SECTION II. OF A SUIT FOR SEAMEN'S WAGES. In suits for seamen's wages, there are some peculiarities of practice which should be noticed. The seamen are by statute 1 entitled to receive from the master of the vessel to which they belong, one third part of the wages which shall be due at every port where such vessel shall unlade and deliver her cargo before the voyage is ended, unless the contrary be expressly stipulated in the contract; and, as soon as the voyage is ended and the cargo or ballast fully discharged at the last port of delivery, the seamen are entitled to their wages, and if the wages are not paid within ten days thereafter, or if any dispute shall arise between the master and seamen touching the wages,2 the judge of the district 1 Act of 1790, c. 29, § 6, 1 U. S. Stats. at Large, 133. We give this statute in the Appendix. It is said by Mr. Dunlap, in his work on Admiralty Practice, p. 100, that this clause relative to a dispute, is not construed by the district court of Massachusetts as authorizing, in case of a dispute, a suit in admiralty before the expiration of the ten days, the clause being regarded as either a dead letter, which cannot be carried into effect without violating the spirit of the law, or as merely providing for a dispute respecting the wages, as well as for a neglect of payment, after the expiration of the ten days. If this be the correct construction of the statute, it exposes the seamen to great hardships, for it is usual for the crew, as soon as they are discharged and paid off, which is generally done as soon as they are discharged, to scatter in different directions, so that it is frequently impossible for the seamen with whom the master has had a controversy to procure any evidence whatever, of the matters about which the controversy exists. To consider the clause a dead letter is opposed to every principle of construction, and to construe it as giving the right to have the preliminary hearing, in case of a dispute, after the expiration of the ten days, seems to us absurd. To hold that it gives the right of action after the expiration of the ten days does not help the matter, for the right would exist without the clause, and we must either hold that it has no effect whatever, or else that it means that, in case of a dispute concerning the amount of wages, the right to a preliminary hearing accrues at once. This latter view seems to be adopted by the court of common pleas in Massachusetts, Chaffin's Case, Essex, Sept. T. 1825, Dunlap's Adm. Practice, 101, and in the Southern District of New York. See a dictum to this effect by Betts, J., in The Schooner Eagle, Olcott, Adm. 232, 237. It was held, in this case, that where the only defensive allegation was that the wages were not due because the contract was not fulfilled at the time of action brought, the contestation of the point did not fall within the provision, which was where the vessel is, or if his residence be more than three miles from the place where the vessel is, then any judge or justice of the peace may summon the master to appear and show cause why process should not issue against the vessel. And if the master 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 shall certify to the clerk of the district that there is sufficient cause to issue admiralty process, and it shall thereupon issue. And, by a subsequent act, the same power which by virtue of this act is conferred upon any judge or justice of the peace is given to a United States commissioner.2 Immediate admiralty process is permitted in case of a dispute,3 if the vessel has left the final port of delivery before payment of the wages, or is about to go to sea before the expiration of the ten said to relate "to the proceedings of the seaman after his contract is performed and his right to wages has become perfected." See also Betts' Adm. Practice, 62. The same construction is now given to the statute in the Massachusetts district. The Ship Wm. Jarvis, 1 Sprague, 485. But a mere declaration by the owner that he would not pay until after the ten days does not amount to a dispute. The Commerce, 1 Sprague, 34. In Kief v. The Steamboat London, 1 Newb. Adm. 6, it was held that the certificate of the justice of the peace or commissioner under the subsequent statute, must state the residence of the judge of the district, and that it was more than three miles from the place, or that the judge was absent from his place of residence. 