a charge was not proper. And the seamen are not liable for a charge of two and a half per cent guarantee commission on sales of oil, or for the charges for fitting and discharging the ship.2 And if a seaman on a whaling voyage is discharged abroad, he is entitled to a settlement at home prices, and is not obliged to take it at consular prices.3 The seamen are entitled to a settlement on a cash and not on a credit basis. If, therefore, the oil is sold on credit, the owner is not obliged to account to them for this, but only for the sum it would have brought if sold for cash. By usage the owner cannot charge the seamen for the casks.5 If a part-owner sue for his lay as master, the other owners are entitled to deduct payments made to him and to his wife, when done with his consent, and are not obliged to wait until he has a settlement with them of his account as part-owner." If a seaman on a whaling voyage gives an order for the balance that may be due him on settlement of his voyage, intended as security for future advances by the payee, this constitutes an assignment of his wages although it is not accepted by the person on whom it is drawn. It is also irrevocable if advances are made upon it, and the assignor cannot maintain an action against the owners of the vessel for his wages.7 The subject of forfeiture of wages by desertion or other gross misconduct, will be considered hereafter.8 The legal tender act has given rise to several important and difficult questions. We give in our note the adjudications upon this subject relating to seamen's wages.9 Lovrein v. Thompson, 1 Sprague, 355. In The Ship Rochambeau, U. S. D. C. Maine, Ware, J., 26 Law Rep. 564, the libellant shipped at St. John, N. B., for a voyage to London and back, not to exceed nine months in time, at the rate of twenty-five dollars a month, in New Brunswick currency. This voyage was made before the nine months expired, and the libellant continued in the vessel without any new agreement, and went on another voyage to London, which was to terminate in the United States. Payments were made from time to time during the voyage in specie. Held, that on the termination of the voyage in the United States the libellant SECTION IV. OF PROVISIONS. Provisions of due quality and quantity are to be furnished by the owner under the general principles of law as applied to this particular contract. It is also provided by statute in this country that every ship or vessel belonging to a citizen of the United States, was entitled to recover the balance due in New Brunswick dollars, and a decree was entered for such a sum in United States currency as would make the payment equal to a payment in specie. In The Quintero, U. S. D. C., Mass., 1866, Lowell, J., seamen shipped at Valparaiso, Chili, for a voyage to Boston. They were to be paid in dollars. Lowell, J., said: The contract was made in Chili, and an inference is said to arise from that circumstance that the crew were to be paid in Chilian dollars. But the contract is merely for dollars, and upon the aspect the case has assumed it is for dollars payable here, and the presumption must be that the place of performance of the contract is to be looked to in this particular. And whether the decree be strictly for wages or for damages in the nature of wages, it should be made up in our money." In The Nonpareil, Brow. & L. Adm. 355, a seaman signed articles at New York to serve on board a British ship, on a voyage to terminate either in the United States or in the United Kingdom. The rate of wages was expressed in dollars. The voyage was terminated in Liverpool. At the time of making the contract the exchange value of the paper dollar was 2s. 8d. It afterwards depreciated in value. The shipowners contended that they were only liable for the value at the time the contract was made. But upon evidence that for twentyfive years seamen discharged from American ships in London or Liverpool, had received their wages at the rate of 4s. 2d. a dollar, the court held that the parties contracted according to this usage, and the value of the dollar was held to be 4s. 2d. In The Annie Sherwood, before Dr. Lushington, in 1865, 12 Law Times, N. s. 582, the voyage was from New York to Cuba, thence to Liverpool and back to Cuba or the West Indies, and thence to a port of discharge in the United States, the time not to exceed eight months. The articles provided that the seamen should be paid so many dollars a month, and contained a clause that the wages should be paid in United States currency or its equivalent. At the expiration of the eight months the vessel was in Liverpool. The court held that the seamen were entitled to have the dollar reckoned at 4s. 2d. The court was not satisfied that the condition in regard to United States currency had been explained to the men, and said, even if it had been, it was in clear violation of the custom to pay 48. 