The libellant shipped at New London in July, 1845, as carpenter’s mate, on a whaling voyage. In consequence of injuries received by him, in the discharge of his duty, he was taken on shore in the port of Lahaina, in the island of Maui, one of the Sandwich Islands, and left in the hospital there. The ship proceeded on her voyage, and after completing her cruise, touched at Maui, on her return home, and received the libellant on board, he being placed there as a sick and disabled seaman by the consul, and was brought to the United States, the master receiving $10 passage money from the consul therefor. The libellant now demands wages for the whole voyage, together with the expenses of his dire. There are disagreements in several particulars between the statements of the libel and those of the answer, but they do not essentially affect the points upon which the cause turns, and accordingly no time will be spent in the consideration of them.
The questions in the case are three:—Was the libellant discharged from the ship at Maui, so as to terminate the shipping contract, and exempt the vessel from all further liability in consequence of his shipment? Was the condition contained in the shipping articles, limiting the libellant’s compensation or wages to the time he was ac
1. It is incumbent on the claimants to set forth in their answer, a state, of facts justifying the discharge of the libellant in a foreign port, and to support the allegations by •competent and sufficient proofs. They plead that the libellant, on March 16, 1846, fell from the topsail yard of the ship through want of sufficient care on his part, and was so severely injured by the fall, and became so sick in consequence of it, that he was rendered unable to perform his duty on board, and was, at his own request, and by order •of the captain, and by aid of the consular agent, placed in the hospital. That on March 18th, he was discharged from the ship by his own consent, and by the consent and authority of Giles Waldo, the United State» consul at that port, the master of the ship having produced to the consul the list of the ship’s company, certified according to law, and having paid to the consul the sum of $36, being three months’ wages to the libellant. The evidence to support this discharge is a certificate,—represented to be under the consular seal, but the impression of the seal is too faint to admit of its being deciphered, —attached to the articles, and expressed in these terms:—
“United States Consular Agency, Lahaina, Hawaiian Islands. I, the undersigned U. S. consular agént, do hereby certify, that George Stotesburg has been discharged from ship Atlantic on account of sickness and in accordance with the laws of the United States. Given under my hand and seal this 18th day of March, 1846. Giles Waldo, U. S. Consular Agent. By A. H. Linigsyez,” {or some other similar name, not easily determined from the signature.) On another paper a memorandum or account is made in this form:—“Ship Atlantic and owners to U. S. consulate.
3 months’ wages to Stotesburg.$36 00
Certificate .„.. 2 00
$38 00
“Rec’d payment, (Signed as above.) La-haina, March 18, 1846.”
These papers are all the evidence produced to support the allegation of the answer, that three months’ wages had been paid to the commercial agent, and that the discharge had been given under the authorization of the act of congress of February 28, 1803, <5 Stat. 390.) The discharge, however, manifestly was not made in conformity with the provisions of the statute; for the cardinal requisite to the exercise of that authority is, that application for the discharge shall be made by both the master and mariner; and it is not even certified that the consular agent acted on any such application; on the contrary the proofs import that the libellant was sent ashore by direction of the master, and under expectation that he still remained connected with the vessel as if he had continued in her. The court cannot assume that the assent of the libellant to his discharge was given, merely upon the fact of his being left in a hospital in his then maimed and dangerous condition;, nor upon the assertion of the person acting for the consular agent that the libellant was discharged from the ship in accordance with the laws of the United States. It is unnecessary to inquire, whether an averment in such certificate that consent was given by the seaman and master in the presence of the consul, or was proved to him, would justify the discharge without other evidence of the fact, because the certificate contains no such allegation. Indubitably the particular which gives authority to consuls to act in this behalf under the statute, must be duly established, or his proceedings will be a nullity. This is a special power and trust confided to consuls and commercial agents, and must be exercised by those officers strictly in pursuance of the directions of the statute. Nor can the payment of $36 wages made to the consul by the master, be accepted as a payment of the three months’ wages prescribed by the act. The hiring was tor a share of the takings on an entire whaling voyage; and the rate of the lays could not, by the method of apportionment appointed in the articles, be applied with any "justness to the period of service which had then elapsed. The vessel was on her outward cruise to the fishing grounds, and it would be evidently unjust to measure the compensation of the libellant by lay shares out of the chance takings on that part of the cruise. The takings of the entire voyage was the basis upon which the libellant’s share should be computed. Twelve dollars per month was evidently adopted as an arbitrary allowance of wages. It might chance to be more advantageous to the libellant than his lay of the earnings of the adventure, apportioning the time he was in the ship with the entire duration of the voyage. Still, it might be disproportionately short of his share. And it certainly was not competent to the master and consular agent to determine that matter without the clear understanding and concurrence of the libellant. I think, therefore; there is not in this discharge that conformity with the requirements of the act of 1803, which will uphold it to protect the ship. Jay v. Almy, [Case No. 7,236.]
