CHAPTER I.

OF THE REMEDY OF MARINERS FOR THEIR WAGES.

We have seen, in a former part of this Treatise, the form and manner of hiring seamen, and the parties between whom the contract takes place. It has been stated, that the parties to the contract are three; the master, the owner and the seamen; and that the hiring is ordinarily transacted by the master, as the owner's agent.' It is now to be ascertained, what remedies exist for the mariner, for his wages.

First in order, then, as the most effectual security, is that, upon the faith of which, by the universal maritime. law, the contract is always presumed to be made the lien upon the vessel itself. The Consolato affirms the existence of this lien with great emphasis. It directs the master to sell the vessel, if he has not means to pay the seamen ; "for the seamen ought to be paid," it declares, “before every one else, even though there remains but a single nail for the payment ;" and it adds that they are hired upon the faith and security of this hypothecation. It elsewhere gives a precedence to the claims of seamen over all the other debts of the ship.3

'Ante, Part I, ch. 2, p. 15-19.

• Consolato del Mare, art. 93, [138]. Pardessus, tome ii, p. 129.

* Ibid. art. 13, 18, 94, 113, 148, 182, [58, 63, 139, 158, 193, 227.] Ibid. tome ii, p. 66, 71, 129, 142, 164, 205.

3

4

The French Ordinance of 1681 specially affects the vessel with the same lien, and gives the same privilege;1 both of which are reënacted in the Code de Commerce with slight variations. Indeed, the universal maritime law of Europe, Continental and British, gives this real security upon the ship itself, to the mariner, for his wages, and it is equally recognised and enforced in this country. The grounds upon which the security and precedence rest are, that the mariner, in contracting with the master, is presumed to engage on the credit of the ship; that he is constantly in danger of losing his wages by shipwreck; that it stimulates his exertions to save as much as possible in the hour of danger, to give him a preferred right of payment out of it; and that finally, by his exertions in bringing the remnants of the vessel, or the vessel itself into port, he has enabled others to be paid, who have claims on it like his own.5

'L'Ord. de la Marine, liv. 3, tit. 4, art. 19. Liv. 1, tit. 14, art. 16.

* Code de Commerce, art. 271, 191. In the French law the master's wages are also a lien on the ship. Ibid.

3 Cleirac, p. 8. Targa, p. 308. Valin, Comm. tome i, pp. 362, 751. Emerigon, tome i, p. 493; tome ii, pp. 229, 569. Jacobsen's Sea Laws, by Frick, book 2, ch. 2, p. 151. Abbot on Shipping, part 4, ch. 4, sec. 8. The Favorite, 2 Dods. Adm. R. 222. The Sidney Cove, 2 Ibid. 1.

Brown v. Lull, 2 Sumner's R. 443. v. Taylor, 5 Peters's S. C. R. 675, The lien is also recognised by

Farrel v. M'Clea, 1 Dall. R. 392. The Mary, 1 Paine's R. 180. Sheppard and numerous cases in the notes, infra. our Statute, Act U. S. 20 July, 1790, ch. 56, sec. 6; and is given to fishermen in the bank and cod fisheries; Act U. S. 19 June, 1813, ch. 2. On some of the western waters, there is a lien given by state legislation to the officers and crews of steamboats, and a proceeding in rem.

Jacobsen's Sea Laws, by Frick, book 2, ch. 2, p. 151. Comm. tome i, pp. 362, 363. 1 Sider. 179. 11 Johns. R. 280. tune, 1 Hagg. Adm. R. 227.

Valin, The Nep

But the voyage must be legal, to give a lien on the vessel for wages. If it be illegal, and such illegality is known to the mariner, he cannot assert a claim upon the vessel.1 But where the mariners are innocent of all knowledge of, or participation in the illegality of the voyage, their claim will be preferred to the claim of forfeiture on the part of the government.2

The nature of this lien, or claim upon the vessel in rem is totally distinct from those rights which are more appropriately called liens, at the common law. Strictly speaking, a lien is a right to detain a thing put into a party's possession, until some demand of that party is satisfied.3 The word itself, however, has been used indiscriminately, in our law books, to signify as well the strict possessory lien of the common law, as those other claims with which a particular thing may be affected, by a privileged debt, which require and involve no possession, but attach to the thing wherever it is found. To define clearly, therefore, the nature of the mariner's claim upon the vessel, it would seem to be necessary to discard this term from use; though it has been so extensively employed in juridical discussions, that it cannot be wholly dispensed with.*

Domat, treating of the privileges of creditors, divides them into three classes, in one of which he places "those

'The St. Jago de Cuba, 9 Wheaton's R. 409. The Langdan Cheeves, The Vanguard, 6 Rob. Adm. R. 207. The Leander,

2 Mason's R. 58.

Edw. Adm. R. 35. The Benjamin Franklin, 6 Rob. Adm. R. 350.

2

The St. Jago de Cuba, and The Vanguard, supra. See also Sheppard

v. Taylor, 5 Peters's S. C. R. 675, 709.

3

Story on Agency, sec. 352, and the authorities cited.

• See a discussion of the nature of maritime liens, in the opinion of the

Court in the case of The Nestor, 1 Sumner's R. 73.

whose debt has some privilege which distinguishes their condition from that of others, and gives them a preference over those whose debt may be prior in point of time.”1 "Privileges," he says, "are of two kinds: one, those which give a preference upon all goods, without special affectation of any one thing; as, for example, the privilege of expenses of justice, and of funeral charges: the other, those which have only a special affectation of certain things, and not of other things."2 "The privilege of a creditor is the distinguishing right which the quality of his debt gives him, which causes it to be preferred to other creditors, and even to express hypothecations, though anterior."

It

The kind of claim here spoken of is precisely what the maritime law intends, in the claim of seamen upon the vessel, as in the case of other maritime liens. embraces two elements: first, it is a special charge on the ship itself; a right to be paid out of the thing: second, it is a privileged charge, entitled to be paid, by priority, before any other special charge upon the same thing. These characteristics are fully recognised in the

1 Domat, liv. 3, tit. 1, sec. 5. Euvres Complete, tome ii, p. 35, Paris, 1829.

2

* Ibid. It is difficult to render, by any corresponding English terms, better than special affectation, the affectation particulière sur une chose, of a writer whose native tongue is so exact, and so eminently adapted to scientific precision. The phrase, in English, sounds like special affectation, in good sooth. The use, however, of the verb "to affect," in the sense of to taint, or touch with, to convict of, is by license conceded to the profession. "A merely juridical phrase," says Dr. Johnson, of the eighth and last meaning which he assigns to the word.

3 Ibid.

"Every privilege," says Emerigon, "carries with it a tacit hypothecation." Contracts a la Grosse, ch. 12, sec. 2.