A seaman discharged by a consul because of unusual or cruel treatment is entitled to the one month's extra wages allowed by statute, and some reasonable discretion is to be permitted to the consular authority in determining this extra allowance in reference to actual or anticipated ill treatment and a discharge consequent thereon." Griggs, At. Gen., Sept. 20, 1898, 22 Op. 212, 214. The filing of a libel for wages, after the master has announced his intention to sail for a port unauthorized by the shipping articles, and after the seamen have, in consequence, demanded their wages, is not premature, although they continue at work several hours longer, and until the vessel is about to proceed to sea. Heinrici v. The Laura Madsen, 84 Fed. Rep. 362. Where the owner of the ship is also the owner of the cargo, the seamen have a lien on the cargo for wages in the nature of a charge upon the freight. Tibbol v. The Marion, 79 Fed. Rep. 104. Where vessel and cargo are owned by the same persons and the proceeds of the vessel are insufficient, the seamen have a lien for their wages on the cargo to an amount equal to a reasonable freight thereon. The Marion, 88 Fed. Rep. 96. 5. RECOVERY OF DAMAGES. § 729. Where a seaman, while painting a mast, fell to the deck and was injured, and it appeared that there was negligence both on his part and on that of the master, it was held that, under the rule in admiralty requiring the division of damages in proportion to the negligence of the master and servant, respectively, the seaman was entitled to recover one-half his actual damage. Wm. Johnson & Co. v. Johansen, 86 Fed. Rep. 886. As to personal injuries, see Natchez & N. O. Packet & Navigation Co. v. The liability of a British ship or her owners for injuries caused to a seaman on the high seas, by neglect of the master to furnish sufficient ropes or gear, is measured by the British law, which does not give in such case an action in rem. Peterson v. The Lamington (1898), 87 Fed. Rep. 752. Where a boatswain is engaged, with a detail of seamen, in lowering a mast, and the mate of the ship, in assisting to do the work, causes injury to the boatswain by his negligence, the act of the mate is that of an operative, and the boatswain can not recover. The Miami (1898), 87 Fed. Rep. 757. The risk to a seaman of injury from perils of navigation from the negligence of fellow-servants, or from defects in tackle or other appliances, which are not obvious or discoverable by the exercise of reasonable care, is incidental to the employment and is assumed by him. The Robert C. McQuillen, 91 Fed. Rep. 685. See Wm. Johnson & Co. v. Johansen, 30 C. C. A: 675. Libelants shipped as seamen on a whaling ship for a voyage not to exceed one year, and were to receive a share of the proceeds as compensation. During the year the ship became fast in the ice and was not released until some time after the end of the year. After being released, the master, against the protest of the men, went on another cruise. Held, that the detention of the ship while imprisoned in the ice and while afterwards taking up the members of the crew who had been sent on shore while she was so imprisoned was an incident to navigation in that latitude for which the ship was not liable, but that for the time occupied by the subsequent cruise, after it became the duty of the ship under the articles to return libelants to the port of discharge, she was liable to them for damages in an amount sufficient to compensate them for their loss of time. The Belvedere, 100 Fed. Rep. 498. 6. PROVISIONS FOR CREW. $730. After the adoption by shipping articles of the statutory scale for provisions (Revised Statutes, § 4612) the master issued provisions according to a "method" of his own, whereby there was a shortage of bread. The seamen protested, and the statutory scale was professedly followed for a few days, but the seamen, being dissatisfied with the manner in which it was carried out, asked the master to return to his "method." He did so, on condition that they would "agree to be perfectly satisfied in the future and make no more complaints," and an agreement to this effect was entered on the log. Held, that the contract was void, and that the seamen might sue for the extra compensation allowed by Revised Statutes, § 4568, in cases of shortage. Broux v. The Ivy, 62 Fed. Rep. 600. By Revised Statutes, § 4569, the master is required to serve his crew with a regular daily allowance of antiscorbutics. It is not sufficient that limes were on board, from which they were at liberty to help themselves. Peterson v. J. F. Cunningham Co., 77 Fed. Rep. 211. It was also held that the penalty imposed for failure to serve antiscorbutics did not inure to the benefit of the crew. The usual length of a certain voyage by sailing vessel being 45 days, a delay, by bad weather or accident, prolonging it to 59 days, does not justify the master in shortening the schedule allowance of provisions to the crew. Peterson v. J. F. Cunningham Co., 77 Fed. Rep. 211. flour and copra (dried cocoanut), was not a proper equivalent for ship bread. Also, that the failure of the master properly to provision his ship was actionable, unless provisions, the allowance of which was reduced, could not be procured in sufficient quantities, or were unavoidably lost or injured, and proper and equivalent substitutes were obtained in a reasonable time. A sailing vessel on a voyage from the Pacific coast of the United States to Alaska may, by analogy, be considered as within Revised Statutes, § 4569, and the act of June 