Seaman, a sailor. Seamen may be hired in four ways. 1. They may be employed for a certain voyage and receive a certain proportion of the freight earned. This contract is probably rarely made in this country, except for small coasting vessels. 2. They may be hired for a certain voyage or by the run, and paid a round sum at the close, and this is not very unusual. 3. They may be hired on shares, which is a practice nearly if not quite confined to whaling and fishing vessels. 4. But much the most common usage is to hire them for some definite voyage or voyages, or for a definite period, on monthly wages. Under penalty of a considerable forfeiture, the United States laws require that every master of a vessel bound from a port in the United States to any foreign port, or of any ship or vessel of the burden of 75 tons or upward bound from an Atlantic to a Pacific port or vice versa, shall have shipping articles, which must be signed by every seaman on board, and must describe accurately the voyage and the terms upon which the seaman ships. Articles which are less particular are required in case of vessels of 50 tons and upward bound from a port in one state to a port in any other than an adjoining state.
Wherever there is doubt as to the meaning of the obligation, the sailor, rather than the ship owner, has the benefit of the doubt. The shipping articles ought therefore to declare explicitly the ports of the beginning and end of the voyage, and in all other respects ought to be clear and fair. To all clauses or stipulations which tend to lessen the usual rights of the seaman, it must appear that he gave intelligent and deliberate assent. Accidental omissions in the articles may be supplied by parol; and a seaman may also by parol show that the voyage or time represented to him was not that which appears in the papers, or that the articles have been altered since they were subscribed. The owner is bound to provide a seaworthy ship, and our statutes furnish the means of lawfully ascertaining her condition on the complaint of one of the mates and a majority of the crew, by a regular survey at home or abroad. If seamen, after shipping, refuse to proceed on the voyage and are arrested for the mutiny, the condition of the vessel, if that is the excuse, is inquired into by the court; and if she is found unseaworthy, their punishment is reduced and mitigated accordingly.
So, unseaworthiness is a sufficient defence to the charge of endeavoring to commit a revolt by compelling the master to return to port. Provisions of due quality and quantity are to be furnished by the owner, under the general principles of law as applied from the earliest times to this particular contract. The quantity for each man on board is here prescribed by statute, under penalty of a day's wages to every seaman for the days on which he is on short allowance. But these wages are not to be paid if the necessity of short allowance arose from a peril of the sea or any accident of the voyage, or the delivery of a part of the provisions to another vessel in distress. Nor, as it is clear that the master must have a discretion in the expenditure of the provisions, is putting the crew on an allowance necessarily the same thing as putting them on short allowance. A deficiency in one kind of provisions is not compensated by an abundance of another. By the general law merchant there is an obligation upon every ship owner or master to provide for a seaman who becomes sick, wounded, or maimed in the discharge of his duty, whether at home or abroad, at sea or on land, if it be not by his own fault, suitable care, medicine, and medical treatment, including nursing, diet, and lodging.
Sickness is provided for by express statutes, which go so far as to require that every ship bound from a port of the United States to any foreign port, or being of the burden of 75 tons and upward and bound from an Atlantic to a Pacific port or vice versa, should have a proper medicine chest on board. Whenever other appliances are required, or whenever surgical skill, or attendance, or nursing, other and better than that which the ship can afford, becomes necessary, the expense will be charged on the owners under the general maritime law. By other statutes the master may deduct 40 cents a month from every seaman's wages to make up a fund for the support of marine hospitals, in which every sailor may have medical treatment. - Disobedience or misconduct of a sailor is of necessity punishable with great severity. Formerly there was no specific limit to the right of punishment; it might be administered by the master in any form and in any measure, he always being responsible for any excess or cruelty, both criminally and in damages to the seaman. But by the statute of 1850 flogging is abolished and prohibited.
This has been declared by very high authority to include the use of the cat and every similar form of punishment, but not necessarily to include all corporal punishment, such as a blow with the hand, or a stick or rope. The statute contemplates deliberate flogging, and not that sudden violence, like blows, which may be inflicted in an emergency, to compel immediate obedience. Generally the only punishments which can now be resorted to, to secure good conduct, are forfeiture of wages, irons, imprisonment, hard labor, and such other means as may be invented in the place of flogging. The penalty of forfeiture of wages may not be imposed for one trivial act of irregularity, nor for a single or occasional act of intemperance; the offence must be habitual to warrant the infliction of the penalty. The master or a seaman may forfeit all his wages for smuggling; or the damage actually sustained by the owners of the vessel from this offence may be charged upon the wages of the offender, but only those wages earned before the act of misconduct are forfeitable. - Desertion is distinguished from absence without leave by the intention not to return.
