The Sun.
London, England, 1822-03-20 00:00:00

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NUMBER 9225.]

WEDNESDAY, MARCH 20, 1822.

ALBION FIRE AND LIFE INSURANCE COMPANY,

IMPROVEMENTS IN SAIL-CLOTH.

LAW INTELLIGENCE.

NEW BRIDGE-STREET, BLACKFRIARS,
EMPOWERED BY ACT OF PARLIAMENT.
CAPITAL—ONE MILLION.
INSURANCES falling due at LADY-
DAY will expire, unless renewed within Fifteen Days
Iron that period.
The Company's Rates and Conditions are of the most rea-
sonable description :—no Charge is made for Fire Policies,
when the Premium exceeds ss.:—no Admission Fine is
charged on Life Insurance:—a liberal commission is allowed
In Solicitors, and others, who effect Life. Insurances ;—and
every facility is afforded by which the interest and conve-
nience of the Public may be promoted.
• WARNER PHIPPS, Secretary.

THE PROPRIETORS of the ANTI-
MILDEW PROCESS have to announce the follow-
ing additional Testimonial :

COURT OF CHANCERY, MARCH 19.
As the LORD CHANCELLOR was retiring from the Bench,
Mr. SHADWELL asked permission to make his motion in the
case of " Hawes v. Sams," respecting the publication of the
song " We're a' noddin," before his Honour the Vice-Chan-
cellor, on Thursday next ; which his Lordship granted.—
Thursday will be the next seal.

Messrs. BaowELL and Co.

Feb. 14, 1824.

I hare the satisfaction to inform you I have had a fore-top
mast's stay-sail made of unbleached canvas, prepared by you,
on board the Latona, from London to Shields, during the
last four mouths, in which I experienced very heavy gales
of wind, the sail being wet and dry, and often confined in
the Bet, and has no appearance of Mildew.
JAMES PATERSON.

--.SIO-.. ,

HIGH COURT OF ADMIRALTY, 31Ancif 19.
JULIANA (OGILVIE, MASTER).-SEAMEN'S WAGES.
This was a case of considerable importance, which bad been
very ably argued on a former day by Dr. Lushington, on be-
half of William Lattimore, a seaman, claiming wages for his
service on board the above ship ; and by. Dr. Jenner, on behalf
of Messrs. Palmer, Wilson, and Co., the principal owners of
the vessel.

This is to certify, that the above sail was made by us of
Browell and Co.'s prepared canvas, and that we have this day
examined it, and it has no appearance of Mildew.
WALKER and HENWOOD,
Feb. 14,1822. Sail-Makers, Limehouse Hole.

THREE of £20,000 !
AND ONLY TWO DAYS TO DRAW.
jr and J. SIVEWRIGHT inform the Pub-
• lic that, with only Two Days to Draw, the Wheel
'contains
3
2,000 1 4

The Process is equally applicable to the whitest and dearest
as well as to the brownest and cheapest Canvas. It does not
in the least diminish the strength, but improves the colour
i and softness of texture in all. It is effected n a few days, for
Five Shillings per Bolt, and is returned, when sent to them,
to all parts of the town without expense, the same breadth
and length as when received. A red Crown and 13, or the
words " Anti-Mildew," are marked in various places to spew
that the Bolt has undergone Browell and Co.'s Process.—
Sail-Cloth of various qualities, which have undergone the
Process, may be had at the- following houses, viz. Messrs.
Chalmers and Guthrie, 9, Idol-lane; George Brown, 53,
Broad-street, Ratcliff; Peter Walker and Co. 310, and J.
Hewens, 276, Wapping; and Walker and Heuwood, Lime-
house Hole.

