CHAP. V. remedy and benefit, which the legislature intended to confer upon him." If a seaman take a bill of exchange in payment of wages, he cannot sue the ship in Court And thus, in another case, it was held, that where an owner had filed a declaration of insolvency in Ireland, which had been published in the Dublin Gazette, but no commission had issued as required by the act 6 Will. 4. c. 14.*, there was no bankruptcy or insolvency in the legal sense of the term; that the arrest of the ship was not good, and the protest to the jurisdiction was pronounced for.+ It has also been held that by the words used in the statute, “bankruptcy or insolvency of the owner," is meant the owner at the time of the original contract, and the master being privy to, and not dissenting from, the sale of the ship to a solvent purchaser, is not thereby barred from his action against the ship in the Admiralty Court. ‡ In the case of the William Money, it was decided that a seaman who had elected to take at Calcutta a bill of exchange on the owners instead of cash in payment of wages, cannot sue the ship on payment of such bill of Admiralty if being refused, the owners having become bankrupts. Per. Cur. It is pleaded that this man might have taken his wages in money at Calcutta; but instead of the money he preferred a bill of exchange as an accommodation to himself: he then made his election and must stand by the risk. payment of such bill be refused. The different kind of persons who are entitled to sue for their wages in the Admiralty Court, being thus particularized, it now becomes necessary to notice a few of the general powers of that Court with respect to these * By that act a declaration of insolvency is declared to be “ an act of bankruptcy in Ireland," but the commission must be sued out within two months after the declaration has been advertised in the Dublin Gazette. †The Great Northern, 5 Notes of Cases, 71. tion of the The jurisdicCourt of Admiralty in case suits. The principle that the locality wherein the CHAP. V. agreement is made, is not the test upon which the Court of Admiralty has obtained jurisdiction in this respect, has been sufficiently illustrated: nor would the locality of the service at any time apply; for in a very early case we find that where the service of the mariners was from a port of England to London, a prohibition was prayed for in the King's Bench, but was denied, for this must be taken as mariner's wages.* And the Admiralty Court can also maintain a suit, where the ship has never proceeded in the intended voyage; for where seamen were hired to launch and rig a ship, and to go a voyage proposed, and the seamen there continued for four months, fitting the ship out to go to sea, but as the ship never proceeded on her voyage, the seamen arrested the ship by Admiralty process for their wages, and a prohibition was moved for, on the suggestion that the work and labour was done infra corpus comitatus, and that as no voyage was made, the mariners could not sue in the Admiralty Court for their wages. Holt C. J. remarked: Suppose a master of a ship designs to go a voyage, and hires and takes aboard seamen, in order to it; afterwards the owners cannot agree about sending the ship the voyage, and upon that the seamen are discharged, shall not the seamen have the same remedy for their wages, they should have had, if the ship had gone the voyage? The reason of the Admiralty jurisdiction, is, because they are mariners, and are equally entitled to their wages, as if they had gone the voyage; and, therefore, it is plain they shall have the remedy against the ship in that case for their wages." And Powell J. "It is clear that seamen taken on board a ship in order to go a voyage, though the voyage never proceeds, are equally entitled to their wages: and it appears to make no difference * 1 Ventris, 343. L the ship never proceeds on the proposed voy. age. CHAP. V. whether the ship was sold or not to the owners, but was still in the builder's hands; for if the builder permits the seamen to come on board, he permits the charge on the vessel. He consents to the charge on the ship, and by his own act makes it liable to the wages." In a very recent case in the Admiralty Court, where a mariner had been hired to serve on board a ship on a voyage to the East Indies and back, but was discharged by the master before the commencement of the voyage, two days after the ship's articles had been signed, it is singular that the case reported in Lord Raymond was not brought to the notice of the Court. The following is that part of the decision of the present learned judge of the Admiralty Court, which bears upon this point: "In the course of the arguments that have been addressed to the Court, it has been admitted on the one side, that if a seaman is engaged on board a vessel, and the owners think fit to abandon the voyage for which such seaman has been engaged, he would