1. Favored in Maritime Law.—The general maritime law has always endeavored to protect the rights of seamen and its solicitude for their welfare has been expressed in the laws of all commercial countries. They are, as Justice Story said in Brown v. Lull, 2 Sumner 449, "a class of persons remarkable for their rashness, thoughtlessness and improvidence. They are generally necessitous, ignorant of the nature and extent of their own rights and privileges, and for the most part incapable of duly appreciating their values. They combine in a singular manner, the apparent anomalies of gallantry, extravagance, profusion in expenditure, indifference to the future, credulity which is easily won, and confidence which is readily surprised. Hence it is, that bargains between them and shipowners, the latter being persons of great intelligence and shrewdness in business, are deemed open to much observation and scrutiny; for they involve great inequality of knowledge, of forecast, of power, and of condition. Courts of Admiralty, on this account, are accustomed to consider seamen as peculiarly entitled to their protection; so that they have been, by a somewhat bold figure, often said to be favorites of Courts of Admiralty. In a just sense, they are so, so far as the maintenance of their rights, and the protection of their interests against the effects of the superior skill and shrewdness of masters and owners of ships are concerned." Hence, from the ancient sea codes to the most recent legislation, there is a constant provision for their welfare and protection. Their occupation is an honorable one and has its privileges accordingly; it is also one of great responsibility and has its duties and the law has both in mind. 2. Who Are Seamen?—The word "seaman" includes every person (apprentices excepted) who shall be employed or engaged to serve in any capacity on board of any vessel belonging to any citizen of the United States (R.S. 4612). A question sometimes 3. Contract.—Their relation to the shipowner is one of contract. The contract is usually in the form of Shipping Articles and in writing. A form for use in foreign trade (with some exception) is given in Rev. St. §4511 as amended. For other voyages it is not always essential that the contract be in writing. What its form and language, the law will practically construe it as containing certain underlying engagements by both parties;—on the part of the owner and master, that the wages shall be paid; the voyage legal; the ship seaworthy and fully equipped and supplied; the voyage definite and without deviation; the treatment by the officers, decent and humane; the food sufficient; care and cure in event of injury or sickness; and safe return to their own country;—and on the part of the seamen, to exert themselves to the utmost in the service of the ship; to have sufficient training and health for the positions which they profess; to report on board at the proper time and place and remain in the service until their engagements are performed; to be obedient to all lawful commands of the master and their superior officers; and to assist in maintaining good order and discipline throughout the ship. 4. Wages Secured.—The payment of wages is amply secured. They have a prior lien upon the ship and freight which will attach to her last plank. The master and the owner are personally liable and there can be no limitation of liability in this respect. Such wages are exempt from garnishment or attachment by creditors of the sailor and he may sue for them without giving security for costs. If wages are unlawfully withheld, he may have double for each day's delay. 5. Forfeitures and Punishments.—On the other hand, the seamen must perform their part of the contract. Refusal or neglect to work entails loss of wages, and wages are not due during a period of lawful imprisonment (Rev. St. §4528). Desertion entails forfeiture of clothes left on board and wages earned; absence without leave, not amounting to desertion, forfeits two days' pay and expenses of a substitute; quitting the ship before she is in security means a forfeiture of not more than one month's pay; willful disobedience at sea will be punished by confinement in irons Corporal punishment is no longer permitted; its infliction is a misdemeanor punishable by the courts, and it also renders the owner and master liable for damages. The master may, however, use a deadly weapon when necessary to suppress mutiny but only when mutiny exists or is threatened. The laws of the United States on the subject of Merchant Seamen will be found in detail in Title LIII of the Revised Statutes and are collected with the modern amendments, including the La Follette Seamen's Act of March 4, 1915, and with full annotations in Volume 7 U.S. Compiled Statutes, 1916, pages 8772 to 8924. The Seaman's Act of March 4, 1915, is also found in 38 St. at L. 11-64. Where a sailor is injured in the service of the ship he