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should not issue against such vessel, her tackle, apparel and furniture, according to the course of admiralty courts, to answer for the wages. "4 "If the master against whom such summons is issued neglects to appear, or, appearing, does not show that the wages are paid, or otherwise satisfied or forfeited, and if the matter in dispute is not forthwith settled, the judge or justice or commissioner shall certify to the clerk of the District court that there is sufficient cause of complaint whereon to found admiralty process and thereupon the clerk of such court shall issue process against the vessel, and the suit shall be proceeded on in the court and final judgment shall be given according to the usual course of admiralty courts in such cases. In such suit all the seamen having cause of complaint of the like kinds against the same vessel, shall be joined as complainants; and it shall be incumbent on the master 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. But nothing herein contained shall prevent any seaman from maintaining any action at common law for the recovery of his wages, or having immediate process out of any court having admiralty jurisdiction wherever any 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 ten days next after the delivery of her cargo or ballast.'' 5

4 U. S. R. S., § 4546. 5 U. S. R. S., § 4547.

U. S. R. S., § 4555. "In any proceeding relating to the wages, claims, or discharge of a seaman, carried on before any shipping-commissioner, under the provisions of this Title, such shipping-commissioner may call upon the owner, or his agent, or upon the master, or any mate, or any other member of the crew, to produce any log-books, papers, or other documents in their possession or power, respectively, relating to any matter in question

in such proceedings, and may call before him and examine any of such persons, being then at or near the place, on any such matter; and every owner, agent, master, mate, or other member of the crew who, when called upon by the shippingcommissioner, does not produce any such books, papers, or documents, if in his possession or power, or does not appear and give evidence, shall, unless he shows some reasonable cause for such default, be liable to a penalty of not more than one hundred dollars for each offense;

"This is an enabling statute; it affords a cumulative, not an

and, on application made by the shipping-commissioner, shall be further punished, in the discretion of the court, as in other cases of contempt of the process of the court." Comp. St., § 8344.

U. S. R. S., § 4550. Every master shall, not less than forty-eight hours before paying off or discharg ing any seaman, deliver to him, or, if he is to be discharged before a shipping-commissioner, to such shipping-commissioner, a full and true account of his wages, and all deductions to be made therefrom on any account whatsoever; and in de

fault shall, for each offense, be liable to a penalty of not more than fifty dollars. No deduction from the wages of any seaman except in respect of some matter happening after such delivery shall be allowed, unless it is included in the account delivered; and the master shall, during the voyage, enter the various matters in respect to which such deductions are made, with the amounts of the respective deductions as they occur, in the official log-book, and shall, if required, produce such book at the time of the payment of wages, and, also, upon the hearing, before any competent authority, of any complaint or question relating to such payment." Comp. St., § 8339.

U. S. R. S., § 4547, amended, Dec. 21, 1898, ch. 28, § 6, 30 at L. 756. "If the master against whom such summons is issued neglects to appear, or, appearing, does not show that the wages are paid or otherwise satisfied or forfeited, and if the matter in dispute is not forthwith settled, the judge or justice or commissioner shall certify

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to the clerk of the district court that there is sufficient cause of complaint whereon to found admiralty process; and thereupon the clerk of such court shall issue process against the vessel. In all cases where the matter in demand does not exceed one hundred dollars the return day of the monition or citation shall be the first day of a stated or special session of court next succeeding the third day after the service of the monition, or citation, and on the return of process in open court, duly served, either party may proceed therein to proofs and hearing without other notice, and final judgment shall be given according to the usual course of admiralty courts in such cases. In such suits all the seamen having cause of complaint of the like kind against the same vessel may be joined as complainants, and it shall be incumbent on the master to produce the contract and log book, if required to ascertain any matter in dispute; otherwise the complainants shall be permitted to state the contents thereof, and the burden of proof of the contrary shall be on the master. But nothing herein contained shall prevent any seaman from maintaining any action at common law for the recovery of his wages, or having immediate process out of any court having admiralty jurisdiction wherever any 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 day when such wages are due, in accordance with section forty-five

exclusive remedy; it is permissive, not imperative."

