like other liens, depend upon possession. Seamen's wages are hardly earned, and liable to many contingencies, by which they may be entirely lost, without any fault on their part. Few claims are more highly favored and protected by law, and when due, the vessel, owners, and masters are all liable for the payment of them. (ƒ) The seamen need not libel the vessel, at the intermediate port where they are discharged. They may disregard bottomry bonds, and pursue their lien for *wages after- *197 wards, even against a subsequent bona fide purchaser. It follows the ship and its proceeds, into whose hands soever they may come, by title or purchase, from the owner. Their demand for wages takes precedence of bottomry bonds, and is preferred to all other demands, for the same reason that the last bottomry bond is preferred to those of a prior date. Their claim is a sacred lien ; and as long as a single plank of the ship remains, the sailor is entitled, as against all other persons, to the proceeds, as a security for his wages, for by their labor the common pledge for all the debts is preserved. (a) The seamen's lien exists to the extent of the whole compensation due them. There is no difference between the case of a vessel seized abroad and restored in specie or in value; the lien reattaches to the thing, and to whatever is substituted for it. This is not only a principle of the admiralty, but it is found incorporated into the doctrines of the courts of common law. (b) In the French law, the seamen's lien upon the vessel is extinguished after a sale and a voyage, in the name and at the risk of the purchaser; and the preference of the seamen's claim is confined to the wages of the seamen employed in the last voyage. (c)

(f) Pothier, Louage des Matelots, sec. 226; Abbott on Shipping, part 4, c. 4, sec. 10; Wysham v. Rossen, 11 Johns. 72; Valin, i. 751; Wait v. Gibbs, 4 Pick. 298. In the case of the Betsey and Rhoda, in the District Court of Maine, 3 N. Y. Leg. Obs. 215, [Daveis, 112,] very marked protection was thrown over the wages of seamen. It was held, that a negotiable note, taken by a seaman for his wages, will not extinguish his claim for wages, nor his lien against the ship, unless he be distinctly informed at the time that such would be the effect, and some additional security or advantage be given him for renouncing his lien on the ship.

(a) Consulat de la Mer, c. 138; Valin's Comm. 2, 12; Madonna d'Idra, 1 Dods. 87; Sydney Cove, 2 id. 11; The Ship Mary, 1 Paine, 180; Sheppard v. Taylor, 5 Peters, 675; Brown v. Lull, 2 Sumner, 443, 452; Pitman v. Hooper, 3 id. 51.

(b) Sheppard v. Taylor, 5 Peters, 675.

(c) Ord. de la Mar. tit. De la Saisie des Navires, art. 16; De l'Engagement, art.

1 The Amelie, 6 Wall. 18, 30; ante, 174, n. 1.

*198

*

[10] Desertion and Forfeiture of Wages. Desertion from the ship without just cause, and animo non revertendi, or the justifiable discharge of a seaman by the master for bad conduct, will work a forfeiture of the wages previously earned; and this is a rule of justice and of policy which generally pervades the ordinances of the maritime nations. By the English statute law, (a) and by the act of Congress, (b) desertion is accompanied

19; Code de Commerce, arts. 191, 193. The Commercial Code of Napoleon settles the order and rights of privileged debts much more fully and precisely than the marine ordinance of Louis XIV.; and this priority in favor of seamen's wages pervades both the maritime ordinances. See supra, 168. The venerable code of the Consolato del Mare, c. 138, expressed itself on the subject with the energy of Lord Stowell, when it declared, that mariners must be paid before all mankind, and that if only a single nail of the ship was left, they were entitled to it. Consulat de la Mer, par Boucher, ii. 205. See also Cleirac upon the Judgments of Oleron, art. 8, n. 31; and Boulay-Paty, Cours de Droit Com. i. 115. The preference given to seamen for their wages, over all other claims, upon the ship and freight, is the universal law of maritime Europe. The wages of seamen are a lien on the vessel and freight, and even on the cargo to the amount of the freight due upon it. The seaman has no lien on the cargo as cargo, it is on the ship, and on the freight as appurtenant thereto; and so far as the cargo is subject to freight, he may attach it as security for the freight that may be due. The Lady Durham, 3 Hagg. Adm. 200. When the general owner, and when the hirer of the ship for the voyage, are personally liable to the mariners for their wages, see the cases, and the examination of them, in Curtis's Treatise on the Rights and Duties of Merchant Seamen, 326-336. The master has his lien on the cargo for his freight. The cargo is hypothecated for the freight, and the freight is hypothecated for the seaman's wages. The lien on the freight is not taken away by the statute of the United States, allowing to seamen process against the vessel. See Poland v. The Brig Spartan, in the District Court of Maine, 1 Ware, 134, and The Paragon, ib. 330, 331, where the question as to the extent of the lien of seamen for their wages is learnedly discussed.

