void to all intents and purposes; and the master or other person, who shall enter into, or [419] give, or procure to be made, entered into, or

given, any such contract or security, or who shall hire, or cause to be hired, any seaman or other person to enter on board, contrary to the intent and meaning of this act, or who shall pay or cause to be paid, any greater hire, wages, or other gratuity or advantage whatsoever, than is allowed or directed by this act, shall for every such offence forfeit one hundred pounds (i).

It is provided nevertheless, "That nothing in this act shall extend, or be construed to extend, to any " contract or agreement, which shall or may be made "with any seaman, mariner, or other person, hired or

66

engaged to serve on board any merchant ship or ves"sel at any port or place within his Majesty's colonies "or plantations in the West-Indies, who shall at the "time of such hiring or engagement produce and deliv

er to the master and commander of such ship or ves"sel a certificate under the hand of the master or com"mander of the ship or vessel, on board of which such 66 seaman, mariner, or other person, had then last served, (6 signed in the presence of one or more witness or "witnesses, stating their usual place or places of abode, "thereby declaring or certifying that such seaman, “mariner, or other person, had been duly discharged "from the ship or vessel, on board of which he had so "last served; and which certificate the said

"master or commander shall grant within three [420] days next after application made to him by

"such seaman, mariner, or other person, before a "witness, or in default thereof shall forfeit and pay the

(i) 37 Geo. 3. c. 73. sect. 3.

"sum of twenty pounds, to be levied, recovered, and

applied in manner herein-before directed; nor to any "contract or agreement to be made with any seaman, "mariner, or other person, hired or engaged to serve "on board any merchant ship or vessel, which through "necessity, or on account of very hazardous service, or "extraordinary duty, require such contract or agreement "to be made, or more wages or hire given, and of "which necessity, service, or extraordinary duty, proof "shall be made on oath before the chief magistrate or principal officer of any port or place, or before any Justice or Justices of the Peace of the said colonies "or plantations; and provided also that such seaman, "mariner, or other person, so hired or engaged to serve "on board any ship or vessel so requiring such service, "shall not have deserted from the ship or vessel on "board of which he had then last served; and provi❝ded also, that no greater wages or hire shall be given "by any master or commander, or taken or received "by any seaman, mariner, or other person, as aforesaid, except in cases of such necessity, very hazardous "service, or extraordinary duty, as aforesaid, than af"ter the rate of double the monthly wages, or the

แ wages to be settled or directed by any gover[421] "nor, chief magistrate, collector, or comptroller, “as herein-before directed, to be paid or receiv"ed as aforesaid” (k).

It is difficult to collect the real intention of the legislature from this long and confused proviso. If, as at first sight appears, it was intended to allow the master to give more than double wages without the authority of a magistrate in two cases; namely; first, to mariners

(k) 37 Geo. 3. c. 73. s. 10.

producing a certificate of discharge from their last ship; and, secondly, in the case of necessity, hazardous service, or extraordinary duty, proved upon oath, to mariners, who have not deserted from their last ship; then the last part of the clause will be ineffectual. If, on the other hand, it was intended to allow this power to the master only in the case of necessity, &c. so proved, and to mariners who have not deserted, then the first part of the clause will be ineffectual.

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5. Soon after the passing of this statute, it was decided, that a licence given by a magistrate in the WestIndies, to the master of a ship, "to procure men on such terms, as he could, to navigate the ship home," was not a compliance with the regulation prescribed, and that a mariner could not maintain an action on a promise made in pursuance of such licence to pay wages exceeding in amount double the wages agreed to be given to a person in the like situation on the outward voy

age for that the statute required the magis- [422] trate to exercise his own discretion as to the

rate of wages to be paid, and to specify the same in the licence (1).

6. A form of articles of agreement between the master, officers, and mariners of British ships employed in carrying slaves from the coast of Africa, is annexed to the statutes made for regulating the manner of carrying slaves in such ships, which contains several regulations applicable to that particular employment, and is the only form allowed to be used for ships in that employment.

These legislative provisions respecting seamen, extend to every officer of the ship, except the master. His contract can only be made with the owners, and is not required to be in writing.

(1) Rodgers v. Lacy, 2 Bos. & Pull. 57.

7. The statutes do not render a verbal agreement for wages absolutely void; but impose a penalty on the master, if a written agreement is not made. When a written agreement is made, it becomes the only evidence of the contract between the parties; and a mariner cannot recover any thing agreed to be given in reward for his service, which is not specified in the articles: this has been decided with respect to a promise to pay to the mate of a ship employed in the slave

trade, the average price of a slave at the place [423] of the ship's destination (m); and also with respect to a promise to pay to a sail-maker, serving in a ship belonging to the East-India Company, a monthly sum beyond the wages mentioned in the ship's articles, which had been signed by him as sail-maker (n).

8. A seaman, who has engaged to serve on board a ship, is bound to exert himself to the utmost in the service of the ship; and therefore a promise made by the master when a ship was in distress, to pay an extra sum to a mariner as an inducement to extraordinary exertion on his part, was esteemed to be wholly void (0). (1)

(m) White v. Wilson, 2. Bos. & Pull. 116. and the ISABELLA, Brand; 2 Rob. A. R. 241.

(n) Elsworth & Wifev. Woolmore, Guildhall, Sit. Dec. 1803, before

Lord Alvanley, Ch. J. There is a note of this case in Mr. Espinasse's N. P. C, vol. 5. p. 84.

(0) Harris v. Watson, Peake's N. P. Cases, 72.

(1) No wages can be recovered where the hiring has been for an illegal voyage, or in contravention of the provisions of a statute. No man can make claim to the wages of iniquity. The law will not countenance a contract ex turpi causâ. Therefore in a case where a contract had been made in a slave voyage contrary to the statute, Sir William Scott repudiated the claim for wages with manifest indignation. The Vanguard, 6 Rob. Adm. Rep. 207.

CHAPTER THE SECOND.

I

OF THE EARNING AND PAYMENT OF WAGES.

PROPOSE in the present chapter to consider, FIRST, the cases in which the whole wages agreed to be given to seamen are to be paid; SECONDLY, the cases in which a part only is to be paid; and, LASTLY,

the time at which the payment is to be made. [424] All that is said in this and the following chapter respecting seamen, is to be understood of all the officers in the ship, except the master, and of him also, if the subject is not inapplicable to his situation and char

acter.

1. FIRST, it is obvious that a seaman, who has faithfully performed his service on board a ship during the whole period of the intended voyage, is entitled to receive the whole of the stipulated reward, if no disaster has rendered his service useless or unproductive to his employer. And as a seaman is exposed to the hazard of losing the reward of his faithful service during a considerable period in certain cases, so on the other hand the law gives him his whole wages, even when he has been unable to render his service, if his inability has proceeded from any hurt received in the performance of his duty, or from natural sickness happening to him in the course of the voyage (a). And if a master in viola

(a) Laws of Oleron, art. 6 & 7. of Wisbuy, art. 19. of the HanseTowns, art. 39 & 45. same of the year 1614, tit. 14. art. 1. French Ordinance, liv. 3. tit. 4. Des Loyers

des Matelots, art. 11. Chandler v. Grieves, 2 Hen. Blac. 606. note (a), and by Lord Mansfield in the case of Paul v. Eden, in the King's Bench. E. T. 25 Geo. 3.