REGULATED BY ACT OF CONGRESS.

317

be ordered on petty officers and persons of inferior ratings by the commander, when a greater punishment is deserved than a commander is authorized to inflict by his own authority; but not sufficient to require trial by a general court-martial.

Section 7, makes provision for the various substituted sentences which summary courts-martial may impose, as follows:

First. Discharge from service, with bad conduct discharge, but sentence not to be carried into effect in a foreign country:

Second. Solitary confinement in irons, single or double, on bread and water, or diminished rations, provided no such confinement shall exceed thirty days:

Third. Solitary confinement in irons, single or double, not exceeding thirty days:

Fourth. Solitary confinement, not exceeding thirty days:

Fifth. Confinement not exceeding two months:

Sixth. Reduction to next inferior rating:

Seventh. Deprivation of liberty on shore on foreign

station :

Eighth. Extra police duties and loss of pay, not to exceed three months, may be added to any of the above mentioned punishments.

And this system of regulated, limited, and qualified punishment is to be observed and enforced on board of all vessels belonging to the American navy; and it is difficult to perceive why it may not be entirely adequate to subserve the exigencies of the American merchant service, and maintain good discipline there.

It has now been made to appear, what are the rights and duties of mariners; how far they are bound by

318 WHO QUALIFIED TO SUE IN THE ADMIRALTY; their contract, and under what circumstances that contract may be legally dissolved; how, by performance, they may earn and be entitled to the payment of wages; how they may incur the penalty of forfeiture and deduction of wages by misconduct or special delinquency; when, on the termination of a voyage, they may claim payment; for what cause they may render themselves. liable to punishment; and to what extent and in what manner the master may now legally inflict punishment for inattention, disobedience, infidelity, insubordination, or any other act or course of conduct which may be incompatible with good order, and detrimental to discipline on shipboard.

What other persons stand in the relation of mariners to a ship, and are entitled to the rights and privileges of such as shall render a maritime service and as such may sue for wages, may be seen by reference to a few well known authorities.

The admiralty has jurisdiction over contracts for the hire of seamen, where the service is substantially performed on the sea. Bee, 199, L'Arina v. Manwaring; Gilp. 529, Thackarey v. The Farmer; 10 Wheat. 428, The Jefferson; and 7 Pet. 324, Peyroux v. Howard. But the jurisdiction does not exist, unless the service be essentially maritime.

Steamboats and lighters engaged in trade or commerce on tide-water, and the seamen employed on board, are within the admiralty jurisdiction. But it is otherwise with ferry-boats, and those engaged in ordinary traffic along the shores. Gilp. 203, Smith v. The Pekin, and supra.

In Wilson v. The Ohio (Gilp. 505), it was held, that the pilot, deck-hands, engineer, and firemen, on board

WHO NOT QUALIFIED TO SUE FOR WAGES AS MARINERS. 319

of a steamboat, might sue in the admiralty for their wages. But as to musicians aliter.

A mariner, though he be a part owner, may sue in the admiralty for his wages. The Pilot No. 2, Newb. 215.

A claim for wages by a woman who had actually served in some useful capacity on board of a vessel, was sustained in the Jane and Matilda, (1 Hagg. 187): subsequent discoveries or surmises, however, rendered the soundness of this decision questionable or suspicious. Nevertheless, the principle there recognized by Lord Stowell has been judicially sanctioned in the United States by Judge Ross Wilkins, Jr. Newb. 5, Emily Segeman v. Sch. Brandywine, where it was held, that a woman might serve as a mariner and become entitled to wages as such.

A steamboat clerk may sue for wages. 4 Md. Ch. Dec. 310, Abbot. v. The Baltimore and Rappahanock Steam Packet Co.

wages. 1

Stevedores cannot sue in the admiralty for Wall. Jr. 370, McDermott v. The S. G. Owens. But a master, as factor, may libel for wages. 3 Mason, 161, Willard et ux. v. Adm. Dorr.

Not only are stevedores disqualified for suing in admiralty for wages, upon the ground that their services are not essentially or substantially maritime, but seamen even, upon other grounds, may labor under a similar disqualification. In the case of an illegal voyage, or an unauthorized expedition, a claim for wages will constitute a lien on the vessel for security and payment of wages. Edw. 35, The Leander; 2 Mason, 58, The Langdon Cheves; 2 Hagg. 158, The Malta.

So in the Vanguard (6 Ch. Rob. 207), suit for wages,

320

DECISIONS OF SIR WILLIAM SCOTT.

arising ex turpi contractu, was not sustained. In this case it appeared by the report that W. Taylor, having been hired to act as mate, further agreed that, for various purposes in the clearing out of the vessel, he would act as ostensible master. For this additional duty he was to receive £50 extra. Among the various purposes, one was stated to be that Pince, the real master, had such a reputation for cruelty, that he would not be able to have procured men.

And the objection was taken that such an agreement was repugnant to the provisions of the act of Parlia ment, regulating the slave-trade. Sir W. Scott, in 1805, therefore held it to be a turpis contractus; which would defeat any application to obtain the aid of a court of justice to carry it into effect. He further observed: "It is not for me, sitting here, to reprehend the policy or the morality of a trade which is continued to be permitted by law; but it is certainly my duty to keep as rigidly as possible to the letter of those provisions, which the wisdom of the legislature has framed by way of salutory control over the manner in which it is to be conducted."

Opportunity was given to Taylor for explaining the circumstances, in order to show that he had entered into the agreement from an innocent motive, and without the design of producing any mischievous effect. This was done by pleading an additional article; upon which the court said: "That the explanation offered, instead of affording any excuse, is an aggravation of the offense;" and "on every ground I am of opinion that the petition is inadmissible." See also 9 Wheat. 409, The St. Jago de Cuba.

A suit for wages was brought on the part of Gillman,

WAGES LOST BY INTERRUPTION OR LOSS OF VOYAGE. 321

a British pilot, for conducting an American ship from the Downs to Flushing in 1806. The court, desiring to hear in limine how suit could be maintained for services performed, in aiding the commerce and importation of the enemy, added, "It would not give any support to a demand arising out of a course of navigation, which must be pronounced to be illegal to a British subject."

Wages may be lost by a loss of the voyage, by capture, or in some cases, by a suspension, or interruption of the voyage, occasioned by a vis major, over which the mariner has no possible control. In The Saratoga, 2 Gall. 178; 2 Mason, 319, The Two Catharines; and 2 Sum. 443, Brown v. Lull, much useful information may be found as to the mode of dealing with mariners' wages, where there is an unanticipated interruption of a commercial enterprise. In the latter case, it was held, that a dissolution of the contract for wages does. not necessarily follow on the capture of a neutral ship, but a suspension only. The capture may be wrongful, in which case, a restoration may be decreed, either in specie or value. If restoration be decreed of the ship itself, then the contract is temporarily suspended, to await the ultimate adjudication of the proper tribunal to return the vessel to the owners, with costs and damages for the unlawful seizure and detention. In such a case the lien for wages will not have been permanently lifted, but still adheres to the ship; which, when restored, becomes liable to the payment of all wages due.

If the ship cannot be restored in specie, but the seizure has been wrongful or without probable cause, then restitution in value should be decreed by the court;