SEAMEN'S WAGES. Jameson, a mariner, versus The ship Regulus. 1800. Seaman shipped without signing arti A SEAMAN shipped without signing articles. It was insisted, that he should be subject to no penalties or forfeitures; being exempted by the words of the first section of the act of congress, Whether sub-for the government and regulation of seamen in ties and for- the merchants' service." cles. Question, ject to penal feitures? He must be paid according to act of he is en titled to all benefits and subject to all forfeitures the maritime law. Court. This point has been determined several years ago, in this court. If a seaman ships, and congress, but performs his contract, though verbal, he must be paid, at the highest rate of wages, given at the port of shipment, within three months next precedent. He is subject to all the forfeitures imposed, and prescribed by rules fixed, by the maritime law, which is part of the common law. It must have been perceived by the framers of our law, that the general maritime law applied to this case; and that nothing was deficient, but the mode of estimating services. It was fixed at the highest rate, that masters might be more on their guard, and see that the articles were executed, and thereby avoid the payment of the highest wages to ordinary seamen. Our statute does little more than re-enact several of the old maritime rules. It considers the mariner, not under written or printed articles, a stranger to its provisions, except that which fixes the compensation. For the rest, he is excluded. SEAMEN'S WAGES. When the statute and common law concur, the common law shall be preferred. Though a statute lays a penalty on an offence prohibited at common law, an indictment still lies, at common law; and if the offence be at common law, and also prohibited by statute, it stands as an indictment at common law, if it does not conclude contra forman statuti. These authorities are only mentioned to shew, that though a statute is made on the same subject, the common law is not abolished, but is of higher authority, when both concur. The seaman not under articles, partakes in none of the regulations,* nor is he subject to the penalties a Ld. Raym. Rep. 7.-b 2 Hawk. 212.- Crow. Cir. Com. 123. Jameson VS. the ship Regulus. *This must not be understood so as to exclude the mariner from the benefits allowed generally by the act to "the crew;" of which he is as much one, as those signing the articles. He is said in the act, not to be "bound by the regulations”—that is -the regulations operating personally, and in the manner therein prescribed, on the articled seamen. But it has been held and decided in this court, that, as one of "the crew," he is entitled to the general benefits necessary for the safety, health, and subsistence of all "the crew." He shall be supplied with medicines, paid his wages, and be retributed for short allowance of provisions, especially if wages are "agreed on," which often happens, though the actual signing of articles be neglected. In the case of short allowance, of provisions, the terms “ wages agreed on," are only introduced to designate quantum. And this may be done, by referring to any verbal agreement,* or to the "highest price or wages given." Id certum est, quod cer * It has been contended, that a verbal agreement for less than the "highest wages," should not prevail against the positive injunction of the act, that un-articled seamen shall be paid at the highest rate. I have been of opinion that the agreement of the parties, though verbal, superseded this provision of the law. Jameson VS. the ship Regulus. SEAMEN'S WAGES. or forfeitures, directed therein. "And such seaman or mariner, not having signed such contract, shall not be bound by the regulations, nor subject to the penalties and forfeitures contained in this act."a Hereby, properly excluding, one whose contract is not made under the act; and of course making that law no part of the terms of his agreement. But he is not out-lawed, and left without any control: he is, on the contrary, governed by the laws existing independent of our act; and is precisely in the situation he would have been, if our law had never been made. If the statute had in express words abolished the common law, and made contrary provisions, this doctrine would not apply. But this is not the question in the present case. The mariner is therefore subject to all penalties and forfeitures, incurred under the maritime laws pre-existent to the act of congress, and, where not contradicted, now in being, and concurrent therewith; though the master is subject to a penalty, for shipping the mariner, without his signing the ship's articles. a Act for the regulation of Seamen, section 1. tum reddi potest. The seaman may not " be bound” by the ". regulations" for the "government" of mariners, exactly as prescribed by the act, yet it does not follow that the owners and master are not "bound" to provide alike, for each of " the crew.” It has been doubted whether a seaman, not having signed the articles, is included in the provisions of the 3d section, relative to ships not sea-worthy. This seems, in terms, to contemplate only articled seamen; because, when designating the penalty on a refusal to proceed, the mariner is to be imprisoned "until he shall have paid double the sum advanced to him, at the time of subscribing the contract for the voyage,” THE libellant claimed wages as a mariner on board the brigantine Lady Walterstorff.* of an agreement in the cles that no With shipping artiwages shall be paid to the seamen until the return of the vessel to the port of outfit. The vessel sailed from Philadelphia for Surinam, Construction but was prevented from entering her port of destination, it being blockaded. She proceeded to Demarara, and unloaded a great part of her cargo. the residue she was returning to the port of delphia, and was captured by the French. libellant signed articles to go a voyage to "Surinam and at and from thence back to the port of Philadel phia, or to any port in Europe, &c. In these articles it was agreed, "that no officer or seaman belonging to the said ship shall demand or be entitled to his wages, or any part thereof, until the arrival of the said ship at the above mentioned port of discharge in Philadelphia." It appeared that the articles were read to the libellant, who was left to put his own interpretation upon them; though the captain said, he understood them so, that if the ship did not arrive in Philadelphia, no wages were to be paid. What was the understanding of the mariner on this subject, * When this and several other cases were determined, capture by the French and condemnation were synonymous. The one and the other, in effect, were the same. Johnson SEAMEN'S WAGES. did not appear. It was therefore left to be gathered the brigantine from the clause, how far it affected his present claim. Lady Walterstorff. The agree ments of parthe law must be clear and explicit. It was contended, on the one part, that the mariner was entitled to his wages to the port of delivery at Demarara, and for half the time the ship stayed there-That this is settled law in common cases. But the question made on the other side was,-Whether the clause before recited did not take this out of the common cases, and defeat his claim entirely, as the ship never arrived at Philadelphia. Court. There is no doubt but that the agreement of parties may control the general operation of law. But this agreement must be clear, and incapable of doubtful import. I will never decree a forfeiture, or loss of wages, unless the law or agreement of parties is fully and clearly, both in expression and import, against the claim. It does not appear in this case that more than the usual wages were agreed to be paid to the mariner, though the clause in question is out of the com mon course. There is no dispute, in this cause about the wages accruing after the vessel departed from Demarara. The capture occasioned the loss to the mariner of such wages. In the act of congress "For the Government and Regulation of Seamen in the Merchant's service," printed at large on the back of the articles signed by the mariner, the libellant in this cause, § 6. it is enacted—" that every seaman or mariner shall be entitled to demand and receive from the master or commander of the ship or vessel to which they Laws of the United States, vol. i, p. 134 |