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Theophilus Parsons.

A treatise on maritime law. Including the law of shipping; the law of marine insurance; and the law and practice of admiralty (Volume 1) online

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tract, there shall be a memorandum in writing, of the day and the hour
on which such seaman or mariner, who shall so ship and subscribe, shall
render themselves on board, to begin the voyage agreed upon. And if
any such seaman or mariner shall neglect to render himself on board the
ship or vessel, for which he has shipped, at the time mentioned in such
memorandum, and if the master, commander, or other officer of the ship
or vessel, shall, on the day on which such neglect happened, make an
entry in the log-book of such ship or vessel, of the name of such seaman
or mariner, and shall in like manner note the time that he so neglected to
render himself (after the time appointed) ; every such seaman or mariner
shall forfeit for every hour which he shall so neglect to render himself,
one day's pay, according to the rate of wages agreed upon, to be deducted
out of his wages. And if any such seaman or mariner shall wholly neg-
lect to render himself on board of such ship or vessel, or having ren-
dered himself on board, shall afterwards desert and escape, so that the
ship or vessel proceed to sea without him, every such seaman or mariner
shall forfeit and pay to the master, owner, or consignee of the said ship
or vessel, a sum equal to that which shall have been paid to him by ad-
vance at the time of signing the contract, over and besides the sum so ad-
vanced, both which sums shall be recoverable in any court, or before any
justice or justices of any State, city, town, or county within the United
States, which, by the laws thereof, have cognizance of debts of equal
value, against such seaman or mariner, or his surety or sureties, in case
he shall have given surety to pixjceed the voyage.

Sec. 3. And he it further enacted, That if the mate or first officer under
the master, and a majority of the crew of any ship or vessel, bound on a



APPENDIX. » 509

voyage to any foreign port, shall, after the voyage is begun (and before
the ship or vessel shall have left the land) discover that the said ship or
vessel is too leaky, or is otherwise unfit in her crew, body, tackle, apparel,
furniture, provisions, or stores, to proceed on the intended voyage, and
shall require such unfitness to be inquired into, the master or commander
shall, upon the request of tlic said mate (or other ofilcer) and such ma-
jority, forthwith proceed to or stop at the nearest or most convenient port
or place where such inquiry can be made, and shall there apply to the
judge of the district court, if he shall there reside, or if not, to some jus-
tice of the peace of the city, town, or place, taking with him two or more
of the said crew who shall have made such request ; and thereupon such
judge or justice is hereby authorized and required to issue his precept
directed to three persons in the neighborhood, the most skilful in maritime
affairs that can be procured, requiring them to repair on board such ship
or vessel, and to examine the same in respect to the defects and insuffi-
ciencies complained of, and to make report to him the said judge or justice,
in writing under their hands, or the hands of two of them, whether in any,
or in wdiat respect the said ship or vessel is unfit to proceed on the in-
tended voyage, and what addition of men, provisions, or stores, or what
repairs or alterations in the body, tackle, or apparel will be necessary ;
and upon such report the said judge or justice shall adjudge and deter-
mine, and shall indorse on the said report his judgment, whether the said
ship or vessel is fit to proceed on the intended voyage ; and if not,
whether such repairs can be made or deficiencies supplied where the ship
or vessel then lays, or whether it be necessary for the said ship or vessel
to return to the port from whence she first sailed, to be there refitted ;
and the master and crew shall in all things conform to the said judgment ;
and the master or commander shall, in the first instance, pay all the costs
of such view, report, and judgment, to be taxed and allowed on a fair
copy thereof, certified by the said judge or justice. But if the complaint
of the said crew shall appear upon the said report and judgment, to have
been without foundation, then the said master, or the owner, or consi"-nee
of such ship or vessel, shall deduct the amount thereof, and of reasonable
damages for the detention (to be ascertained by the said judge or justice)
out of the wages growing due to the complaining seamen or mariners.
And if, after such judgment, such ship or vessel is fit to proceed on her
intended voyage, or after procuring such men, provisions, stores, repairs,
or alterations as may be directed, the said seamen or mariners, or either
of them, shall refuse to proceed on the voyage, it shall and may be lawful
for any justice of the peace to commit by warrant under his hand and
seal, every such seaman or mariner (who shall so refuse) to the common
gaol of the county, there to remain without bail or main jirize, until he
shall have paid double the sum advanced to him at the time of subscrib-