(a) 11 and 12 William III. c. 7, and 2 George II. c. 36. See, also, The Jupiter, 2 Hagg. Adm. 221.

(b) Act of Congress, 20th July, 1790, c. 29, secs. 2, 5. In Cloutman v. Tunison, 1 Sumner, 373, Judge Story held, that by the maritime law, the voyage is ended when the ship has arrived at her port of destination, and is safely moored, though her cargo be not delivered, and desertion afterwards does not forfeit the wages at large, but a partial forfeiture may be decreed by way of compensation for breach of duty. So, in another case, Judge Hopkinson held, that if a seaman leaves the vessel after she is moored at the wharf, at the last port of delivery, and before the discharge of the cargo, he forfeits a ratable deduction from his wages. To subject the seaman to the forfeiture of his wages, under the act of Congress of 1790, the entry in the log book, on the day of the absence, is indispensable. Knagg v. Goldsmith, Gilpin, 207; ib. 219; Cloutman v. Tunison, 1 Sumner, 373; The Rovena, Ware, 309; The Bulmer, 1 Hagg. Adm. 163; The Pearl, 5 C. Rob. 224; The Baltic Merchant, Edw. Adm. 86. Quitting the ship before the voyage is ended is desertion; but quitting her afterwards, and before the unlivery of the cargo, is a mere absence. The forfeiture of wages is not so absolute and total in the one case as in the other. The act

with a forfeiture of all the wages that are due, and an absence of forty-eight hours without leave is made conclusive evidence of desertion; and whatever unjustifiable conduct will warrant the act of the master in discharging a seaman during the voyage will equally deprive the seaman of his wages. But the forfeiture is saved if the seaman repents, makes compensation or offer of amends, and is restored to his duty. (c) Public policy and private justice here move together, and the maritime ordinances unite in this conclusion. The master has power to remit a forfeiture, and the penalty of forfeiture is not applied to slight faults, either of neglect or disobedience. There must be either an habitual neglect, or disobedience, or drunkenness, (d) or else a single act of gross dishonesty, or some other act of a heinous and aggravated nature, to justify the discharging a seaman in a foreign port, or the forfeiture of wages; nor will the admiralty courts, except in cases of great atrocity, visit the offences of seamen with the cumulated load of forfeiture of wages and compensation in damages. They stop at the forfeiture of the wages antecedently earned, and in the application of the forfeiture, the advance wages are made a charge on the * forfeited wages, but the hospital *199 money is apportioned ratably on the wages for the whole voyage. In these regulations the moderation of the courts, and the solicitude which the peculiar condition and character of seamen excite, are equally manifest. (a) So, if the seaman quits the ship involuntarily, or is driven ashore from necessity, from

of Congress of 20th July, 1790, c. 56, secs. 2, 5, 7, makes a distinction between wilful absence of a seaman after he has signed the articles, and before the commencement of the voyage, and the like absence after the voyage has commenced. In the first case he forfeits wages, clothing, and damages, and in the latter case he is liable to be arrested as a deserter, and to be imprisoned. Cotel v. Hilliard, 4 Mass. 664; Curtis's Tr. on Seamen in the Merchant Service, 132-136, 140, 141.