A summary petition, claiming wages, had been given in, on,
the part of the seaman, and an allegation responsive thereto, on
the part of the owners ; and the argument took place on the
objections to the admissibility of the owners' allegation.
The COURT (LorcISTowELL) having taken time to de-
liberate, now delivered its judgment to .the following effect :—‘
This is a suit commenced by,a mariner for wages, acquired
on a very long and divided voyaipe, the particulars of which are
set forth in a summary petition. It is alleged that this sea-
man Williain Lattimore, was hired in the month of August,
1820, to proceed, at certain wages therein specified, on board
the Juliana, from Portsmouth, designed on a voyage to New
South Wales, Batavia, Bengal, and back to the port of Lon-
don. She accordingly sailed with a cargo of convicts to the
River Derwent in New South Wales, arrived and landed them
there, took on board live stock and salt provisions, and
sailed to Port Jackson, where she delivered that cargo ; and
then sailed in ballast to Batavia, thence took a cargo of
poultry, which she partly delivered at Minto ; thence proceed-
ed to Sincampour, where she delivered the rest of her cargo,
and took. in sugar for England, and various goods for Calcutta ;
at which place she discharged the latter goods, and took in other
articles for England : that in the month of December last, she
arrived in the Downs, where having struck on, the Kentish
Knock, she was wrecked, and every'soul on board perished, ex-
cept Lattimore and one other mariner, who Were picked up by a
fishing boat. And it is alleged that, during the whole of these
voyages, this seaman well and truly performed his duty. These
circumstances are not denied on the part of the owners ; but it is
pleaded in thezfirst article of their allegation, that all the mariners;
previously to the ship's setting sail from England, signed articles,
m which it was, among other things, stipulated, that no sea-
man belonging to the said vessel should demand, or be entitl.
ed to his wages, or any part thereof, until the arrival of the ship
at the above-mentioned port of discharge, (namely—London),
and her cargo delivered. It is, however, admitted by the own-
ers, on their personal answers to the summary petition, that
they had received nearly 3,0001. freight for the early parts of
the voyage, and possibly more, as the accounts from India had
not yet been transmitted. It is clear, also, that they might
have received money from the insurers of freight, unless they
had thought fit to stand their own insurers, as being more
beneficial to themselves.

3
4tsides the full proportion of minor Prizes of £lOO, £504 &c.
making 1
LESS than TWO BLANKS to a PRIZE.

THURSDAY, 28111 MARCH,
is the Next Day of Drawing, when .the,very First Prize will
l'eceive )4'20,000 more; and the Ninth-drawn Prize above
"R2OO will likewise have £20,000 in.addition.
TICKETS and SHARES are Selling at. J. and J. SIVE-
wRIGHTS' truly Fortunate Offices,
37, Cornbill ; I ' 38, Haymarket,
I 1, Holborn ; Corner of Coventry-street ;
Where they Sold the Last Day of the Last Lottery, and in
their Last Contract,
4,421 • Prize of ',Z25,000
18,051
5,000
And a great many smaller Capitals.

This, then, is a divided voyage, in which the cargoes were
delivered at different ports, and, consequently, by the General
Law Maritime, freights were earned at these ports respectively.
By the same general law wages were due to the seamen at the
ports of unlivery. What the contract was between the owners
of the ship and the freighters does not appeai in the present
case ; no such contract is exhibited, nor is it described; and it
consequently does not ;appear whether the freight was suspended
on the same terms as the wages or not. It is not material to in-
quire into this point, because no agreement of the owners, how-
ever qualified with the freighters, would bind the mariners to
forego any benefit that belonged to them. If the owners have
-foregone any such benefit for themselves, they are undoubtedly
wise enough in their generation to indemnify themselves for any
surrender of that kind by Other terms of the contract ; by the
enhancement of freight, or by such other means as would re;
store the just equilibrium of the contract. The common mariner
lies no such resources, in his own intelligence and experience in
' habits of business, that can enable him to take accurate mea-
sures of postponed payments, with proper estimates of profit
and loss. lie is generally mops consilii, illiterate and unthink-
ing ; and on every account placed under the tender protec-
tion of the law against his own ignorance and imprudence. I
observe that many - signers to these articles are marksmen.
Whether the present suitor was a person that could read or
write does not appear ; for the duplicate which he executed
was lost with the vessel. The probability is, that non legit ut
clerieUs. Upon all principle, therefore, the agreements of such
persons, so differently qualified, are not to be scanned exactly
by the same measure. _

