SECTION IV.

OF THE SEA-WORTHINESS OF THE SHIP.

So, too, the owner would be bound to provide a sea-worthy ship;1 and our statutes provide the means of lawfully ascer taining her condition, on the complaint of the mate and a majority of the seamen, by a regular survey, at home or abroad.2

Ship Washington, 1 Pet. Adm. 219; The Mary, Ware, 454, 460; Ship Elizabeth v. Rickers, 2 Paine, C. C. 291, 298. In this case Mr. Justice Thompson said: "To subject the master or owners to the extra wages, the crew must be put upon short allow ance; by which I should understand that there must be some 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. See Appendix for the navy ration.

1 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 sea-worthy. 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 sea-worthy. See also, Rice v. The Polly & 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, ch. 56, § 3, 1 U. S. Stats. at Large, 132; Act of July 20, 1840, ch. 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

The third section of the statute of 1794, provides that the master shall pay the costs of the survey in the first instance, and if the complaint appears to have been without foundation, the costs and a reasonable sum for the detention shall be paid out of the wages of the crew. But it has been held that if there was reasonable cause for the survey, the owners could not charge the expense to the seamen.1 Seamen, after shipping, often refuse to proceed on the voyage; and if then arrested for the mutiny, the condition of the vessel, if that be their excuse, is inquired into by the court; and if she is found to be unseaworthy, their punishment is reduced and mitigated accordingly.2

any vessel bound on a voyage to a foreign port, shall, before the vessel has left the land, require the sea-worthiness of the vessel to be inquired into, the master shall stop at the nearest port for the purpose of having such inquiry made. On the construction of this act, Ware, J., remarked in the case of The William Harris, Ware, 367, 373, that the reason of the law applied as strongly to the case of a vessel departing from a foreign port on her return, as leaving her home port on a foreign voyage. This is now settled by the statute of 1840. By this act the consul, or commercial agent at the foreign port, is directed on complaint being made in writing by any officer and a majority of the crew, to appoint two persons to inspect the vessel, etc. By the Act of 1850, ch. 27, § 6, 9 U. S. Stats. at Large, 441, the Act of 1840 is so far amended, as to require the complaint to be signed, by the first, or the second and third officers, and a majority of the crew. If the crew, instead of availing themselves of their statute remedy, suffer the owner to repair the vessel of his own accord, and he employs an agent who pronounces her sea-worthy, they cannot refuse to proceed on the ground that the repairs are insufficient, if they are not so in fact. Porter v. Andrews, 9 Johns. 350.

1 The William Harris, Ware, 367. The statute of 1840, provides that the expenses shall be deducted from the wages of the seamen, on the inspectors certifying that the complaint was made without good and sufficient cause.

2 United States v. Nye, 2 Curtis, C. C. 225. Mr. Justice Curtis in this case said: "I think the correct rule is, that after the men have rendered themselves on board, pursuant to their contract, and before the voyage is begun, they may lawfully refuse to go to sea in the vessel, if they have reasonable cause to believe, and do believe the vessel to be unseaworthy. But the presumption is that the vessel was sea-worthy; and the seamen must prove that they acted in good faith, and upon reasonable grounds of belief that the ship was not in a fit condition to go to sea, by reason of unseaworthiness. If they prove this, they are justified in their refusal, and are not guilty of any offence." See also, United States v. Staly, 1 Woodb. &. M. 338; Dixon v. The Ship Cyrus, 2 Pet. Adm. 407. So unseaworthiness is a sufficient defence to the charge of endeavoring to commit a revolt by compelling the master to return to port. United States v. Ashton, 2 Sumner, 13. See also, The William Harris, Ware, 367.

SECTION V.

OF THE CARE OF SEAMEN IN SICKNESS.

