with

CHAP. 8. Quere, whewords "or

ther by the

were

articles, the

elsewhere," in shipping

was

construction, may seem to give countenance to this
opinion. But in considering that case in conjunction
with the additional cases above cited, and
others in the same court, in which these words
omitted, and where the payment of wages
resisted on the ground of alleged desertion, and
claimed nevertheless on the ground of deviation, it
appears to be doubtful whether the words in question
are not practically regarded in the English admiralty
as inoperative, according to the opinion expressed
by Mr. Justice STORY, that they are to be considered
as either void for uncertainty, under the act of 1790;
"or," as he rather indefinitely adds, "that they must
be construed as subordinate to the principal voyage
stated in the preceding words(a)." Indeed, what is
said by Lord STOWELL in The Minerva, of the
possible right of the master to deviate to a reason-
able extent from the direct course to or from the
port of destination, for the purpose of visiting other
ports, in accordance with an established and known
usage of the particular trade in which the vessel is
employed, appears to have been intended for general
application, without reference to the words in ques-
tion. And although in the cases of The Dutchess
of Harcourt and The George Home, these words
were contained in the contract, they are scarcely
noticed at all; and the same is true also of the case
of The Eliza, in which, however, the words were
inserted in the articles after the ship had proceeded
on her voyage, though with the knowledge, and, as

(a) Brown v. Jones et al., 2 Gallison's R., 477, above cited.

right of enlarged.

deviation is

VOL. 1.

rule in Eng

every considerable

it was contended, with the implied assent of the crew (a).

In another case occurring a few years later, in which these words were not used, Sir CHRISTOPHER ROBINSON, in a learned and instructive opinion, discussed at length the effect of deviation upon the rights of the mariners, and referred to the above cited decisions, including that of The Minerva, in terms which seem to infer that he deemed the words unimportant. In the case before him, the voyage was described to be "to Madras and Calcutta, and back to London," and the deviation consisted in proceeding from Madras to Calcutta by way of Prince of Wales's Island, whereby the voyage was The general lengthened about six hundred miles. This deviation, land is that when announced to the crew at Madras, he held, entitled them to their discharge, on the ground that, by the laws of England, every spontaneous deviation of importance exonerates the mariner from further service under his contract. It was otherwise according to the codes of some of the continental maritime powers those of Denmark and Holland, in particular-which allow the master to alter and enlarge the voyage, provided he makes a reasonable addition to the wages of the seamen on that account. And with regard to what, by the law of England, was to be considered an unauthorized deviation, Sir CHRISTOPHER ROBINSON observed: "I find, in Sir EDWARD SIMPSON's notes, cases, in which the necessity of going to St. Petersburgh for a cargo, which the master

spontaneous

deviation releases the seaman.

(a) 1 Haggard's R., 182.

P

had been disappointed of obtaining at Hamburgh ; CHAP. 8. and alterations, arising from stress of weather, or the order of the government, have been held not to be deviations amounting to a breach of the mariner's contract, such as would entitle them to their discharge; and, in maritime engagements, allowances are often made in the interpretation of general terms, according to the accidents affecting the common object of the original voyage. But when no such ground of exception exists, justice and policy concur in requiring a strict observance of the specified conditions of the contract; and in the present times, especially, of increased enterprise in distant commerce, considerations of this kind gain additional force from the length of voyage and extent of time for which such engagements are formed." The marginal abstract of the reporter shows that the learned judge was understood to adopt and sanction the doctrines of the cases mentioned by Sir EDWARD SIMPSON (a).

have

under seal,

not conclu

sive against a claim for

wages.

In accordance with the same humane and just Release principles, of which so many illustrations already been given, an acquittance and release under seal, executed by a mariner on payment or settlement for wages, is treated in the admiralty as but a simple receipt, being held to be only prima facie evidence of payment which may be rebutted by other evi

(a) The Cambridge, 2 Haggard's R., 243. In the case of The Minerva, 1 Haggard's R., 347, 357, Lord STOWELL speaks of the work of Sir EDWARD SIMPSON as a manuscript book of great accuracy, composed by Sir EDWARD SIMPSON, a distinguished practitioner and judge in these courts."

Nor an assignment.

VOL. 1. dence(a). And so where a seaman, immediately after his return from a whaling voyage, in payment for clothing and a watch, and in consideration of two dollars in cash, amounting in all to about onethird of the value of his share of the oil, gave an order on the owners for the whole of share, the order, though it had been presented and accepted, was held to be no defence to his action against the ship, except as to the amount he had received(¿).

It was, however, held in the High Court of Admiralty of England, that the acceptance by a seaman at Calcutta, in preference to money which was offered to him, of a bill of exchange on the London owner, for a part of his wages, was to be regarded as a payment; and that he had no lien on the ship although the owner had refused payment and become bankrupt(c).

But the mere acceptance by a seaman, on settlement with the master, and at his instance, of a draft on the owner, was decided, in the District Court of Maine, not to be a waiver of the maritime lien on the vessel for wages(d).

(a) The David Pratt, Ware's R., 495,

(b) The Barque Rajah, 15 Law Reporter (5 N. S.), 208, decided in the District Court of Massachusetts.

(c) The William Money, 2 Haggard's R., 136.

(d) The Eastern Star, Ware's R., 185.

CHAP. 4.

CHAPTER IV..

CONTRACTS OF AFFREIGHTMENT.

Reciprocal freighters.

liens of owners and

Ir is an established maxim of the general maritime law, that "the ship is bound to the merchandise, and the merchandise to the ship." But in England, though this maxim, as a general principle, is conceded by the English elementary writers, it is, to a great extent, ineffectual, for want of any court to enforce it by process in rem; for while the courts Not enforceof common law are themselves incompetent to afford miralty. this remedy, they prohibit the Court of Admiralty, the only tribunal adequate to this purpose, from

doing so.

Lord TENTERDEN, speaking of the contract of affreightment by charter-party, says: "When this contract is made by the master in a foreign port, in the usual course of the ship's employment, and under circumstances which do not afford evidence of fraud; or when it is made by him at the ship's home, under circumstances which afford evidence of the assent of the owners, the ship and freight, and therefore indirectly the owners also to the amount of the ship and freight, are by the maritime law bound to the performance. The ship is bound to the merchandise, and the merchandise to the ship,' are the words of Cleirac." And he subsequently adds: "It is

able in the English ad