is entitled to care and cure at the expense of the ship, irrespective of any question of the negligence of any member of the ship's company and irrespective of whether the seaman was guilty of contributory negligence, but ordinarily, he can not recover damages unless fault can be brought home to the owner. He will also be entitled to his wages for the trip or voyage on which the injury occurred, unless discharged by voluntary consent under §4581 Rev. St. before the voyage ends. In very recent years repeated assaults have been made upon the long established rule which prevented seamen from recovering on account of injury or death in line of duty. In Southern Pacific Co. v. Jensen, 244 U.S. 205, an employee engaged in maritime work attempted to recover damages for a maritime injury pursuant to the Workmen's Compensation law of New York. The Supreme Court held, that "Congress has paramount power to fix and determine the maritime law which shall prevail throughout the country," and that in so far as the Workmen's Compensation law of a state sought to confer upon seamen rights inconsistent with the general maritime law, the state Workmen's Compensation law was unconstitutional. Thereupon Congress by the act of October 6, 1917, undertook to confer upon suitors in admiralty "the rights and remedies under the Workmen's Compensation That any seaman who shall suffer personal injury in the course of his employment may, at his election, maintain an action for damages at law, with the right of trial by jury, and in such action all statutes of the United States modifying or extending the common-law right or remedy in cases of personal injury to railway employees shall apply; and in case of the death of any seaman as a result of any such personal injury the personal representative of such seaman may maintain an action for damages at law with the right of trial by jury, and in such action all statutes of the United States conferring or regulating the right of action for death in the case of railway employees shall be applicable. Jurisdiction in such action shall be under the court of the district in which the defendant employer resides or in which his principal office is located. This provision, which seeks to confer upon seamen the rights enjoyed by railway employees under the Federal Compensation Act, has not yet been construed by the courts. The rights of railway employees thus conferred upon seamen are those given by acts of Congress approved April 22, 1908, and April 5, 1910. These acts gave to the employees of railroads engaged in interstate and foreign commerce, a right of action against the employing carrier in case of injury or death of the employee, notwithstanding that the accident may have been caused by acts of a fellow servant or may have been due to one of the risks naturally incident to the employment, and notwithstanding that the plaintiff may have been guilty of contributory negligence, although in the latter case the damages are to be diminished in proportion to the amount of the employee's negligence. Suit It should be observed that under neither the Merchant Marine Act nor the Railway Employers' Liability Acts is the jurisdiction to be exercised by the court sitting in admiralty. The jurisdiction invoked is that of the courts of common law. Where, however, there is negligence on the part of the shipowner in providing a seaworthy ship, or on the part of the officer in caring for the injured man, the admiralty will award damages; if there has been contributory negligence, it will not prevent recovery but the damages will be apportioned or divided (The Max Morris, 137 U.S. 1). The principle on which vessels are held liable for injuries to seamen due to unseaworthiness is simply an application of the rule of law that every master is bound to provide his servant with a safe place to work; that is to say, a place as safe as any prudent man would provide for the performance of work of similar character, and that failure to provide such a safe place is actionable negligence. In the Joseph B. Thomas, 86 Fed. 658, it was held that where an employee on a vessel placed an empty keg on a pile of hatchway covers in such a position that an accidental jar caused it to fall in the hatch and injure a stevedore, the master and the owners were liable and the ship was held for violation of the duty to provide a safe place to work. 7. Duties in Disaster.