Sickness is provided for by statute, so far as to require that every ship of the burden of one hundred and fifty tons, navigated by ten or more persons in the whole, and bound on a voyage without the limits of the United States, should have a proper medicine chest on board. This act has been extended to vessels of seventy-five tons, navigated by six or more persons in the whole, bound from the United States to any port in the West Indies. By other statutes the master may deduct twenty cents a month from every seaman's wages, to make up a fund for the support of marine hospitals, in which every sailor may have medical treatment. There is, however, by the general lawmerchant, an obligation upon every ship-owner or master to provide for a seaman who becomes sick, or wounded, or maimed in the discharge of his duty, whether at home or abroad, at sea or on land, if it be not by his own fault, suitable care, medicines, and medical treatment, including nursing, diet, and lodging. At first it was held that the statute requiring a medi

1 Act of 1790, ch. 29, § 8, 1 U. S. Stats. at Large, 134.

2 Act of 1805, ch. 28, 2 U. S. Stats. at Large, 330.

3 Act of 1798, ch. 77, 1 U. S. Stats. at Large, 605; Act of 1799, ch. 36, 1 U. S. Stats. at Large, 729; Act of 1802, ch. 51, 2 U. S. Stats. at Large, 192; Act of 1811, ch. 26, 2 U. S. Stats. at Large, 650. The Act of 1802, § 3, extends a similar provision to the case of boats, rafts, or flats, descending the Mississippi to New Orleans. In Reed v. Canfield, 1 Sumner, 195, 201, Mr. Justice Story said it seemed that these acts had been construed in practice not to impose upon ships and vessels in the whale and other fisheries, the payment of hospital money. By the Act of March 1, 1843, ch. 49, 5 U. S. Stats. at Large, 602, the provisions and penalties of the Act of 1798 are extended to registered vessels in the coasting-trade.

Laws of the Hanse Towns,

4 Laws of Oleron, arts. 6, 7; Laws of Wisbuy, art. 19. art. 39; Molloy, 243; L'Ord. de la Mar. liv 3, tit. 4, art. 11; Valin, Comm. tome 1, p. 721; Pothier on Maritime Contracts, n. 190, Cushing's translation, 115; Pothier, Us et Coust. de la Mer, p. 31; Harden v. Gordon, 2 Mason, 541; Walton v. The Ship Neptune, 1 Pet. Adm. 142; Hastings v. The Ship Happy Return, id. 253, 256, n.; The Forest, Ware, 420; The Brig George, 1 Sumner, 151; Reed v. Canfield, id. 197; Lamson v. Westcott, id. 591, Appen.; Johnson v. Huckins, 6 Law Reporter, 311; Freeman v.

cine chest, substituted this requisition for the more general requirement of law; but it may be doubted whether this is so, in any degree; and it seems to be well settled, that the general obligation of the law-merchant remains in force, unless the medicine chest is provided with medicines and means of medical treatment which the particular case requires, and there is sufficient skill on board to make a proper use of those medicines.1

Baker, 1 Blatchf. & H. Adm. 372, 382; Nevitt v. Clarke, Olcott, Adm. 316. In Reed v. Canfield, supra, it was held that if the seaman was injured while in the service of the ship, he was entitled to the expenses of his cure until it was completed, as far as the ordinary medical means extend, but that the owners were not liable for consequential damages. In Nevitt v. Clark, Olcott, Adm. 316, it was held that the owners were only liable for expenses while the seaman was in their employ. See also, The Atlantic, Abbott, Adm. 451, where this question is discussed at length. In Ringold v. Crocker, Abbott, Adm. 344, the seaman went on shore without leave, and on returning to the vessel, when asked by the mate why he went ashore, answered in an insolent manner, whereupon the mate struck him with a belaying pin and injured him severely. The master was boarding on shore at the time, and when the seaman went to him he placed him in a house there, and directed a physician to attend him. Held that the seaman was entitled to be cured if injured while in the service of the ship, and that he was to be deemed in the service while under the power and authority of the officers, and that an injury received in executing an improper order, or inflicted on him by the wrongful violence of an officer, would equally entitle him to this privilege.

