CHAP. 8.

CHAPTER III.

MARINERS' WAGES.

Who are

THE term mariner may, in general, be said to mariners. embrace all persons employed on board ships, to assist in their navigation and preservation. It includes, therefore, not only the officers and the ordinary seamen of the ship, but also surgeons, carpenters, coopers, stewards and cooks, employed on board as such (a). It may include women, also,

(a) The right of "mariners," with the exception of the master, to sue in the admiralty for wages, was always conceded by the common law courts of England; but during the pendency of the well known controversy between these courts and the High Court of Admiralty, touching the extent of the jurisdiction of the latter, the question, who were to be considered as embraced within this denomination, often became the subject of discussion, and there are many reported decisions upon this point. It is unnecessary, however, particularly to refer to them, because their authority and influence are superseded by the decisions and established usages of our own courts. If there is ground for doubt with respect to either of the classes of persons mentioned in the text, it is that of surgeons or physicians. In the case of Mills v. Long (Sayer, 136), it was unanimously decided by the court of King's Bench, that a ship's surgeon might sue in the admiralty; but in the case of The Lord Hobart (2 Dodson's R., 100), Sir WILLIAM SCOTT seems to have entertained some doubt upon the point; considering the case of a surgeon to be different, in this respect, from that of a carpenter, who frequently acts in the capacity of a mariner in the strict sense of the term. It did not become necessary to decide the point; and the reporter, in a note, intimates an opinion that if the cause had been persevered in, the court would have recognized the

VOL. 1.

as well as men(a); and the pilot, deck hands, engineer and firemen employed on board a steamboat have been held to fall under the denomination of mariners(). It is not, however, to be understood that all persons employed, in whatever capacity, on board vessels, fall within this denomination. To constitute a mariner, the services rendered by him must pertain to the business of navigation; and must be such as are necessary, ar at least conducive

authority of the case of Mills v. Long, and permitted the surgeon to maintain his suit. In the case of Gardiner et al. v. The Ship New Jersey (1 Peters's Adm. Decis., 223), however, it was assumed by Judge PETERS that the ship's physician had no lien on the ship; but in the case of Turner et al. v. The Superior (Gilpin's R., 514), and also in the case of Thackarey et al. v. The Farmer (ibid., 524), which arose more than thirty years afterwards, in the same court, the right of surgeons to sue in the admiralty was incidentally asserted by the court as a settled point. In the case of Macomber et al. v. Thompson (1 Sumner's R., 384), no objection was interposed to the right of a cooper, on board of a whaling ship, to maintain a suit in the admiralty for his share in the earnings of the ship.

The master is not entitled to sue in the English admiralty for his wages, not having, as we shall see, any lien on the ship therefor; but this is because, from the relation in which he stands to the owners, he is presumed not to have looked to the ship for security. The right of the mate to sue for wages, in the admiralty, was also formerly questioned in England, on the same ground; but it has long been settled, both in England and the United States, that he stands, in this respect, on the same footing as the crew.

(a) The Jane and Matilda, 1 Haggard's R., 187.

(b) Wilson v. The Ohio, Gilpin's R., 505, and in the District Court of the Northern District of New-York, "porters," whose chief business it is, on board of lake steamers employed in the conveyance of passengers, to receive and bring on board, and discharge the luggage of the passengers, have been allowed to sue as mariners, their services being essential to the proper and successful navigation of the vessel as a passenger vessel, and for the same reason this privilege has been allowed to the clerk.

to the preservation of the vessel, or of those CHAP. & employed in her navigation. It has therefore been held that no suit in the admiralty could be maintained for wages, by persons hired and employed as musicians on board a vessel (a).