—In case of shipwreck or disaster a sailor is bound to do all he can for the safety of the ship and cargo. This is in the line of his duty and does not merit extra pay. His lien for wages attaches to the last plank of the ship but he must do his share of the work required to preserve it. In the Shawnee, 45 Fed. 769, the ship had suffered greatly from a severe storm and went under Mackinac Island for shelter. Much extra work was required by the crew and when the time came to proceed on the voyage they told the master that they would not go on unless an extra allowance of $50 each was guaranteed. Under the stress of circumstances the master was constrained to acquiesce in the demand, but on arrival the owners refused to pay this extra amount although they tendered the regular wages. The sailors thereupon libeled the ship, but the Court, in a very emphatic opinion, declared that their conduct had amounted to mutiny and that their wages should be entirely forfeited. In the Troop, 118 Fed. 769, a sailor fell from a yardarm and fractured his thigh shortly after the ship sailed; the captain might have put him in the port hospital but instead applied splints himself and sent the man to his bunk; he did nothing more for him until the vessel arrived at her destination, thirty-six days after, and even then neglected him for an additional five days before supplying proper medical care. The sailor suffered greatly during the voyage and became permanently injured. The Court held that the ship was liable for the master's failure to observe the rule of care to an injured sailor and awarded him $4,000 with 6 per cent interest. In the Margharita, 140 Fed. 820, the ship sailed from a port in Chili for Savannah. While off the west coast of South America and about to round Cape Horn a sailor lost his footing aloft and was precipitated into the sea. As he struck the water a shark, or some other marine monster, bit off his leg at the knee, but he was rescued by another of the crew who jumped after him. The ship was then about 7,000 miles from her destination. The master gave the sailor all the attention which the ship afforded and controlled the hemorrhage and inflammation by placing the stump in tar; he continued to give him regular attention during the voyage, detailed a man to supply his wants and provided him with a suitable diet; on arrival at Savannah he was immediately sent to the hospital. The Court held that there could be no further recovery inasmuch as the master had fully discharged all the obligations of the rule. 8. Offenses of Seamen.—Discipline being essential to the welfare of the ship and all on board, the maritime law punishes offenses of seamen against its code. Disobedience or misconduct in a sailor can not be tolerated or the ship would be in constant peril and its business frustrated. But the punishment must be reasonable and in proportion to the offense. The law will not endure tyranny or cruelty in any form. Flogging is abolished and prohibited by law and, generally, the only forms of punishment which may now be employed are forfeiture of wages or clothing, confinement on board, disrating and imprisonment on shore. Where an emergency arises, instant obedience may be compelled by force on the part of the officers and master, according to the necessity of the case, even to the taking of life, but cases of this kind are rare. The ordinary offenses of seamen are classed as mutiny, inciting revolt, desertion, disobedience, assaults, theft, fighting, and tampering with the cargo; but, in addition, they are liable for all crimes and offenses which would be punishable as such if committed on shore. 9. When Entitled to Leave Ship.—The sailor is not bound to continue in the ship when she becomes unseaworthy because his contract of service is based upon the condition that the ship is and shall be seaworthy. When such a condition exists, the crew is entitled to apply respectfully to the officers and urge that the ship return to port; if in port, they may request a survey and, if unseaworthiness is declared, the consul has authority to give them their discharge. 10. Desertion.—In the maritime law, desertion consists in quitting the ship and service by a sailor, without leave and against his duty, without an intent to return. If not justified, it works a forfeiture of wages. The mitigating circumstances must be such as amount to a reasonable excuse, founded on gross misconduct of the master or hard usage. Slight and transient causes will not answer, especially where the desertion appears to have been deliberate and premeditated, and not the result of sudden impulse. It was formerly the law that a deserting seaman might be arrested and imprisoned on shore by local magistrates on the complaint of the master and so compelled to return to his service (Robertson v. Baldwin, 165 U.S. 275). Recent legislation, however, has repealed the older statutes and there are now no laws of the United States which authorize the imprisonment of seamen deserting from vessels owned by citizens of the United States. This is probably true also in the case of foreign-owned vessels within American ports (Ex parte Larsen, 233 Fed. 708). Among the causes which have been held to justify desertion are sickness, unwholesome food, cruel treatment, deviation and unseaworthiness. But the justification must be clearly shown, for it is a serious thing to quit the ship, and the law will not permit it unless 11. Self-defense.