CHAPTER I.

OF THE TIME WITHIN WHICH PAYMENT OF WAGES MAY

BE DEMANDED AND ENFORCED.

It is the general rule of the maritime law, that the wages for the whole voyage are not due and payable, until the voyage is terminated and the cargo is unlivered. We have already seen that it is, in general, the duty of the officers and crew to remain by the ship until the cargo is discharged; and the reason why the wages are not payable until the discharge of the cargo is complete, is both because it is part of the contract that the mariner shall assist in the unlading, and in order that the merchant may have opportunity to demand the freight, the fund out of which the wages are ordinarily to be paid, and to see whether any deductions are to be made from the wages on account of embezzlement or other injury to the cargo. But in most countries there are positive regulations upon the subject; and in this country, by Act of Congress, it is provided that, as soon as the voyage is ended, and the cargo or ballast fully discharged at the last port of delivery, every seaman or mariner shall be entitled to the wages which shall be then due according to his contract, and if not paid within ten days after such discharge, the sea

man or mariner is entitled to Admiralty process against the vessel.1

1

1 Act U. S. 20th July, 1790, ch. 29, sec. 6. "That every seaman or mariner shall be entitled to demand and receive, from the master or commander of the ship or vessel to which they belong, one third part of the wages which shall be due to him, at every port where such ship or vessel shall unlade and deliver her cargo before the voyage be ended, unless the contrary be expressly stipulated in the contract: and as soon as the voyage is ended, and the cargo or ballast be fully discharged at the last port of delivery, every seaman or mariner shall be entitled to the wages which shall be then due according to his contract: and if such wages shall not be paid within ten days after such discharge, or if any dispute shall arise between the master and seamen or mariners, touching the said wages, it shall be lawful for the judge of the district where the said ship or vessel shall be, or in case his residence be more than three miles from the place, or of his absence from the place of his residence, then, for any judge or justice of the peace, to summon the master of such ship or vessel to appear before him, to show cause why process should not issue against such ship or vessel, her tackle, furniture, and apparel, according to the course of admiralty courts, to answer for the said wages: and if the master shall neglect to appear, or appearing, shall not show that the wages are paid, or otherwise satisfied or forfeited, and if the matter in dispute shall not be forthwith settled, in such case the judge or justice shall certify to the clerk of the court of the district, that there is sufficient cause of complaint whereon to found admiralty process, and thereupon the clerk of such court shall issue process against the said ship or vessel, and the suit shall be proceeded on in the said court, and final judgment be given according to the course of admiralty courts in such cases used; and in such suit all the seamen or mariners (having cause of complaint of the like kind against the same ship or vessel) shall be joined as complainants; and it shall be incumbent on the master or commander to produce the contract and log-book, if required, to ascertain any matters in dispute; otherwise, the complainants shall be permitted to state the contents thereof, and the proof of the contrary shall lie on the master or commander; but nothing herein contained shall prevent any seaman or mariner from having or maintaining any action at common law, for the recovery of his wages, or from immediate process out of any court having admiralty jurisdiction, wherever any ship or vessel may be found, in case she shall have left the port of delivery where her voyage ended, before payment of the wages, or in case she shall be about to proceed to sea before the end of the ten days next after the delivery of her cargo or ballast."

The statute is obscure,' and the necessity of a judicial construction was obvious from the first. Soon after the passage of the Act, Judge Peters, of the District Court of Pennsylvania, gave it the following construction. It appeared to him unwarrantable to contend that the ten days should run from the time of the discharge of the cargo; that the discharge of the cargo or ballast was coupled with the end of the voyage in the law, not as part of the contract, or to fix the time from whence the ten days are to be computed, but because it is a necessary step to enable the merchant to demand his freight; and that it is not to be supposed that the Act means to fix two periods from which one term of ten days is to run. A reasonable construction is therefore to be given to it, and he allowed at the least ten days from the end of the voyage, and at the most fifteen working days to unlade.2

In the District Court of Massachusetts, Judge Davis, more recently, adopted a similar construction. He held that the ten days ordinarily began to run from the period when the cargo actually was or might be discharged ; and that the voyage was then properly ended. But in cases where the crew were discharged upon arrival in port, and were not retained for the purpose of discharging the cargo, (as is the common practice,) he thought the ten

1 In England, by Act of Parliament, two days, in coasting voyages, from the termination of the agreement, or from the time when the mariner receives his discharge, whichever shall first happen, and in other Voyages, three days after the cargo shall have been delivered, and ten days after the mariner receives his discharge, whichever shall first happen, are the times when the wages are demandable. Act 5 and 6 Wm. IV. ch. 19, sec. 11 and 12. 2 Edwards v. The Susan, 1 Peters's Adm. R. 165. Thompson v. The Philadelphia, Ibid. 210. Hastings v. The Happy Return, 2 Ibid. 253.

days began to run from the time of the discharge of the crew; and that the day of the discharge should not be included in the ten days.'

Still more recently, the subject was fully examined by Judge Ware, of the District Court of Maine. He held that the ten days begin to run from the day when the wages are completely earned. If by the terms of the contract, or the usage of the place, the seamen are bound to remain in the vessel, and assist in unlading the cargo, then on common principles they will not be entitled to their wages until the cargo is discharged. It is the general rule of the maritime law that the seamen are bound to wait the unlivery of the cargo, in the absence of any usage or particular contract. But if by the terms of the contract or the usage of the port, the term of service and with it the wages terminate when the vessel is safely moored, and before the unlading; or if they are discharged and other persons employed to unlade, then the ten days are to be computed from the arrival of the ship, or from the discharge of the mariner.o

Ordinarily, therefore, the mariner is entitled to his wages as soon as he is voluntarily discharged from the vessel; and if they are not paid within ten days after his discharge, he may have process from a Court of Admiralty against the vessel. But if he be not discharged, and if the owner or master require that he should assist in unlading, a period of fifteen days has been adopted by the courts, as a reasonable time for the unlading, and the

'Holmes v. Bradshaw, cited in Story's Notes to Abbot on Shipping, p. 456.

2 The Mary, Ware's R. 454.