2. To meet the claim for wages during the period of the libellant's disability, the answer sets up a stipulation in the shipping articles signed by the libellant, whereby it was agreed that if either of the officers or crew should be prevented by sickness or other cause from performing their duty during the whole of the voyage, he should receive of his lay or share only in proportion as the time served or duty performed by him should bear to the whole time the ship should be in performing the voyage. A general replication to the answer is filed by the libellant, which has only the effect to put both parties to the proof of the allegations in their respective pleadings not admitted to be true, (Dist. Ct. Rules, 88;) or of permitting the cause, when the answer operates as a plea in bar, to be set down for hearing upon the libel and answer alone, (Dist. Ct. Rules, 78.) That rule allows the libellant to treat the answer as a plea in bar, and by so replying to it, save himself from the consequences of admitting its truth, which he would do in effect by setting it down for hearing on a general replication. It may admit of question whether the supreme court rules (rule 27) do not, by fair implication, take away the right of a claimant or respondent to interpose a formal plea or demurrer on the merits to a libel or information in admiralty, and whether he is not limited to a defence by answers alone. See Sup. Ct. Rules, 27. The rule, however, does not import that he can interpose no other defence than a denial or admission of the facts. The facts may be undisputed, and yet supply no cause of action; or the defendant may be able to adduce other facts avoiding the effect of those alleged by the libellant, or he may possess matter of estop-pel and bar which the court could never Intend he should be precluded from using, without his being also compelled to make formal denial of the facts set up by the libel. Certain Logs of Mahogany, [Case No. 2,559;] Pratt v. Thomas, [Id. 11,377.] The provisions of the supreme court rule must be deemed satisfied if the defendant, whether or not required by the libel, replies to the allegations in the libel by a full and explicit answer. The special replication authorized by the district court rule, may thus be urged to create a triable issue upon the merits. This is the practice in equity. Sup. Ct. Rules, Equity. There would be equal conveniency and fitness in applying it to pleadings in Admiralty.
The supreme court rules indicate no method of pleading applicable to such case, unless it be embraced in the right to amend the libel. Rule 24. That would necessarily lead to a new answer, and would by no means further the simplicity in pleading which was regarded by congress as an object of cardinal importance' in authorizing the supreme court to regulate Admiralty proceedings. Act Aug. 23, 1842, (5 Stat. 518, § 61.) In the summary of the practice of this court, it is stated that the replication to an answer as to a plea, may, in case of urgent importance, be special or double; but ordinarily it should take a single issue upon the allegations of the answer, however multifarious those may be. Betts, Adm. 50. The practice in the Dis-
' Manifestly, then, the libellant ought to have introduced into the pleadings, either by an amendment of the libel after the answer was interposed, or by special replication to this branch of the defence, such averments as were necessary to enable him to contest or avoid the bar to his recovery supposed to be contained in the stipulations of the shipping articles, which he admits he signed and that they contain the true contract with him. His counsel, however, insist that he has a right to treat the engagement as a nullity, without alleging any facts impugning it; and that the court, as matter of law, must pronounce an agreement of that description, entered into with a mariner, to be nugatory and void, in respect to him. In considering the question thus raised, 1 shall regard the objection urged to the de-fence founded upon the stipulation, as if it arose upon demurrer or formal exception to that part of the answer. It is not to be denied that a common sailor is competent to make a shipping contract. Indeed, the statutes of both the United States and England imperatively impose on masters the duty of entering into contracts in writing with seamen employed by them. And the acts of congress clearly imply that such contracts will be valid although operating to the disadvantage of the mariner even in their most essential feature,—the rate of wages,—for they make that a particular which must be stipulated, and on omission by the master to have a written contract, they give the mariner a chance of higher wages than he may have bargained for verbally, by allowing him to demand the highest current rate at his port of shipment. Act July 20, 1790, (1 Stat. 131, c. 29, § 1;) Act July 20, 1840, (5 Stat. 395, § 1, arts. 3, 10, 19.) The written or printed shipping articles must now “contain all the conditions of contract with the crew as to their service, pay, voyage, and all other things.” Act July 20, 1840, (5 Stat. 395, § 3.) It is remarkable, that the act of congress of July 20, 1790, in specifying the constituent parts of a contract with seamen, should omit the rate of pay or wages he was to receive. By the provisions of that act the agreement must “declare the voyage or voyages, term or terms of time for which such seaman or mariner shall be shipped.” Section 1. The act of July 20, 1840, assumes that the rate of wages is a component part of shipping articles, (section 3,) and the courts, previous to that enactment, always enforced against masters of vessels the obligation to stipulate the rate of pay as an essential part of the written contract. Bartlett v. Wyman,