—Generally speaking, the remedy of the sailor for violence inflicted upon him on shipboard is to be sought in the courts of law alone. The exigencies of discipline require that, for the common good, authority on shipboard should not be resisted. Nevertheless cases occur where the right of self-defense may be lawfully claimed. Where the master assaults a seaman, the latter may endeavor to escape; if pursued and escape be impossible, and the assault continued, he may use necessary and equivalent force for his own protection. It should be remembered that the power of punishment on shipboard is vested in the master personally and that the law does not permit his delegating it to others. A mate has no legal right to enforce his orders by beating one of the crew. Up to about seventy years ago corporal punishment of seamen was permitted by law, owing to the nature and supposed necessities of the service, and no doubt officers find it hard to give it up. Courts of admiralty endeavor to deal with these cases in a practical way. Altercations and assaults between master and crew have never been treated by them like those redressed in the common law courts, where the slightest blow may be treated as a trespass to one's dignity and feelings of self-respect. The crew are to be protected from injury and the maritime law will amply vindicate all beatings, woundings and maltreatment, criminally and civilly. The right of self-defense is only a last resort and will seldom need to be invoked. 12. Lien for Wages.—The seamen have a maritime lien for their wages in preference over all other liens except for salvage. They are said to be the wards of the admiralty and it endeavors to see them paid over all other creditors of the ship. Thus the lien has priority over towage, claims for supplies and repairs, breach of contract, and port dues. It will not be superior to a lien for collision damage, if their negligence contributed to the disaster, at least as far as prior wages are concerned. Subsequent wages, earned in bringing the ship back to port, stand on a different footing. The lien for wages exists in the home port of the vessel as well as in foreign ports. Where as sometimes in the case of a fishing voyage the crew has an interest in the result of the venture this does not affect the right to liens. The weight of authority in the more recent decisions, reversing the older rule, is to give a lien to stevedores, longshoremen, watchmen and ship carpenters against foreign vessels (that is to say vessels not in the home port) while the authorities are in conflict as to whether such liens lie against domestic vessels. The Merchant Marine Act of June 5, 1920, which is printed in full in the Appendix, §30, Subsection M, expressly confers a lien for wages of stevedores, "when employed directly by the owner, operator, master, ship's husband, or agent of the vessel", and makes no distinction between the home port and any other. In the Ole Olson, 20 Fed. 384, a schooner was libeled for seamen's wages and two men intervened and sought to recover who had been employed as stone-pickers by the master, who was also managing owner, to gather stone on the shores of Lake Michigan and assist in loading the stone on board as cargo to be carried to Chicago. While engaged in this service they lived and slept on the vessel as she lay off shore and when the weather was such that stone could not be gathered, the schooner would run into port and on such occasions these men would lend a hand in hoisting sail. They did not accompany the vessel on her voyages as she had a full crew without them. The only question was whether they rendered maritime services and were therefore entitled to the seaman's lien for wages. The Court held that they were not, distinguishing the Ole Olson from the case of the Ocean Spray, 4 Sawy. 105, and several others. In the case of the Spray the libellants were shipped as sealers and were hired to take seal for the vessel at a stipulated sum per month. Their contract also bound them "lend a hand on board whither they were wanted." On the voyage they helped make and reef sail, heave the anchor and clear decks, but did not stand watch. They also procured driftwood and water for the use of the vessel. They thus aided in the navigation and preservation of the vessel and were colaborers 13. Shipping Articles.