1 If from the nature of the disease or from other circumstances, there is no person on board by whom the medicines can be safely administered under the printed medical directions accompanying the chest, the attendance of a physician will be a charge on the owners. The Forest, Ware, 420. Cases requiring extraordinary assistance, such as surgical aid, which the medicine chest cannot supply, are not within the spirit of the statute, which it seems "is limited to the ordinary cases of illness on board the ship; a sickness of such a character that the patient may be and is kept on board, and receives or may receive the benefit of the medicine chest and directions, and the advice and assistance of the master of the ship or some other competent person, attached to the ship, in the application of the medical directions accompanying the chest, and such nursing and attendance as the situation of the ship may admit." Per Davis, J., in Lampson v. Westcott, 1 Sumner, 591, 595, Appen. See also, the remarks of Peters, J., in Hastings v. The Happy Return, 1 Pet. Adm. 253, 256, n.; and the case of Reed v. Canfield, 1 Sumner, 195, where a seaman, whose feet had been frozen in the service of the ship, so that partial amputation became necessary, was allowed to recover the expenses of his care from the owners under the general maritime law. The charge for nursing and attendance is not affected by the act. Story, J., in Harden v. Gordon, 2 Mason, 541. The burden of proof, as to the sufficiency of the medicine chest, is always upon the owner. The Forest, Ware, 420; The Nimrod, id. 9; Harden v. Gordon, supra; Freeman v. Baker, 1 Blatchf. & H. Adm. 372, 382; The William Harris, Ware, 367, 375. It was also held in this case that the captain is not a proper person to prove the sufficiency of the medicine chest, but the testimony of some reputable physician, who has examined it, is requisite. In Knight v. Parsons, U. S. D. C., Mass., 18 Law Reporter, 96, one of the crew of a mackerel vessel was taken VOL. I. 39

Where that is the case, a seaman has no right to demand to be taken on shore for better medical treatment, or to have a physician from on shore sent for; and if such demand is complied with, the expenses may be charged to the seaman.1 This right of care extends to the officers of the ship, including the master.2 If a seaman be put on shore for the safety of the crew, his disease being contagious, then, of course, the whole expense falls on the ship.3

SECTION VI.

OF THE RETURN OF SEAMEN TO THIS COUNTRY.

The right of the sailor to be brought back to his home, is very jealously guarded by our laws. Every ship must be provided with the shipping articles and a shipping list, verified under the

sick, and went on shore and bought medicine, and consulted a physician. Afterwards, being worse, he was put on shore at his own request, and did not return to the vessel. There was no medicine chest on board. It was held that he was entitled to recover all these expenses, although evidence of a usage was shown to the effect that fishermen in mackerel vessels were cured at their own expense in case of sickness.

1 Holmes v. Hutchinson, Gilpin, 447. And it has been held that the rule is the same, whatever may be the nature of the disease; even if it be of a violent and dangerous kind, and the physician was sent for without the request of the seaman. Pray v. Stinson, 21 Maine, 402. But this is certainly at variance with the authorities cited in the preceding notes.

2 The Brig George, 1 Sumner, 151. In Winthrop v. Carleton, 12 Mass. 4, the master of a vessel, while in port, was taken sick with the smallpox and went to a boarding-house, where he died. The consignee paid the board, the physician's bills, and the funeral expenses, and brought this action to recover back the money so paid. The owner of the ship was held liable, a usage being shown that it was customary for the consignee to pay such charges, and look to the owners.

3 Harden v. Gordon, 2 Mason, 541; Walton v. The Neptune, 1 Pet. Adm. 142, 152; Hastings v. The Happy Return, id. 253, 256, n.; The Forest, Ware, 420; The Brig George, 1 Sumner, 151. But, semble, not when the seaman is removed at his own request from a vessel properly provided in all respects. Pierce v. Patten, Gilpin, 436. See also, Pray v. Stinson, 21 Maine, 402. But in Johnson v. Doubty, 1 Ashm. 165, it was held, that a seaman, who, when sick with the yellow fever, was asked whether he would stay on board or go to the hospital, chose the latter, was entitled to full wages, on the ground that it was the duty of the master to send him ashore at all events. See also, The Atlantic, Abbott, Adm. 451, 477.