Chapter VII: Seamen. Shipping Contract

Shipping contract--how formed--how signed. Erasures and interlineations. Unusual stipulations.

By the law of the United States, in all foreign voyages, and in all coasting voyages to other than an adjoining state, there must be an agreement in writing, or in print, with every seaman on board the ship, (excepting only apprentices and servants of the master or owner,) declaring the voyage, and term or terms of time, for which such seaman is hired.[133] This contract is called the _shipping-articles_, and all the crew, including the master and officers, usually sign the same paper; it not being requisite that there should be a separate paper for each man. If there is not such a contract signed, each seaman could, by the old law, recover the highest rate of wages that had been given on similar voyages, at the port where he shipped, within three months next before the time of shipment.[134] By the law of 1840, he may, in such case, leave the vessel at any time, and demand the highest rate of wages given to any seaman during the voyage, or the rate agreed upon at the time of his shipment.[135] A seaman not signing the articles, is not bound by any of the regulations, nor subject to the penalties of the statutes;[136] but he is, notwithstanding, bound by the rules and liable to the forfeitures imposed by the general maritime law.[137]

[133] Act 1790, ch. 56, §1.

[134] Act 1790, ch. 56, §1.

[135] Act 1840, ch. 23, §10.

[136] Act 1790, ch. 56, §1.

[137] 1 Pet. Ad. 212.

These shipping-articles are legal evidence, and bind all parties whose names are annexed to them, both as to wages, the nature and length of the voyage, and the duties to be performed.[138] Accordingly, seamen have certain rights secured to them with reference to these papers. In the first place, the master must obtain a copy of the articles, certified to by the collector of the port from which the vessel sails, to take with him upon the voyage. This must be a fair and true copy, without erasures or interlineations. If there are any such erasures or interlineations, they will be presumed to be fraudulent, and will be set aside, unless they are satisfactorily explained in a manner consistent with innocent purposes, and with the provisions of laws which guard the rights of mariners. These articles must be produced by the master before any consul or commercial agent to whom a seaman may have submitted a complaint.[139]

[138] 3 Mason, 161. Act 1840, ch. 23, §3.

[139] Act 1840, ch. 23, §2, 19.

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.