Upon these principles it would seem to result, that the mariner can act in forming a contract for wages or compensation with the same authority, and can bind himself to the same degree as any other contracting party, where specific wages for a period of time, or for a voyage or cruise are agreed upon, or where any other special mode of compensation is adopted. The Sydney Cove, 2 Dod. Adm. 11; The Mona, 1 W. Rob. Adm. 137; The Riby Grove, 2 W. Rob. Adm. 52; The Mariner’s Case, 8 Mod. 379; Howe v. Nappier, 4 Burrows, 1944. The law has established no distinction which goes to invalidate his contract when coupled with conditions or qualifications to his right to recover the stipulated wages in full. The courts have gone no further than to declare that they will scrutinize agreements to the seaman’s prejudice, which are outside of the statutory requirements, or unusual in shipping articles; and will absolve the mariner from them unless it is proved by the master or owners that he clearly understood their character, and was secured a compensation correspondent to the disadvantages or restriction imposed upon him. 3 Kent, Comm. 193, and note; Abb. Shipp. 722, and note. With this limitation the contract operates in respect to the mariner with no less efficiency than upon the owner. Contracts for wages in money have become al
It is somewhat singular that an interest of such magnitude in this country as the whaling business, should not have been regarded by congress as deserving regulation by law as much as fishing voyages, or ordinary trading ones. No statute has, however, fixed the rights of parties in these adventures, or required their agreements to be in writing; Chancellor Kent is mistaken in supposing that the act of June 19, 1813, (3 Stat. p. 2, c. 2,) applies to whaling voyages. 3 Kent, Comm. 178. It is limited to the bank and other cod fisheries. But a species of usages, adapted to the necessities of these adventures, are growing into practice, which the courts seem disposed to favor, and which may soon acquire the character and usefulness of authoritative ordinances. Curt. Merch. Seam. 394, App. 2; Barney v. Coffin,
3. The remaining question is, as to the liability of the ship in this peculiar engagement, to bear the charge of the libellant’s sickness and cure. The general principle applicable to the rights and liabilities of seamen is, that the shipping contract is presumed to include the provisions of the law maritime, except as varied or modified by express stipulation between the parties. The Crusader, [Case No. 3,456;] Jameson v. The Regulus, [Id. 7,198;] Curt. Merch. Seam. 106. A fundamental doctrine applicable to mariners’ contracts, and one regarded in the maritime law as forming a part of the contract, is the right of the seamen to be cured at the expense of the ship, of sickness or injury received in the ship’s service. Jac. Sea Laws, 144; Abb. Shipp. 258; Curt. Merch. Seam. 106, 111. Pardessus, in his compilation of marine ordinances and laws, collects the provisions upon this subject embodied in those edicts and usages. 1 Pardessus, 327, 471, 474; 2 Pardessus, 521; 3 Pardessus, 141, 374, 510, 518. See, also, 1 Boulay-Paty, 202. Valin comments upon the import of several of the ancient ordinances which are embraced in article XI. of the Ordinance of the Marine of Louis XIV.; and evidently regards them as being of universal obligation, including mariners employed under every method of hiring. 1 Valin, 721. The decisions of the American courts rest upon and sanction the maritime codes of continental Europe upon this subject Abb. Shipp. 260, notes; 3 Kent, Comm. (6th Ed.) 184-186, notes; Curt. Merch. Seam. 106-111. Seamen are entitled to be maintained and cured at the expense of the ship of sickness or injuries received while in her service. And courts would receive with great distrust any engagement upon the part of mariners to dispense with or qualify this privilege, alike Important to them personally in point of humanity and in view of wise policy, in aid of the navigation and commerce of the country. The case of the libellant falls clearly within this rule, and nothing is shown in its character in any way detracting from his right to the full benefit of it. The pretended discharge at Lahaina was of no effect upon the rights of libellant, for the reasons already stated; and his assent to be put on shore, if such assent is to be implied, was only in accordance with the direction of the master and the convenience of the ship. He still continued entitled to support from the vessel, and to all the advantages he would have possessed if put on shore without being consulted or against his consent, or if he had continued on board during the residue of the cruise. In my judgment, therefore, there is no ground to question his right to be treated and cured at the expense of the ship.