Another more important distinction between the owners and
mariners is this, that whatever bargain the owners may make
with the freighters, they can insure their freight against all
misadventures ; it is not so by the law of France, which pro.
hibits insurance of freights. By the law of England, an in-
surance on the freight is as little affected by the total loss of
the ship, as the insurance on the ship herself. But the mari-
ner is not permitted to insure his wages, by the policy of our
law, in order that he may be stimulated to all possible exertion
for the preservation of the ship on which alone all his own in-
terests are made to depend. The result is, that the mariner
'embarks upon termsof great comparative disadvantage. The
owner contracts; with a certainty of receiving his freight at all
hazards ; if not from the hand of his freighter, from that of his
insurer:--and it is indifferent to him from which. But the ma-
riner goes to sea upon a single security, that of the freight ;
his labours and his perils have nothing else to trust tofor their
compensation. Freight is the mother, and the only mother of
wages; and if that is lost, every thing is lost; he has not a
stepfather; if I may so say, in the character of an insurer, to
.supply the loss.
The policy of the general law has been anxious to uphold the
title of the mariner to his lien upon the freight : whenever
earned, that title of his becomes vested, though the tune of
payment may, from causes of necessity or convenience, be
postponed. Where voyages are divided by wasous ports of
delivery, the claim attaches at such ports ; and the courts of
maritime jurisdiction have upheld their title against all at.
tempts to invade or evade it. These attempts have usually
appeared in the form of renunciations of this right; obtained
from the mariners without any consideration advanced to them
for such surrender. I am not aware that the Maritime Courts
have ever given way to any such contrivances in any form, to
deprive the mariner of that right which the general policy of
the law had conferred upon him. They have considered such
renunciations as unreasonable and unjust, and therefore not
entitled to be upheld by the authority of the law.
It is hardly necessary for me to quote cases in support of the
position, that the Admiralty Court does not uphold them. It
is expressly stated by Mr. Holt, in his valuable work, as a
point on which the Courts of Admiralty and Common Law are
divided. I cannot say that 1 have been able to find the authos
rity for this assertion. All Courts seem to me to uphold the
right to rages as a general rule ; I shall therefore content
myself with referring to the reported case of Buck v. Raw-
linson, and the rather, because that case underwent the
highest, consideration, and the report of it seems to have
been subject to some misapprehension. It is to be found
in Brown's Reports of Cases in Parliament, vol. i. p. 137.
A ship, called the Royal James and Mary, was chartered
by the East India Company for a voyage to the East Indies
and back ; and it was agreed that the Company were
not to pay the owners any freight until the return and de-
livery of the cargo in the port of London, except the imprest
money, which was two thousand pounds. The Captain hired
the seamen, and, by direction of the owners, took bonds
from those seamen not to demand any wages more than
the imprest money until the ship's arrival in London. The
ship proceeded to, and delivered part of her cargo at Fort St.
George ; she sailed with the residue for Bengal, but was lost
going up that river. On the Captain's return to England, a
suit was commenced against him in the Admiralty Court by
the seamen, for their wages on the outward voyage ; and the
owners having refused to defend him against this suit, he ex.
hibited his bill in'Chancery against them and the seamen for
an injunction and relief. An' injunction was at first granted,
but it was afterwards dissolved by Lord Chancellor SOMERS,
his Lordship declaring, thA he could not stop the seamen's pro-
ceeding for their wages ; and that if they recovered against the
plaintiff, he had his remedy against his owners. Whatever
Lord SOMERS, therefore, did, in granting the injunction, was
undone by the dissolution ; and I (=not but regard this as a
strong intimation of his Lordship's (pinion that the demand of
the seamen had a sound foundation. It was a very strong opi.
nion given obiter, and as such only 1 cite it. To proceed with
the Report :—The suit in the Adrriralty Court went on ; the
Captain made the best defence he mild against it, and particu-
larly insisted on, and gave in evidence, the bonds which the