2 Act of 1842, c. 188, 5 U. S. Stats. at Large, 516. In The Sch. Eagle, Olcott, Adm. 232, the commissioner under this act granted a certificate of probable cause for process of attachment against the vessel, and the case came before the district court on appeal. Betts, J., said: "The competency of the court to entertain an appeal from proceedings before a commissioner has not been made a question by either party. It is exceedingly doubtful at best whether the court has any jurisdiction of that kind; but an order to stay proceedings may be made, or the subject may be deemed originally before me; and as all the proofs have been presented and acted upon by both parties, without exception to the appeal, I am disposed to consider and determine the case the same as if the petition had been presented here in the first instance." It seems, where original shipping articles are proved before a commissioner, and redelivered to the vessel, which thereupon pursues its voyage, that a certified copy of the articles is competent evidence upon the hearing in court. Henry v. Curry, Abbott, Adm. 433. * In The Ship Wm. Jarvis, 1 Sprague, 485, it was held that in case of a dispute the seaman might have immediate admiralty process against the vessel, and that a previous summons to the master was not necessary. days. But unless the case falls within one of the exceptions pointed out, the right of action does not accrue until ten days after the actual discharge, or after the discharge of cargo might have been and should have been made.2 It has been said that fifteen days would be a proper allowance of time. At all events, the owner would not be permitted to defeat the seamen's claims or suits in rem, by a wilful and unnecessary delay in the discharge of cargo. And the act of 1790 reserves whatever rights the seamen have of proceeding at common law, for their wages. It has been doubted whether the statute did not permit the ten days to run from the end of the voyage, intending them to be the days of discharge; but we think that this construction cannot be maintained. If the seamen be discharged by the owner or master, then, undoubtedly, the ten days begin to run The Cypress, Blatchf. & H. Adm. 83. In The Trial, Blatchf. & H. Adm. 94, it was held that the seamen are not bound to prove positively that the vessel is about to proceed to sea, but all that is required of them is to show a reasonable ground of belief that the vessel is about to proceed to sea, and this "may be gathered from concomitant circumstances, as well as direct proofs." In both of these cases, the process was by suit in admiralty, and not in the mode pointed out by the statute. It is said, however, in the northern district of New York, to be the custom to require the summons and certificate where the vessel is about to proceed to sea, but it is doubted whether there is any necessity for this, when the vessel has actually gone to sea. 2 Conkling's Adm. 2d ed. 52. 2 In Hastings v. Ship Happy Return, 1 Pet. Adm. 253, Judge Peters doubted whether seamen were obliged to remain and unload the vessel, on account of the general custom which prevails in this country to have this work performed by stevedores. And in The Mary, Ware, 454, it is said that the usage of the port must determine whether such an obligation exists. But in The Sch. Eagle, Olcott, Adm. 232, 235, Betts, J., said: "Without the aid of an express stipulation, a seaman cannot, accordingly, sue for wages earned on a foreign voyage, until the full completion of the voyage, by the unlading of the cargo or ballast as aforesaid. In Holmes v. Bradshaw, U. S. D. C. Mass., 1822, cited in Abbott on Shipping, 635, note, Judge Davis is reported to have held that if the crew are retained to unlade the vessel, fifteen working days might be considered a proper time for the discharge of the cargo, by analogy to the Collection Act of 1799, and that the ten days then began to run. In Edwards v. Ship Susan, 1 Pet. Adm. 165, fifteen days were also allowed; and in Thompson v. Ship Philadelphia, 1 Pet. Adm. 210, it appearing that more than fifteen days were necessary, a longer time was allowed, there having been no unnecessary delay. See also The Martha, Blatchf. & H. Adm. 151; Granon v. Hartshorne, Blatchf. & H. Adm. 454. 4 from the time of the discharge.1 Nor does the statute prohibit the filing of a libel before the ten days have expired, but only the issuing of process.2 And it has been held that if the seamen are discharged, the right of action commences at once.3 The provisions of the statute apply only to proceedings in rem, and not to suits in personam, and a seaman may therefore bring an action against the master or owners, as soon as the period of his service is completed.