiindrc(l
and sixty-nine of the Merchant Sliipping Act, 1«54, as amended by this
section.

(2.) The allotment may also l)e matle iu i'avour of a savings bank, and
in that case shall be in favour of such persons and carried into effect in
sucJi manner as may be for the time being directed by regulations of
the I'oard of Trade, and section one hundred and sixty-nine of the
]\Ierchant Shipping Act, l8o4, shall l>e construed as if the said persons
were named therein.

(3.) The sum received in pursuance of such allotment by a savings
bank shall be paid out only on an ajiplication made, through a super-
intendent of a mercantile marine office or the Board of Trade, by the
seaman himself, or, in case of death, by some person to whom the same
might be paid under secticju one hundred and ninety-nine of the
Merchant Shipping Act, 18.34.

(4.) A payment under an allotment note shall Ijegin at the expiration
of one month, or, if the allotment is in favour of a savings bank, of
three months, from the date of the agreement, or at such later date as may
be fixed by the agreement, and sliall be paid at the expiration of every
subset|Uent month, or of sucli other periods as may be fixed by the
agreement, and shall l)e paid only in re.spect of wages earned before the
date of payment.

{'}.) For the purposes of this section " .savings bank " means a savings
bank established under one of the Acts mentioned in the first schedule
to this Act,

4. In the case of foreign-going ships —

(1.) The owner or master of the ship shall pay to each seaman oa
account, at the time when he lawfully leaves the ship at the end of his
engagement, two pounds, or one fourth of the balance due to him,
whichever is least ; and shall pay him the remainder of his wages within
two clear days (exclusive of any Sunday, fast day in Scotland, or bank
holiday) after he so leaves the ship.

{■2.) The master of the ship may deliver the account (jf wages men-
tioned in section one hundred and seventy-one of the ^Merchant Shipping
Act, 1854, to the seaman himself at or before the time when he leaves
the ship instead of delivering it to a superintendent of a mercantile
marine office,

(3.) If the seaman consents, the final settlement of his wages may be
left to the superintendent of a mercantile marine office under the regu-
lations to be made by the Board of Trade, and the receipt of the super-
intendent shall in that case operate as a release by the seaman untler
section one hundred and seventy-ilve of the Merchant Sliipping
Act, 18.34,



508 THE LAW OF JIASTER AND Sr:UVANT.

(4.) In the event of the seaman's wages or any part thereof not being
paid or settled as in this section mentioned, then, unless the delay is due
to the act or defiiult of the seaman, or to any reasonable dispute as to
liability, or to any other cause not being the ;ict or default of the owner
or master, the seaman's wages shall continui- to run and be payable until
the time of the final settlement thereof.

(5.) Where a question as to wages is raised bi'fore the superintendent
of a mercantile nuirine otlice between the ma^^ter or owner of a ship, and
a seaman or apprentice, if the amount in question does not exceed five
pounds, the superintendent may adjudicate, and the decision of the
superintendent in the matter shall be iinal ; but if the superintendent is
of opinion that the question is one which ought to be decided by a court
of law he may refuse to decide it.

7. A seaman shall not be entitled to the rating of A.H, that is to
say, of an able-bodied seaman, unless he has served at sea for four years
byfore the nuist, but the employment of fishermen in registered decked
fishing vessels shall only count as sea service up to the period of three
years of such emplojmcnt ; and the] rating of A.B. shall only be granted
after at least one year's sea service in a trading vessel in addition to
three or more years' sea service on board of registered decked fishing
vessels.

Such service maj'' be proved by certificates of discharge, by a certificate
of service from the Registrar General of Shipping and Seamen (which
certificate the registrar shall grant on ]iayment of a fee not exceeding
sixpence), and in which shall be spi-ciiied whether the service was
rendered in whole or in part in steam shiji or in sailing ship, or by other
satisfactory proof.

Nothing in this section shall affect a seaman who has been rated and
has served as A. B. before the passing of this Act.

8. Where a proceeding is instituted in or before any court in relation
to any dispute between an owner or master of a ship and a seaman or
apprentice to the sea service, arising out of or incidental to their relation
as such, or is instituted for the purpose of this section, the court, if,
having regard to all the circumstances of the case, they think it just so
to do, may rescind any contract between the owner or master and the
seaman or apprentice, or any contract of apprenticeship, upon such terms
as the court may think just, and this power shall be in addition to any
other jurisdiction which the court can exercise independently of this
section.

For the purposes of this section the term " court " includes any magis-
trate or justice having juiisdiction in the matter to which tliepmceeding
relates.

