account of the effects, money, and wages of any such seaman, in which no deductions shall be allowed but such as are verified by entries in an official log-book, or by such other vouchers as may reasonably be required (o).

5. Wages and Effects of deceased Seamen.

Wages and effects of seamen dying at home, of whatever amount, are to be paid and delivered to the shipping master of the port of discharge, or to the Board of Trade, or as it directs (p).

If any seaman or apprentice as last aforesaid, or if any seaman or apprentice who within the six months preceding his death has belonged to a British ship, (25 & 26 Vict. c. 63, s. 20,) dies abroad, the officers of customs and consuls are to take charge of his effects, and sell them if they think fit and remit to her Majesty's Paymaster General, and render such accounts thereof and at such times as the Board of Trade shall direct and require (9).

A large discretion is given to the Board of Trade as to the payment of wages and delivery of effects to persons claiming under wills of seamen, unless such wills are in writing, and made and attested in the manner and by the persons prescribed by the Act; and whenever any claim under a will is rejected on this ground, the wages and effects of the deceased are to be dealt with as if no will had been made (r).

Creditors of a deceased seaman are not to obtain a right to claim from the Board of Trade his wages and effects by taking out letters of administration, or by virtue of confirmation in Scotland as executor creditor, nor by any means whatever, if the debt occurred more than three years before the demand is made, or is not claimed within two years after the death of the deceased. The steps to be taken by a creditor for obtaining payment of his debt are prescribed. The Board of Trade is to have power to require full proof of the debt, with vouchers, and to disallow the claim if not established. It may also delay the investigation of any demand made by a creditor for a year, in order to give legatees and relations the opportunity of disputing the claim. And if the Board pays to a legatee or relation, the creditor shall have the same rights and remedies against such person, as if he or she had received the same as the legal personal representative of the deceased (s). The 25 & 26 Vict. c. 63, ss. 21 & 22, contains further regulations for the recovery of the wages of seamen and apprentices lost with their ships, and for the relief of seamen found in distress abroad, for which the reader is referred to the Act in the appendix.

CHAPTER III.

OF THE LOSS AND FORFEITURE OF WAGES; AND HEREIN,

(Ss.) 1. Wages generally not payable unless Voyage performed, p. 498.

2. Of the Wages payable in cases of Capture and Recapture, p. 499.

3. Of Forfeiture of Wages by Desertion, p. 503.

4. Forfeiture for refusing to assist the Master in defending the Ship against Pirates, p. 509.

5. In case of Embezzlement by the Mariners, p. 509.

THE wages of seamen, whether hired by the month or for the voyage, are sometimes lost without any fault on their part; and sometimes forfeited by their misconduct.

FIRST, as to the loss of wages.

1. Wages generally not payable unless Voyage performed.

In order to stimulate the zeal and attention of this class of persons, who are often engaged in very perilous services, the policy of all maritime states has made the payment of their wages to depend generally on the successful termination of the voyage (a). If in the course of the voyage a total loss or capture of the ship takes place, the seamen lose their wages. So if the ship become disabled on the voyage. But the wages are not lost by the hypothecation of the ship, nor even by the sale of it, unless the sale be made under the authority of a competent Court; and they are preferred to the claim of the holder of an hypothecation bond (b). It has been already observed, that they are not lost, though the ship be wrecked, if the seamen assist in saving from the wreck sufficient to pay them (c). Indeed, if the ship be not seaworthy at the outset, and the voyage be discontinued on that account, a seaman is not entitled to wages, though, perhaps, he may maintain a special action against the owner for the recovery of damages (d).

(a) Molloy, book 2, chap 3, sec. 10; 1 Sid. 179; Abernethy v. Landale, Doug. 539; French Ordin. liv. 3, tit. 4, Des Loyers des Matelots, art 8; Code de Com. art. 258; but see ante, p. 458, and 17 & 18 Vict. c. 104, s. 183.

(b) Sydney Cove, 2 Dods. Ad. Rep. 11.

Madonna D'Idra, 1 Dods. 37. Lady Durham, 3 Hagg. 196. See post, part 6, chap. 3.