—The law provides (U.S. Comp. St. §8300-8314) that the master of every vessel bound from a port in the United States to any foreign port overseas, or vice versa, shall make an agreement, in writing or in print, with each of the crew, containing particulars of the nature and duration of the voyage; the number and description of the crew; the time at which each is to be on board; the capacity in which each is to serve; the amount of wages which each is to receive; the scale of provisions which are to be furnished to each; any regulations as to conduct on board, fines, short allowances and other lawful punishments which may be agreed to; and any stipulations as to advances and allotments of wages, or other matters not contrary to law. Sections 8287-8297 provide for the appointment of shipping-commissioners in such ports of entry and ports of ocean navigation as require them; where no commissioners are appointed, the collector of customs or his deputy may so act; the duties of such commissioners are to afford facilities for engaging seamen by keeping a register of their names and characters; to superintend their engagements and discharge according to law; to provide means for securing their presence on shipboard according to their engagements; to facilitate the making of apprenticeships to sea service and to perform such other duties relating to merchant seamen and merchant ships as may be required by law. Section 4554 amended by the Act of August 19, 1890, provides that the commissioners shall arbitrate disputes between owners or masters and the crew on mutual application. Shipping articles should be in the printed form required by the statute and in common use; they should be signed by each seaman in the presence of a shipping commissioner, in duplicate, and one part retained by him; they should be acknowledged and certified under the commissioner's seal, to the effect that each understands what he has subscribed and, while sober, and not in a state of intoxication, acknowledges it as his free and voluntary act; the other duplicate should be delivered to the master and seamen subsequently Shipping articles for vessels in the coasting trade, in less detailed forms, are required by §8311 and the master is made liable to a penalty of twenty dollars and the highest rate of wages for every seaman or apprentice carried without such an agreement. All shipments of seamen contrary to law are declared void; any seaman so shipped may leave the service at any time and recover either the highest rate of wages of the port from which he shipped or the sum agreed to be paid him when he went on board. 14. Wages and Effects.—Sections 8315-8337a of the Compiled Statutes of 1916 and the Merchant Marine Act of 1920 (see Appendix) codify the law in these respects. The right to wages and provisions commences when the sailor begins work or at the time specified in the shipping-articles, whichever happens first; the right is in no way dependent on the earning of freight; where the term of the hiring is cut short by loss or wreck of the vessel, the sailor is entitled to his wages up to that time but no longer; he is to be ranked as a destitute seaman and given transportation to the port of shipment according to law; in case of improper discharge before the commencement of the voyage or before one month's wages are earned, the sailor may have a sum equal in amount to one month's wages as extra compensation over what he may have earned; the right to wages is suspended during the time a seaman unlawfully refuses to work; on coasting voyages, wages must be paid within two days after the termination of the articles or upon discharge, whichever first happens; on foreign voyages, or between Atlantic and Pacific ports, within twenty-four hours after the cargo has been discharged, or within four days after the sailor has been laid off, whichever happens first; and in all cases he may have at least one-third of the balance due him Every sailor on an American vessel is entitled to receive from the master, at every port where the vessel loads or delivers cargo during the voyage, one-half his wages then earned; the demand, however, may not be made oftener than once in five days. Failure to so pay wages releases the seaman from his contract and foreign sailors in harbors of the United States may have the benefits of this provision. It is unlawful to pay wages in advance, either to the sailor or to any other person on account of advances;[12] such payments constitute no defense to a subsequent suit. But a sailor may stipulate in the articles for an allotment to his grandparents, parents, wife, sister, or children, such allotment to be in writing and signed and approved by the commissioner. Sailors' wages are not subject to an attachment or garnishment from any court and no prior assignment of wages or claim for salvage is valid. 15. Protection and Relief.