9. It shall be lawful for the sanitary autlnirity nf any seaport town to
pass byelaws for tin- licensing of seamen's lodging-houses, for the
fieriodical inspection of the same, for the granting to the jiersons to
whom such licences are given, the authority to designate their houses as



SEAMEN. oG9

seamen's licensed lo(l<,nng-li(mses, and for piescviLing the jienalties for
the breach of the jjrovisions of tlie byelaws : Provided always, that no
such byelaws shall take effect till they have received the approval of tlie
Board of Trade.

10. The following provisions shall from the conmiencement of this Act
have operation within the United Kingdom :

A seaman or apprentice to the sea .service sliall not he liable to im-
prisonment for deserting or for neglecting or refusing -without reasonalde
cause to join his ship or to jiroceed to sea in his ship, or for absence
•without leave at any time within twenty-four hours of his shijj's sailing
from any port, or for absence at any time without leave and without
sufficient reason from his ship or from his duty.

Whenever either at the commencement or during the progress of any
voyage any seaman or apprentice neglects or refuses to join or desert-''
from or refuses to proceed to sea in any ship in which he is duly engaged
to serve, or is found otherwise alisenting himself therefrom without
leave, the master or any mate, or the owner, ship's husband, or consignee
jnay, with or without the assistance of the local police officers or
constables, who are herel)y directed to give the same, if required, convey
him on Ijoard : Provided that if the seaman or apprentice so requires he
shall first be taken before some court capable of taking cognizance of the
matters to be dealt with according to law ; and that if it appears to the
court before which the case is brought that the seaman or apprentice has
been conveyed on board or taken before the court on improper or in.su tfi-
cient grounds, the master, mate, ow^ler, ship's husband, or consignee, as
the case may be. shall incur a penalty not exceeding twenty pounds, but
such penalty, if inflicted, shall be a bar to any action for false imprison-
ment.

If a seaman or apprentice to the sea service intends to absent himself
from his ship or his duty, he may give notice of his intention, either to
the owner or to the master of the ship, not less than forty-eight hours
before the time at which he ought to be on board his ship ; and in the
event of such notice being given, the court shall not exercise any of the
powers conferred on it bj^ section two hundred and forty-seven of the
Merchant Shipping Act, 1854.

Subject to the foregoing provision of this section, the powers con-
ferred l)y section two hundred and forty-seven of the Merchant Shipping
Act, 1854, may be exercised, notwithstanding the abolition of imprison-
ment for desertion and similar oftences, and of apprehension witlmut
warrant.

Nothing in this section shall affect section two hundred and thirty-
nine of the Merchant Shipping Act, 1854.

11. The thirteenth section of the Employers and Workmen Act,
1875 (n), shall be repealed in so far as it operates to exclude seamen and

(n) Sep Chapter XIV.



670 TIIK LAW OF JIASTEU AND SflUVANT.

apprentices to the sea service from the said Act, and the said Act shall
apply to seamen and apprentices to the sea service accordingly ; hut
such repeal shall not, in the absence of any enactment to the contrary,
extend to or or affect any provision contained in any other Act of
Parliament passed, or to be passed, wherel)y Avorkman is detined by
reference to the per.sons to ^vhom the Employers and Workmen Act,
1875, applies.

12. The enactments descril)ed in the Second Schedule to this Act
shall be repealed as from the commencement of this Act within the
United Kingdom.

Provided that this repeal shall not all'ect —

(1.) Anything duly done or suffered before the commencement of

this Act under any enactment hereby repealed ; or
(2.) Any right or privilege acipiirud or any liability incurred before
the commencement of this Act, umlur any enactment hereby
repealed ; or
(3.) Any imprisonment, fine, or forfeiture, or other punishment
incurred or to be incurred, in respect of any offence committed
before the commencement of this Act, under any enactment
hereby repealed ; or
(4.) The institution or prosecution to its termination of any investi-
gation or legal proceeding, or any other remedy for prose-
cuting any such offence, or ascertaining, enforcing, or recover-
ing any such liability, imprisonment, fine, forfeiture, or
piuiishment as aforesaid, and any such investigation, legal
proceeding, and remedy may be carried on as if this repeal
had not been enacted.



SCHEDULES.



FIRST SCHEDULE.

Chapter. Savings Dunks.



24 & 25 Vict. c. 14. . . . Post Office Savings Banks.

2(j & 27 Vict. c. 87. . . . 'i rr i. c' ■ hi

_ „ „. / Trustee Savings Banks.