The sea

men may, without pursuing the remedy authorized by these statutes, libel the vessel at once. A libel will not necessarily be dismissed because prematurely brought, if substantial justice can be done under it. It is doubtful whether a delay of ten days can be exacted where a seaman is absolutely discharged. A dispute does not arise within the statute so as to authorize a mariner to sue before the ten days, when he has demanded his wages, and the owner has refused to pay until the expiration of the ten days.10 Where a minor, who contracted to serve on his own account, has no parent or guardian to receive his wages, courts of admiralty will permit him to sue in his own name.11 Matters in bar may be set up in the answer and urged at the final hearing, although not presented in the preliminary hearing, before the magistrate, upon the summons. That hearing is not intended to preclude the owner from interposing a substantial defense upon the merits, which he has not set up on such preliminary hearing. The silence of the defendant then is no implied waiver; nor is the decision of the magistrate, as to the sufficiency of the cause shown conclusive.12 Sailors are competent witnesses for each other.18 The execution, by the master, of a bill of sale of the vessel, to a claimant, does not render him

hundred and twenty-nine of the Revised Statutes." Comp. St., § 8336.

6 The Shelbourne, 30 Fed. 510. See also The Waverly, 7 Bissell, 465, Fed. Cas. No. 17,301; Murray v. Ferryboat, 2 Fed. 86; The Edwin Post, 6 Fed. 206; The Frank C. Barker, 19 Fed. 332; The M. W. Wright, 1 Brown Adm. 290.

7 The Elihu Thompson, 139 Fed. 89. 8 The L. B. Snow, 15 Fed. 282. See McCarty v. The City of New Bedford, 4 Fed. 818.

9 The Cypress, 1 Blatchf. & H. 83, Fed. Cas. No. 3,530; The Warrington, 1 Blatchf. & H. 335, Fed. Cas. No. 17,208; Collins v. Nickerson, 1 Sprague, 126, Fed. Cas. No. 3,016.

10 The Commerce, 1 Sprague 34, Fed. Cas. No. 3,054.

11 The David Faust, 1 Ben. 183. See Gifford v. Kollock, 3 Ware 45, Fed. Cas. No. 5,409; McGinnis v. The Grank Turk, 2 Pittsb. Rep. 326, Fed. Cas. No. 8,800; Wicks v. Ellis, Abb. Adm. 444, Fed. Cas. No. 17,614; Coffin v. Shaw, 21 Law Rep. 463, Fed. Cas. No. 2,951; Lovrein v. Thompson, 1 Sprague, 355, Fed. Cas. No. 8,557; Luscom v. Osgood, 1 Sprague, 82, Fed. Cas. No. 8,608. 12 The Warrington, 1 Blatchf. & H. 335, Fed. Cas. No. 17,208.

13 The Cypress, 1 Blatchf. & H. 83, Fed. Cas. No. 3,530; The Susan, 3 Ware, 222, Fed. Cas. No. 13,631; The Cabot, 1 Abb. Adm. 150, Fed. Cas. No. 2,277; Walsh V. The Louisiana, 4 Fed. 751.

