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 of the ship's destination (c); and also with respect to a promise to pay to a sailmaker, 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 (d).

6. Seamen not entitled to increased Remuneration for extra-
ordinary Service.

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 at a trial before the late Lord Kenyon esteemed to be wholly void (e). So where two of the crew deserted in the course of a voyage, and the master having in vain attempted to supply their places at Cronstadt, entered into an agreement with the rest of the crew at that place, to divide among them the wages of the deserters, if he should not be able to procure two other men at Gottenburgh, which in fact he could not do, Lord Ellenborough decided that the engagement was wholly void. It was attempted to distinguish this case from the foregoing, by suggesting that the agreement was made on shore, when the master could not be supposed to be under any restraint or apprehension, and not at sea, in a moment of peril, like the former case: an obvious answer to this would be, that if the master had not been apprehensive of further desertion, he would not have made such a promise; but the Chief Justice decided the case upon the general ground. "There was," said his lordship, "no consideration for the ulterior pay promised to the mariners, who remained with the ship; before they sailed from London, they had undertaken to do all they could under all the emergencies of the voyage; they had sold all their services till the voyage should be completed." "The desertion of a part of the crew is to be considered an emergency of the voyage as much as their death, and those who remain are bound by the terms of their original contract, to exert themselves to the utmost to bring the ship in safety to her destined port” (ƒ).

But the continuance of a voyage under circumstances in which unusual danger of life (a question of degree for a jury) from inadequate equipment or unseaworthiness would be incurred, is not incumbent on a crew, and a contract for an increase of wages between the master

(c) White v. Wilson, Bos. & Pull. 116, and the Isabella, 2 Rob. 241.

(d) Elsworth and Wife v. Woolmore, Guildhall Sitt., 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.

(e) Harris v. Watson, Peake's N. P. C. 72. and Harris v. Carter, 23 L. I., 2 B. 295.

(f) Stilk v. Myrick, 2 Campb. 317. See

also Thompson v. Havelock, 1 Campb. 527. Dafter v. Cresswell, 7 D. & R. 650; England v. Davison, 11 Ad. & E. 856; Harris v. Carter, 23 L. I., 2 B. 205; and the Araminta, 1 E. & A. 224; but see Yates v. Hall, where the service for which additional wages were contracted for was of an unusual and exceptional character, viz., becoming an hostage.

and mariners was held binding, the jury having found that it was unreasonable for the vessel, one of 1,045 tons, to proceed to sea, on a voyage from Port Philip in Australia, to Bombay, with a crew of only nineteen hands

In the case of Carter v. Hall (h), Lord Ellenborough held that a purser's steward on board a King's ship could not recover wages from the purser, on an implied contract for his services, he being a person known in the service and receiving pay from the Crown, although proof was given that it was usual for pursers to allow their stewards an annual salary.

In Clutterbuck v. Coffin (i), the plaintiff, at the request of the defendant, a captain in the Royal Navy, agreed to enter on board his ship as captain's cook, the defendant undertaking to pay him wages over and above the government pay, to which the rating would entitle him. The plaintiff having performed the service, it was held, that there was a sufficient consideration to enable him to bring an action for such wages.

This case, it will be observed, differs from others above cited, in the circumstance that in them the contracts were made by persons who were not at the time competent to contract, having already bound themselves to give their entire services under a prior existing contract-here there was an agreement for service entered into while the plaintiff was in another employment, and perfectly free to contract in the manner he did. There being no plea but non assumpsit, the objection to the contract, on the ground of illegality, was not open to the defendant.

In this, as in all other cases, an engagement for service, made in contravention of the rules of the common or statute law, will be void (k).

7. Provisions of 17 & 18 Vict., c. 104, for the licensing by the Board of Trade of persons authorized to procure Seamen for Merchant Ships. We have seen that to guard the mariner from the frauds to which he was exposed, through the cupidity of dishonest persons, the Board of Trade is empowered to license persons to engage seamen and apprentices for service in merchant ships (I), and it is enacted that no person, unless duly licensed under this Act, or the owner or master or mate of a ship, or some person who is bona fide the servant and in the constant employ of the owner, or a shipping master, shall procure seamen for a ship in which he is not interested (m); that no person interested in a

(g) Hartley v. Ponsonby, 7 E. & B. 872; 26 L. I. 2 B. 232; and see the Mobile, Swab. 256-in which it was held that a tender to the seamen of the wages stipulated in their articles on condition of their executing a release of all claims, including promissory notes, on which the seamen in the case of Hartley v. Ponsonby, afterwards recovered, was insufficient. The owners were

held liable to the whole costs incurred in the Admiralty Court. See also Frazer v. Hatton, 2 C. B. N. S. 512.

(h) 2 Starkie, 861.

(i) 4 Scott, N. R. 509.

(k) The Vanguard, 6 Rob. 207.
(1) 17 & 18 Vict. c. 104, s. 146.
(m) Sec. 147.

ship shall knowingly receive any seaman hired to serve therein, contrary to these provisions (n), and that every person guilty of such offences shall, on conviction thereof, for every seaman or apprentice so engaged or supplied, forfeit a sum not exceeding 20l. (o). The like penalty, in addition to the forfeiture of his licence, is imposed on any licensed person employing an unlicensed person to engage seamen (p).

