information, to the report (q), and content myself with stating, that the Court thought it unnecessary to decide in this case, whether or no the dissolution of contracts for freight and wages is the necessary effect of perfect and complete capture, where the right of the original proprietor is not revested by subsequent recapture, nor recognized as continuing in force by any judgment or authoritative act of restitution on the part of the capturing nation; considering this as a case of hostile seizure, with a view to measures of retaliation, if they should ultimately be thought just and necessary, but of subsequent restitution and abandonment of the right of seizure, on the part of the power by which the seizure had been made; and observing that there was no case where property so dealt with had been considered as captured, or the contract for freight or wages dissolved; and holding, therefore, that the plaintiff's claim was not defeated on the supposed ground of a dissolution of the contract. The Court also thought, that the seaman had not, in this case, forfeited his wages under any of the clauses of the articles, because the language of the articles, construed, as it ought to be, with reference to the Acts of Parliament, imported a departure from the ship by the unauthorized act of the party, and did not apply to a seaman taken out of his ship in the manner in which the plaintiff and the rest of the crew had been in this case; but that if this point were more questionable than it appeared to be, yet that the return of the plaintiff to the ship in the manner stated, did, in the absence of any fresh contract on the subject, import a recognition on the part of the master that he and the sailors then stood in their original relative situation to each other, under the articles by which that relation was constituted. And upon the whole the Court thought, "in point of law, that the contract of service, between the plaintiff and defendant, was to be considered as having continued and been in force from the time of executing the articles, up to and at the period of the ship's arrival at her port of discharge, and the final termination of her voyage there: and that the plaintiff was to be considered as entitled to his wages during the same time." This case was afterwards brought by writ of error before the House of Lords, when the opinion of the Judges was taken on the question whether, on the whole of the facts found in the special verdict, the original plaintiff was entitled to recover wages during the time he was kept out of the ship, as found in the special verdict. The Judges were unanimously of opinion that he was so entitled to recover; and the Lord Chancellor concurred in their opinion (r). It has been observed, that Beale, the plaintiff in the case just quoted, was an Englishman; an action was also brought by a mariner belonging to another ship, under circumstances the same in all respects, except as to his national character, he being a foreigner. In this action also the decision of the Court was the same (s). (9) Beale v. Thompson, 4 East, 546. defendant in error, 1 Dow. 299. (s) Johnson v. Broderick, 4 East, 566. SECONDLY, as to the forfeiture of wages. 3. Of Forfeiture of Wages by Desertion. Desertion from the ship is held to be a forfeiture of the wages previously carned, in all maritime states (t). And in conformity to this principle of maritime law, the Legislature of this country, in the reign of King William the Third, "for the prevention of seamen deserting of merchant ships abroad in parts beyond the seas," enacted, "That all such seamen, officers, or sailors, who shall desert the ships or vessels wherein they are hired to serve for that voyage, shall for such offence forfeit all such wages as shall be then due to him or them" (u). By the 2 Geo. 2, c. 36, it was enacted, that if a seaman should desert, or refuse to proceed on the voyage on board any ship bound to parts beyond the seas, or should desert from the ship to which he belonged, in parts beyond the seas, after he should have signed the contract, he should forfeit to the owners the wages due to him at the time of his deserting or refusing to proceed on the voyage (x). By the 16 & 17 Vict. c. 104, whenever any act of misconduct is committed by a seaman which is by the agreement subject to a fine, the appropriate fine shall, if an entry of the offence is made in the official log-book, and if the offence is proved to the satisfaction of the shipping master, be deducted from the wages of the offender and paid to the shipping master before whom the crew of any foreign-going ship is discharged, or in the case of " home-trade ships to the shipping master at or nearest to the place where the crew is discharged (y). And if any seaman, during the period specified for his service, wilfully and without leave absent himself from the ship or his duty, he forfeits (in all cases not of absolute desertion, or not treated as such by the master) out of his wages to the master or owner the amount of two days' pay, and for every twenty-four hours of absence six days' pay, or, at the option of the master, the amount of