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of King's Bench, upon application for a prohibition, said, “This is only a deed on one side to forfeit the wages upon particular circumstances, but will not enable them to sue for their wages at law; the deed, therefore, comes in, only by way of incident, and then they may proceed to try it. There can be no prohibition "(e).

2. Seaman's Claim for Wages is preferred in Admiralty to all other Charges on Ships.

In proceeding against the ship in specie, if the value thereof be insufficient to discharge all the claims upon it, the seaman's claim for his wages is preferred before all other charges (f), for the same reason, that the last bottomry bond is preferred to those of an earlier date: the labour of the seamen having brought the ship to the destined port, has furnished to all other persons the means of asserting their claims upon it, which otherwise they could not have had.

But all suits and actions brought in the Court of Admiralty for seamen's wages must be commenced within six years next after the cause of such suit or action shall accrue, unless the party entitled to sue shall at that time be within the age of twenty-one years, a feme covert, non compos mentis, or imprisoned, or unless such party, or the party sued, shall be at that time beyond the seas; in which cases the suit may be brought within six years after the party suing snall be of full age, discovert, of sane memory, or at large; or either the party suing, or the party sued, shall return from beyond the seas (g).

3. By Action at Common Law against the Master or Owners.

In the Courts of Common Law the seamen may sue either the master, as the person immediately contracting with them and answerable to them, or the owners, as the persons virtually contracting with them, through the agency of the master, and answerable for the performance of his engagement. And actions in the Courts of Common Law are also limited to the same period of six years, with the same provisoes (h), unless they are founded on a contract under seal; if they are founded on such a contract, the statutable limitation does not apply to them: but after a lapse of twenty years, the claims will be presumed to have been satisfied without any proof of payment.

In suits in the Courts of Common Law, the form of action depends upon the nature of the contract; if the contract be under seal, and delivered as a deed, an action of debt or covenant must be brought;

(e) Buck v. Attwood, 2 Stra, 761.

The Favorite, 2 Rob. Ad. Rep. 232; French Ordin. liv. 1, tit. 14, De la saisie des vaisseaux, art. 16, and Valin thereon. Code de Commerce, art. 192. And see the judgment of Sir John Nicholl in the Hersey, 3 Hagg. 407.

(g) 4 Anne, c. 16, ss. 17, 18, and 19. The length of time thus allowed may be very inconvenient in the case of a suit against the ship, if the property thereof has been changed. The French Ordinance allows only one year.

(h) 21 Jac. 1, c. 16, ss. 3 and 7, and 4 Anne, c, 16, s. 19.

if it be not under seal, or not so delivered, an action of debt or of assumpsit (i). And in order to enable the plaintiff to frame his declaration correctly, a Judge in Court will order the defendant to show the articles to the attorney of the plantiff, and, if necessary, to give him a copy of them. But a plaintiff is not bound to show that the ship earned freight: the defendant must prove the negative, if such proof will furnish a defence (k).

The course of pleading to be adopted by the defendant depends upon the form of the plaintiff's declaration, according to the general rules and distinctions respecting actions of debt, covenant, and assumpsit, of which the consideration does not properly belong to a Treatise on a single branch of the law.

4. Under 17 & 18 Vict. c. 104, by complaint on Oath to a Magistrate.

The 17 & 18 Vic. c. 10+, in adopting, with some modifications, the provisions of former Acts, gives a summary mode of recovering wages,-enacting that any seaman or apprentice may sue in a summary manner before two justices of the peace residing near to the place where the service shall have terminated, or at which the seaman or apprentice has been discharged, or at which any person on whom the claim is made resides, and before the sheriff also in Scotland, for any amount of wages not exceeding 50l. above the costs of the proceeding; and that every order made such by justices or sheriff shall be final (?).