(c) Ante, p. 489.

(d) By Lord Ellenborough, Ch. J., in Eaken v. Thom, 5 Esp. N. P. C. 6.

A distinction is also made between those accidents by which voyages may be interrupted and the interests of mariners affected, as dependent on their successful termination and other causes arising from the acts of the owners or masters, and it was held accordingly by Sir Christopher Robinson, that the condemnation of a vessel for illegal trading on the part of the master, to which the mariners were not parties, did not work a forfeiture of wages, or bar the mariners' action against the owners (e). But where a mariner was obliged to leave his ship in the course of the voyage by the authority of the British Consul, and sent, under 7 and 8 Vict., c. 112, s. 60, to England as a witness upon the trial of a person, for an offence committed on the high seas, it was held that the contract between him and his employers was dissolved, and that he could not recover any wages for the period subsequent to the time when he was sent to England (ƒ).

It was mentioned in a preceding chapter, that the payment of wages is divisible, and that if a ship has delivered its cargo at one place, the wages are so far due, although the ship be afterwards taken or sunk. But if a ship sail to one place in order to take in a cargo there, to be conveyed to another place, and having received the cargo accordingly, be taken before its arrival at the place of delivery, nothing is payable to the seamen for navigating the ship to the first place (g).

2. Of the Wages payable in cases of Capture and Recapture.

In some foreign countries, where ransom is not contrary to law, the seamen belonging to a ship captured and ransomed are bound to contribute a portion of their wages towards the ransom by way of general average (h). This point is in itself of no importance in this country, because ransom is prohibited by our law; but the payment of salvage upon recapture is analogous to the payment of ransom, and was so considered by Lord Stowell in a case in the Court of Admiralty. In an action brought for the wages of a seaman after a capture and ransom of the ship, and which was tried before Chief Justice Holt, the Chief Justice is reported to have decided that the seaman was entitled to nothing, he being unable to prove that by the custom of merchants he was entitled pro ratâ, as was insisted on his

(e) The Malta, 2 Hagg. 158.

Melville v. de Wolf, 4, E. & B. 844, 24 L. J. 2, B. 200.

(g) Hernaman v. Bawden, 3 Burr. 1844, on a voyage to Newfoundland, for fish to be carried to Spain.

(h) See post, part vi. chap. 1, s. 11. The Friends, 4 Rob. 143. The Prize Acts do not mention the freight; they only direct a portion of the value of the

ships, vessels, boats, and goods restored, to be paid as salvage. But as the goods, if taken to the place of destination, are valued there, the freight is of course included in the valuation, and so the freighter may pay salvage upon it; in one case, an eighth of the freight was ordered to be deducted between the owner and freighter. The Racehorse, 3 Rob. 101.

his

behalf (i). But it seems to be the better opinion, that in the case of capture and recapture, if the ship perform her voyage and earn her freight, a mariner who has not been separated from her, is entitled to wages upon the footing of the original contract (k), subject perhaps to a proportionate salvage. In conformity to this opinion, at the trial of a cause before Lord Eldon, when his lordship presided in the Court of Common Pleas, a seaman recovered his whole wages after capture and recapture of the ship (). The owners did not insist upon any deduction as contribution to the salvage, but put their defence on another ground, which they failed to establish. In another case, a mariner, who had been hired for a voyage from Newcastle to London and back, at a certain sum, and was captured on board, two days after the ship's departure, and taken out and sent to France, instituted a suit, in the Court of Admiralty for wages; the ship had been retaken, carried to the place of destination, and performed her voyage; the owner, however, had been obliged to hire another person in London to return to Newcastle with the ship in the place of the claimant. Under these circumstances Lord Stowell held, that the claimant was not entitled to anything; but it seems from the language of the report, that if he had remained on board, his interest would have been thought to have revived upon the recapture (m).

In a case before Lord Kenyon, the master of a vessel, which had been seized and restored, claimed his wages for the period of detention, although during that time he had been separated from her, she having afterwards earned her freight. The wages for the voyage, exclusive of that period, were paid without dispute; and the defendant is reported to have acquiesced under a verdict given against him for the further sum, by reason of a strong opinion expressed by his lordship at the trial in favour of the claim (n).

