14 F. Cas. 776 | D. Mass. | 1855
This case, as presented, raises three questions: 1st. Do fishermen on mackerel voyages, in licensed and enrolled vessels, so far come within the general rule of law relating to hired seamen, as to be entitled to be cured at the ship’s ex-píense? 2d. If so, does the usage of Gloucester take this case out of the operation of the general rule? Sd. Do the acts of the libellant, at the time of leaving the vessel, or at the time of the settlement, amount to a remission of his general right?
It is conceded that hired seamen are, as a general rule, entitled to be treated for sickness, at the ship’s expense, and, if they leave the vessel from necessity, or for the common benefit, they are entitled to the reasonable expenses of their cure and return. It is conceded that this rule is extended to whalemen, who receive a lay, or share of the oil taken; but it is contended that this lay is only a mode of fixing compensation, they being in fact but hired seamen, their pay being graduated by the success of the voyage. But I can see no difference, in principle, between the whalemen and the mackerelmen. As whales must be taken by united efforts, separate accounts cannot be kept, as was done •here, and as is usually done in mackerel vessels; but each man is paid according to his supposed capacity as a whaleman, the rates of lays being graduated accordingly. In this voyage, the contract with the owners does not require that the crew should divide according to each man’s catehings, but gives the skipper and the crew one half, and leaves them to divide as they please, and it Is optional with them all, or any two or more of them, to “heave together,” as the phrase is, if they please. The owners, in the one species of fishery. as well as the other, furnish all the stores, provisions, and outfits, and the crew are paid according to the success of the enterprise. I think that, under this contract, the crew are rather to be deemed hired seamen than partners or joint contractors. It has long been decided that, in the whale fisheries, the crew have no specific property in the oil, but only a right to the proceeds of the oil; and the contract in this case seems to give the owners the right to sell the fish, and the crew have only a pecuniary claim, calculated upon the amount of .fish caught. Baxter v. Rodman, 3 Pick. 435; Grozier v. Atwood, 4 Pick. 234; Bishop v. Shepherd, 23 Pick. 492; Reed v. Hussey [Case No. 11,646].
In construing the recent act of congress [9 Stat. 515] prohibiting flogging in “vessels of commerce,” it has been decided by the circuit court for this circuit, on full deliberation, that it covered vessels engaged in the whale fishery. U. S. v. Cutler [Case No. 14,910]. One ground of the decision was, that all the power congress has, under the constitution, to regulate vessels, is derived from the power to “regulate commerce,” and it is under this clause alone, that it regulates the registry and license of fishing vessels, the payment of bounty to them, and- the discipline of men in the whale and cod fisheries.
As to the usage, the evidence is strong to the effect that men have not been treated for sickness,. and have not desired to be so treated, at the ship’s expense, in mackerel voyages from the ports of Cape Ann. But I should be slow to set aside a wholesome and well established rule of law, in favor of a local usage, especially, when it is so much the interest of the influential people of the place to create such a usage, and those against whom it operates are often ignorant of their rights, or unable to vindicate them.
As to the circumstances of this case, I am inclined to interpret the acts of the libellant, as those of a man who was ignorant of his rights. I am equally satisfied that the master and owners of this vessel supposed him to have no such rights, and that they acted in good faith throughout. The Atlantic [Case No. 620], Decree for .$75, with costs. [An appeal was entered, but the case was subsequently compromised.]
[From IS Law Rep. 96.]