26, 1884, § 11, allowing only 10 per cent profit on articles sold to seamen from the slop chest. Hogan t. The J. D. Peters, 78 Fed. Rep. 368. Every master, when sailing to or from a foreign port, is bound to see, before he sets sail, that his vessel is properly provisioned, including a surplus to meet all reasonable contingencies of the seas, and if, in consequence of omission, there is a short allowance, the withholding of suitable food is not justifiable. United States v. Reed (1897), 86 Fed. Rep. 308. Where there is evidence that every one of a crew was afflicted with scurvey, of which several died, and that the ordinary cause of that disease is lack of suitable food, the jury are justified, unless some other cause is shown, in finding that there was such lack of suitable food. United States v. Reed (1897), 86 Fed. Rep. 308. Where a master by reason of difficulties at sea changes his voyage to a much longer one, he must exercise the same care as at first setting out to provision the ship for the change of course. United States v. Reed, 86 Fed. Rep. 308. Where a master by reason of stress of weather changes his voyage to a much longer one, for which his supplies are plainly insufficient, he was held liable in damages to the crew on account of their sufferings from want of provisions where he failed to call at certain intermediate ports for additional supplies, as he might easily have done. Robinson v. The T. F. Oakes, 82 Fed. Rẹp. 759. On an indictment under § 5347, Revised Statutes, for withholding suitable food and nourishment from the crew each statutory element of the offense must be proved beyond a reasonable doubt. United States v. Reed, 86 Fed. Rep. 308. The fact that the master of a vessel did not furnish his crew with the full supply of lime juice required by the law and the shipping articles, does not, in the absence of any claim that the men complained, or that they suffered or were made sick by such deprivation, authorize them to abandon the ship before the end of her voyage and recover their wages, nor does it entitle them to extra wages. The Belvidere, 90 Fed. Rep. 106. The refusal of the master, after complaint made to him, to furnish a warm room for the seamen in cold weather, as required by the act of Dec. 21, 1898 (30 Stat. 755), constitutes a breach of the shipping articles, which justifies the men in leaving the ship and entitles them to recover wages for the time served. The Ida McKay, 99 Fed. Rep. 1002. 7. RELIEF OF SEAMEN. $ 731. "Seamen of the United States entitled to relief when destitute are: "1. Merchant seamen, being citizens of the United States, or persons coming under, the provisions of section 2174 of the Revised Statutes, and who, at the time of applying for relief, are by habit and intent bona fide members of the American merchant marine, although their last service may not have been in an American vessel. "2. Foreigners regularly shipped in an American vessel in a port of the United States." "The seamen of the merchant marine of the United States alone are those whom the law contemplates relieving and no provision has been made for the relief of destitute Americans other than seamen. No relief, therefore, is authorized to be granted to such destitute Americans, or to seamen, whether citizens or foreigners, discharged or deserting from naval vessels of the United States; and expenditures for such relief will not be allowed if found in the consular accounts. Seamen on American yachts are regarded as American seamen within the meaning of the statute." Consular Regulations of the United States (1896), §§ 260, 261, pp. 97, 98. The act of June 26, 1884 (23 Stat. c. 121), for the protection of American seamen, and the amendments thereto, apply only to Americans, but to all Americans whose vocation is that of mariner, whether shipping on domestic or foreign vessels. United States v. Nelson, 100 Fed. Rep. 125. A Porto Rican serving as a seaman in the American merchant marine, including that of Porto Rico, is an American seaman within the meaning of the statutes relating to relief by consuls. Griggs, At. Gen., Feb. 19, 1901, 23 Op. 400. All seamen serving on foreign-built but American-owned vessels "are within the jurisdiction of the United States consuls abroad as to shipment and discharge, and (in China) as to all disputes between master and men, growing out of the discipline or police of the ship, and such seamen should be shipped and discharged before the consul. As to extra wages and relief, it is different." But "an American citizen shipped on an American vessel either in a port of the United States or a foreign port, under proper conditions is always entitled to relief, protection and extra wages." Mr. Hunter, Act. Sec. of State, to Mr. Wingate, consul at Foochow, No. 53, Sept. 20, 1884, 111 MS. Inst. Consuls, 543. Where a minor, having concealed himself, without the knowledge of his father, on board of a whaling-ship, and not being discovered until the vessel was at sea, was then left by the master in the care of the American consul at the first port at which he touched, it was held to be the duty of the consul to provide for and send him home to the United States. Luscom v. Osgood, 1 Sprague, 82. With regard to two stowaways who were put ashore by a Pacific Mail steamer at Mazatlan, Mexico, and when the American consul there requested the captain of the steamer to return to San Francisco, the Department of State said: "If they were paupers and a burden to the community where they were thrown by the company, or if they H. Doc. 551-vol 5-10 |