§ 58. The practice with respect to hearing of appeals is Practice on regulated by general rules made under the authority of the Lord appeals. Chancellor.(u) Where it is desired to adduce fresh evidence, application for leave to do so should be made before the hearing of the appeal.(x) The Admiralty Court, being assisted by skilled assessors, does not admit evidence relating to matters of nautical skill and practice.(y) The Court which hears the appeal Costs. has a discretion as to the costs occasioned thereby.(z) The unsuccessful party will in general be ordered to pay the costs of the appeal, and where a certificate has been dealt with below at the invitation of the Board of Trade, or where the Board resists a successful appeal, no exception is made in its favour.(a) Where the Board having resisted an appeal, the Court affirmed the decision of the Wreck Commissioner, suspending a certificate, but being of opinion that the punishment was too severe, recommended that the remainder of the suspension should be remitted, both parties were left to bear their own costs.(b) § 59. All the provisions of the Merchant Shipping Acts Fishing boats. with respect to the suspension and cancellation of certificates, and inquiries and investigations into the conduct of their holders, and all other provisions relating to certificates of masters and mates, apply also to the certificates of skippers and second hands of fishing boats.(c) His Remuneration. § 60. The master is remunerated for his services by a salary By salary or or wages, which he receives from the owners. The amount of wages. such salary is a matter of private arrangement and agreement between the master and those owners who employ him. His right to it was never like that of seamen in former times, dependent on the earning of freight. The old rule, that "freight is the mother of wages" did not apply to him. (d) And unlike a seaman, he may insure his wages as well as any commissions or other interest that he may have in the ship or the voyage.(e) § 61. The consideration for his receiving this salary is his performance of his duties towards the owners employing him. If, therefore, he is guilty of desertion, (f) or of any gross misconduct, such as barratry, or constant drunkenness, and a consequent non-performance of duty, or entire neglect of his duty (u) 42 & 43 Vict. c. 72, s. 2 (3) ; 45 & 46 Vict. c. 76, s. 6; 39 & 40 Vict. c. 80, s. 30. See the Shipping Casualties (Appeal and Rehearing) Rules, 1880. App. No. 1. (x) The Famenoth, 7 P. D. 207. (y) The Kestrel, 6 P. D. 182. (2) Shipping Casualties (Appeal and Rehearing) Rules, R. 6. (a) The Arizona, 5 P. D. 123; The Famenoth, 7 P. D. 207, 216, and see The (b) The Kestrel, 6 P. D. 182. (d) Hawkins v. Twizell, 5 E. & B. 883. 206. (f) The Roebuck, 31 L. T. N. S. 274. What forfeits all his accru. ing wages. What is not sufficient to work a forfeiture. What forfeits part of his wages. as master, as by making over the command of the ship to another person; (g) or if he exhibit throughout a voyage gross incapacity, he loses all right to recover wages which were growing or accruing due, but which had not actually become due at the time of such wrong behaviour.(h) Again, the instructions given to a master may be so precise and positive, that if he wilfully disobey them, his disobedience, even though no evil consequences arise, may entail an entire forfeiture of his wages.(i) And in a recent case where the mortgagee of a ship put a man in possession, and the master put to sea with the man on board, he was held to be disentitled by his conduct from claiming anything against the mortgagee from the time of taking possession.(k) But where the orders of persons claiming to be mortgagees were disobeyed by the master who claimed to be owner of a moiety of the ship, and disputed the title of the mortgagees in respect of such moiety, it was held in Ireland, without entering upon the merits of the dispute, that the master was entitled to wages for the whole period of his service.(1) § 62. The master does not forfeit his wages by occasional drunkenness; (m) and, speaking generally, nothing more can be reasonably required or expected of him than the honest exercise of his discretion, according to the degree of ability and experience in business which such an officer may fairly be supposed to possess, and no mere error of judgment on his part, not tainted with any guilty intention or corrupt motive, will have the effect of causing a forfeiture of his wages.(n) On this principle, neither want of seamanship in a master, nor neglect to communicate to a Lloyd's agent the stranding of his ship, nor neglect to sign a bottomry bond, will bar his claim for wages if he has actually continued in command of the ship.