2d., and would not receive any countenance or support. 1 This has been the custom among maritime nations from the earliest times. Pothier on Maritime Contracts, n. 215 (Cushing's ed.) 131; Consolato del Mare, See also 1 Pardes. 335, 381, 483; 2 id. 510; The Madonna D'Idra, 1 Dods. 37; Dixon v. The Cyrus, 2 Pet. Adm. 407, 411. c. 100. bound on a voyage across the Atlantic Ocean,1 shall, at the time of leaving the last port from which she sails,2 have on board, well secured under deck, at least sixty gallons of water, one hundred pounds of salted flesh meat, and one hundred pounds of wholesome ship-bread for every person on board such vessel, besides such other provisions as may be put on board by the master or passengers, and in like proportion for shorter or longer voyages, and in case the crew of any vessel which shall not have been so provided shall be put on short allowance in water, flesh, or bread, during the voyage, the master or owner shall pay to each of the crew one day's wages beyond the wages agreed on, for every day they are so put on short allowance, to be recovered in the same manner as their stipulated wages.3 The seamen are also entitled, in addition to the statute allowance, to such subsistence as is usually furnished on voyages similar to that they are engaged in.1 If, however, the necessity of short allowance springs from a peril of the sea, or any accident of the voyage, or the delivery of a part of the provisions to another vessel in distress, the extra wages are not given.5 1 Act of 1790, c. 29, § 9, 1 U. S. Stats. at Large, 131, 135. In Gardner v. The Ship New Jersey, 1 Pet. Adm. 223, the voyage was an entire one from Philadelphia to Canton, with liberty to go to other intermediate ports, and back to Philadelphia. It was contended that as some of the mariners shipped at foreign ports, they did not come within the statute. But the objection was overruled. See The Mary Paulina, 1 Sprague, 45. Under this statute it has been held that if less than the statute quantity of all the three articles be put on board, and there be a short allowance of all, triple extra wages are to be given for each day. Collins v. Wheeler, 1 Sprague, 188. Foster v. Sampson, 1 Sprague, 182; Collins v. Wheeler, 1 Sprague, 188. Though we are not aware of any case where this point has been expressly decided, yet it follows as a necessary deduction from the fact, that to enable the seaman to recover the extra wages, not only must he be put on short allowance, but it must be shown also that the vessel sailed without having on board the stores prescribed in the act. The Ship Elizabeth v. Rickers, 2 Paine, C. C. 291; Ferrara v. The Barque Talent, Crabbe, 216; The Bark Childe Harold, Olcott, Adm. 275. If the vessel sailed with the requisite quantity on board in good condition, but part was spoiled afterwards, so that the crew were put on short allowance, their remedy is by an action for the special damage done them, but they cannot claim extra wages. The Bark Childe Harold, Olcott, Adm. 275. If it is clearly proved that the crew were put upon short allowance, the burden is on the shipowner to show that the vessel had the requisite provisions on board at the time of It has been held that a deficiency in one kind of provisions is not compensated by an abundance in another; as a deficiency in bread by an excess of beef;1 nor is it any excuse for a deficiency in bread that flour is given; 2 but it is clear that the master must have in every port a certain discretion in supplying wholesome and abundant food, of such kinds as can be most economically procured, if those specified in the act cannot be obtained by reasonable exer tions. But it is doubtful if it is any excuse under the statute that the article in which the deficiency occurred could not be procured. The master must see to the expenditure of the provisions; he should guard against waste; and putting the crew on allowance is by no means the same thing as putting them on short allowance.5 sailing. Piehl v. Balchen, Olcott, Adm. 24, 31. In the Bark Childe Harold, Olcott, Adm. 275, 279, it was contended that the same rule applied where the libellant showed that bread of a bad and unwholesome quality had been served out to them. But the court held that the rule ought not to be extended to require the owner to give evidence of the quantity and quality of provisions stored on board, when the testimony of the libellants showed that there was an abundant supply in the ship, and only accused it of being unwholesome in quality when shipped. 