422

IMPORTANCE AND EFFECT OF

which a seaman is left abroad, if it be incurred in the service of a whale ship, will debar such seaman from recovering his full proportion of the ultimate proceeds, according to his time of service.

In Loverein v. Thompson (ibid. 355), seamen, separated without fault from a whaling ship, during a voyage, are entitled to their proportional part of the whole proceeds, according to their time of service.

In Bates v. Seabury (ibid. 433), for a wrongful discharge, a seaman is entitled to indemnity. If compelled to assent under duress, or from a well-grounded fear of subsequent ill-treatment, or other improper inducement, such involuntary assent will not bar his recovery of whatever may be found to be lawfully due him.

In Hall v. Hudson (2 Spr. 65), semble, that a custom exists in Mattapoisett and New Bedford, to pay a mechanic part-owner his bill for blacksmith or other work on whale ships, without waiting the general settlement of accounts; but such bills, however, await the settlement of the outward account; there being, in a whaling voyage, two accountings.

In the bark Huntress (ibid. 61), Judge Sprague said: "Merchant ships would be more careful about courses than whale ships.

"If a vessel is making a passage, where time is of consequence, the helmsman is more careful than in the case of whale ships on cruising grounds."

This case was one of collision, and reference is made to it rather for its dicta than decision in this connection. In Taber v. Jenny (1 Spr. 315), a whale, killed, anchored, and left with marks of appropriation, is the property of the captors; and the original captors cannot be divested of that property by another party, even

JUDGE SPRAGUE'S DECISIONS.

423

though the whale may have dragged from its first anchorage.

In Payne v. Allen (ibid. 304), held, that a receipt given abroad is not a legal release beyond what a whaleman actually receives.

It is submitted that in these appropriate and practical decisions of the United States District Court in the First Circuit, there is matter enough to enable the student to extract a complete system of this branch of the law. Without, then, any disparagement to Scott, Story, Betts, Lushington, or other eminent Admiralty judges, it cannot be deemed exaggeration to state and repeat the statement that Judge Sprague has practically created the law at present applicable to the whaling business and the rights and duties of those engaged in it. Such has been his official position, and so ample his judicial opportunities, that perhaps he could not omit to accomplish thus much if he would; and, judging the magistrate by the high-toned character of the former senator, it may be added, he would not have failed to achieve thus much if he could.

Seamen employed on board of ships engaged in the whaling business, have the same rights, privileges, and immunities as seamen employed in the merchant service. From fraud, oppression, imposition, and personal abuse, the mariner is alike protected by the maritime law, whether serving on board of either description of vessels. His special duties are distinctly defined; his liability to ship's discipline is carefully prescribed; and his legal right to compensation amply set forth in the shipping contract. For any willful breach of his contract, or disregard of discipline, the mariner's liability to punishment, and the master's authority to inflict it,

424

RIGHTS AND LIABILITIES OF WHALEMEN.

are both well recognized; and the obligation to perform the precise service and the entire voyage for which he may have shipped, may be judicially enforced in the Admiralty courts. He is also liable to a forfeiture or deduction of wages, if he prove to be either incompetent or indisposed to discharge well the service which, by the articles, he is bound to perform, according to his grade or station.

On the other hand, the mariner, in whaling ships, as well as in merchant ships, is sedulously protected from imposition, wrong, or overreaching from superiors. If constrained to abandon his ship, or submit to a compulsory discharge, during the voyage, the penalties of forfeiture or deduction would not legally attach to the seaman. In the one case, it would be deemed an involuntary leaving, not amounting to constructive desertion; in the other, it would be viewed as a wrongful discharge, and which, therefore, would exempt the mariner from all liability either to forfeiture or deduction. 1 Spr. 433, Bates v. Seabury et al.; ibid. 167, Loverein v. Thompson.

So, in reference to the payment of whalemen and settlement of their lays or shares, the Admiralty will shield them from all attempts to take advantage, overreach or defraud them, either in settlement at home or abroad. If entitled to cash prices at the home port, such must be the basis of any settlement; and the seaman is not bound to acquiesce in an adjustment, based upon consular rates in a foreign port.1

For any settlement, a sailor's receipt is good only for what he actually receives. A receipt, even if made, in form, a release in full, will not cover any more than has really been paid to the sailor; or acquit the officers or

1 Ante, p. 421. Hathaway v. Jones, 2 Spr. 56.

SOURCE AND EXTENT OF WHALE-FISHERY.

425

the master from liability to damages for personal torts and ill-treatment. Payne v. Allen, 1 Spr. 304.

The extent to which the whale-fishery has been carried on in the United States, is probably unprecedented, and has been singularly productive of wealth. It has been managed with marked intelligence and corresponding success. The trained skill of the islanders of New England, in pursuing the whale, at first in small, and finally in larger vessels, have impressed indelibly upon this pursuit, as a commercial adventure, the stamp of success. The enterprise, thrift, and achievements of Nantucket and its immediate neighbors, attracted other neighbors, in that quarter of the country, to engage in the same pursuit with equal activity and energy; and thereby winning similar success. In this career of

difficulty and danger, the early adventurers of the Old World have been comparatively distanced; and have now measurably abandoned their ancient fishing grounds, in the vicinity of Greenland, Iceland, and New South Wales.

To the statements already made, in the former part of the present chapter, may be added the facts, that, in 1837, France had forty-four ships employed in whaling; whereas, in 1858, the French had only three ships so employed. Holland, though formerly so very largely concerned in the whale-shipping interest, in the year 1854, had but three ships engaged in the occupation of pursuing and capturing the whale or seal.

Formerly the waters of the Northern Atlantic Ocean, near Greenland and Iceland, constituted the principal fishing grounds for English whalers, in capturing seals and whales for the skins, bone, and oil, thus obtained, as an article of commerce; while the Southern Atlantic

426

AUTHORITIES CHIEFLY AMERICAN.

and Pacific oceans have, thus far, been the customary fields of operation for American whaling expeditions, in capturing and killing the right and sperm whales, for the bone and oil, to be thereby obtained for the commercial world.

The ships of Nantucket and New Bedford have hitherto supplied most of the material for litigation and adjudication in the courts of the United States; although New London, Fall River, Edgartown, Westport, Fairhaven, and even Salem, have, at times, been more or less actively engaged in the business.

The business, at the present day, has very materially changed hands and proprietors. In Europe it has greatly fallen off; but, in America it has greatly increased, is probably increasing, and likely to increase still more. It has been the gradual growth of time, and has now become one of the great material interests of the United States.

In this review of the authorities already existing, no attempt has been made beyond that of collecting for reference the cases, noticing the usages, and suggesting the propriety and practicability of so arranging the now existing law, as to found a system, and supplying material, adequate to form the basis of a useful treatise upon the subject. And the student, whose tastes or talents shall induce him to make of the subject of whaling in particular, or admiralty in general, a specialty, will find ample material to enable him to produce a valuable work or supply a great want to the profession.

OTHER FISHERIES have been heretofore regulated by the public acts of Congress and placed substantially on grounds similar to those upon which the merchant