* 1 The Mary, Ware, 454; Holmes v. Bradshaw, U. S. D. C. Mass., 1822, cited in Abbott on Shipping, 635, note, cited in Dunlap's Adm. Practice, p. 100, as decided December Term, 1823. It was held in this latter case that the day of discharge was not to be included in the ten days. The most reasonable construction, we think, is put upon these words: “as soon as the voyage is ended, and the cargo or ballast be fully discharged," in the case of The Mary, supra. It was shown that the contract of the seamen might expire as soon as the vessel was moored in safety, or when the cargo was discharged, and the right of the seamen to their wages depended on which of these times was to be taken, the ten days running from one or the other, according to the contract. The libellant must, however, prove the fact of the discharge. In the case of The Sch. Eagle, Olcott, Adm. 232, 236, the libellant contended that he had done this, - first, by his own affidavit; secondly, by implication or presumption, inasmuch as the crew were not required to unload the cargo, it being done by stevedores, and third, that the master had not denied on oath the allegations sworn to by the libellant. The court held that although the affidavit might be sufficient "to authorize supporting proofs in the first instance, or to furnish ground for an order against parties omitting to appear or show cause," yet it was not evidence in a suit in court, especially when contradicted by disinterested witnesses; and it was held that the other grounds taken were not sufficient to prove a discharge. -- 2 The Mary, Ware, 454; Francis v. Bassett, 1 Sprague, 16. See The Martha, Blatchf. & H. Adm. 151. In Granon v. Hartshorne, Blatchf. & H. Adm. 454, it was held that where an action is brought prematurely, but becomes perfected before the stipulations and answer of the respondent are filed, and the answer when filed admits a right of action in the libellant, the court need not dismiss the libel, but will impose costs on the libellant if the suit is vindictive or unreasonably prosecuted. The Cabot, Olcott, Adm. 150; The Cadmus, Blatchf. & H. Adm. 147; The David Faust, 1 Bened. Adm. 187. See also The Cypress, Blatchf. & H. Adm. 83. Freeman v. Baker, Blatchf. & H. Adm. 372. The rule is stated to be otherwise in the district court of Massachusetts by Mr. Dunlap, in his work on Admiralty Practice, p. 100; but the doctrine of the text was sustained by that court in February, 1846, in the case of Collins v. Nickerson, 1 Sprague, 126. See also The Commerce, 1 Sprague, 34, 36; Chaffin's Case, Court of Common Pleas, Essex County, Massachusetts, September Term, 1825, Dunlap's Adm. Practice, 101. Although a subject-matter of defence is not set up in the preliminary hearing before the commissioner or magistrate, it may be taken advantage of, when the case comes before the court on its merits.1 We shall see, that all seamen having the like cause of complaint against the same ship are required to be joined as complainants.2 And if several libels are brought by them against the vessel, the court would direct them to be consolidated. In some districts the practice is for some of the seamen to commence an action by the preliminary hearing above mentioned, and when process issues against the ship, for the other seamen to intervene under the Thirty-Fourth Admiralty Rule. Before this rule was passed, they came in on petition, and, the vessel being under arrest, they had the benefit of the attachment without the preliminary examination. It is usual to annex to the libel, in a suit for wages, an account stating the time of service, the rate and amount of wages, with a credit for the amount advanced during the voyage. But this account is no part of the libel, nor is it necessary that any such account should be annexed to it. It is sufficient if the libellant states the contract, and avers the service with proper certainty, and that there is a balance of wages remaining due. It is not absolutely necessary to aver that any precise balance is due.3 SECTION III. OF THE MANNER OF BEGINNING THE SUIT. In the manner of beginning a civil suit in admiralty, a change has taken place somewhat similar to that by which at common law the original writ was superseded, and the action began in practice at what was once rather a late step in the mesne process. In England, a suit begins in admiralty with a citation of the respondent or defendant, who enters his appearance in court, and gives security, and thereupon the plaintiff offers his libel. With us the libel is the beginning, the earliest proceeding in a suit. 1 The Warrington, Blatchf. & H. Adm. 335, 341. 2 See post, p. 372, n. 1. 3 Pratt v. Thomas, Ware, 427, 431. |