The essential question is, what is the extent and duration of that charge, and how is its value to be measured in money? The vessel must cover every necessary and appropriate expenditure made and responsibility incurred by the libellant during the period, for board, nursing, or medical treatment. The authorities above referred to fully support his right of recovery to that extent; and whether such disbursements have been made by him, or there is an outstanding liability on his behalf for them, may be a fit subject of reference and adjustment before a commissioner. The main difficulty is, whether the libellant’s disabilities still continue a charge upon the vessel after the voyage is fully completed, and If so, what is to be the legal termination of the charge. The expression often employed in the various ordinances and in the decisions is, that mariners are entitled to be
Judge Story was manifestly laboring under uncertainty of mind whether the liability of the ship or owner was of indeterminate duration, and might be enforced so long as the necessity should continue. In Harden v. Gordon, [Case No. 6,047,] the rule was laid down with great amplitude, that the expenses of sick seamen were to be borne by the ship, including medicines, medical advice, nursing, and lodging. In The George,
The British act of 7 & 8 Vict, (chapter 192, § 18) lays down a clear and practical rule upon this subject. It enacts that, in case the master or any seaman shall receive any hurt in the services of the ship, the expense of medical advice, attendance, medicine, and subsistence for him “until cured, or brought to this country,” together with the costs of his conveyance thither, be defrayed by the owners without- any deduction whatever from his wages. This is -but a reenactment, in substance, of the provisions of the act of 5 & 6 Wm. IV. c. 19. Abb. Shipp. 170; Id. 616. It is probable that the ancient ordinances referred to by Judge Story, were those cited by Cleirac, (Cont. de la Mer, 25, 26,) which provided that seamen wounded in fighting for their vessel, should, besides their cure, be supported for the rest of their lives at the expense of the ship and cargo; but I do not find this rule extended to ordinary cases of sickness or injuries in the merchant service. Ord. de Oleron, art. 7; Cleirac, 27. This was regarded as a general average charge. 9 Code de Commerce, art. 400. The French marine law, according to the Commentary of Pardessus, limits the obligation of the master, in case of a seaman left sick abroad, to the providing for the charge of his sickness, and for the expense necessary to place him in a condition to return home. 1 Pardessus, § 688; 1 Bou-lay-Paty, 202; The Littlejohn, [Case No. 6,153.] The-Code of Commerce leaves the subject without special legislation, (Code Comm. art. 262,) further than the general principle that the mariner shall be cured by the ship, and receive his wages without abatement. The term cure, was probably employed originally |n the sense of taken charge or care of the disabled seaman, and not in that of positive healing. The obligation of the ship to the mariner would then be coextensive in duration to that of the mariner to the ship. Natural reason would seem to point to that limitation, it being the one consonant to the relation in which the law places the parties to each other, and by which it measures their privileges and liabilities under a shipping contract. This rule may undoubtedly be subject to variations. When a course of medical treatment, necessary and appropriate to the cure of the seaman, has been commenced and is in a course of favorable termination, there would be an impressive propriety in holding the ship chargeable with its completion, at least for a reasonable time after the voyage is ended or the mariner is at home. So, also, in case due attention to his necessities has been unjustly omitted by the ship abroad, or his case has been improperly treated, the courts
Notes
Compare Hutchinson v. Coombs, [Case No. 6,955;] also, Minor v. Harbeck, [Id. 9,629.]
That a regular and valid consular discharge, properly certified, is conclusive on all points duly passed upon by the consul, unless his conduct be proved corrupt or fraudulent, see Lamb v. Briard, [Case No. 8,010;] Tingle v. Tucker, decided April, 1849, [Id. 14,057.]
Compare Ringold v. Crocker, [Case No. 11,-843.]