such expenses as have been properly incurred in hiring a substitute to perform his work; and if any seaman wilfully disobey any lawful command, he is subject, in addition to imprisonment with or without hard labour, to the like forfeiture; for continued wilful disobedience or neglect of duty, he is liable, in addition to imprisonment with or without hard labour, to forfeit six days' pay for every twenty-four hours' continuance of such disobedience and neglect, or the expenses of procuring a substitute. If after the ship's arrival at her port of delivery, and before she is placed in security, any seaman quits the ship without a (t) See on this subject of desertion, Ordin. of Wisbuy, art. 61; of the Hanse Towns, art. 43; Molloy, book 2, chap. 3, sec. 10; French Ordin. liv. 2, tit. 7, Les Matelots, art. 3.] (u) 11 & 12 Wm. 3, c. 7, s. 17. previous discharge or leave from the master, he forfeits to the master or owner one month's pay of his wages (2). If a seaman deserts the ship he forfeits to the owner or master all wages and emoluments to which he might have been entitled, and the clothes and effects he may have left on board; if he deserts abroad, he also forfeits, at the discretion of the Court, all wages and emoluments which shall be agreed to be paid to him by the master or owner of any other ship on which he may have engaged for his voyage home. If, in consequence of such desertion beyond the seas, the master be obliged to employ a substitute at a higher rate of wages, he is entitled to recover from the deserter the excess of wages so paid by him to such substitute beyond the amount which would have been payable to the deserter, in case he had duly performed his service pursuant to the agreement (a). A mode of ascertaining the amount of these forfeitures, where the seaman has contracted for the voyage or the run, is provided by the Act (b). If a mariner quit the ship with leave of the master, and when ordered to return refuse to do so, his wages are forfeited (c). But they are not forfeited by his quitting the ship, and refusing to proceed in her on a voyage not designated by the articles (d). And if in the Court of Admiralty the owners allege desertion as a defence to a suit for wages, it is incumbent on them to show the articles or contract, in order that the stipulated service may appear (e). All forfeitures for desertion were to be applied, in the first place, towards the reimbursement of the expenses occasioned thereby to the master or owner of the ship, and the remainder, until the passing of the Seamen's Fund Winding-up Act (f), were payable to the Seaman's Hospital Society (g). They are now to be paid in to the receipt of the Exchequer, to be carried to and form part of the Consolidated Fund of the United Kingdom (h). In the case of certain mariners hired in the Downs, for a voyage or run to the port of Hull at twelve guineas each, who with the consent of the master, but against the positive orders of the owners, quitted the ship on the day after her arrival in the roadstead of that port, in the river Humber, the port being so full that the vessel could not enter immediately the present learned Judge of the Court of Admiralty decreed that the mariners had forfeited their wages. The ship actually entered the port within a week; it did not appear that at the time of the desertion there was any prospect of a lasting impediment; and the learned Judge, without determining how long mariners were bound to wait in such a case, held that they could not be entitled to : (z) 17 & 18 Vict. c. 104, s. 243. (a) Sec. 243. (b) Sec. 252. c) The Bulmer, 1 Hagg. 163. The Jupiter, 3 Hagg. 221. (d) The Eliza, id. p. 182, The Countess of Harcourt, id. p. 248. The Cambridge, 2 Hagg. 243. (e) The Bulmer, 1 Hagg, 163; 4 & 5 Wm. 4, c. 19, s. 16. (f) 14 & 15 Vict. c. 102, s. 20. (g) 7 & 8 Vict. c. 112, s. 9. (h) 17 & 18 Vict. c. 104, s. 253. their dismissal," till after some time of just expectation of the removal of the difficulty" (i). Certain articles of agreement for service in a privateer contained in the body a clause imposing the penalty of forfeiture of wages for twenty-four hours' absence without leave; and, in addition thereto, contained also the following memorandum written in the margin, viz: "to leave at the end of three months, if the ship is in port, or in perfect safety, of which the captain is to be the sole judge." The ship belonged to the port of London. The captain's cook, who had signed these articles, brought an action against the master for his wages; and at the trial it appeared that the plaintiff had served ten months, and on his return from a cruise, while the ship was in Yarmouth Roads, and the master was on shore, he asked leave of the mate to go on shore to see his wife, but was told by the mate that he could not say whether he might have leave or not: the plaintiff, however, went on shore, and did not afterwards join the ship. Yarmouth Roads is rather a dangerous place; the crew had originally consisted of twenty mariners; twelve were sufficient to navigate the ship to London; and the boatswain, quarter-master, and two lieutenants had been previously