And to enforce the adoption of this less costly remedy, it is enacted, that no suit for wages shall, unless they exceed 50l., be instituted against the ship, or the master or owner thereof, in any Court of Admiralty, or of Record, in the Queen's dominions, or the territories of the East India Company, unless the owner be bankrupt or insolvent, or the ship under arrest or sold by the authority of a Court of Admiralty, or unless a magistrate acting under the authority of this Act shall refer the case to be adjudged by any such Court, or unless neither the owner nor master shall reside near the place where the service of the seaman shall terminate, or be discharged, or put on shore (m).

But no seaman, who is engaged for a voyage to terminate in the United Kingdom, is entitled to sue in any Court abroad for wages, unless he is discharged with the sanction required by the Act, and with the written consent of the master; or proves such ill-usage on the part of the master, or by his authority, as to warrant reasonable apprehension of danger to the life of such seaman, if he were to remain on board (n).

(i) Clement v. Gunhouse, cited before, p. 439.

(k) Brown v. Milner, 7 Taunt. 319. The earning of freight is not in all cases necessary to entitle seamen to their wages; as, suppose a ship goes out in search of a cargo, and not being able to procure one, returns empty, the seamen will be entitled to their wages, unless there be an agreement to the

contrary. See the judgment of Lord Stowell, in the case of the Neptune, 1 Hagg. Ad. Rep. 227.

(2) Sec. 188.

(m) Sec. 189. It has been doubted whether this section applies to foreign ships. Burns v. Chapman, 28 L. J. Q. B.-6.

(n) Sec. 190.

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5. The Master's Remedies for his Wages.

By the 17 & 18 Vict. c. 104, s. 191, it is provided "that every master of a ship shall, so far as the case permits, have the same rights, liens, and remedies, for the recovery of his wages which 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 due." It has been held that the master of a foreign ship, under this section, has the same remedy for his wages against ship and freight (c) as a foreign seaman has that the section operating only "so far as the case may permit" does not enable a master who has given a bottomry bond in the usual form, i.e. binding himself, ship, and freight, to assert his lien upon them for his wages to the prejudice of the bondholder (p) that the accounts spoken of mean the accounts between the master and the ship, exclusive of any extraneous account between them (9); that it is only when the shipowner or mortgagee in answer to a master's suit for wages advances a counter-claim, or set-off, that the Court in adjudicating between him and the master can allow credit to him for disbursements in respect of which he has no lien on the ship and freight and this not, it has been said, of absolute right, but by the practice of the Court of Admiralty, if after notice given to the consul of the State to which the ship belongs, he acquiesces in the exercise of the jurisdiction (r); that the account being once opened by the counter-claim of the owner, the general account between him in respect of the ship and the master, but not extraneous to it, must be gone through, and a balance made (s); that a mortgagee also taking possession of the ship, and claiming the benefit of items in the account against the master's claim for wages, thereby makes himself a party to the whole account (t); that a claim of damages alleged by the owner to have been sustained by him, through the master's misconduct or neglect of duty, will not constitute a "counter-claim" or "set off" within the meaning of those words in the section ("); and that neither error nor want of seamanship, nor improper refusal to sign a bottomry bond can, in the Courts of Common Law, or in the Court of Admiralty, where a master is suing for wages, be admitted as evidence in bar, or even in reduction of his claim, if he has actually

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(0) The Milford. Swab. 362. The Jonathan Goodhue, ib. 524; and see the Golubchick, 1 W. Rob. 148. (p) The William Swab. Jonathan Goodhue, ib. 524.

346. The

(q) The Caledonia Swab. 17. The Glentanner ibid. 415.

(r) The Herzogin Marie, 1 Lush. 292. (s) Ibid. 415.

(t) Ibid.

(u) The Camilla. Swab. 312.

continued in command of his ship, the owner's remedy for any such cause being by cross action only (x)...

As the master generally receives the freight and earnings of the ship, and may pay himself out of the money in his hands, he had not often occasion for the aid of a Court of Justice to obtain his wages. Whether appointed to that office at the commencement (y), or having succeeded to it in the course (2) of the voyage, he could formerly only sue the owners personally in a Court of Common Law, and had not until the passing of the 17 & 18 Vict. c. 104 (a), the same liens and remedies for his wages as the seamen. In the event, indeed, of the bankruptcy or insolvency of the owners he was entitled under the 7 & 8 Vict. c. 112, s. 16, to prove against their estates for his wages, or for any balance of wages due after credit given for wages advanced. But inasmuch as he, unlike the seamen, was frequently a creditor against the owner for disbursements made, or liabilities incurred in respect of the ship, and the Court of Admiralty had no power, under the Act, to go into any such general account; its provisions for the master's benefit were of a very limited character.