seamen had entered into, not to demand any further wages un-;
til the ship's return to the port of London. But that Court de-
clared these bonds to be unjust, and, void in law; and thaefore
gave sentence against the Captain for 6951. as the amount of
the seamen's wages on the outward voyage, which sum he
was accordingly obliged to pay. The cause in Chancery was
afterwards heard before the Lord Keeper Wright, who dis-
missed the Bill ; but, upon appeal to the House of Lords,
it was adjudged that the dismission: should be reversed.—
The House of Lords, therefore, held, that the Captain
was entitled to recover for what he had paid the seamen ;
and that, -I think, was a strong declaration in favour of
the seamen's right. The House of Lords, by shstaining the
demand of the Captain, must have considered that it was not
a rash and improvident payment on his part, but one to which
the seamen were entitled, notwithstanding the bonds they had
executed. The decree of the Lords, indeed, -goes on to say,
that the parties should be at liberty to bring their appeal from
the Court of Admiralty to a Court of Delegates ; but do they
express any disapprobation of the judgment of the Court of
Admiralty ? No such thing. They merely say—we leave you
to your legal remedy; try that, if you are dissatisfied. Then,
was any such appeal resorted to ? I have caused the registers
of the Court to be examined, and I find no trace of such ap.
peal, so that the sentence of the Admiralty stands unreversed
and unrepealed ; and I take this to be not a solitary, decision,
but the standing and uniform law of the Admiialty. If the
bonds in question were then unjust and void in law, they
would be so in _every subsequent case similarly circumstanced ;
and flie decision in that instance would be an authority bind-
ing in every succeeding case in that Court. Nothing, then, is
dearer, than that this is the law of the Admiralty ; it is so
stated by Mr. Holt, and I think I shall presently be able to
demonstrate that it is the rule of the Courts of Common Law.
It is no small confirmation of the reasonable nature of the
doctrine maintained in the Court of Admiralty, that the Courts
of Scotland, which proceed upon equitable principles, as the
English Court of Admiralty does, agree in the same doctrine.
I find it expressly laid down as the law of Scotland, in a valua-
ble work published by Mr. Bell, a gentleman lately and very
deservedly advanced to the Professorship of the Law in Edin-
burgh : he considers that such stipulations as those above re.
ferred to, are not sufficient to oust seamen of their wages : that
they operate to produce only a suspension of the demand, and
not an extinction of the right, as in the case of Morrison v. Ha-
milton. Mr. Bell, indeed, in a note on the English cases, inti-
mates a doubt, whether the stipulation, if clearly expressed,
might not be held valid. But what said the Court of Session
in the cause of Glascock : " That the practice of inserting such
stipulations was one that was to be highly disapproved, as
fraught with inhumanity and injustice." If so, I should rather
think that the more dearly such an intention was expressed, the
more strongly it should be reprobated.
I come now to consider what has been done by the English
Courts of Common Law. In 2 Vernon, 728, is to be found-the
case of Edwards and. Wife v. the East India Company, which
was as follows :—.the ship Success was chartered by the East
India Company for a voyage out and home • the freight not to
be paid until the return to the port of London ; and Captain
Jenefer, the Commander, when he hired the seamen, took
bonds from than not to demand any wages if the ship was lost
before her return. She sailed to Bengal, delivered her cargo,
and was taken by the French on the return voyage. The Captain
was sued by the mariners for the wages that became due at
Bengal, the first delivering port; and although the bonds were
given in evidence, yet the mariners recovered their wages in an
action tried before that great master of law, Lord Chief Justice
Holt. There can be no doubt of the reality of this case, for
it gave occasion to the subsequent proceedings in the Court of
Chancery, in which a Bill was brought by the plaintiffs (Ed-
wards, the wife, being the executrix of Capt. Jenefer), to re-
cover the wages he had thus been forced to pay to the mariners.
Upon producing of precedents, viz. the case of Edwin and Staf-
ford v. the East India Company, and the case of Buck v. Sir
Thomas Rawlinson, affirmed upon an appeal in the House of
Peers, the Lord Chancellor decreed reimbursement of what the
Captain had paid the seamen, with interest and costs—a judg,
ment conveying a pretty strong opinion that the money had
been properly paid in the first instance, notwithstanding the
bends.