discharged. The learned Judge (Mr. Justice Chambre) before whom the cause was tried, told the jury that under such a clause he did not think the master could refuse leave without a sufficient reason, and left it to them to consider whether the ship was in a place of safety when the plaintiff quitted. The jury found a verdict for the plaintiff, and the Court of Common Pleas afterwards approved of the direction of the learned Judge, and the verdict was established (k). This being the case of a private ship of war, and not of a merchant vessel, the forfeiture depended upon the particular contract of the parties, and not upon any legislative enactment. By the 2 Geo. 2, c. 36, reciting that " seamen and mariners, after their ship's arrival at their delivering port in Great Britain, oftentimes leave the ship and vessels before they are unladen, or before the said seamen and mariners are discharged by the masters or commanders of such ships or vessels," it was enacted, "that in case any seamen or mariner, not entering into the service of his Majesty, his heirs and successors, should leave such ship or vessel to which he or they belonged, before he or they should have a discharge in writing from the master or commander, or other person having the charge of such ship or vessel, he or they so leaving such ship or vessel should forfeit one month's pay" to the use of Greenwich Hospital (1). Although by this clause the discharge was required to be in writing, yet in an action brought by a seaman against the master for his wages, at the trial whereof it appeared that the plaintiff and several others left the ship under these circumstances, while she was under the command of (i) The Pearl, 5 Rob. 224. (k) Neave v. Pratt, 2 B. & P. New Rep. 408. () 2 Geo. 2, c. 36, s. 6. By the 7 & 8 Vict. c. 112, s. 62, all forfeitures for which no specific application is provided, shall be paid and applied as follows;-not exceeding one moiety to the informer, and the residue to the Seaman's Hospital Society, the mate, and the master insisted upon his right to make this deduction, but did not call the mate to prove that he had not given a discharge in writing; it was held that the jury might presume that the plaintiff had received such a discharge: this being the case of a penalty in which the negative ought to be proved by the party insisting on the forfeiture, as the circumstances of the case appeared to afford him the means of doing so (m). It is to be observed, that in this case the defence at the trial was grounded on the particular enactment of the statute. The same statute authorized the master or owner to deduct from the wages due to a mariner, all the penalties and forfeitures incurred by the Act, and to enter them in a book to be kept for that purpose, to be signed by the master and two or more principal officers (n); and it was held that the master could not make this deduction, unless the forfeiture had been regularly entered in a book as the statute directed (o). I have already mentioned that entry into the service of her Majesty is not deemed a desertion, nor followed by the forfeitures of wages (p). But where a mariner quitted a vessel in defiance of the master, with opprobrious language-and, without any declaration of such intention when he quitted the vessel, entered on board a King's ship within twenty-four hours, it was held to be a desertion, working a forfeiture of wages (q). A forfeiture in this, as in other cases, may be waived by the party entitled to take advantage of it. And accordingly, in the case of a foreign seamen, by whose articles it was provided, "that if any of the crew should absent themselves before the ship was unloaded without the master's leave, they should forfeit the whole of their wages," and who quitted the ship without leave in the port of London, before she was unloaded, and was absent a day and a night, but who afterwards returned to the ship, and was received by the master, and worked in discharging the cargo in the same way as the other mariners, it was held that the master could not set up this absence as a defence to an action brought by the seaman for his wages (r). But a forfeiture is not waived by the acceptance of a seaman's services whilst the ship is in distress, unless such acceptance be continued when the necessity for them has ceased (s). On the other hand, it cannot be insisted on, if the seaman's breach of duty be occasioned by the master's misconduct (t). It is, however, of great importance to understand that the forfeiture of wages for desertion does not arise out of these provisions of the Legislature, but depends, as I have already intimated, upon a general rule and maxim of the maritime law. This point has been most ably discussed and enforced in a judgment pronounced by the learned Judge of the Court of Admiralty, which, notwithstanding (m) Frontine v. Frost, 3 Boss & Pull. 302. (n) 2 Geo. 2, c. 36, s. 9. (0) Frontine v. Frost, 3 Boss. & Pull. 302. (p) Chap. 2, p. 452, the statute there cited. (a) The Amphitrite, 2 Hagg Ad. Rep. 403. (r) Miller v. Brant, 5 & 6 Wm. 4, c. 10, s. 7. Campb. 590, and (8) Train v. Bennet, 3 C. & P. 3. |