The ground of decision in this case was fully discussed and considered, on the occasion of the seizure and detention of several British ships in Russia, by the Emperor Paul, in the year 1800. I allude to the case of Beale v. Thompson, which has been incidentally mentioned before. Beale, an Englishman, was hired to serve as a seaman in a British ship, called the Aquilon, whereof Thompson was owner, at monthly wages, for a voyage from Hull to Petersburgh, and from thence to London; and signed articles in the usual form. The ship went out to Petersburgh, in ballast, to bring a cargo to London; and the freight was to be paid by the ton. On the fifth of November, 1800, which was soon after this vessel arrived at Petersburgh, the Emperor commanded an embargo to be laid on all English ships in the ports of his empire, until a supposed convention relating to the island of Malta

(i) Chandler v. Meade, mentioned at the end of the case of Wiggins v. Ingleton, 2 Lord Raym. 1211.

(k) Molloy, book 2, chap. 4, sec. 14, as to freight, which depends upon the same prin ciple. But see the dictum of Eyre, Ch. J., in Curling v. Long, 1 Bos. & Pull. 637, which is contrary.

(1) Bergstrom v. Mills, 3 Esp. N. P. C. 36. Delamainer v. Winteringham, 4 Campb. 186. (m) The Friends, 4 Rob. 143. In this case, the learned Judge seems to consider a claim for wages, after capture and recapture, to be subject to salvage.

(n) Pratt v. Cuff cited in Thompson v. Rowcroft, 4 East, 43.

should be fulfilled. To enforce this order, guards were stationed along the shore to prevent the crews from quitting their ships. On the tenth of the same month they were taken from their ships by a Russian guard; such of the seamen as were subjects of other countries were liberated at the request of their consuls; but the British masters and mariners were marched in parties into the interior of the country, and treated as prisoners of war. A convention hostile to Great Britain was formed between Russia, Sweden, and Denmark, and an embargo was imposed in this country on the vessels of those nations. Upon the death of Paul, and the succession of the Emperor Alexander, peace was re-established, and the ships that had been detained on both sides were mutually restored. This restitution took place in Russia at the end of May, 1801. Beale and the rest of, the crew re-embarked on board the Aquilon, without entering into any new articles with the master, and returned to London with the ship, which brought her cargo and earned her freight. Thompson, the owner, paid the wages at the rate mentioned in the articles, exclusive of the time of the ship's detention; and Beale brought his action to recover his wages for that time. In support of the claim, it was contended that this conduct of the Russian government partook more of the nature of an embargo than of a capture, and that considering it as an embargo, the original contract for wages subsisted, as had been decided in the case of a contract of affreightment (o). And that the mariners' absence from the ship under these circumstances did not occasion a forfeiture by the operation of those clauses of the articles which provide for the continuance of the seamen on board their ship, because it was involuntary on his part. On the other hand it was insisted, that this was a case of hostile seizure and temporary capture, which put an end to the original contract, and left the mariner a right proportionate only to the services he had actually performed. And further, that if it were to be considered only as an embargo, yet as the seamen had not during the period of it done any duty on board the ship, or for the benefit of the owners, he was not entitled to any payment; and it was urged, that if the force of the Russian government furnished an excuse to the mariner on the one hand for not performing his contract by continuing on board the ship, so on the other hand it ought to exempt the owner from paying for what he had not received. The learned Judges of the Court of Common Pleas were divided in opinion as to the character to be attributed to these acts of the Russian government, upon which the determination of the question between the parties was thought principally to depend (p). The cause was brought before the Court of King's Bench by writ of error, and, after consideration, the judgment of the Court was delivered by Lord Ellenborough in favour of the claim of Beale, the mariner. It is impossible to give the full effect of the very learned judgment pronounced by the Chief Justice in an abstract, nor does the plan of this Treatise allow me to transcribe the whole; I must, therefore, refer the reader, who is desirous of full

(0) See before, p. 456.

(p) Beale v. Thompson, 3 Bos. and Pull. 405,