(0) And where a master, having instructions to take payment of balance of freight either in cash or by bank bill, took without sufficient inquiry a bill which was not a bank bill, in the belief that it was such, and which was afterwards dishonoured, his misconduct, not being wilful, did not subject him to a forfeiture of his wages, nor to a deduction therefrom of the amount of his owners' loss.(p) § 63. In a suit for wages, the Court of Admiralty has jurisdiction to entertain and determine all questions of forfeiture of the whole or part of the wages, or of deductions therefrom, by (k) The Fairport, 10 P. D. 13. (g) See Taylor v. Laird, 1 H. & N. 266. (h) The Thomas Worthington, 3 W. Rob. 128, 133; The Camilla, Swab. 314; The Macleod, 5 P. D. 254; Maude and Pollock, 4th ed. 120. Cp. The Marina (misconduct of engineers), 50 L. J. Ad. 33, post § 485. (i) The Thomas Worthington, 3 W. Rob. 134; The Roebuck, ubi sup. (1) The Joseph Dexter, 20 L. T. N. S. 820. (m) The Atlantic, Lush, 566. (n) The Thomas Worthington, ubi sup. (o) The Camilla, ubi sup. (p) The Dunmore, 32 L. T. N. S. 34. reason of desertion, misconduct, incompetency, embezzlement, or the like. Thus where a master, contrary to his owner's directions, changed his destination, and, under the alleged fear of belligerents, employed his ship for five months on voyages which his owner had not authorised, and afterwards left his ship for several days, but with the intention of returning to her, it was held that his conduct did not work an entire forfeiture, but that he was not entitled to any wages for the five months during which his disobedience continued; and that though his quitting the ship did not amount to desertion, yet his conduct was such as to justify the owner in removing the ship and appointing another master, and he could claim no wages from the date of her removal.(g) Where any loss, the amount of which is substantially a liquidated amount, has been occasioned by the gross neglect or misconduct of the seaman, the Court will allow such loss to be deducted from the claim for wages; and it is the constant practice of the Court to deduct from the wages of the master and mate sums which the owners have been obliged to pay by reason of short delivery of goods occasioned by the neglect of the master or mate.(r) But where the amount of such loss is unliquidated, and the misconduct is not such as to work a forfeiture, it cannot be set up either in bar or reduction of the claim, the remedy of the owner being by counter-claim or crossaction for breach of the contract.(s) fully dis up to charged. § 64. If a master engaged for a voyage out and home is Master's rights wrongfully discharged abroad, he is entitled to wages until he when wrongcan obtain other employment, and in strictness, it seems, the termination of the contract.(t) A master who is, either in breach of his contract or in consequence of the loss of his vessel, discharged at a distance from his own country, will be awarded, in common with the crew, his viaticum-i.e. expenses of going home when any such are incurred-in addition to such wages as he may be entitled to. (u) And where he has by legal proceedings recovered his wages, with the costs of the action, he will also receive, as part of his costs, detention and subsistence money for the time during which he is necessarily detained ashore for the purposes of the action.(x) § 65. Besides his salary or wages, which is a matter of agreement between the master and those who employ him, he is (q) The Roebuck, 31 L. T. 274. (r) Maude and Pollock, 4th ed. 121; The New Phoenix, 2 Hagg. 420. (8) Williams and Bruce, 2nd ed. 195; The Camilla, Swa. 314; The Sir Charles Napier, 5 P. D. 73. (t) The Camilla, Swa. 312, 316; and see The Blessing, 3 P. D. 35. (u) The Elin, 8 P. D. 42, 129. As to priorities, see The Immacolata Concezione, 9 P. D. 37; see also The Raffaellucia, 37 L. T. 365; infra § 512. (a) As to the scale of detention and subsistence money recoverable, see The Royal Family, 31 L T. 704; see also The Carolina, 34 L. T. 399 C Primage and average. Primage. Average. Express agree ments as to primage and average. Master may not trade on his own account. usually also entitled to what is called "primage" and "average.' They are generally stipulated for in the bills of lading thus, "with primage and average accustomed." "Primage," formerly called "hat-money " or " pocket-money," is a small payment made by the owner or consignee of the goods to the master for the care and trouble he has bestowed upon them. It varies in amount according to the particular trade in which the ship is engaged. Where it is made payable by the consignee, the master may sue him for it, although the freight has been already settled with the shipowner.(y) The word "average" in the bill of lading denotes several petty charges, which are to be borne partly by the ship and partly by the cargo, such as the expense of trimming, beaconage, &c. Some of the foreign ordinances specify the particulars that fall under this head, and the mode of distributing the charge, but with us they depend entirely upon usage. This and the preceding article of primage are often commuted for a specific sum, or for a certain percentage on the freight.