Disputes between Masters, Officers, and Crew.

over disputes between masters, officers, and crew, except a permissory one.

173..Exclusive jurisdiction in such cases has been conferred by treaty or convention with several powers, as previously enumerated in these regulations.

174....It is also conferred in the more-extended jurisdiction given by the treaties and conventions with various Oriental powers, as already stated.

175..In some cases this jurisdiction is limited to disputes about wages. In other cases it is extended to all disputes, whether growing out of tort or contract. Consuls are referred to the terms of the treaties or conventions in each case for the extent of their jurisdiction. A copy of each may be found in the appendix.

176..In China, Japan, Siam, Borneo, Madagascar, Tunis, and Tripoli, this jurisdiction is also extended to all criminal offenses committed by citizens of the United States.

177..The form of proceeding should be as simple and summary as the nature of the case and justice to the parties will allow.

178..The complaint upon which any proceeding is founded should be verified by the oath of the person making the complaint.

179..Due notice of the cause of the complaint and of the time of the hearing should be given to the adverse party, and all other persons in interest.

180..On the day of the hearing the defendant should be required to answer in writing, under oath, or be adjudged in default.

181.. At the hearing each party should have an opportunity to cross-examine the witnesses produced by the other party, and to testify himself, on oath, if he wishes.

182..The Consul will render such summary judgment as the case may require, and may order that each party shall pay his own costs, or that one party shall pay all the costs in his discretion.

183..The costs shall be at the rates named in the tariff of fees, with $5 for each day or part of a day actually occupied in the hearing; but no hearing is to be extended beyond one day, unless absolutely necessary.

184..If the dispute relates to wages, the Consul will bear in mind the following principles:

185..The general rule in regard to the wages of seamen is, that

Disputes between Masters, Officers, and Crew.

such wages on board of merchant ships are payable out of the earnings for freight; and if no freight is earned, by reason of the perils of the sea or capture by the enemy, and not by the fault or neglect of the master or owner, no wages are due.

186.. The maxim that "Freight is the mother of wages" is a formula which, though it has obtained general currency, is to be carefully scrutinized in its application. A distinction is to be made between those accidents by which the voyage is interrupted and the freight lost, without the fault of the owner or master, and other causes arising from the acts of the owner or master.

187..If the voyage or freight be lost by the negligence, fraud, or misconduct of the owner or master, or voluntarily abandoned by them; if the owner has contracted for freight upon terms or contingencies differing from the general rules of the maritime law; or if he has chartered his ship to take a freight at a foreign port, and none is to be earned on the outward voyage-in all these cases the mariner is entitled to wages, notwithstanding no freight has accrued.

188..Where freight is, or might be, earned, wages are due for the full period of employment in the ship's service, whether the freight is actually received by the owner or not. No private contract between the owner and the shipper, with regard to freight, can affect the right to wages.

189..If the vessel and cargo are lost on the outward voyage, before any freight is earned, and no part of either is saved by the crew, the wages of the seamen are also lost, and the original contract therefor is annulled, but the advance wages are not in such case to be returned.

190..If the vessel is lost on the homeward voyage, and freight has been, or might have been, by the general principles of law, earned to an outward port, the wages for the outward voyage to that port are deemed to have been earned. No abatement is to be made from the wages in case of the freight being partially lost or diminished by maritime accidents or perils.

191..If freight is earned, whether it be large or small, the whole wages which are deemed to have been earned are to be paid without deduction.

192.. When the vessel is lost between intermediate ports, the

Disputes between Masters, Officers, and Crew.

wages are to be calculated up to the last port of the delivery or receipt of cargo, and for half the time that the ship lies there.

193.. Where a voyage is divided by various ports of delivery, a claim for proportional wages attaches at each of such ports of delivery upon safe arrival; and all attempts to evade or invade that title, by renunciations obtained from the mariners without any consideration, by collateral bonds, or by contracts inserted in the body of the shipping articles, not usual, not fully explained to these illiterate and inexperienced persons, are ineffectual and void.

194.. In some of the conventions or treaties with foreign powers (as will be seen by reference to the text of them in the appendix) the Consular Officer of the United States is authorized to require the local authorities to render forcible aid, and to imprison the crew, if he deems it necessary.

195..He may also in some cases call upon them to render forcible assistance for the preservation of order and keeping the peace. 196.. Reference is made to each particular treaty or convention for the powers of the Consuls in each case.