It has been held that the 187th section of the Merchant Shipping Act, which entitles a seaman to recover as wages a sum not exceeding the amount of two days' pay for each of the days not exceeding ten days, during which, payment of his wages is delayed beyond the periods in that section provided-is extended by the 191st section, already mentioned, to the case of the master-unless he himself, e.g., by improperly keeping back the accounts of the ship, be the cause of the delay (b). Lis alibi pendens, or a fruitless judgment in an action for wages obtained in another Court, is no answer in Admiralty to a suit in rem against the ship for the same cause whether against the debtor, or a purchaser since the debt accrued of the ship, even although the master or mariner may have proved his debt under the bankruptcy of his debtor (c).

(x) The Camilla. Swab. 312. And see Cutter v. Powell, ante, and in Smith's Leading Cases, vol. 2; and Mondel v. Steel, 8 M. & W., 868.

(y) Rogg v. King, 2 Stra. 858, 1 Bern. 297, and King v. Player there cited. Clay v. Sudgrove, or Snellgrove, Salk, 33. 1 Lord Raym. 576, 12 Mod. 405. Carth. 518. (z) Read v. Chapman, 2 St. 937.

(a) S. 191. Before this Act if the Mate became master during the voyage he might sue in Admiralty for wages due to him as Mate during the whole time, but not as master for the time during which he served in that capacity. The Toronto 2 Rob. 232. The Batavia 2 Dods. 500.

(b) The Princess Helena. 1 Lush, 180. (c) Read v. Chapman, 2 Stra. 937.

PART THE SIXTH.

OF GENERAL AVERAGE, SALVAGE, COLLISION, AND MARITIME LIEN.

CHAPTER I.

OF GENERAL OR GROSS AVERAGE; AND HEREIN,

SECTS. 1. Of the Lex Rhodia de Jactu, and the Regulations of Foreign Ordinances respecting Jettison, p. 521.

2. Of the Losses for which Contribution by General Average shall be made, p. 527.

3. Of Ship's Expenses in a Port of Refuge, p. 530.

4. Of Goods sold for the Necessities of Ship and Cargo, p. 538.

5. Of the Expense of Wages and Maintenance of the Crew during the Detention of a Ship by Order of a Sovereign Power, p. 539.

6. Of the Expense of Wages and Maintenance of Crew while the Ship is waiting for Convoy, p. 540.

7. Of the Expense of Healing Mariners wounded in Defence of the Ship, p. 541. 8. Of Loss by Collision, p. 541.

9. Of the Jettison of Goods stowed on the Deck of the Ship, p. 542.

10. Remarks, p. 548.

11. What Articles are to Contribute, p. 549.

12. Of the Mode of Contribution, p. 550.

13. How settled and recovered in Case of Dispute, p. 551.

1. Of the Lex Rhodia de Jactu, and the Regulations of Foreign Ordinances respecting Jettison.

HAVING thus treated of the respective rights and duties of the owner and the merchant, the master and the mariners, I now proceed to the consideration of a subject which is equally a duty of the owner and the merchant,-namely, the general contribution that is to be made by all parties toward a loss sustained by some for the benefit of all. This contribution is sometimes called by the name of general average to distinguish it from special or particular average a very incorrect expression, used to denote every kind of partial loss or damage happening either to the ship or cargo from any cause whatever; and sometimes by the name of gross average, to distinguish it from customary average, mentioned in the bill of lading, which latter species is sometimes called also petty average.

The principle of this general contribution is known to be derived from the ancient law of Rhodes, being adopted into the Digest of Justinian, with an express recognition of its true origin. The wisdom

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