17 & 18 Vict. c. 104, s. 180. . . > ^ - c i> i

,„ „ ,-. ' I Seamen s Savings Banks.

19 & 20 Vict. c. 41 . . . )



SEAMEN. 571

SECOND SCHEDULE.

(17 ct 18 VICT. c. 104, in part.)

The Mcrcliant >S]ii]iphig Act, 1854,
in part : namely,

In section two hundred and forty-three, suL-seetion (1), the wor
" to imprifionnient for any period not exceeding twelve weeks with
or Avithont hard labour ; and also."

In section two hundred and forty-three, sub-section (2), the words
" to imprisonment for any period not exceeding ten weeks with
or without hard lalnnir, and also at tlie discretion of the court."

Section two hundred and forty-six.

In section two hundred and forty-seven the words " instead of com-
mitting the otfender to prison ; "

And section two hundred and forty-eight.



CHAPTER XII.

ACTS RELATING TO ARBITRATION.

5 GEO. IV,, c. IK; (1824).

An Act to consolidate and amend the Law relative to the Arhitmtio)i of
Disputes hettceen Master and Men.

Sect. 2. And be it further enacted that the following suTijects of dispute
arising between masters and workmen, or between workmen and those
employed by them, in any trade or manufacture in any part of the
United Kingdom of Great Britain and Ireland, may be settled and
adjusted in manner hereafter mentioned ; that is to say, disagreements
respecting the price to be paid for work done, or in the course of being
done, whether such disputes shall happen or arise between them respect-
ing the piiyment of wages as agreed upon, or the hours of work as agreed
upon, or any injury or damage done or alleged to have been done to the
work, or respecting any delay or supposed delay in finishing the work, or
the not finishing the work in a good and workmanlike manner, or
according to any contract, or to bad materials ; cases where the work-
men are to be employed to work any new pattern which shall rec^uire
them to purchase any new implements of manufacture, or to make any
alteration upon the old implements for the working thereof, and the
masters and workmen cannot agree upon the compensation to be made to
such workmen for or in respect tliereof ; disputes respecting the length,
breadth, or quality of pieces of goods, or, in the case of cotton manufacture,
the yarn thereof, or the quantity and (|ualityof the wool tliereof ; disputes
respecting the wages or compensation to be paid for pieces of goods that are
made of any great or extraordinary length ; dis])utes in the cotton manu-
facture respecting the manufacture of cravats, shawls, policat, romal, and
other handkerchiefs, and the number to be contained in one piece of
such handkerchiefs ; (lis])utes arising out of, for, or touching the par-
ticular trade or manufacture, or contracts relative thereto, which cannot
be otherwise mutually adjusted and settled ; disputes between masters
and persons engaged in sizing or ornamenting goods ; Init nothing in
this Act contained shall authorize any justice or justices acting as
hereinafter mentioned to estaldish a late of wages or price of labour
or workmanshii) at which the workmen shall in future be paid, unless
with the mutual consent of both master and workman : Provided



ACTS RELATING TO ARBITRATION. 573-

always, that all complaints by any workman as to bad materials shall
be made within throe weeks of his receiving the same ; and all com-
plaints arising from any other cause shall be made within six («) days
after such cause of complaint shall arise,

3. And be it further enacted, that whenever such subjects of dispute
shall arise as aforesaid, it shall bu lawful (h) for the master aiid workman
or either of them, to demand and have an arbiti'ation or reference thereof
in manner following ; that is to say, where the party complaining and
the party complained of shall come before or agree by any writing under
their hands to abide by the determination of any justice of the peace (c)
or magistrate of any county, riding, division, stewartry, barony, city,
burgh, town, or place, within which the parties reside (r/), it shall be
lawful for any justice of the peace or magistrate to hear and finally
determine, in a summary manner, the matter in dis])ute between such
parties ; but if such parties shall not come before or so agree to abide by
the determination of such justice of the peace or magistrate, then it
shall be lawful for any such justice or magistrate, and such justice of the
peace or magistrate is hereby required, on complaint made before him,
and proof by the examination of the party making such complaint, that
application has been made to the person or persons against whom such
caixse of complaint has arisen, or his, her, or their agent or agents, if such
dispute has arisen with such agent or agents, to settle such dispute, and
that the same has not lieen settled upon such comjilaint being made, or
where the dispute relates to a bad war]), that such cause of complaint has
not been done away with within forty-eight hours after such ap23lieation
to summon before him such jjerson or persons, or agents or agents, on some
day not exceeding three days, exclusive of Sunday, after the making
such complaint, giving notice to the person making such complaint of
the time and place appointed in such summons for the attendance of
such person or persons, agent or agents as aforesaid ; and if at such
time and place the person or persons so summoned shall not appear by
himself, herself, or themselves, or send some person on his, her, or their
behalf, to settle such dispute, or, appearing, shall not do away with such
cause of complaint, then and in such case it shall be lawful for sucli
justice, and he is hereby required, at the request of either of such pai-ties,
to nominate arbitrators or referees for settling the matters in dispute ;
and such justice shall then and there at such meeting proj^ose not less than
four nor more than six persons, one half of whom shall be master manu-
facturers, or agents or foremen of some master manufacturer, and the