1 The Mary Paulina, 1 Sprague, 45; Coleman v. Brig Harriet, Bee, Adm. 80. In this latter case the captain left port with only ninety pounds of bread per man instead of one hundred, but there was a great overplus of meat and water. It was held that the seamen should receive one third of the amount of wages contracted for over and above their common wages. There were some special reasons, perhaps, in this case, which led the court to give only one third of the entire wages, but the rule is that although there be a deficiency in one kind of food, the entire double wages are due, and not merely one third. The Mary Paulina, 1 Sprague, 45. 2 Foster v. Sampson, 1 Sprague, 182. * Mariners v. Ship Washington, 1 Pet. Adm. 219. But in such a case the articles substituted must be a full equivalent both in quantity and quality for those required by law. The Mary, Ware, 454. * This was held a defence in Mariners v. Ship Washington, 1 Pet. Adm. 219. But not in Coleman v. Brig Harriet, Bee, Adm. 80. See also Foster v. Sampson, 1 Sprague, 182. * McDonald v. Ship Cabot, 1 Newb. Adm. 348. What is a proper allowance is to be determined by the navy ration. Mariners v. Ship Washington, 1 Pet. Adm. 219; The Mary, Ware, 353, 460; The Mary Paulina, 1 Sprague, 45; Ship Elizabeth v. Rickers, 2 Paine, C. C. 291, 288. In this case Mr. Justice Thompson said: "To subject the master or owners to the extra wages, the crew must be put upon short allowance; by which I should understand that there must be some SECTION V. OF THE SEAWORTHINESS OF THE SHIP. So, too, the owner is bound to provide a seaworthy ship; and our statutes provide the means of lawfully ascertaining her condition, on the complaint of the mate and a majority of the seamen, by a regular survey, at home or abroad.2 The third section of order or command to that effect given, or some gross negligence in the master. An accidental or unintentional deficiency in weight, would not subject the master or owner to the penalty." If extra wages are claimed, the answer must set forth precisely whether the vessel shipped the quantity and quality of provisions required by the statute. The Elizabeth Frith, 1 Blatchf. & H. Adm. 195. The navy ration is fixed by Acts of 1842, c. 267, 5 U. S. Stats. at Large, 546. In Couch v. Steel, 3 Ellis & B. 402, 24 Eng. L. & Eq. 77, an action was brought by a seaman to recover damages for injuries sustained in consequence of the vessel leaving port in an unseaworthy condition. There was no allegation that the owners knew the vessel was unseaworthy. On demurrer the court held that the plaintiff could not recover, as there was no implied warranty on the part of the owners that the ship should be seaworthy. This decision is clearly repugnant to the principles of the American authorities on this subject, independent of statute provisions. In the case of Dixon v. Ship Cyrus, 2 Pet. Adm. 407, 411, decided in 1789, it was held that both law and reason implied that at the commencement of the voyage the vessel should be seaworthy. See also Rice v. Kitty, id. 420. In the case of The Ship Moslem, Olcott, Adm. 289, the vessel put into Cape Town in a leaky condition. The libellants shipped there for the home voyage to New York. The condition of the vessel was known to them, and they shipped with the express notice that their services would be required in pumping out the vessel on her voyage. Yet it was held that if the vessel was actually unseaworthy when she sailed, that is, if she was unfit for the voyage, the libellants were not bound by their contract, and could rightfully refuse to continue their voyage, and compel the master to return to port. In Eaken v. Thom, 5 Esp. 6, it was held that where the ship sailed in an unseaworthy condition, and in consequence thereof the voyage was afterwards abandoned, no freight being earned, the seamen were not entitled to their wages. This case was doubted by Kent, C. J., in Hoyt v. Wildfire, 3 Johns. 518. As the voyage was lost by the default of the owner in sending the vessel to sea in such a condition, it seems clear that the wages should have been paid. See Hindman v. Shaw, 2 Pet. Adm. 264, 266. 2 Act of July 20, 1790, c. 29, § 3, 1 U. S. Stats. at Large, 132; Act of July 20, 1840, c. 48, §§ 12, 13, 14, 5 U. S. Stats. at Large, 396. The former of these acts provides that if the mate or first officer under the captain, and a majority of the crew of any vessel bound on a voyage to a foreign port, shall, before the vessel has left the land, require the seaworthiness of the vessel to be inquired into, the |