probated by the courts, and Mr. Bell seems to have considered that they would operate merely as a postponement of the time of payment, and not as a limitation of the right.' But these clauses have now met the attention of Parliament, and have been expressly declared invalid.2

In our own courts, the earliest case upon these inequitable agreements, now in print, occurred in the Admiralty Court in Pennsylvania. It was agreed in the articles "that no officer or seaman shall demand or be entitled to his wages, or any part thereof, until the arrival of the said ship at the above mentioned port of discharge in Philadelphia:" the ship was captured on her return voyage; and certainly no terms of contract could more forcibly imply that with such capture, all right to wages was extinct. But the court held, that the clause was to be construed as controlling the general right only as to the time and place of payment, which was to be at Philadelphia, in a common course of events; but that the arrival of the ship was not guaranteed by the mariner, and it being prevented by a casualty not under his control, he was to be paid wages as far as the owners had received freight, that is, to the outward port, and for half the period of the

the 'Law Magazine, (vol. xiv. p. 325,) "it is impossible, as men, to find fault with it." Whether or not it was an assumption of jurisdiction not warranted by the constitution of the English Court of Admiralty, the principle of the decision has been carried into effect by the Legislature, in the late admirable statute, as will appear in a succeeding note.

1 Bell's Com. ch. 4, sec. 1 and 4.

"No clause in the agreement whereby a seaman shall consent to forego the right which the maritime law gives him to wages in the case of freight earned by ships subsequently lost, or containing any words to that effect, shall be valid or binding on any seaman signing the same." Act 5 and 6 Wm. IV. ch. 19, sec. 5.

ship's stay at such port.' The same point was afterwards held by the Supreme Court of the State of Massachusetts, upon a similar agreement. But the question in relation to these clauses has been fully settled, so far as the relief afforded by the Admiralty courts is concerned, by Mr. Justice Story, who has placed their invalidity upon the broad principles of inequality and unfairness, before stated, and held that they are absolutely void, without the court is satisfied that they were understood and assented to by the mariners, upon an adequate additional compensation for the risk incurred.3

It is to be observed that the statute which entitles every mariner to demand and receive one third of the wages due to him at every outward port of delivery, unless the contrary be expressly stipulated in the contract,* has reference only to the time and place of payment, and does not contemplate stipulations by which wages already earned are to be made dependent on wages that are not earned, but are lost by casualties not affecting the former.

As respects the fisheries, the contract of the seamen with the master and owner is also required to be in writing, in the bank and other cod fisheries, containing the terms of shipment, the proportion of the proceeds of the voyage that is to belong to each seaman, and expressing whether the voyage is to continue for a term of time, or for the fishing season. The agreement is to be indorsed or countersigned by the owner of the vessel or his agent.

1 Johnson v. The Walterstorff, 1 Peters's Adm. R. 215.

2 Swift v. Clark, 15 Mass. R. 173.

'Brown v. Lull, 2 Sumner's R. 443.

Act U. S. 20th July, 1790, sec. 6.

Act. U. S. 19th June, 1813, ch. 2. "Be it enacted, &c., that the mas

The articles do not determine exclusively who are the owners, and the seamen may prove, by other evidence, who the real and responsible owners are.' The object of the articles is to place the fishermen's contract, and his relation to the vessel and owners and master, upon the same footing with seamen in the merchant service;

