CHAP. V. Ship-master cannot sue for wages in Ad miralty. Mate can. in his book on Shipping, referring to several cases, says: due to mariners of our own country, have been said The master, then, not standing upon the security of the ship, has been prevented from suing in the Admiralty Court; but it is not so with the mate; he is not such a master mariner as to be prevented from suing in such court as mate; and, as it is an accident of frequent occurrence that such a seaman is, in the course of the voyage, called from his position as mate to perform the duties of and to become the master of the vessel, it is necessary that we should consider how far the Court * Rogg v. King, 2 Stra. 858. 1 Bern. 297., and King v. Player, there cited. Clay v. Sudgrave, or Snellgrave, Salk. 33. 1 Lord Raym. 576. 2 Mod. 405. Carth. 518. Read v. Chapman, 2 Stra. 937. The Favourite, De Jersey, 2 Robinson's Admiralty Reports, 232. of Admiralty has jurisdiction to enforce his claim CHAP. V. against the ship for his services during the voyage. wards becom In Read v. Chapman*, a man went out as mate, Mate afterand on the death of the master succeeded to the com- ing master, mand and brought home the ship, and sued in the can as mate. Admiralty Court for his wages as mate, and for a further allowance after he became master; a prohibition was granted quoad the time he was master, and refused quoad the time he was mate. Lord Stowell, in the Favourite †, remarked to the effect that had it not been for the preceding case, he would have felt disposed to entertain a suit by a person who had set out as mate, but who, during the voyage, had become master, for payment of his wages in both capacities, because, he having contracted originally as mate, and becoming master in consequence of subsequent events, it is still such a demand as might be taken to arise out of his original contract. "This original contract being not only that he shall perform the duties of mate, but also by necessary implication of law, that he shall, in case of necessity, take upon himself also the duties of master; for, by the maritime law, the mate is hæres necessarius to the employment of master in case of necessity; it might, therefore, have been understood as a thing mutually understood in the original contract, and foreseen and provided for at the time and in the act of forming it: the Court might have been induced to sustain such a suit, not under the view of a contract entered into by this man as master, but as a consequence arising originally out of the primary contract as mate, over which contract this Court has an undoubted jurisdiction." But as it appeared that the common law courts had determined otherwise and granted prohibitions on the point, he was held entitled only to proceed * 2 Strange, 937. CHAP. V. So, in that case, he can sue for wages the whole voyage. for his wages as mate, and excluding the quantum meruit due to him as master, and for the additional duties performed by him as master he had to apply elsewhere. The Court being asked, whether his demand as mate must end with the day of his appointment as master, as mate during was further of opinion that he was entitled to his wages as mate during the whole time, but that for a reward of his additional services he must go elsewhere. "I consider his new character of master as superinduced to that original one of mate: he contracted to serve as mate, and it is a part of that contract, legally implied in it, that he shall likewise act as master, in case of the death or removal of the actual master; but I do not think that the character of mate is necessarily merged in that of master; or that his title to a mate's wages is totally extinguished by his acquired title to a quantum meruit for his additional service as master; unless it can be shown that the office of mate was regularly devolved upon somebody else, and the duties of it were entirely performed by that other person." In cases of materialmen*, it has been mentioned, that although they could not sue against the ship, they were originally allowed to assert their claims against proceeds remaining in the registry; it appears that this distinction, namely, between an original suit and a permission to be paid out of proceeds has, as regards the claims of a master, never been entertained. In the Favourite an inquiry was made, but no case was found in which a master has been permitted to sue against proceeds in the registry, except in cases of mere remnants and surplus; and not even then if there were any adverse interests opposing it. Neither can master sue against proceeds remaining in the registry. Chief mate can. In the Lord Hobart †, G. the commander hired J. B. as master or chief mate; it was held, that the circumstance * See above, p. 101. et seq. † 2 Dodson's Admiralty Reports, 100. of G. being described as commander of vessel, made it CHAP. V. quite clear that J. B. was to be considered in the capacity of mate, and as such was entitled to sue in the Court of Admiralty for his wages, notwithstanding the appellation of master or chief mate. It appears also that a surgeon may sue in the Admiralty Court for his wages; for although in the same case it was doubted by Lord Stowell whether the Court possessed jurisdiction over such claim*, on the ground that no case had been brought to the notice of the Court in favour of the jurisdiction, there was no direct decision upon the point; and it is observed by the learned reporter to that case, that if the cause had been persevered in, it is not improbable that the Court would have permitted the surgeon to sue under the authority of the case of Miles v. Long.† In that case, the Court of King's Bench unanimously decided that a surgeon of a ship may sue in the Admiralty Court for his wages; one of the judges (Foster) at first doubted, but afterwards concurred in opinion with the rest of the justices. But for medicines furnished by such a person for the use of a ship's crew, payment cannot be recovered in the Court of Admiralty. Surgeon can, for his wages, but not for medicines furnished. It appears that a female mariner may earn wages and Female. sue for them in the Admiralty Court; such a claim was pronounced for in the Jane and Matilda ‡, where seaman's work was proved to have been done, and well done, by a woman. The boatswain is a mariner and can proceed for his Boatswain. wages in the Admiralty Court.§ On a motion for a prohibition to the Admiralty Court, Carpenter. it was held that a ship's carpenter may sue for wages there, and the prohibition was denied. || CHAP. V. Foreign seamen can sue in Admiralty with consent of ambassador, for wages earned on foreign ship. But the claim for wages must be by the general law. Caunot there fore enforce a municipal regulation of the foreign SECTION II. We have at present considered only the claims for wages which have been brought by English mariners; it remains for us to consider how far the Court of Admiralty will or can entertain such claims when brought by foreigners against foreign vessels being in the ports of this kingdom. Wages being due by the general maritime law, however modified by the particular regulations of different countries, the practice of the Court of Admiralty has been, at the suit of foreign seamen with the consent of the accredited agent of their own government, to entertain proceedings for wages against foreign vessels in which they have served, such vessels being in the ports of this country; but it appears that the claim, to authorise the jurisdiction of the Admiralty Court, must arise out of the general maritime law, and the Court cannot enforce the municipal regulation of a foreign country; for, in the case of the Courtney*, an American vessel, from which, upon her arrival in this country, the men were discharged, but they libelled in the Admiralty Court for more wages being due in consequence of this discharge, and in support of such demand they pleaded an extract from an act of congress, which was printed at the back of the mariner's contract, to the effect that if they were discharged in a foreign country the mariners should be entitled to three months more The Court entertained the suit for the wages pay. due during, and in respect of, the voyage, by the consent of the representative of the United States, but refused to entertain the suit with respect to the three months' advance pay, considering that it had no juris · *Edwards' Admiralty Reports, 239. |