43*



510 • APPENDIX.

ing the contract for the voyage, together with such reasonable costs as
shall be allowed by the said justice, and inserted in the said warrant, and
the surety or sureties of such seaman or mariner (in case he or they shall
have given any) shall remain liable for such payment ; nor shall any such
seaman or mariner be discharged upon any writ of habeas corpus or
otherwise, until such sum be paid by him or them, or his or their surety
or sureties, for want of any form of commitment, or other previous pro-
ceedings. Provided, That sufficient matter shall be made to appear, upon
the return of such habeas corpus, and an examination then to be had, to
detain him for the causes hereinbefore assigned.

Sec. 4. And be it further enacted, That if any person shall harbor or
secrete any seaman or mariner belonging to any ship or vessel, knowing
them to belong thereto, every such person, on conviction thereof before
any court in the city, town or county where he, she, or they may reside,
shall forfeit and pay ten dollars for every day which he, she, or they shall
continue so to harbor or secrete such seaman or mariner, one half to the
use of the person prosecuting for the same, the other half to the use of the
United States ; and no sum exceeding one dollar, shall be recoverable
from any seaman or mariner by any one person, for any debt contracted
during the time such seaman or mariner shall actually belong to any ship
or vessel, until the voyage for which such seaman or mariner engaged
shall be ended.

Sec. 5. And he it further enacted, That if any seaman or mariner, who
shall have subscribed such contract as is hei'ein before described, shall
absent himself from on board the ship or vessel in which he shall so have
shipped, without leave of the master or officer commanding on board ;
and the mate, or other officer having charge of the log-book, shall make
an entry therein of the name of such seaman or mariner, on the day on
which he shall so absent himself, and if such seaman or mariner shall
return to his duty within forty-eight hours, such seaman or mariner shall
forfeit three days pay for every day which he shall so absent himself, to
be deducted out of his wages ; but if any seaman or mariner shall absent
himself for more than forty-eight hours at one time, he shall forfeit all
the wages due to him, and all his goods and chattels which were on board
the said ship or vessel, or in any store where they may have been lodged
at the time of his desertion, to the use of the owners of the ship or ves-
sel, and moreover shall be liable to pay to him or them all damages which
he or they may sustain by being obliged to hire other seamen or mariners
in his or their place, and such damages shall be recovered with costs, in
any court or before any justice or justices having jurisdiction of the
recovery of debts to the value of ten dollars or upwards.

Sec. 6. And he it further enacted, That every seaman or mariner shall
be entitled to demand and receive from the master or commander of the



APPENDIX. 511

ship or vessel to -wliich they belong, one third part of the wages which
shall be due to him at every port where such ship or vessel shall unlade
and deliver her cargo before the voyage be ended, unless the contrary be
expressly stipulated in the contract : and as soon as the voyage is ended,
and the cargo or ballast be fully discharged at the last port of delivery,
every seaman or mariner shall be entitled to the wages which shall be
then due according to his contract ; and if such wages shall not be paid
within ten days after such discharge, or if any dispute shall arise between
the master and seamen or mariners touching the said wages, it shall be
lawful for the judge of the district where the said ship or vessel shall be,
or in case his residence be more than three miles from the place, or of
his absence from the place of his residence, then, for any judge or justice
of the peace, to summon the master of such ship or vessel to appear
before him, to show cause why process should not issue against such ship
or vessel, her tackle, furniture, and apparel, according to the course of
admiralty courts, to answer for the said wages : and if the master shall
neglect to appear, or appearing, shall not show that the wages are paid,
or otherwise satisfied or forfeited, and if the matter in dispute shall not
be forthwith settled, in such case the judge or justice shall certify to the
clerk of the court of the district, that there is sufficient cause of com-
plaint whereon to found admiralty process, and thereupon the clerk of
such court shall issue process against the said ship or vessel, and the suit
shall be jiroceeded on in the said court, and final judgment be given
according to the course of admiralty courts in such cases used ; and in
such suit all the seamen or mariners (having cause of complaint of the
like kind against the same ship or vessel) shall be joined as complain-
ants ; and it shall be incumbent on the master or commander to produce
the contract and log-book, if required, to ascertain any matters in dis-
pute ; otherwise the complainants shall be permitted to state the contents
thereof, and the proof of the contrary shall lie on the master or com-
mander ; but nothing herein contained shall prevent any seaman or mar-
iner from havmg or maintaining any action at common law for the recov-
eiy of his wages, or from immediate process out of any court having
admiralty jurisdiction, wherever any ship or vessel may be found, in case
she shall have left the port of delivery where her voyage ended, before
payment of the wages, or in case she shall be about to proceed to sea
before the end of the ten days next after the delivery of her cargo or
ballast.