(c) The master is bound, in such a case, to receive back the seaman, as a case fit for condonation, unless his previous misconduct would justify a discharge. Cloutman v. Tunison, 1 Sumner, 373, s. P.; Coffin v. Jenkins, 3 Story, 108.

(d) Lady Campbell, 2 Hagg. Adm. 5; The Malta, ib. 168; The Blake, before Dr. Lushington, July, 1839, [1 Wm. Rob. 73;] Am. Jurist for April, 1841, 205.

(a) Whitton v. The Brig Commerce, 1 Peters Adm. 160; Thorne v. White, ib. 175; Relf v. The Maria, ib. 186; The Ship Mentor, 4 Mason, 84, 102; The Malta, 2 Hagg Adm. 159; The Susan, ib. 229, note; Hutchinson v. Coombs, District Court of Maine, 1 Ware, 65. In the case of the Ship Mentor, Mr. Justice Story made some practical regulations as to the disposition of the forfeited wages, and he did not consider it to be a settled rule, that even the commission of the offence of endeavoring to make a revolt was in all cases to be visited with a total forfeiture of wages. Though a sea18 [ 273 ]

VOL. III.

want of provisions, or by reason of cruel usage and for personal safety, the wages are not forfeited, and he will be entitled to receive them in full to the prosperous termination of the voyage. (b) On the other hand, it is the duty of the seamen to abide by the vessel as long as reasonable hope remains; and if they desert the ship under circumstances of danger or distress

man be justly discharged during the voyage for disobedience of orders, it was said, by Dr. Lushington, in the case of the Blake, in the Admiralty (July, 1839), [1 W. Rob. 73,] to be a very infirm test of the fitness of depriving him of his wages. Wages may be forfeited where the disobedience of orders is to such an extent as to render the discharge of the seaman imperatively necessary to the safety of the ship, and the due preservation of discipline. Where a seaman was sent home from a foreign port, in irons, by order of the American consul, for bad conduct of an aggravated character, and was therefore disabled, by his own fault, from the performance of his duty, his wages were deemed forfeited. Smith v. Treat, District Court of Maine, 1845, [Daveis, 266; 4] New York Legal Observer for January, 1846.

(b) Jugemens d'Oleron, art. 13; Limland v. Stephens, 3 Esp. 269; The Favorite, 2 C. Rob. 232; Bell's Comm. c. 4, secs. 1, 4; Sherwood v. McIntosh, Ware, 109; Rice v. The Polly and Kitty, Peters Adm. 420; Magee v. The Moss, Gilpin, 219. Refusal to proceed on a voyage not designated by the articles is not such a desertion as works a forfeiture. 1 Hagg. [Adm.] 182, 248, 347. So, if the master has an avowed intention to go on a different voyage previous to the completion of a voyage for which a seaman had signed the shipping articles, such an intended departure will be sufficient to justify the seaman leaving the ship and suing for his wages during the time he served on board. Hayward v. Maine, Kerr, N. B. 292.

-

1 Desertion and Forfeiture of Wages. The text is confirmed by Edward v. Trevellick, 4 El. & Bl. 59; Bush v. The Alonzo, 2 Clifford, 548; Knowlton v. Boss, 1 Sprague, 163; Hunt v. Colburn, ib. 215; Sheffield v. Page, ib. 285; 2 Curtis, 377; The America, Blatchf. & H. 185; Fitzsimmons v. Baxter, 3 Daly, 81. So in case of deviation, sup., note (b); see The Brig Cadmus v. Matthews, 2 Paine, 229; The Mary Ann, Abbott Adm. 270; Piehl v. Balchen, Olcott, 24; The Becherdass Ambaidass, 1 Lowell, 569, 6 Am. Law Rev. 74 (commenting on Bucker v. Klorkgeter, Abbott Adm. 409); or provisions so bad as to be positively unfit for the men's sup. port; Ulary v. The Washington, Crabbe, 204; or unseaworthiness of the ship; Savary v. Clements, 8 Gray, 155; ante, 178, n. 1; which the seamen may prove, notwith standing the fact that when they demanded to leave on that ground, she was

reported seaworthy by marine surveyors. Bucker v. Klorkgeter, Abbott Adm. 402.