—Sections 8343-8376 of the Compiled Statutes of 1916 contain numerous provisions for the protection and relief of sailors. Shipping commissioners are authorized to act as arbitrators on any question whatsoever between a master, consignee, agent or owner and any of the crew, if both parties agree in writing to submit it to him; his award is binding on both parties and any document under his hand and official seal purporting to be such, submission and award is prima facie evidence thereof; in any proceedings relating to wages, claims of discharge of sailors, the shipping commissioner has many of the powers of a court in regard to the examination of witnesses and production of documents. Where complaint is made that a vessel is unseaworthy, the master must forthwith apply to the judge of the district court for the district in which the ship may be, or if such a judge is not available, to some justice of the peace, for the appointment of surveyors; three surveyors may be then appointed whose duty it will be to carefully examine the ship and report their findings to the judge, or justice; he shall thereupon decide whether the vessel is fit to proceed, or, if not, whether the necessary repairs should be made where she is lying or whether it is necessary for her to proceed to a port of repair; the master and the crew are bound to conform to the decision. The master must pay all the costs of such survey unless it is decided that the complaint was without Should any master or owner neglect to provide a sufficient quantity of supplies for a voyage of ordinary duration to a port of destination, and thereby cause the crew to accept a reduced scale, he will be liable to penalties from fifty cents to one dollar a day to each sailor prejudiced thereby; any three or more of the crew of a vessel in deep-sea service may complain of the bad quality of the provisions or water and have a due examination made thereof, and if deficiency is found a master must remedy the same under a penalty of not more than $100; every American vessel in ocean trade shall be provided with medicines and antiscorbutics; must keep on board appropriate weights and measures and be provided with at least one suit of woolen clothing for each seaman, and a safe and warm room for the use of seamen in cold weather; they must also be provided with a slop-chest containing a complement of clothing for the intended voyage for each seaman employed, including everything necessary for the wear of the sailor and a fair supply of tobacco and blankets; the contents of the The statutes also contain detailed provisions as to the numbers and qualifications of the crew for vessels of various sizes and waters; also as to ratings, examinations and certificates of service; also as to wages at sea and against undue or unnecessary labor on board; while vessels are in safe harbors no sailor can be required to do any unnecessary work on Sundays or holidays, and while in port nine hours constitute a day's work. REFERENCES FOR READINGRights and Duties of Merchant Seamen, George Ticknor Curtis, Boston, 1841; Little & Brown. Commentaries, Kent, III, Lecture XLVI. Shipping and Admiralty, Parsons, Vol. II, Chapter XV. Master and Servant, Labbatt, I; §243-247; §251c; §416: II; §489; 504; 678-682: V; §2006-2012. Ixion, 237 Fed. 142. Catalonia, 236 Fed. 554. Strathearn, 239 Fed. 583. Imberhorne, 240 Fed. 830. Chicago, 233 Fed. 538. S.S. Co. v. Schmidt, 241 U.S. 245. Robertson v. Baldwin, 165 U.S. 275. Ross v. McIntyre, 140 U.S. 453. Endora, 190 U.S. 169. Dallemagne v. Moison, 197 U.S. 169. Osceola, 187 U.S. 190. [12] In Sandberg v. McDonald, 248 U.S. 185, the Supreme Court by a five to four decision, held that an advance made to a sailor before shipping on a British vessel, being lawful under British law, was properly deducted by the master in an American port from the one-half of earned wages demandable by the seaman in such port, notwithstanding such advance was unlawful under the American statute. Going further at the same term of court and with the same dissent, the court held in Neilson et al v. Rhine Shipping Co., 248 U.S. 205, that advances to seamen shipped on an American vessel in a foreign port were not prohibited by the statute. The effect of these two decisions was that the prohibition of advances to seamen upon their wages was confined to American ports, but the Merchant Marine Act of June 5, 1920 (see Appendix) provides that if an advance be made to a seaman in any port, whether foreign or domestic, he may nevertheless, recover the full wages earned by him, including any sum that may have been advanced to him. In other words he may recover the amount advanced over again. Such advances are prohibited in American ports whatever the nationality of the ship. On the other hand, the act is applicable to a vessel in an American port no matter what her nationality. Thus in a recent case of Strathearn S.S. Co. v. Dillon, decided March 29, 1920, the Supreme Court unanimously held that foreign seamen on foreign vessels in American ports are entitled to the benefits of the act and may demand one-half of the wages earned, notwithstanding contractual provisions to the contrary, and that the vessel need not have been in an American port five days before the seamen may make the wage demand. To entitle the seaman to make the demand it is only necessary that the vessel shall load or deliver cargo before the voyage is ended, and in the port where the demand is made; that the voyage shall have been commenced at least five days previously; that five days shall have lapsed since the last previous demand. |