The Seaman's Friend Part 42

[203] 1 Mason, 45. Bee, 134, 48. Gilpin, 225.

[204] 1 Pet. Ad. 186. Gilpin, 225. 2 Pet. Ad. 420, 428. Ware, 83, 91, 109.

[205] Gilpin, 150. 2 Pet. Ad. 415.

Even if the seaman shall have clearly deserted without justifiable cause, or absented himself more than forty-eight hours, yet, if he shall offer to return and do his duty, the master must receive him, unless his previous conduct would justify a discharge.[206] And if he is so received back, and does his duty faithfully for the rest of the voyage, the forfeiture is considered as remitted, and he is ent.i.tled to his wages for the whole voyage.[207] If, however, the owner has suffered any special damage from the wrongful absence of the seaman, as, if the vessel has been detained, or a man hired in his place, all such necessary expenses may be deducted from the wages.[208]

[206] 1 Sumner, 373.

[207] 2 Wash. 272. Gilpin, 145. 1 Sumner, 373. 1 Pet. Ad.

160.

[208] Gilpin, 145, 298, 98.

A mere leaving of the vessel, though a wrongful absence, is not a desertion, unless it is done with the intention to desert.[209] A seaman is bound to load and unload cargo in the course of the voyage if required of him, and a refusal to do so is a refusal of duty.[210] If the voyage is at an end, according to the articles, and the vessel is safely moored at the port of discharge, the seamen are still bound to discharge the cargo if it is required of them. If they do not, their refusal or neglect does not, however, work a forfeiture of all their wages, but only makes them liable to a deduction, as compensation to the owner for any damage he may have suffered.[211] The custom in almost all sea-ports of the United States is, to discharge the crew, and not to require them to unload cargo at the end of the voyage. This custom is so strong that if the owner or master wishes to retain the crew, he must give them notice to that effect. Unless the crew are distinctly told that they must remain and discharge cargo, they may leave the vessel as soon as she is safely moored, or made fast. If they are required to remain and discharge cargo, they make themselves liable to a deduction from their wages for a neglect or refusal, but do not forfeit them.[212] The seaman must bear in mind, however, that this is only when the voyage is at an end, and the s.h.i.+p is at the final port of discharge. If he refuses to load or unload at any port in the course of the voyage, and before it is up, according to the articles, he does so at the risk of forfeiting all his wages.[213]

[209] 1 Sumner, 373. Ware, 309.

[210] 1 Pet. Ad. 253.

[211] 1 Sumner, 373. Gilpin, 208. Ware, 454. 2 Hagg. 40.

[212] 1 Sumner, 373. Gilpin, 208.

[213] 1 Pct. Ad. 253.

The master and owners of a vessel are allowed ten days after the voyage is up, before a suit can be brought against them for the wages of the crew.[214] This is in order to give them time to settle all accounts and discover delinquencies. If the crew are retained to unload, then the ten days begin to run from the time the vessel is completely unloaded. But if the crew are not retained for this purpose, but are discharged and allowed to leave the vessel, then the ten days begin to run from the day they are discharged.[215]

[214] Act 1790, ch. 56, --6.

[215] 1 Pet. Ad. 165, 210. Ware, 458. Dunl. Ad. Pr. 99.

WAGES AFFECTED BY MISCONDUCT.--A seaman may forfeit his wages by gross misconduct; and if not forfeited, he may be liable to have a deduction made from them, for any damage caused to the owner by such misconduct.

To create a forfeiture, his misbehavior must be gross and aggravated.[216] A single act of disobedience, or a single neglect of duty, will not deprive him of his wages.[217] A refusal to do duty in a moment of high excitement caused by punishment will not forfeit wages, unless followed by obstinate perseverance in such refusal.[218] Where _drunkenness_ is habitual and gross, so as to create a general incapacity to perform duty, it is a ground of forfeiture of wages. But occasional acts of drunkenness, if the seaman in other respects performs his duty, will not deprive him of his wages.[219] In this, as in all cases of neglect, disobedience, or wilful misconduct, which do not create a forfeiture, a deduction may be made if the owner has suffered any loss.[220]

[216] 4 Mason, 84. Bee, 148.

[217] 4 Mason, 84.

[218] Do.

[219] 2 Hagg. 2. 4 Mason, 541.

[220] 4 Mason, 541. I Sumner, 384. Bee, 237. 2 Hagg. 420.