Sec. 7. And he it further enacted, That if any seaman or mariner, who
shall have signed a contract to perform a voyage, shall, at any port or
place, desert, or shall absent himself from such ship or vessel, without
leave of the master, or othcer commanding in the absence of the master,
it shall be lawful for any justice of peace within the United States (upon



512 APPENDIX.

the complaint of the master) to issue his warrant to apprehend such de-
serter, and bring him before such justice ; and if it shall then appear by-
due proof, that he has signed a contract within the intent and meaning
of this act, and that the voyage agreed for is not finished, altered, or the
contract otherwise dissolved, and that such seaman or mariner has de-
serted the ship or vessel, or absented himself without leave, the said
justice shall commit him to the house of correction or common jail of the
city, town, or place, there to remain until the said ship or vessel shall
be ready to proceed on her voyage, or till the master shall require his
discharge, and then to be delivered to the said master, he paying all the
cost of such commitment, and deducting the same out of the wages due
to such seaman or mariner.

Sec. 8. And be it further enacted, That every ship or vessel belonging
to a citizen or citizens of the United States, of the burden of one hun-
dred and fifty tons or upwards, navigated by ten or more persons in the
whole, and bound on a voyage without the limits of the United States,
shall be provided with a chest of medicines, put up by some apothecary
of known reputation, and accompanied by directions for administering the
same ; and the said medicines shall be examined by the same or some
other apothecary, once at least in every year, and supplied with fresh
medicines in the place of such as shall have been used or spoiled ; and
in default of having such medicine-chest so provided, and kept fit for use,
tKe master or commander of such ship or vessel shall provide and pay
for all such advice, medicine, or attendance of physicians, as any of the
creAV shall stand in need of in case of sickness, at every port or place
where the ship or vessel may touch or trade at during the voyage, with-
out any deduction from the wages of such sick seaman or mai'iner.

Sec. 9. And he it further enacted, That every ship or vessel, belonging
as aforesaid, bound on a voyage across the Atlantic ocean, shall, at the
time of leaving the last port from whence she sails, have on board, well
secured under deck, at least sixty gallons of water, one hundred pounds
of salted flesh meat, and one hundred pounds of wholesome ship-bread,
for every person on board such ship or vessel, over and besides such
other provisions, stores, and live-stock as shall by the master or passen-
gers be put on board, and in like proportion for shorter or longer
voyages ; and in case the crew of any ship or vessel, which shall not have
been so provided, shall be put upon short allowance in water, flesh, or
bread, during the voyage, the master or owner of such ship or vessel
shall pay to each of the crew, one day's wages beyond the wages agreed
on, for every day they shall be so put to short allowance, to be recovered
in the same manner as their stipulated wages.



