SEAMEN'S WAGES.

leave the system mutilated; and, with a very few exceptions, the worse for attempts at reformation.

J. Watson

vs.

the brig Rose.

Objects and marine

principles of

laws, as they

respect sea

The framers of maritime laws, knowing that seamen are, by the nature of their employment, subject to peculiar failings and vices, the offspring of unpolished manners, and hardy, rude, and fearless habits, have calculated their codes for reformen. mation, where practicable, and for punishment, where this cannot be effected. Heavy forfeitures, pecuniary mulcts, and corporal inflictions (many now obsolete and disused) are to be found in those laws, frequent and severe. But, where these can be balanced by indulgences and encouragements, they are always enjoined; to the end that this vocation may not be rendered odious and forbidding; so as to deter the subjects or citizens of commercial states, from entering into an occupation so radically necessary, and all-important, to the commerce, and and only sure defence, of commercial countries.

T

1798.

A seaman left sick at a

and recover

JOHN WILLIAMS a seaman, was left sick in a foreign port and recovered. The ship, on a circuitous voyage touched at a port, where the seaman foreign port, also came on his way home; being one of the crew of another vessel. He could there have rejoined his ship, but refused, because, as he alleged, the ship had her complement of men. Wages were claimed for the voyage, which the court would not grant; but decreed payment to the time the sailor had it in his power to re-enter under his original contract, deonly allowed ducting what he had earned after his recovery from sickness, and until that period."

ed. He might have rejoined the ship, but would not; and claimed wages for the voyage, which were refused, and

until the time

when he might have rejoined.

a See the case of Bordman et al. vs. the Elizabeth, in which the principles adopted by the court in cases nearly resembling the present, are fully explained. Ante page 104. 128

THIS case was heard on a libel for wages during a voyage. The seaman was left, in the Havanna, sick in a hospital, where he was ordered, as the respondent alleged, to stay until the return of the brig Mary from a short voyage, to that port, where she intended to obtain part of her home cargo. The sailor did not stay; but came home in the brig Smilax, which sailed for Philadelphia, previous to the return of the Mary to the Havanna. He claimed wages for the voyage.

In this case several points arose.—

1. It was insisted by the respondent that the articles which were produced, with the signature of the sailor by the name of Malone were not sufficient proof that he was actually on board.

The judge was of opinion that the articles are prima facie evidence of the fact, and must be taken Ships articles

as such till the contrary appears.

prima facie, evidence of the seaman

2. A charge of one day's pay for absence each having been

on board. Misnomer in the entry in

hour, after that appointed at the foot of the articles for rendering on board, was made by the respon- log-book. dent. It appeared that the sailor (whose having gone by different names, was offered to be proved)

was entered in the log-book by the name of "Mil

By the act of Congress the log book entry is made proof of the

on board, &c.

SEAMEN'S WAGES.

ler," as coming on board two days after that in which the hour for rendering was designated.

The libellants counsel contended, that although the act of Congress is imperative on the keeper of the log-book, to make an entry of the absence and coming on board of a seaman, yet the fact ought, in addition to the entry, to be proved by other testimony. The copulative "and" shews that it is only part of the proof.

gé

The judge was of opinion that the entry in the log-book is made by the act of Congress, legal evidence of the time of coming on board, and of the time of entry absence occasioning the mulct, on the delinquent seaman, of one day's pay for every hour's 'omission to render himself on board. He said that it would be highly embarrassing to masters and owners, if this fact required supplementary proof. The compulsion upon the mate, or keeper of the log, to make the entry, was introduced to control the general rule of law, that receiving a seaman on board who had committed an offence, amounts to a release or pardon. This case must be an exception to that general rule: for if the receiving on board is to be has neglected construed as a release, the penalty could in no case be exacted. The law would, on that construction, be rendered nugatory. The entry in the log-book is therefore necessary, to shew that no release was intended, as well as to ascertain the fact with greater In cases of de. accuracy. In the case of desertion he said he had always considered the entry in the log-book evidence of the fact; but not conclusive, though inbut not incon- dispensably necessary. In this case before me, as well as in that, testimony had been admitted to prove permission to enter on board at an hour or time

Receiving a

seamen on

board after he

to render himself at the

time appoint

ed, does not

remit the penalty.

sertion the

entry on the log-book is necessary,

trovertible.

SEAMEN'S WAGES.

Malone

US.

different from that mentioned at the foot of the articles; and in the other case, leave of absence proved, the brig Mary. has controlled the charge of desertion, prima facie proved by the entry. In a penal law strict compliance is required. He thought the entry in the log-book, by the name of "Miller," was entitled to further consideration.

3. The captain (who was made a party in the libel, but no process had issued against him) was offered as a witness to prove the facts alleged in the respondent's defence.

Captain a libel, but no against him.

party in the

process

Offered as a witness, and

The judge said that in these cases, he had con- refused. stantly refused to admit the captain. He is liable for the wages, at the will of the mariner, who has several remedies, though he can have but one satisfaction. Protests had been entered against this opinion; but they had never been prosecuted before the superior court. It was his wish, that the point should be put in a shape, to be determined by the circuit court. The master he conceived was interested in the result; though not immediately. If a decree passes against the seamen in a procedure in rem, or against the owner, it may be given in evidence to repel a suit against the master.-The master was rejected as a witness.a

a The parties in this case compromised, and no final decision was given.