The Seaman's Friend: Containing a treatise on practical seamanship, with plates, a dictionary of sea terms, customs and usages of the merchant serviceDana, Richard Henry
Science
The Seaman's Friend: Containing a treatise on practical seamanship, with plates, a dictionary of sea terms, customs and usages of the merchant service
Dana, Richard Henry
Maritime law; Merchant marine; Naval art and science; Naval art and science -- Dictionaries; Seamanship
Every unusual clause introduced into the shipping-articles, or anything
which tends to deprive a seaman of what he would be entitled to by the
general law, will be suspiciously regarded by the courts; and if there
is reason to suppose that any advantage has been taken of him, or if
the contract bears unequally upon him, it will be set aside. In order
to sustain such a clause, the master or owner must show two things:
first, that the seaman's attention was directed toward it, and its
operation and effect explained to him; and, secondly, that he received
some additional compensation or privilege in consideration of the
clause. Unless the court is satisfied upon these two points, an unusual
stipulation unfavorable to a seaman will be set aside.[140] For
instance, seamen are entitled to have a medicine-chest on board, and in
certain cases to be cured at the ship's expense; and the court set
aside a clause in the shipping-articles in which it was stipulated that
the seamen should bear all the expense, even though there were no
medicine-chest on board.[141] Another clause was set aside, in which
the voyage was described as from Baltimore to St. Domingo and
_elsewhere_, on the ground that seamen are entitled to have their
voyage accurately described.[142]
[140] 2 Sumner, 443. 2 Mason, 541.
[141] 2 Mason, 541.
[142] 1 Hall's Law Jour. 207. 2 Gall. 477, 526. 2 Dods. 504.
Gilp. 219.
Some clauses which are not such as to be set aside, will yet be
construed in favor of seamen, if their interpretation is at all
doubtful.[143] A clause providing that no wages should be paid if the
vessel should be taken or lost, or detained more than thirty days, was
set aside, seamen being entitled to wages up to the last port of
delivery.[144] If the amount of wages merely be omitted in the
articles, there seems to be some doubt as to the introduction of other
evidence to show the rate agreed upon, and as to the seaman's being
entitled by statute to the highest rate of wages current.[145] If a
seaman ships for a general coasting and trading voyage to different
ports in the United States, and the articles provide for no time or
place at which the voyage shall end, the seaman may leave at any time,
provided he does not do so under circumstances peculiarly inconvenient
to the other party.[146]
[143] 1 Pet. Ad. 186, 215.
[144] 2 Sumner, 443.
[145] Gilpin, 452. Abb. on Shipp. 434, note. Act 1840, ch.
23, §10.
[146] Ware, 437.
If, however, the voyage is accurately described, and the wages
specified, the seaman cannot be admitted to show that his contract was
different from that contained in the articles.[147]
[147] Gilpin, 305.
It is no violation of the contract if the vessel departs from the
voyage described, by accident, necessity, or superior force.[148]
[148] 2 Hagg, 243.
CHAPTER VIII.
SEAMEN--CONTINUED.
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