APPENDIX. 513



ACT OF 1792, CHAPTER XXIV. (1 U. S. Stats, at Large, 254).
An Act concerning Consuls and Vice-Consuls. #

For carrying into full effect the convention between tlie King of the
French, and the United States of America, entered into for the purpose
of defining and establishing the functions and privileges of their respec-
tive consuls and vice-consuls ;

Section 1. Se it enacted hythe Senate and House of Representatives of
the United ■ States of America in Congress assembled, That where in the
seventh article of the said convention, it is agreed that when there shall
be no consul or vice-consul of the King of the French, to attend to the
saving of the wreck of any French vessels stranded on the coasts of the
United States, or that the residence of the said consul, or vice-consul (he
not being at the place of the wreck) shall be more distant from the
said place than that of the competent judge of the country, the latter
shall immediately proceed to perform the office therein prescribed ; the
district judge of the United States of the district in which the wreck
shall happen, shall proceed therein, according to the tenor of the said
article. And in such cases it shall be the duty of the officers of the cus-
toms within whose districts such wrecks shall hajipen, to give notice
thei-eof, as soon as may be, to the said judge, and to aid and assist him to
perform the duties hereby assigned to him. The district judges of the
United States shall also, within their respective districts be the compe-
tent judges, for the purposes expressed in the ninth article of the said
convention, and it shall be incumbent on them to give aid to the consuls
and vice-consuls of the King of the French, in arresting and securing
deserters from vessels of the French nation according to the tenor of the
said article.

And where by any article of the said convention, the consuls and vice-
consuls of the King of the French, are entitled to the aid of the compe-
tent executive officers of the country, in the execution of any precept,
the marshals of the United States and their deputies shall, within their
respective districts, be the competent officers, and shall give their aid ac-
cording to the tenor of the stipulations.

And Avhenever commitments to the jails of the country shall become
necessary in pursuance of any stipulation of the said convention, they
shall be to such jails within the respective districts as other commitments
under the authority of the United States are by law made.

And for the direction of the consuls and vice-consuls of the United
States in certain cases.

. Sec. 2. Be it enacted by the authority aforesaid, That they shall have
right in the ports or places to which they are or may be severally ap-



514 APPENDIX.

pointed of receiving the protests or declarations, which such captains,
masters, crews, passengers, and merchants, as are citizens of the United
States may respectively choose to make there ; and also such as any for-
eigner may chod^ to make before them relative to the personal interest
of any citizens of the United States ; and the copies of the said acts duly
authenticated by the said consuls or vice-consuls, under the seal of their
consulates, respectively, shall receive faith in law, equally as tlieir orig-
inals would in all courts in the United States. It shall be their duty,
where the laAvs of the country permit, to take possession of the personal
estate left by any citizen of the United States, other than seamen belong-
ing to any ship or vessel who shall die within their consulate ; leaving
thex'e no legal representative, partner in trade or trustee by him ap-
pointed to take care of his effects, they shall inventory the same with
the assistance of two merchants of the United States, or for want of
them, of any others at their choice ; shall collect the debts due to the
deceased in the country Avhere he died, and pay the debts due from his
estate which he shall have there contracted ; shall sell at auction after
reasonable public notice, such part of the estate as shall be of a perisha-
ble nature, and such further part, if any, as shall be necessary for the
payment of his debts, and at the expiration of one year from his decease,
the residue ; and the balance of the estate they shall transmit to the
treasury of the United States, to be holden in trust for the legal claim-
ants. But if at any time before such transmission, the legal representa-
tive of the deceased shall appear and demand his effects in their hands,
they shall deliver them up, being paid their fees, and shall cease their
proceedings.

For the information of the representative of the deceased, it shall be
the duty of the consul or vice-consul authorized to proceed as aforesaid
in the settlement of his estate, immediately to notify his death in one of
the gazettes published in the consulate, and also to the secretary of
state, that the same may be notified in the State to which the deceased
shall belong ; and he shall also, as soon as may be, transmit to the secre-
tary of state, an inventory of the effects of the deceased, taken as before
directed.

Sec. 3. And he it further enacted, That the said consuls and vico-con-
suls, in cases where ships or vessels of the United States shall be stranded
on the coasts of their consulates respectively, shall, as far as the laws of
the country will permit, take proper measures, as well for the purpose of
saving the said ships or vessels, their cargoes and appurtenances, as for
storing and securing the effects and merchandise saved, and for taking
an inventory or inventories thereof; and the merchandise and effects
saved with the inventory or inventories thereof taken as aforesaid, shall,,
after deducting therefrom the expense, be delivered to the owner or



APPENDIX. 515

owners. Provided, That no consul or vice-consul shall have authority to
take possession of any such goods, wares, merchandise, or other property,
when the master, owner, or consignee thereof is present or capable of
taking possession of the same.