The defence of desertion often depends on the validity of the articles, and as British shipping articles generally give a very loose description of the nature of the voyage, and the American courts construe the requirements of British law pretty strictly, desertion from British ships is very common in some of the ports on the Atlantic coast. Ante, 185, n. 1. In some cases the British consul has interposed and protested against the court's taking jurisdiction; and it has been held in the admiralty that when the sailor shipped for a voyage ending in a home port, his protest would be respected in the absence of special circumstances, such as a clear deviation, cruelty, or the breaking up of the voyage, although the court might doubt the validity of the articles. The Becherdass Ambaidass, 1

from perils of the sea, when their presence and exertions might have prevented damage, or restored the ship to safety, they forfeit their wages, and are answerable in damages. (c) And even when a seaman might well have been discharged in the course of the voyage, for gross misbehavior, if the master refuses to discharge him, and leaves him in imprisonment abroad, he will, in that case, be entitled to his wages until his return to the United States after deducting from the claim his time of imprisonment. (d)

(c) Sims v. Mariners, Peters Adm. 395; The Dawn, in the District Court of Maine, February, 1841, reported in [Daveis, 121;] American Jurist for October, 1841, 216.

(d) Buck v. Lane, 12 Serg. & R. 266. If a seaman leaves the ship without just cause, the master may enter the desertion in the log book, under the act of Congress of 1790, which will work a forfeiture of wages antecedently due; or he may have the seaman imprisoned until the vessel is ready to sail, and then the contract continues, and the wages go on. The imprisonment is the punishment. Brower v. The Maiden, Gilpin, 294. By the Treaty of Commerce and Navigation between the United States and the Kingdom of Hanover, May 20, 1840, art. 6, and between United States and Portugal, of 23d April, 1841, art. 11, consuls, vice-consuls, and commercial agents were authorized to require the assistance of the local authorities for the search, arrest, and imprisonment of deserters from the ships of war and merchant-vessels of their country. Application is to be made in writing, with the exhibition of the registers of the vessels, muster-rolls, or other official documents, proving that such individuals formed part of the crews; and then the surrender is not to be refused. The deserters to be placed at the disposal of the consuls, &c., and confined in the public prisons, at the request and cost of those claiming them, in order to be sent to the vessels, &c. ¡ no such imprisonment to exceed four months.

In the examination of the maritime law concerning seamen, I have been led to consult, very frequently, the admiralty decisions in the District Court of Pennsylvania; and I feel unwilling to take my leave of this branch of the subject without expressing my grateful sense of the obligation which the profession and the country

Lowell, 569; 6 Am. Law Rev. 74; The Robert Ritson, ib. 79, note. See The Nina, L. R. 2 P. C. 38; s. c., L. R. 2 Ad. & Ec. 44; The Maggie Hammond, 9 Wall. 435, 452, 457.

In the Nina, sup., there was an express agreement to be bound by the law of the ship, according to which the controversy should have been referred to the consul for determination. See Freeman v. Baker, Blatehf. & How. 872, 380. So, again, agreements not to sue except in a home court have been held good. Gienar v. Meyer, 2 H. Bl. 603; Johnson v. Machielsen, 3 Camp. 44; Olzen v. Schierenberg, 8 Daly, 100; in this case it seems to be considered that courts of common law

have the same discretion as the admiralty court has always exercised, with regard to taking jurisdiction of suits between foreign seamen and masters for acts done on the high seas. What would be the effect of a statute like 17 & 18 Vict. c. 104, § 190 (prohibiting seamen engaged for a voyage which terminates in the United Kingdom to sue abroad, except, &c.), in foreign courts, when not expressly incorporated in the articles, remains to be determined. It is not wholly clear why the law under which the contract is made is not as much a part of the contract as a custom would be. But see Maclachlan on Shipping, 235; Madonna D'Idra, 1 Dods. 37, 41.