not be entitled to sue in this Court for his redress, but must seek his remedy at common law, by an action on the case. To this position I am disposed to accede, and for this reason, that, in such a case, there would be nothing to show the real amount of loss sustained. The question would strictly be a question of quantum meruit. And if this Court was to take upon itself to adjudicate upon the quantum of damage sustained, it would be usurping the functions of a jury, to whose consideration the point in question is more peculiarly referable. But, again, there is another case in which it is admitted that the Court has jurisdiction, viz. when a seaman has been taken on board, the voyage been prosecuted, and, during its progress, the seaman has been unduly discharged. In this case it is ac *Wells v. Osman, Lord Raym., 1044. See also Mills and another v. Gregory, Sayer, 127. knowledged that the seaman so discharged, may seek his remedy in this Court, and the Court might safely entertain the question, for, in such a case, there would be a standard by which the loss might be decided. "Now how does this last case differ from the case before the Court? In the one case the seaman might have been discharged at Portsmouth, or the Isle of Wight, or the nearest out port after the commencement of the voyage, and this Court would have jurisdiction to afford him his redress Does it then make any difference, the vessel going the voyage, that he was discharged before the commencement of it? I apprehend not: the amount of damage is to be adjudicated upon the same principle in both cases, and I can see no solid distinction between them, or any reason why I should send this seaman to a court of common law."* The following case at Nisi Prius, before Lord Ellenborough, is in direct conformity with the rule laid down by the learned judge of the Admiralty. An action of assumpsit was brought for wages by a person who had hired himself as mate of a ship at Liverpool for a voyage to Philadelphia. It appeared that the ship sailed on her voyage, but was under the necessity of putting into Cork, not from any uncommon badness of the weather, but from the circumstance of the want of sea-worthiness in the ship, which, on inspection, was found not to be capable of repairs, so that she was condemned and sold, and the voyage abandoned. Per cur. "The rule of law is general. The ship must perform her voyage to entitle the seaman to recover; and if the owner sent her out under such circumstances as were stated, it should be the object of a special action on the case; but the *The City of London, 1 W. Robinson's Admiralty Reports, 88. The distinction drawn by Dr. Lushington was between the case of a contemplated voyage abandoned, and that of a voyage prosecuted. CHAP. V. CHAP. V. Court was of opinion, that the sailor could not, on the grounds stated, recover his wages." The plaintiff in this case afterwards proved that, after the vessel was found not to be in a capacity to proceed on the voyage, he was ordered to remain on board until she underwent some repair, which he did, and for which he claimed wages. Lord Ellenborough ruled, that this being a new contract, the plaintiff was entitled to recover on that account as for work and labour.* The Court of Admiralty has power to decide questions of forfeiture of wages; as well as whether the ship has arrived to a port of delivery. Plea of set off against the de mand for wages, by reason of negligence, or of money received. * The Court of Admiralty has also the power of determining, whether or not, the wages of the mariner are forfeited or not. Another question, incidental to this subject, which it is sometimes called upon to determine, is, whether the ship has arrived at such a port of delivery as to entitle the mariners to their wages; and the power of the Admiralty, in this respect, has been recognised by the common law courts. In Brown v. Benn and others †, Powell J. said, he remembered a case of the like nature, where a suit was commenced in the Court of Admiralty by seamen, for their wages, upon the arrival of the ship at Newfoundland; and though the merchants all held it no port of delivery, yet the Court of Admiralty held the contrary, and so did the Court of Common Pleas upon a prohibition. And also where loss has arisen from the gross negligence of a mariner, it may be set off in the Admiralty Court against a claim for wages by him. § In ordinary circumstances seamen's wages are pronounced for, subject to fair deductions for money received or for clothes or other articles furnished; "the * Eaken v. Thom, 5 Espinasse, 6. † Lord Raymond, 1247. See the Pearl, 5 Robinson's Admiralty Reports, 224. § New Phoenix, 2 Haggard's Admiralty Reports, 420. Laws of Oleron, art. 10. Consolato del mare, c 247. Also articles of Wisbuy and les Us et Coutumes de la Mer, p. 150. in which loss by the negligent use of the ship's ropes is incidentally noticed. |