197..Consular Officers will not ask for such aid unless absolutely necessary. General forms for requests for the arrest, detention, and release of seamen in such cases may be found in Nos. 24 and 25.

198..If it be asked, and denied, they must claim all the rights conferred upon the representatives of the United States by the treaty or convention, and communicate at once with the Diplomatic Representative of the United States in the country, and with the Department of State.

199.. All trials of disputes between masters, officers, or crew, and all calls for assistance, should be promptly reported to the Department of State.

ARTICLE XV.

Desertions.

200..Desertion is the quitting of the ship and her service by one of the ship's company, without leave, against the obligation of the party, and with an intent not again to return to the ship's duty.

201..A casual overstay of leave is not a desertion. The Consular Officer will be careful to inquire on this point, as sailors on shore frequently overstay their leaves of absence. He will also be

Desertions.

careful to inquire whether a reported desertion has been fraudulently favored or permitted by the master for the purpose of avoiding payment of extra wages upon a regular discharge of the seamen. 202..In the absence of a treaty or convention with the power in whose dominions the Consulate is situated, a Consular Officer has no authority to claim of right the return of the deserter. In such case the return is sometimes made as a matter of comity, and to prevent the deserter from becoming a charge upon the community.

203..It is the duty of all masters or commanders, when a desertion occurs, to note the fact and date of the desertion on the list of the crew, and to have the same officially authenticated at the port or place of the Consulate or Commercial Agency where it takes place, if possible; if not, at the Consulate or Agency of the port or place first visited by the vessel after such desertion, if it shall have occurred in a foreign country. (Form 26.)

204..It has already been stated that, by treaties or conventions with several powers, authority has been conferred upon Consular Officers to demand the assistance of the local authorities in the arrest of deserters.

205..In making the demand for such assistance the Consul will, in each case, carefully note the provisions of the particular treaty or convention under which he acts, and will make the proceedings conform to it. (For a general form see No. 27.)

206..In case of refusal he will at once communicate all the facts, with copies of the correspondence, to the Diplomatic Representative of the United States in the country, and to the Department of State.

207..In all cases where deserters are apprehended, the Consular Officer shall inquire into the facts; and, if satisfied that the desertion was caused by unusual or cruel treatment, the mariner shall be discharged, and receive, in addition to his wages to the time of the discharge, three months' pay; and the officer discharging him shall enter upon the crew list and shipping articles the cause of discharge, and the particulars in which the cruelty or unusual treatment consisted, and subscribe his name thereto officially.

208..The benefits of the law are sometimes imperatively invoked, as in the case of a mariner driven from his ship by intolerable treatment-treatment proceeding sometimes from reckless cruelty, and

Desertions.

sometimes, as is believed, with a design to make the seaman leave his vessel when his services have ceased to be of value for the completion of the cruise. But, in meeting the requisition of such unfortunate seamen, Consular Officers are cautioned so to use the funds appropriated by Congress as not to encourage sailors to break their shipping engagements from a confidence that in so doing they do not forfeit their claim to relief and protection at the hands of Consular Officers.

ARTICLE XVI.

Wrecks.

209.. By the third section of the act of Congress of April 14, 1792, Consular Officers, in cases where ships or vessels of the United States shall be stranded on the coast of their respective Consulates, are required, as far as the laws of the country permit, to take proper measures, as well for saving such ships or vessels, their cargoes and appurtenances, as for storing and securing the effects and merchandise saved, and for taking an inventory or inventories thereof; and the merchandise and effects saved, with the inventory or inventories, must, after deducting therefrom the expense, be delivered to the owner or owners. But no Consular Officer is permitted to take possession of any such goods, wares, merchandise, or other property, when the master, owner, or consignee thereof is present, or capable of taking possession of the same.

210..In the execution of the duties prescribed by this part of the act, every Consular Officer is instructed that all vessels, parts of vessels, and any portion of their cargo belonging to citizens of the United States, saved and brought into the consular jurisdiction after being wrecked, or in consequence of any disaster at sea, are to be proceeded with in the same manner as if the vessel had stranded within the consular jurisdiction; and if salvage be claimed and allowed by a competent tribunal, the remainder of the effects, or the proceeds thereof, if sold, shall be disposed of in the same manner as is directed in Article XX of these instructions respecting the estates of persons dying intestate; provided, in the case of salvage, that the court deciding the same will permit the Consular Officer to receive the effects and remainder of the property after the salvage is paid.