Few claims are so highly favored and so studiously protected by law, as those of mariners for their wages; and it has long been a settled principle of the maritime law, that the seaman has a three-fold remedy for the recovery of his earnings: against the ship, in virtue of a specific lien or privilege secured to him by the maritime law; against the master, by reason of his right to receive the freight earned by the ship, that being the appropriate fund for the payment of wages; and against the owner, in virtue of his contract(6). It is now, moreover, an established principle of the maritime law of the United States, that the mariner has a lien for his wages also on the freight, in the hands of the merchant, owner or consignee of the goods from whom it is due. This doctrine was laid down by the Supreme Court of the United States, for the first time, in qualified terms, and apparently with considerable

(a) Trainer et al. v. The Superior, Gilpin's R., 514. The vessel, inthis case, was originally designed for canal navigation; but at the time the services for which the suit was brought were rendered, was employed as a floating museum, and, in that character, left Philadelphia soon after the libellants were shipped, passed down the Delaware, through the canal and Chesapeake bay, to Norfolk, and thence to various places in North Carolina, stopping from time to time, and exhibiting her curiosities.

(b) Abbot on Shipping, Boston ed. of 1846, 781; Bronde v. Haven, Gilpin's R., 592; Sheppard v. Taylor, 5 Peters's R., 665 (9 Curtis's Decis. S. C., 531).

Mariner has against the

a remedy

ship, freight, master and

owner.

VOL 1. hesitation, in the case of Sheppard v. Taylor, just

cited. It has, however, since been distinctly asserted in several cases by Mr. Justice STORY(a); and is explicitly declared by the Supreme Court, in one of the rules of practice in cases of admiralty and maritime jurisdiction, promulgated in 1845(b). And it had also been previously maintained, in a case not then reported, by the learned judge of the District Court of the United States for the District of Maine, in an elaborate and very able opinion comprising a full review of the authorities bearing upon the question (c). In that case, a part of the return cargo belonged to the ship charterers, by whom the crew was shipped, and who had the entire control of the ship during the voyage. Before the return of the ship, the charterers became insolvent, and had executed an assignment of all their property, including so much of the return cargo as belonged to them. In behalf of the seamen, it was insisted that they had a lien not only upon the freight due to the charterers on account of that part of the cargo which belonged to others, but also on Whether the the residue of the cargo itself. As a judicial question, with respect both to the freight and the cargo,

mariner's

lien does not extend also

to the cargo, when the property of the ship

owner?

(a) Brown v. Lull, 2 Sumner's R., 443; Pitman v. Hooper, 3 Sumner's R., 50.

(b) Rule 13. "In all suits for mariners' wages, the libellant may proceed against the ship, freight and master, or against the ship and freight, or against the owner alone, or the master alone, in personam.” This rule is not understood to require the mariner, when he wishes to proceed against the ship and master, to embrace also the freight, but only to declare his right to do so.

(c) Poland et al. v The Spartan, Ware's R., 134.

it was considered and treated by the court as entirely new. The conclusion of the court was, that a lien was given by the general maritime law on freight, and, in cases like that before the court, on the cargo also.

In the case of Sheppard v. Taylor, cited above, it was said by the Supreme Court that seamen have no lien on the cargo; "as that is not in any manner hypothecated, or subjected to the claim for wages (a)." But in a late case in the High Court of Admiralty of England, it is not only assumed as a settled principle, that the mariner has a lien on the freight, "as appurtenant to the ship," but it is strongly intimated that the lien may be enforced also against the cargo, when it is the property of the ship-owner. The ship, designed on a trading voyage from Liverpool to Africa and back, sailed with goods for barter; and, on her voyage home, was, with her cargo, totally consumed by fire. The ship and cargo were the property of the same owner, and were insured. The suit was in favor of one of the crew who had worked his passage to England, and was against the owner of the ship, and of "the cargo lately laden on board." The court, in discussing the questions to which the case was supposed to give rise, is reported to have said, that "a mariner has no lien on the cargo, as cargo: his lien is on the ship, and on the freight as appurtenant to the ship; and so far as the cargo is subject to freight, he may attach it as a security for the freight that may

(a) 5 Peters's R., 675 (9 Curtis's Decis. S. C., 531).

CHAP. 3.