(z) Where by the bill of lading goods were to be delivered to the consignee, "he paying freight for the same as per charter-party, with primage and average accustomed," and the agreement between the shipowner and consignee (there being no actual charter-party) was for so much per ton, not mentioning primage, it was held that the master was entitled to primage from the consignee, although the master's bargain with the owner was to receive beyond his wages a sum certain "in lieu of all cabin and other allowances."(a) But where by his agreement with the owners the master was paid a fixed salary, "to include all charges and allowances," and a charter-party had been entered into at a freight of "60s. per ton in full," it was held that the master could not sue the consignees for primage, although he had signed a bill of lading stipulating for "5 per cent. primage in cash on delivery as customary."(b) § 66. As it is the duty of the master to devote all his time and energies to the duties of his office and to promoting the interests of his employers, the law does not allow him to trade on his own account, or to hire out any part of his services to another, (c) or to claim any premium for himself out of transactions in which he is engaged on behalf of his employers, even although may have been the custom for a master to do so.(d) If the it (y) "Primage is an old charge, and clearly in its origin payable to the master. It is called in old books hat money,' per Lord Tenterden, Best v. Saunders, M. & M. 212; Charleton v. Cotesworth, R. & Moo. 175; Maude and Pollock, 4th ed. 121. (2) Maclachlan, 3rd ed. 450. (a) Best v. Saunders, M. & M. 208. 419. (c) Gardner v. M'Cutcheon, 4 Beav. 534. (d) Diplock v. Blackburn, 3 Camp. 43 master earns anything, either by trading on his own account or by hiring out his services to others than those by whom he is employed as master, the owners or persons by whom he is employed as master are entitled to such earnings.(e) ments. § 67. Closely connected with the subject of the master's Disburseremuneration is that of his disbursements. In addition to his salary, he is entitled to be repaid all sums expended, and to be indemnified against all liabilities incurred, in the course of his agency on account or for the benefit of the ship.(f) What may properly be claimed as disbursements will be considered hereafter.(g) It is necessary to refer to them here, since, as will be presently seen, the master has the same remedies for the recovery of his disbursements as for that of his wages. The Master's Remedies for Wages and Disbursements. remedies before 1854. § 68. In respect of his own wages, the master's rights and The master's remedies long differed from those of ordinary seamen. Formerly the Merchant he could not sue for them in the Admiralty Court; (h) nor had he by Shipping Act, the law of England any lien either on ship or freight for his wages, or for necessary disbursements to fit the ship for the voyage, or for stores, repairs, or provisions. (2) This principle of law was established to preserve the legal control and management of the vessel to the owner. The owner was the employer, the master was his servant, not his agent, in the general sense of that word; and as a servant he could not set up such a claim.(k) have same remedies for seamen. § 69. By the Merchant Shipping Act, 1854,() however, " every Master to master (m) of a ship shall, so far as the case permits, have the same rights, liens and remedies for the recovery of his wages, which wages as by this Act, or by any law or custom, any seaman, not being a master, has for the recovery of his wages; and if in any proceeding in any Court of Admiralty or Vice-Admiralty, touching the claim. of a master to wages, any right of set-off or counter-claim is set up, it shall be lawful for such Court to enter into and adjudicate upon all questions, and to settle all accounts then arising or outstanding and unsettled between the parties to the proceeding, and to direct payment of any balance which is found to be due."(n) (e) Thompson v. Havelock, 1 Camp. 527; Shallcross v. Oldham, 2 J. & H. 609. (f) Story on Agency, 335, per Lord Tenterden, C. J., Thacker v. Moates, 1 Moo. & R. 79; The Feronia, L. R. 2 Ad. 65, 76; The Marco Polo, 24 L. T. 804; The Fairport, 8 P. D. 48. (g) Infra §§ 403–408. (h) Clay v. Snelgrave, 1 Ld. Raym. 576; Ragg v. King, Str. 858; The Lord Hobart, 2 Dods. at p. 104. (i) Wilkins v. Carmichael, 1 Doug. 101; Hussey v. Christie, 9 East. 426; Smith v. Plummer, 1 B. & Ald. 575; Bristowe v. Whitmore, 9 H. L. 391. (k) Per Lord Wensleydale, Bristowe v. () 17 & 18 Vict. c. 104, s. 191. (2) The remedy given by this section |