The like penalty is also imposed on any person, not being in her Majesty's service or duly authorized by law, going on board a merchant vessel before her arrival in dock, or at her place of discharge, without permission of her master, who is authorized to take any person so offending into custody, and deliver him to a constable to be taken before a magistrate and dealt with according to the Act (q). Persons, who on board a ship, within twenty-four hours of her arrival, shall solicit any seaman to become a lodger at the house of any person letting lodgings for hire, or remove his effects from the ship, except under his personal direction, or without permission of the master, shall, for every such offence, forfeit the sum of 5l. (r). And by demanding or receiving remuneration for the board of sailors for a longer period than is due, and by neglecting to return monies or effects belonging to them, a penalty of 107. is incurred (s). And it is enacted that the word seaman in the Act shall include every person (except masters, pilots, and apprentices duly indentured and registered) employed or engaged in any capacity on board any ship (t).

(n) Ibid.

(0) Ibid.

(p) Ibid.

(q) Sec. 237.

(r) Sec. 238.

(s) Secs. 235, 236.
(t) Sec. 2.

CHAPTER II.

OF THE EARNING AND

AYMENT OF WAGES; AND HEREIN,

(Sr.) 1. When the whole Wages are to be paid, p. 480.

2. Cases in which a Part only is to be paid.—Service not wholly performed by reason of Death, Shipwreck, or abandonment of the Voyage, p. 481.

3. The Time at which Payment is to be made, p, 493.

4. Advance and Allotment Notes.-Savings' Banks for Seamen, p. 496.
5. Wages and Effects of deceased Seamen, p. 497.

I 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. 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 character.

1. When the whole Wages are to be paid.

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 violation of his contract, discharges a seaman from the ship during a voyage, the seamnan will be entitled to his full wages up to the prosperous determination of the voyage, deducting, if the case require it, such sum as he may in the meantime have earned in another vessel (b). The French ordinance adds, that

(a) Laws of Oleron, art. 6 & 7; of Wisbuy, art. 19; of the Hanse Towns, art. 39 & 45; same of the year 1614, tit. 14, art. 1; French Ordin. liv. 3, tit. 4. Des Loyers des Matelots, art. 11; Code de Com. art 262. Chandler v. Grieves, 2 Hen. Black. 606, note (a); and by Lord Mansfield in the case

of Paul v. Eden, in the King's Bench, Easter Term, 25 Geo. 3.

(b) Robinet v. The ship Exeter, 2 Rob. 261. The Beaver, 3 Rob. 92; Roccus, not. 43; Old Hanseatic Ordinance, art. 42; Hanseatic Ordinance of 1614, tit. 3, art. 7.

in such cases the master shall not charge the owners with the payment (c). A seaman is to be found with provisions as long as he remains on board, and is willing to do his duty; if there be a want of sufficient provisions, it is a sufficient justification for his leaving the vessel, and will not deprive him of his right to his wages (d).

Since the earlier editions of this Treatise, the novel case has been presented to the Court of Admiralty of a woman applying for wages for service performed on board a ship. The claim was made for work in two capacities; one as cook and steward, the other as keeper of the ship and her stores, in harbour or dock; the claimant had acted also as mariner in a great degree. After the performance of the service, payment was resisted, on the ground of the sex of the applicant. The learned Judge who presides in that Court said, that the material point for the Court to look to, was the work done; for supposing an informality in the mode of hiring, still, if the work had been done, and properly done, it entitled the performer to the common remuneration for such employment (e).

In the discussion of the cases that arose on the detention of the British ships in Russia by the Emperor Paul, in the year 1800, it was admitted in both Courts, that in the ordinary case of an embargo, a seaman hired by the month, and remaining with the vessel, has a right to his wages during the embargo, if the ship afterwards perform her voyage and earn her freight (f). The circumstances of that detention were very peculiar. The cases will be more fully stated when I come to the consideration of the loss of wages (g).

2. Cases in which a Part only is to be paid.-Service not wholly performed by reason of Death, Shipwreck, or abandonment of the Voyage.

Secondly, it was determined before the passing of the repealed statutes, by which the service of seamen in merchant ships was regulated, that a seaman, who was impressed from such a ship into the royal service, was entitled to receive a proportion of his wages up to the time of impressing, the ship having afterwards arrived in safety at her port of discharge (h). It has also been since decided, that he was entitled to no more (i). The first of those statutes expressly provided, that a seaman belonging to any merchant ship, who entered into the service of his Majesty on board any of his Majesty's ships, should not for such entry forfeit the wages due to him during the term of his service in the merchant ship, nor should such entry be deemed a

(c) Liv. 3, tit. 4, Loyers des Matelots, art. 10; and also the Code de Com. art.,270. (d) The Castilia, Stewart, 1 Hagg. Ad. Rep. 59. See also The Eliza, Ireland, id. p. 186.

(e) The Jane and Matilda, Chandler, 1 Hagg. Ad. Rep. 187.

(f) Beale v. Thompson, 3 Bos. & Pull. 405, and 4 East, 546.

(g) Chap. 3 of this part, sec. 2.

(h) Wiggins v. Ingledon, 2 Lord Raym.

1211.

(i) Clements v. Mayborn, in the King's Bench, Trinity Term. 24 Geo. 3.