The Hawaiian gazette. [volume] (Honolulu [Oahu, Hawaii]) 1865-1918, 1868-05-20


This was libel in personGHl, brought tC
recover wages claimed TO be due for ser
vices rendered as mariner and cooper oil
board of the American whaling bark Arthu'
Pickering, of Boston, Mass, whereof res
pondent is Master.
In the month of May or June, A. D. 1866
the said bark was at the Island of Bravo
Cape de Verdes, and the libellant, Portu-
guese, was shipped or hired to serve on board
at first as cook as well as seaman, under no
Shipping Articles; but three days after leav.
ing the island, on the high seas, the master
caused the libellant to sign a certain paper
or agreement, the master explaining to him
that it was something necessary to be shown
in case the said bark should meet with YES
sci of war, which said writing is as follows
'IsLAND OF Bravo, June 3, 1866.
This is to certify that agree to perform
| the remaining part of the voyage in the bar
ArtIt,lr T5cleIing for 1-150 lay / also agree
to ship on the above terms before U. s.
Consul, when required to by the Captain.
JOSEPH SILVA.
This >markl
Witness: WARREN MAXFELD."
After Silva had been on board about five
months, the master ordered him to act as
cooper, which duty the libel alleges the libel
liant performed faithfully until the arrival in
this port, March 10th, A. d. 1865.
The vessel took about 500 barrels of sperm
oil during the voyage, 80 barrels of which
were taken prior to the vessels touching at
Api, one of the Malaysian Archipelago, and
prior also TO the time Of libellant's being re-
Quired to do duty as cooper. The libel al
leges that the libellant has sought settle
ment with said master, but has failed to OBJ
tain any whatsoever The answer admits
the principal facts as to mode of shipment
and quantity of oil taken, but denies that
libellant was in any sense skillful cooper or
anything more than cooper's mate or assist
ant to the master, who was actually the
cooper of the ship; and the counsel for res
pondent also maintained that the libellant
was not entitled to bring the action, never
having been discharged from the ship; that
it was not necessary that the seaman's con-
tract should be in writing, by the general
maritime law and prior to the U. S. Act 1890,
which Act only related TO the shipment in an
American port, and that the Acts Subsequent
ly passed do not apply to cases of shipment
abroad, where there is no American Consul.
That the general maritime law is not super
seded by the statutes of 1870, 1903, 1S40
That the seaman was liable to a forfeiture of
wages by desertiOn without being on the ar
ticles, and it was claimed that libellant was
a deserter That it was manifest that the
libellant's case did not fall within the pur-
view of the statute cited. The testimony Of
fered as to the facts in the case by both par
ties was not contradictory, and so far as it is
concerned, presents no embarrassment to the
Court. He acted as cook so short time
that it is not necessary to consider his qualifi-
cations, as he ought not TO be better paid for
that time than an ordinary seaman, that is
to say, to time of departure from Api, where
the old cooper went on shore, and where
also it is claimed by the libel that the libel
liant was promoted to the rank of cooper.
As to his capacities as cooper, think il is
established, that he was useful assistant to
the master, and for the time he worked with
him at coopering his services were more val
liable than those of an ordinary seaman or
cook; if would seem that the master thought
so himself, by calling him from the forecastle
to the steerage to live, and permitting him
to take his meals in the cabin. j come now
to a consideration of the U. s. statutes re-
garding the shipment of seamen on board
American vessels, and the legal points made 1
thereon, comprehending the decision of the |
American Courts, bearing upon the subject.
By the Act of Congress, Goth July, 18i0 |
section g. it is made the duty of the master
a
to take the list of his crew and the dupli- |
cate of the Shipping Articles to the Consul, |
or person who discharges the duties of the |
office at that port, who shall make the pro- |
per entries thereon, setting forth the con- |
tract, and describing the person of the mari |
ner; and all shipments of seamen made con- ]
trary to the provisions of this and other Acts |
of Congress shall be null aud void, and any |
seamen so shipped may leave the service at |
any time, and demand the highest rate of |
wages paid to any seaman shipped for the /
voyage, or the sum agreed TO be given him I
at his shipment.
Although there was Vice Consul at Bra 4
yo, no appearance was made before him with |
the libellant But it is asserted by the res
pondent that he had no authority TO certify
10 the shipment. Of this am in doubt, as
il appeared that he exercised on board the
same ship, in my opinion, much higher
authority, that of taking two men out of the
ship and contning them ON shore to be sent
for trial to the United States on charge of
attempting to set fire TO the ship. What
could be the functions Of such an officer, un-
ess they were such as are set forth in the
language of the statute itself, to discharge
he duties of the office of Consul at that
port? of which certifying to the shipments
)f mariners in foreign port is undoubtedly
,ne. But had the Captain desired TO have
complied with the laws of his country, there
was a Consul of the United States at Porto
Praya, neighboring port, allowing for the
arguments sake, the disability to exist for
he officer at Bravo, which is very question
ble. But uDder any view of the case, ad-
hitting that the respondent was at place
leyoid of all U. S. officials, and his ship seri-
,usly in want of men, it is my decided opin-
on that he should have made his contracts
With the parties before proceeding to sea,
While they were free agents and not yet un-
Ter the supreme control of the MASTER
1t is for this reason that l regard the con-
ract as of no value. The admiralty looks
With jealousy at such informal contracts
made with seamen under such cireumstan-
es. This is to say nothing of the vague
ess of the contract itself There is no i'm
tation of the time or place for which the en-
agement was made, and unless We are bound
o infer it from the expression 1-150 Jay, there
no description whether the voyage is to be
general trading and freighting voyage, seal
ng, pearl-diving or whaling voyage. The
ontract is unequal; he is to ship before
J. S. Consul trhen requested by the Captain
OF at the first U. S. Consular port as order
d by statute, thus leaving it optional with
be master to ever ship him at all. In point
{ fact the libellant remained on board this
hip nearly two years without the security
nd mutual obligations of shipment on the
rticles, and not until some ten days after the
hip had arrived in Honolulu, and after the
bellant had consulted counsel, did the Cap
hin request him to ship. | have doubts also,
neither the libellant even understood the
legged contract
The seaman not under articles is subject to
II the forfeitures imposed and rules fixed by
Ie maritime law, which is part Of the
Ommon law, yet he may not be bound by
ic regulations for the government of mar
lers, ezdctly as prescribed by the statute
ameson VS.. ship RegHlIs, Peters Adm, p.
l2. He is not outlawed and left without
~ control, but is required TO perform his
uties, and entitled to receive the benefits as