Thus stands this matter, on the La* of the Admiralty, on the
law of Scotland, 'on the clearly intimated opinion of the great
Lord Chancellor Somers, on the decision of Lord Chief Justice
Holt, and on the fair inference to be drawn from the judgment
of the House of Lords. Upon all these authorities it is clearly
established, that any attempt to extinguish the right of the
mariner by an agreement delvers, the usual ship's articles has
never received countenance from the Courts. Such attempts
had failed in the different Courts, and it is perfectly clear
that they had been considered so to have failed; otherwise a
different mode of attaining the same object would not have
been resorted to. Mr. Holt, however, admits, that a stipula-
tion to the same effect as the bonds was introduced into the
mariners' contract itself. By this mode of shaping the matter,
the advisers of the owners probably expected to escape from the
difficulty ; and it appears, by reference to an early and valuable
work of my most highly venerated friend, Lord Chief Justice
Abbott, that they so far succeeded, as that no instance had oc-
curred, prior to that publication, of a claim made by the seamen
against the terms of this clause in the articles. His Lordship
expresses his surprise that the Court of Admiralty could hold the
bonds to be void, unless they were deemed to have been obtained
by oppression or fraud. They certainly were so deemed, for
the Court of Admiralty had declared them to be unjust and void,
which is only another mode of expressing the same thing. I
understand that since the publication of my Learned Friend's
work, no suit of the kind has been brought at common law,
except the one quoted in argument, the effect of which I have
now to consider. It is that of Appleby v. Dods, reported in
8 East, 380. This was a case at Guildhall, in which Lord
Ellenhorough held, that though the ship earned freight upon
the delivery of an outward-bound cargo at Madeira, and of ano-
ther cargo taken in at Madeira, and delivered in the West Indies,
yet, that being lost in her passage home by a storm, the seamen,
who had subscribed such a stipulation as the one in question,
could not recover wages pro rata upon the outward voyage. It
came on afterwards before the same Noble Judge and Mr.
Justice Lawrence, on a motion to set aside the non-suit, when
Lord Ellennorough expressed-himself thus —" Though the
reason of this stipulation was, no doubt, to oblige the mariners
to return home with the ship, and not to desert her in the
West Indies, yet the terms of it are general, and include the
present case ; and we cannot say, against the express contract
of the parties, that the seamen shall recover pro rata, although
the ship never did reach her port of discharge named ;" and
his Lordship further observed on the anxious policy of the
Legislature, as expressed in the Statute 37 Geo. 111. c. 73, to
enforce the return home of seamen in their ships from the
West Indies; he therefore supported the stipulation, not
upon itself, but upon the policy of that Statute which he
thought himself entitled to call in aid to the interpretation of it.
I must observe, however, that the Statute was a West India
one, and you cannot associate the policy of that West India Act
with this East India voyage; it does not bear upon it in the
remotest manner—not in its preamble, not in its provisions.
It is a West India mischief, to be provided against by West
India provisions ; Mit in every view it is as totally inapplicable to
this East India transaction as the Bill of Rights. Mr. Justice
Lawrence observes, that Lord Holt's case was rightly decided on
the general principles of law ; and that the Court of Chancery,
in its proceedings afterwards, in favour of the Captain, might
have considered that the bargain was unreasonable. Nothing
can be more correct than this conjecture.' On what other
ground could that Court have decided in favour of the Cap-
tain, against the East India Company ? If the bargain with
the seamen were a proper bargain, he was not justified in pay-
ing them, nor entitled to recover against his owners ; but if
the bargains were, what the Admiralty considers them, unjust,
unreasonable, and void, he was entitled to reimbursement of
what he had justly paid.
Far be from me the presumption of impugning a judgment
proceeding from persons of such splendid talents and characters.
I knew them too well, and venerate them too much. All I say
is, that the judgment does not at all approach the present case ;
it stands, if I may so say, at the distance of half the globe from
it. The case before me comes as a perfectly new one, upon the
effect of such a stipulation contained in the articles themselves,
and not in a collateral obligation. It is a question (as far as I
know, untouched by any Court) upon a speculation, certainly
intended by those who advised it and those who adopted it, to
extinguish the indubitable right of the mariner under the gene-
nil law, without any consideration whatever. It is a stipula-
tion in disherison of the whole body of mariners of this country,
and this Court of Admiralty is now called upon, for the first
time, to sanction that effect.

In considering that question I am to recollect the authorities
under which it has been held that such a covenant, expressed in
a collateral obligation, is unreasonable and unjust ; and in that
form has been ever frowned upon by the law. Does it become
more reasonable and more just by being incorporated in the