Sec. 4. And he it further enacted, That it shall and may be lawful
for every consul and vice-consul of the United States, to take and receive
the following fees of office for the services which he shall have per-
formed.

For authenticating under the consular seal, every jDrotest, declaration,
deposition, or other act, which such captains, masters, mariners, seamen,
passengers, merchants or others as are citizens of the United States may
respectively choose to make, the sum of two dollars.

For the taking into possession, inventorying, selling, and finally set-
tling and paying, or transmitting as aforesaid, the balance due on the
personal estate left by any citizen of the United States who shall die
within the limits of his consulate, five per centum on the gross amount
of such estate.

For taking into possession and otherwise proceeding on any such
estate which shall be delivered over to the legal representatives before a
final settlement of the same, as is herein before directed, two and an half
per centum on such part delivered over as shall not be in money, and
five per centum on the gross amount of the residue.

And it shall be the duty of the consuls and vice-consuls of the United
States, to give receipts for all fees which they shall receive by virtue of
this act, expressing the particular services for which they are paid.

Sec. 5. And he it further enacted, That in case it be found necessary
for the interest of the United States, that a consul or consuls be ap-
pointed to reside on the coast of Barbary, the President be authorized to
allow an annual salary, not exceeding two thousand dollars to each per-
son so to be appointed : Provided, That such salary be not allowed to
more than one consul for any one of the States on the said coast.

Sec. 6. And he it further enacted, That every consul and vice-consul
shall, before they enter on the execution of their trusts, or if already in
the execution of the same, within one year from the passing of this act,
or if resident in Asia, within two years, give bond with such sureties as
shall be approved by the secretary of state, in a sum of not less than
two thousand nor more than ten thousand dollars, conditioned for the
true and faithful discharge of the duties of his office according to law,
and also for truly accounting for all moneys, goods, and effiscts which may
come into his possession by virtue of this act : and the said bond shall
be lodged in the office of the secretary of the treasury.

Sections 7 and 8 are repealed.

Sec. 9. And he it further enacted, That the specification of certain



516 APPENDIX.

powers and duties, in this act, to be exercised or performed by tlie con-
suls and vice-consuls of the United States, shall not be construed to the
exclusion of others resulting from the nature of their appointments, or
any treaty or convention under which they may act.



ACT OF 1792, CHAPTER I. (1 U. S. Stats, at Large, 287).
An Act conceming the Registerincj and Recording of Ships or Vessels.

Section 1. J3e if enacted ly the Senate and House of Representatives
of the United States of America in Congress assemlled, That ships or ves-
sels, which shall have been registered by virtue of the act, entituled " An
act for registering and clearing vessels, regulating the coasting trade, and
for other j)urposes," and those wdiicli after the last day of March next,
shall be registered, pursuant to this act, and no other (except such as shall
be duly qualified, according to law, for carrying on the coasting trade and
fisheries, or one of them) shall be denominated and deemed ships or ves-
sels of the United States, entitled to the benefits and privileges appertain-
ing to such ships or vessels : Provided, That they shall not continue to
enjoy the same, longer than they shall continue to be wholly owned, and
to be commanded by a citizen or citizens of the said States.

Sec. 2. And he it further enacted, That ships or vessels built within the
United States, whether before or after, the fourth of July, one thousand
seven hundred and seventy-six, and belonging wholly to a citizen or citi-
zens thereof, or not built within the said States, but on the sixteenth day
of May, in the year one thousand seven hundred and eighty-nine, belong-
ing and thenceforth continuing to belong to a citizen or citizens thereof,
and ships or vessels which may hereafter be captured in war, by such
citizen or citizens, and lawfully condemned as prize, or which have been,
or may be adjudged to be forfeited for a breach of the laws of the United



Online LibraryTheophilus ParsonsA treatise on maritime law. Including the law of shipping; the law of marine insurance; and the law and practice of admiralty (Volume 1) → online text (page 69 of 99)