Gilpin, 140. 1 Pet. Ad. 168.

In one instance a forfeiture of one half of a seaman's wages was decreed, in consequence of his striking the master. He did not forfeit the whole, because he had been otherwise punished.[221]

[221] Bee. 184.

If the seaman is imprisoned for misconduct, he does not forfeit the wages that accrued during his confinement, nor, what amounts to the same thing, is he bound to pay those of a person hired in his place during his imprisonment.[222]

[222] Gilpin, 83, 140, 33. Ware, 9.

If the crime of a seaman is against the laws of the United States, and too great for the master's authority to punish, he must be confined and brought home to trial. But this does not forfeit his wages, though any loss or damage to the owner may be deducted.[223]

[223] 1 Pet. Ad. 168.

In all cases of forfeiture of wages for misconduct, it is only the wages due at the time of the misconduct that are lost. The wages subsequently earned are not affected by any previous misbehavior.[224]

[224] 4 Mason, 84.

If a seaman or officer is evidently incapable of doing the duty he s.h.i.+pped for, he may be put upon other duty, and a reasonable deduction may be made from his wages.[225]

[225] Ware, 109.

WAGES AFFECTED BY IMPRISONMENT.--If a seaman is imprisoned by a warrant from a judge or justice of the peace, within the limits of the United States, for desertion or refusal to render himself on board, he is liable to pay the cost of his commitment and support in jail, as well as the wages of any person hired in his place.[226] So, if a seaman is imprisoned in a foreign port by the authorities of the place for a breach of their laws, the costs and loss to the owner may be deducted from his wages; but not so if he is imprisoned at the request of the master.[227] The right of the master to imprison at all is a doubtful one, and dangerous of exercise; and if he does resort to it, he can never charge the expenses to the seamen, nor deduct their wages during imprisonment.[228]

[226] Gilpin, 223.

[227] Gilpin, 223.

[228] Ware, 18, 503, Gilpin, 83, 233.

WAGES AFFECTED BY CAPTURE.--If a neutral s.h.i.+p is captured, it is the right and duty of the seamen to remain by the vessel until the case is finally settled.[229] If she is liberated, they are then ent.i.tled to their wages for the whole voyage; and if freight is decreed, they are ent.i.tled to their wages for as much of the voyage as freight is given.[230] And if at any future time the owners recover the vessel, or her value, upon appeal or by treaty, they are liable for wages.[231] In order to secure his wages in these cases, the seaman must remain by the vessel until her sale or condemnation, and the master cannot oblige him to take his discharge.[232] The condemnation or sale of the vessel puts an end to his contract. If he leaves before the condemnation or sale, with the master's consent, he does not lose his chance of recovering his wages.[233] Even if the vessel is condemned, and the owner never recovers the vessel or its value, yet the seaman is ent.i.tled to his wages up to the last port of delivery, and for half the time she lay there.[234]

[229] 2 Sumner, 443. 1 Pet. Ad. 128.

[230] 2 Gall. 178. 2 Sumner, 443.

[231] 3 Mason, 161.

[232] 1 Mason, 45.

[233] 1 Mason, 45.

[234] 1 Pet. Ad. 203.

WAGES AFFECTED BY LOSS OF VESSEL OR INTERRUPTION OF VOYAGE.--If a vessel meets with a disaster, it is the duty of the crew to remain by her so long as they can do it with safety, and to exert themselves to the utmost of their ability to save as much as possible of the vessel and cargo.[235] If they abandon the vessel unnecessarily, they forfeit all their wages; and if their leaving was necessary and justifiable, yet they lose their wages except up to the last port of delivery and for half the time the vessel was lying there, or for so long as she was engaged with the outward cargo.[236] This rule may seem hard, but its object is to secure the services of the crew in case of a disaster. If by their exertions any parts of the vessel or cargo are saved, they are ent.i.tled to wages, and an extra sum for salvage.[237] If the vessel is abandoned and nothing is saved, they lose their wages, except up to the last port of delivery and for half the time the vessel was lying there.[238]

[235] Ware, 49. 1 Pet. 204.

[236] Pet. C. C. 182. 3 Sumner, 286.

[237] Ware, 49. Gilpin, 79. 2 Mason, 319. I Hagg. 227.

[238] 2 Mason, 329. 1 Pet. Ad. 204, 130; 2 do. 391. 11 Ma.s.s.

545.