ter or skipper of any vessel of the burthen of twenty tons or upwards, qualified according to law for carrying on the bank and other cod fisheries, bound from a port of the United States, to be employed in any such fishery, at sea, shall, before proceeding on such fishing voyage, make an agreement in writing or print with every fisherman who may be employed therein, (except only an apprentice or servant of himself or owner,) and, in addition to such terms of shipment as may be agreed on, shall, in such agreement, express whether the same is to continue for one voyage or for the fishing season, and shall also express that the fish or the proceeds of such fishing voyage or voyages, which may appertain to the fishermen, shall be divided among them in proportion to the quantities or number of said fish which they may respectively have caught; which agreement shall be indorsed or countersigned by the owner of such fishing vessel or his agent. And if any fisherman, having engaged himself for a voyage, or for the fishing season, in any fishing vessel, and signed an agreement therefor, as aforesaid, shall thereafter, and while such agreement remains in force and to be performed, desert or absent himself from such vessel without leave of the master or skipper thereof, or of the owner or his agent, such deserter shall be liable to the same penalties as deserting seamen or mariners are subject to in the merchant service, and may, in the like manner, and upon the like complaint and proof, be apprehended and detained; and all costs of process and commitment, if paid by the master or owner, shall be deducted out of the share of fish, or proceeds of any fishing voyage, to which such deserter had or shall become entitled. And any fisherman, having engaged himself as aforesaid, who shall, during such fishing voyage, refuse or neglect his proper duty on board the fishing vessel, being thereto ordered or required by the master or skipper thereof, or shall otherwise resist his just commands, to the hindrance or detriment of such voyage, besides being answerable for all damages arising thereby, shall forfeit, to the use of the owner of such vessel, his share of any public allowance which may be paid upon such voyage." Sec. 1.

Wait v. Gibbs, 4 Pick. R. 298.

and to make them liable to the same restrictions and entitled to the same remedies. We have already seen that the seamen on these voyages are not partners with the owners.2

In the whale fishery, no statute has yet, in terms, required the contract to be in writing; but the invariable usage of that trade, and in fact the nature of the contract, have insured the universal adoption of a written agreement. It contains a description of the voyage; the share, or lay, as it is called, of each officer and seaman; a stipulation that each party will use his best endeavors to accomplish the object of the voyage; and certain regulations rendered expedient by the nature of the enterprise, and the character of the islanders in those distant seas, into which these voyages are pushed, where the lawlessness of savage life tempts the nearly equal lawlessness of men long absent from the restraints and decencies of civilization, and renders the strong arm of authority and every appeal to self-interest necessary to the preservation of common order and security.*

1 Wait v. Gibbs, ut supra. 3 Kent's Com. p. 138. Act U. S. 19th June, 1813, ch. 2, sec. 1 and 2. A form of these articles will be found in the Appendix.

2

3

Ante, p. 13.

'A whaling, or fishing voyage, has been held not to be a "foreign voyage," within the meaning of the statutes using that expression. Taber v. The United States, C. C. U. S. for Mass. Oct. 1839. Mss. This case will appear in 4 Sumner's R.

The whale fishery is a trade conducted with much method and system, and is carried on by persons of great intelligence, as well as enterprise. So far as my inquiries have extended, the whaleman's shipping paper used in the port of New Bedford, is the best constructed instrument of the kind in use in the United States. Its regulations for the health and morals and discipline of the crew, are deserving of great praise. See the Appendix.

CHAPTER IV.

OF THE DIFFERENT FORMS OF THE MARINER'S CON

TRACT.

FOUR various modes of hiring, or compensating the services of seamen, have been practised to a different extent in different ages and countries. Seamen are hired, first, by the voyage, at so much for the entire period, or run; second, for the voyage, at so much for each month that the voyage shall continue; third, for a certain voyage, at a stipulated share of the profits that shall be realized; fourth, for a certain voyage, at a stipulated share of the freight that shall be earned.' These are all important to be examined and traced to the sources from which their principles may be derived; for they are all, under one or another aspect, in use at the present day, and under some of them, as a form of the mariner's contract, vast branches of the commercial enterprise of this country are now conducted.

These different forms of the contract divide themselves into two classes; the two first, the hiring by the voyage and by the month, having some common analogies, constitute the first class; and the two last, the hiring on a share of the profits, or of the freight, being analogous

1 L'Ord. de la Marine, liv. 3, tit. 4, art. 1. Jacobsen's Sea Laws, book 2, ch. 2. Pothier, Louages Mar. n. 160.