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the sailor to the fortunes of the vessel, or, in other words, makes the right dependent on the successful issue of the enterprise for which he is hired, must be considered an offshoot of Mediaeval Maritime Law. It is not found in the Roman Law, nor in the maritime legislation of the Eastern Empire, nor in that early compilation which goes under the name of the Rhodian Laws. An eminent American judge, who sheds great light upon maritime jurisprudence,-- I refer to the learned and able Judge Ware, of the District Court of Maine, - says, in a judicial opinion, that "it owes its origin to the necessities and peculiar hazards which maritime commerce had to encounter in the Middle Ages, when to the dangers of the winds and waves were added the more formidable perils of piracy and robbery.”] The rule, having been thus established, was preserved in the maritime jurisprudence of Europe, when the special exigencies in which it had its birth ceased to exist. It has outlived the circumstances and excuses of its origin, and now survives to vex, oppress, and disappoint the most needy, if not the most meritorious, of all concerned in the business of the seas.
This hard rule survives with us, but not everywhere. The greatest commercial nation of the world has led the way in its abolition, and set an example to the United States. The Act of Parliament, of 7th and 8th Victoria, ch. 112, sec. 17 (at the close), ---- called " The Merchant Seamen's Act,” — provides that
“In all cases of wreck or loss of the ship, every surviving seaman shall be entitled to his wages up to the period of the wreck or loss of the ship, whether such ship shall or shall not have previously earned freight : provided the seaman shall produce a certificate from the master cr chief surviving officer of the ship, to the effect that he had exerted himself to the utmost to save the ship, cargo, and stores.”
1 The Dawn, Daveis, 133.
But the sailor was not completely protected by this provision. Experience in England showed that the cunning of agents was able to introduce into the shipping articles an agreement waiving the right to wages in case of loss, which the unthrifty sailor signed, ignorant or careless of its import. To remedy this abuse, a further Act of Parliament, of 13th and 14th Victoria, ch. 93 sec. 53, — known as “ The Mercantile Marine Act,"
“ No seaman shall, by reason of any agreement, forfeit his lien upon the ship, or be deprived of any remedy for the recovery of his wages, to which he would otherwise have been entitled ; and every stipulation which is inconsistent with any provision of this Act, or of any other Act relating to merchant seamen, and every stipulation by which any seaman consents to abandon his right to wages in the case of the loss of the ship, or to abandon any right which he may have or obtain in the nature of salvage, shall be wholly inoperative."
The bill which I now introduce is grounded on the provisions quoted from the two Acts of the British Parliament, and contains two principles: first, that seamen shall be paid their wages down to the time of the loss of the ship, in case they serve faithfully to the last; and, secondly, that they shall not be permitted to lose their wages through any agreement in the shipping articles.
In some details I have departed from the British Act. It does not seem advisable to make the wages dependent on "a certificate from the master or chief surviving officer of the ship,” but to leave the question of services open to proof in any way, according to received rules of evidence. Therefore I have said that the wages shall be paid, “provided the seaman shall have exerted himself to the utmost to save the ship, cargo, and stores.” The reasons for this course are clear. Masters are often part owners of American ships, and thus have a personal interest adverse to the sailor. In a mood of selfishness or recklessness, they might refuse the certificate, even though well earned. Now, in constructing a protection to the sailor, it does not seem prudent to make his wages dependent upon any such quarter. Indeed, it is hardly just to take from him the right to establish his claim before the Admiralty Court, merely because an interested master refuses a certificate, when, perhaps, plenary proof might be furnished aliunde. Moreover, if the question were put in control of the master, he might obtain an improper influence over the minds of the crew, inducing them even to sacrifice truth in the event of litigation between owners and underwriters.
There can be no harm in leaving the question of fact to be proved by competent witnesses, like every other question of fact : and the seamen should be competent witnesses for each other. A sagacious court will know how to weigh their testimony, should it come in conflict with that of the officers. It seems proper that the master, too, though a party to the suit, - as in the case of a libel against him in personam, or in a suit at Common Law,-- should be competent to testify to the conduct of the libellant or plaintiff, — in other words, whether he has “exerted himself to the utmost”; and I have introduced into the bill a provision accordingly.
The British Act of 7th and 8th Victoria contains another defect. It limits the wages to “every surviving seaman.” I can see no good reason why the wife and children of the sailor who has perished in the forlorn hope perhaps, in the cause of all, should be deprived of the humble wages so dearly earned by their natural protector, and thus be compelled to feel a new deprivation added to their bereavement. In the proposed bill there is no such limitation.
Beyond this brief statement, I need not on this occasion add another word. Already Congress has shown a disposition to modify the rigorous Maritime Law in some of its provisions. In 1851 it made a change in the liability of ship-owners as common carriers. But this very liability originated, to a certain extent, in the same principles from which is derived the liability of the seamen, if they fail to bring the ship and cargo to port Ship-owners and sailors were both treated as insurers. This was in the age of force, before the contract of insurance had spread its broad protection over commerce in every sea. The seaman should share this protection. He should be treated as not necessarily either pirate or coward.
In the discussions of the Senate on the proposed change in the liability of ship-owners, it was effectively urged by my immediate predecessor, a distinguished Senator from Massachusetts, the late Robert Rantoul, Jr., that, if the United States failed to adopt that measure, the other maritime nations would have an advantage in the carrying trade. It is equally true, that, unless we adopt the measure now proposed, Great Britain will have the advantage of us in the rate of seamen's wages; for, under her existing laws, the seaman can afford to work cheaper on board a British ship than under the American flag
The measure now proposed is of direct importance to the hundred and fifty thousand seamen constituting the mercantile marine of the United States. It also concerns the million of men constituting the mercantile marine of the civilized world, any of whom, in the vicissitudes of the sea, may find themselves in American bottoms. I commend it as a measure of enlightened philanthropy, and also of simple justice.
I ask that the bill, having been read twice, be referred to the Committee on Commerce.
The motion was agreed to.