Thus, it is not desertion for the seaman to leave the ship, against orders, for the purpose of entering complaints for ill treatment before the consul; nor is it desertion when the vessel is left for a good cause, as a change of the voyage without consent, cruelty, insufficient provisions, or unseaworthiness of the ship. The seaman must be received, if he offers to return in a proper way and in a reasonable time, before any other person is engaged to take the place. If he returns after desertion and is received by the master, or by the owner, this is a condonation of his offence and a waiver of the forfeiture, and it has this effect even if there be a clause to the contrary in the shipping articles. If the sailor deserts before the voyage begins, by not rendering himself on board, he forfeits his advance wages and an equal sum in addition, or he may be apprehended under the warrant of a justice and be compelled to go on board. If he deserts on the voyage, he forfeits all or any part of his wages and all or any part of his property on board the ship. - The right of the sailor to be brought back to his home is very jealously guarded by our laws.
Every ship must be provided with the shipping articles and a shipping list verified under the oath of the master; this he is required to present to the consul or commercial agent of the United States at every port which he visits, when so requested, and is under bond to deliver to the boarding officer who comes on board his ship at the first home port which he reaches, and to produce the persons named therein that it may be ascertained that he has his whole crew on board. If it appears that any of them are missing, he must account for their absence. If he discharges any of them abroad, with his or their own consent, he must pay to the American consul of the port or the commercial agent, over and above the wages then due, three months' wages, of which two thirds are paid to the seaman, and one third retained by the consul and remitted to the treasury of the United States, to form a fund for the maintenance of American seamen abroad and for bringing them home. If repairs to the ship become necessary, or if the ship is captured, the seamen may hold on for a reasonable time awaiting the prosecution of the voyage; and if discharged before this time has elapsed, they may claim their extra wages.
The discharge of a seaman for good cause, like disobedience, misconduct, or disability by his own fault of extreme degree, may be authorized by our consuls or commercial agents in foreign ports. If the ship is unseaworthy, the shipping articles are violated by the master, or the sailor is subjected to cruel treatment, he may be discharged by a consul and recover his three months' pay. If the master discharges the seaman, against his consent and without good cause, in a foreign port, he is liable to a fine of $500 or six months' imprisonment, and the seaman may recover full indemnity for all loss or expense incurred by such discharge. - It is an ancient maxim of the maritime law that freight is the mother of wages, so that where no freight is earned no wages are earned. But, more properly speaking, wages are earned whenever freight is or might be earned, for the sailor ought not to and does not lose his dues when the ship fails to earn freight on account of the fraud or wrongful act of the master or owner. Nor will any special contract between the owner and the freighter, varying the obligation to pay freight from that implied by the general law, have any effect upon wages.
If the voyage is broken up, or the seamen are dismissed without cause before the voyage begins, they have their wages for the time they serve, and a reasonable compensation for special damages. In cases where the voyage is broken up by misfortune, so that the master would be justified in discharging the crew, they are still entitled to their wages. So a seaman has full wages if he is compelled to desert by the cruelty of the master, or if he is disabled by sickness, even if, by reason of that sickness, he was obliged to be left at a foreign port. Seamen have a lien for their wages on the ship and freight. Statutes give the same lien to fishermen on shore. It attaches not only to ship and freight in re, but to the proceeds of both or either, and follows them into whose hands soever they may go. It prevails over bonds of bottomry and other like hypothecations, because the services of the sailor save the ship for all claimants. Pilots, engineers, firemen, and deck hands are seamen, and have this lien, and so have all persons whose service is materially and directly useful to the navigation of the vessel. A seaman cannot insure his wages, nor derive any benefit from the insurance effected by owners on ship or freight.
It is the policy of the law, for obvious reasons, to make the sailor find ail his interest in the security and welfare of the ship.