an incompetent witness for the libelant in a suit in rem for wages.14 In the absence of shipping articles, the testimony of the master is sufficient to establish the time of each seaman's service and the amount of wages due.15 The discharge of the seamen may be established by circumstantial evidence.16 The fact that the master or owner delays unloading the vessel beyond a reasonable time may be regarded as equivalent to a discharge.17 The burden to show a discharge before the unloading is upon the seamen, and the oath of a seaman alone was held not to be sufficient to establish it.18 A receipt, purporting to be "in full of all debts, dues and demands," is not conclusive upon the sailor; since it may be shown that it was given under duress, .fraud or mistake.19 The owner cannot insist that the mariner sign a receipt in full as a condition for the payment of the wages.20 It is sufficient, to show a reasonable ground of belief that the vessel is about to proceed to sea within ten days.21 The respondent cannot avoid the payment of costs by settling with the libelant, without the knowledge of the latter's proctors.22 A set-off of indebtedness for a house was not allowed.23 It has been held that jurisdiction under the statute may properly be exercised by a United States Commissioner.24 It is doubtful whether a District court has jurisdiction of an appeal from such proceedings before a commissioner.25 It has been held that these sections do not override plain treaty stipulations with a foreign power.26 When the suit is continued, all the seamen must be joined as complainants.27

14 The Trial, 1 Blatchf. & H. 94, Fed. Cas. No. 14,170.

15 The Trial, 1 Blatchf. & H. 94, . Fed. Cas. No. 14,170.

16 The David Faust, 1 Ben. 183. 17 The Eagle, Olc. 232, Fed. Cas. No. 4,233.

18 The Eagle, Olc. 232, Fed. Cas. No. 4,233.

19 Jackson v. White, 1 Peters Adm. 179, Fed. Cas. No. 7,151; Whiteman v. The Neptune, 1 Peters Adm. 180, Fed. Cas. No. 17,569.

20 The Commerce, 1 Sprague, 34, Fed. Cas. No. 3,054.

The right of a seaman to

21 The Trial, 1 Blatchf. & H. 94, Fed. Cas. No. 14,170.

22 The Ontonagon, 19 Fed. 800. 23 The Two Brothers, 4 Fed. 158. 24 The Jackson Borden, 6 Fed. 301.

25 The Eagle, Olc. 232, Fed. Cas. No. 4,233.

26 The Salomoni, 29 Fed. 534. See § 560, supra.

27 U. S. R. S., § 4547; The Merchant, Abb. Adm. 1, Fed. Cas. No. 9,434; Oliver v. Alexander, 6 Peters 143, 8 L. ed. 349.

his wages is perfect upon the completion of his service, and before the statutes if payment was refused, he could have instantly commenced a suit in personam against the owners or master, or in rem against the vessel or freight. The statute affects only one of these remedies, viz., against the vessel. It does not touch suits in personam or against the freight. By the statute, as a general rule, no proceeding can be had against the vessel until ten days after the right to wages has accrued. But there are three events in which such proceedings may be had within the ten days; viz., if a dispute has arisen, if the vessel has departed from her port of discharge or if she is about to proceed to sea. In the last two cases the statute is inoperative and the right to process is the same as if it had never been passed. The expiration of ten days, and a dispute, having arisen, are by the act made equivalent to each other; and upon the happening of either the new proceeding by summons to the master is authorized, but not required. The act is in this respect permissive, not imperative. The judge may order process against the vessel without previous summons to the master. In the absence of the judge, the clerk may issue process according to rules prescribed or instructions given by the judge." 28

§ 605. Proceedings in prize causes. The District court have original and exclusive jurisdiction in prize causes. The Prize Act, passed by Congress June 30, 1864, now embodied in Title LIV. of the Revised Statutes, authorizes the District courts to appoint three prize-commissioners in each district, one of whom must be a retired naval officer. It is their duty to receive from the captors the documents found on board the captured ship, or having reference to the captured property, and return them to the court with the affidavit of the prize-master that they are in the same condition as delivered to him; also to examine the prize property as soon as it comes within the district, secure it by seals, and report to the court whether any part of it is in a condition requiring immediate sale, and anything relating to its condition, custody, or disposal which may require action by the court. They are also required to take the depositions of the persons captured with, or who claim, the captured property,

28 The William Jarvis, 1 Sprague,

485, 498.

§ 605. 1 U. S. R. $., § 563, cl. 8.

2 U. S. R. S., §§ 4613-4652.

3 U. S. R. S., § 4621.

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