mercial nations, which excludes mariners from employment in any other than a ship of their own country. The seaman, professionally, and for the purposes of his employment, is a citizen of the globe; his contract is known to a general jurisprudence, and is governed by principles in respect to which greater uniformity has prevailed for many ages, than in respect to almost any other contract of civilized man. He seeks his employment, and acquires a full title to its rewards, in the vessels of any nation, except where the policy of his own sovereign, or that of the particular country, forbid or exclude him from the ships of such country.1 By a statute of the United States, passed in 1813, it was declared to be unlawful to employ on board on board any of the public or private vessels of the United States, any person or persons, except citizens of the United States, or persons of color, natives of the United States; and naturalized citizens: and where the latter are employed, they must produce to the commander of the public vessel, 'These observations apply only to a state of peace. As against belligerent rights, it may often be important for the masters and owners of neutral ships, to attend carefully to the national character of the seamen whom they employ. The law of prize, held by some nations, requires that the officers, and a certain proportion of the crew of neutral ships, generally two-thirds, should not be of an enemy's country; otherwise the ship will take its national character from that of the crew. This is the law of France and Denmark. The proportion agreed on by Russia and England, by the Petersburg Convention of 1801, is a half. (See Jacobsen's Sea Laws, Book II. chap. 2. 2 Brown's Civ. and Adm. Law, 515.) England has not always been so strenuous upon this point; but the courts of that country have held, that where neutral seamen enter into the enemy's commerce, their national character is concluded by that of the vessel in which they are found. The Frederick, 5 Robinson's Adm. R. 8. See also, The Embden, 1 Robinson's Adm. R. 16, and The Vigilantia, ibid. 1. if it be one, or to a collector of the customs, if it be a private vessel, a certified copy of the act of their naturalization, setting forth such naturalization, and the time thereof. But this prohibition is limited, in a subsequent section of the same act, to the exclusion of the subjects or citizens of such nations only, as have prohibited by treaty or special convention, the citizens and subjects of the United States from employment in their vessels.2 The penalty provided in the Act for the employment of the subjects or citizens of the nations against whom the prohibition operates, is a forfeiture by the master and owners of five hundred dollars for each seaman so unlawfully employed; to be recovered in an action of debt, one moiety to the use of the person suing, and the other moiety to the use of the United States. And this penalty is recoverable, although the seaman's name shall have been admitted and entered in the list of the crew certified by the collector. But when in a foreign port, any deficiency of the crew may be supplied by hiring the subjects of the foreign country, if their employment is not prohibited by their own laws.^ 3 But the whole of this statute is now comparatively inoperative, since there are very few nations who have excluded our seamen from employment in their ships. Foreigners are extensively employed in our mercantile marine, and while so employed, are within the protection 1 Act U. S. 3 March, 1813, ch. 184, sec. 1, 2. 2 Sec. 10.1 3 Sec. 8. A similar penalty is provided against receiving on board in a foreign port, any seaman or seafaring man, not of the United States, as a passenger, without permission in writing from the proper officers of his country, (Sec. 5.) 4 Sec. 9. of the laws made for the benefit and protection of seamen. It has been held expressly, that a foreigner, while employed as a seaman in a merchant ship of the United States, is a "mariner and seaman of the United States," within the language and policy of the Consular Act of 1803, ch. 62.1 2 By a subsequent statute, in all vessels of the United States engaged in the fisheries and coasting trade, the officers and three-fourths of the crew must be citizens; and in all vessels engaged in foreign trade, the officers and two-thirds of the crew must be citizens. Fishing vessels offending against the Act, cannot entitle themselves to the bounties provided by law; and vessels engaged in the foreign and coasting trade, are subject to the foreign tonnage duty, if their crews consist of more than the above proportion of foreigners.3 These last penalties are cumulative upon those of the former Act; so that masters and owners, shipping foreign seamen who belong to countries against which that Act operates, are still subject to the penalty of five hundred dollars for each person. I am not aware of any decisions in the courts of this country, respecting the provisions of these Acts. But in England, under similar statutes, it has been held, that foreigners, hired to take care of a cargo of mules, on board a British ship, were not to be deemed part of the crew, within the provisions of the statutes requiring British ships to be manned by a certain proportion of British seamen ;" and also that goods imported in a British ship 'Matthews v. Offley, 3 Sumner's R. 115. 2 Act U. S. 1 March, 1817, ch. 204, sec. 3, 5, 6. 3 Ibid. not manned and navigated according to law, are not liable to forfeiture, if the imperfect manning of the ship was a matter of uncontrollable necessity. Such statutes, in fact, belong to a class of laws, which, although not to be weakened by minute tenderness to particular hardships, are yet subject to all considerations of rational equity; although framed for the security of great national interests, and founded on purposes of great public policy, they are yet not to be rigidly and literally enforced against offences committed only through invincible necessity.2 The Pelican, 2 Dodson's Adm. R. 194. Adm. Digest, Titles "ACCIDENT," "NECESSITY and DISTRESS." CHAPTER II. OF THE GENERAL NATURE OF THE MARINER'S CONTRACT, AND THE PARTIES THERETO. THE contract of hire for marine service belongs in general to the entire class of contracts for the hire of services, but it also involves and is governed by principles peculiar to itself, and which carry it, in very important particulars, beyond the rules applicable merely to contracts of service upon land. Thus, by the common law, of England and of this country, when a man lets himself to hire, and neglects or refuses to fulfil his engagement, he cannot be compelled to perform it by any restraint put upon the freedom of his person; the remedy of the other party is solely in the damages he may recover for breach of the contract. The same principle prevails in the civil law; nemo potest præcisé cogi ad factum; and the same remedy only is afforded to the injured party. But, by the law of most countries, the mariner's contract is an exception to this general principle. By the French Ordinance, the seaman, who fails to render himself on board according to his contract, can be pursued and arrested wherever he is found, and constrained to complete his engagement.2 The same provision for his apprehension and compul 1 POTHIER, Traité des Obligations, n. 157 (Edition Dupin, tome i, p. 79.) 2 L'Ord. de la Marine, liv. 2, tit. 7, art. 3. |