fa) Fourteen days by 1 & 2 Vict. wn^s, jrerchant Shipping Act, 1854

c. 67. ' s. 173.

a') See Criip v. Bunhuni (183-2) («•) Bv 7 Will. \Y. and 1 Vict

8 Bin,?. 394; 1 M. & S. 646. Soo c 67. s. 3, the term "justice'"'

also JuIiK.f V. Bishop of Oxford, L. iueluJes '^masfistrate."
IL r,, Ap., 214. " ' on See 7 Will. IV. & 1 Vict. c.

As to disputes about seamen's 67, s. 2.



574 THE LAW OF MASTER AND SERVANT.

other half of whom shall he workmen in such manufacture ; such
respective persons residing; in or near to the place -where such dispute
shall have arisen ; out of which master manufacturers, agents, or fore-
men, the master engaged in such dis])ute, or his agent, shall choose
one, and nut of which workmen so proposed the workman or his agent
f;hall choose another, who shall have full power to hear and finally
<letermine such dispute.

4. And be it further enacted that in case any or either of the persons
so proposed by any such justice shall refuse or delay to accept such
arbitration, or accepting shall not act therein, Avithin two days after
such nomination, the justice shall proceed to name another or other
persons of the descriptions aforesaid, in the room of the person so
refusing as aforesaid to he arbitrator or arbitrators in the place of any
such arbitrator or arbitrators so refusing or delaying to accept, or who
shall not act ; and in every case of a second nomination the arliitrators
shall meet within twenty -four hours after the application for the same,
and at the same place at which the meeting of the referees first named
was appointed, or at some other convenient place, as the justice may
appoint ; and the expense of every such ap]dicationfor the appointment
of a second referee shall be borne and defrayed by the party through
whose default, or the default of whose referee, such ap])lication is ren-
dered necessary ; and the justice making such second appointment
«hall certify the same in the Form for that purpose hereafter set forth,
or in some other Form to the like effect ; and in every case where a
second arbitrator shall be appointed as aforesaid, and such second
arbitrator shall not attend at the same time and place appointed for
settling the matters in dispute, it shall be lawful for the other arbi-
trator, at such time and ]ilace, to ]n'ocecd liy himself to the hearing and
determining of the same matters iu dispute ; and in such case the award
■of such sole arbitrator shall be final and conclusive as to all matters in
dispute submitted to such arbitrator, without being subject to review,
appeal, or suspension.

5. And be it further enacted that the arbitrators or referees being so
nominated as aforesaid, the said justice shall thereupon appoint a place
of meeting according to the directions of this Act, and also a day for the
meeting, notice of which nomination, and of the day of meeting, shall
thereu])on be given by such justice to the persons so nominated arbi-
trators or referees, and to any paity to any such dispute, who may not
have attended the meeting befoie such justice as aforesaid ; which
appointment shall be by such justice certified in the Form following, or
in some other Form to the like elfect ; that is to say :

I , one of tlu: justices of the peace acting for , do

hereby certify that and are duly nominated referees

to settle the matters in diUcrence lietween of , master

Tnanufacturer [or agent or foreman, a.s ihc case may hi\ an^X of



ACTS RELATING TO ARr.ITRATlON. .)7-)

, -weaver [or ofhervisc as the ca.fc may hi-'], pursuant to an Act

passed in the fifth year of the reif,'n of liis present Majesty ; ami tlnit ihe

said referees are hereby directed to meet at on the

day of at of the clock in tlie forenoon [or

afternoon, as the case may he].

A. B.

I , one of the justices of the ]>eace acting for , do

hereby certify that the above and [or one of them, an



Online LibraryJohn MacdonellThe law of master and servant. Part I.--Common law. Part II.-- Statute law → online text (page 60 of 77)