Theft, etc., forfeits wages. Seamen cannot ship goods. Embezzle ment and injuries. the voyage, it is certain that wages are due to his representatives to the time of his death.-2 Pars. Mart. Law, p. 578. 2063. Desertion of the ship without cause, or a justifiable discharge by the master during the voyage, for misconduct, or a theft of any part of the cargo or appurtenances of the ship, or a willful injury thereto or to the ship, forfeits all wages due for the voyage to a mate or seaman thus in fault. 2064. NOTE.-Continued absence for forty-eight hours without leave is desertion by statute, yet desertion differs from absence without leave. If he deserts before the voyage begins, by not surrendering himself on board, he forfeits his advance wages and an equal sum in addition.-Sec. 2, Act 1790, Chap. 29, 1 U. S. Stats. at Large, p. 131. If apprehended and forced on board, this forfeiture is waived. May be apprehended if he deserts on the voyage, and for such desertion he forfeits all his wages and all his property on board the ship, unless he is received again on board, and he is liable to pay all damages and costs sustained by the owner hiring another seaman in his place.-1 Pars. Mart. Law, pp. 472, 473; Sec. 5, Act of 1790, supra: Spencer vs. Eustis, 21 Me., p. 519; Coffin vs. Jenkins, 3 Story, p. 108; Cloutman vs. Tunison, 1 Sumn., p. 373. A mate or seaman may not, under any pretext, ship goods on his own account without permission from the master. NOTE.-Code de Com., Art. 251. 2065. If any part of the cargo or appurtenances of a ship is embezzled or injured by the mate or a seaman, the offender, or, if it is not known which is the offender, all those of whom negligence or fault may be presumed, must make good the loss. NOTE.-Mariners are bound to contribute out of their wages for embezzlements of the cargo or injuries produced by the misconduct of any of the crew. This rule neither public policy nor the principles of justice extend to the contribution or forfeiture of wages beyond the parties immediately "in delicto." Those of the crew presumed guilty are sureties for each other.-3 governing 2066. The shipment of officers and seamen, and Law their rights and duties, are further regulated by Acts seamen. of Congress. NOTE.-See Appendix to Vol. I Pars. Mart. Law, pp. 505, et seq., and index thereto, for the various Acts of Congress; also, Acts forty-first Congress, 1870-71; Stats. at Large, p. 440, et seq. ARTICLE VI. SHIPS' MANAGERS. SECTION 2070. Manager, what. 2071. Duties of manager. 2072. Compensation. what. 2070. The general agent for the owners, in respect Manager, to the care of a ship and freight, is called the manager. If he is a part owner, he is also called the managing owner. NOTE.-The phrase "manager" takes the place of "husband." The term "ship's husband," heretofore used in the books, is discarded. He (may be and) is usually, but not necessarily, a part owner, and is the general agent of the owners in respect to the ship, and may be appointed, like other agents, by written instrument or orally.-1 Pars. Mart. Law, Chap. 4, Sec. 6, p. 97. In our statutes of registration, "husband" is called the managing owner.-Id., p. 99. manager. 2071. Unless otherwise directed, it is the duty of Duties of the manager of a ship to provide for the complete seaworthiness of a ship; to take care of it in port; to see that it is provided with necessary papers, with a proper master, mate, and crew, and supplies of provisions and stores. NOTE.-Chap. 4, Sec. 6, 1 Pars. Mart. Law, p. 98, it is said that " managers' (husbands') duties are determined by usage." 1 Bell Comm., p. 410 (4th Compensation. ed.): “They are, in general, to provide for the complete seaworthiness of the ship, take care of her in port," etc., as in the text. These duties are fully enumerated by Bell (1 Comm, p. 410, Sec. 428, 4th ed.; id., p. 504, 5th ed.): 1. To see to the proper outfit of the vessel, in the repairs adequate to the voyage, and in the tackle and furniture necessary for a seaworthy ship. 2. To have a proper master, mate, and crew for the ship, so that in this respect it shall be seaworthy. 3. To see to the due furnishing of provisions and stores, according to the necessities of the voyage. 4. To see to the regularity of all the clearances from the Custom House, and the regularity of the registry. 5. To settle the contracts, and provide for the payment of the furnishings which are requisite in the performance of those duties. 6. To enter into proper charter parties, or engage the vessel for general freight under the usual conditions, and to settle for freight and adjust average with the merchant. 7. To preserve the proper certificates, surveys, and documents, in case of future disputes with insurers or freighters, and to keep regular books of the ship. 2072. A managing owner is presumed to have no right to compensation for his own services. NOTE.-Benson vs. Heathorn, 1 Younge & C., p. 326; Smith vs. Lay, 3 Kay & Johns., p. 405. Voluntary interference with property. CHAPTER III. SERVICE WITHOUT EMPLOYMENT. SECTION 2078. Voluntary interference with property. 2079. Salvage. 2078. One who officiously, and without the consent of the real or apparent owner of a thing, takes it into his possession for the purpose of rendering a service about it, must complete such service, and use ordinary care, diligence, and reasonable skill about the same. He is not entitled to any compensation for his service or expenses, except that he may deduct actual and necessary expenses incurred by him about such service from any profits which his service has caused the thing to acquire for its owner, and must account to the owner for the residue. NOTE. In 1 Hilliard on Torts, Chap. 3, p. 77, it is said: "He who interferes with my goods, and without delivery by me, and without my consent, undertakes to dispose of them as having the property general or special, does it at his peril."-Per Sewall, J., Gillis vs. Chase, 10 Mass., p. 128. The text is founded in and made for a class of cases beyond and without the rule of implied contracts for services performed with the consent of the owner, or when the owner receives to his use the benefit of the service or labor; it also contemplates a waiver of the tort and an action in assumpsit for its value. When this is done the defendant is only entitled to that which may be properly termed a recoupment, in case injury, in the place of benefit, had been done the thing or property constituting the subject of the action. 1 Hilliard on Torts, Chap. 1, Sec. 35, treats of the class of cases for which the text has been adopted. It is there said: "Unlike most of the cases of violation of express or implied agreement, the technical phrase, waiver of tort, refers to a claim for pecuniary compensation under an implied contract growing out of the wrongful act of the defendant itself. And it may be stated in general terms, that when one man wrongfully takes another's property and turns it into money, or money's worth, the latter, although having a clear right to maintain an action as for tort, may waive the tort and sue in assumpsit for money had and received." The right of waiving a tort is held to continue under the New York Code of Practice.-Voorhies' Code, p. 18, Sec. 7. When waiver of the tort is implied.-See 1 Hil. on Torts, id., Chap. 1, Sec. 37, and cases cited in notes. A Judge of high authority in Massachusetts (Jackson, J., in Cummings vs. Noyes, 10 Mass., p. 435), says: "It has been long established that the owner of goods tortuously taken, may, in many cases, waive the tort and sue as sounding in contract." "It is," he says, "competent for him to treat the party liable to his action as a purchaser, an agent, or a bailee." 2 Greenleaf Ev., Sec. 108, and ample note (with numerous cases there cited), sustains this position. The rule of the text goes further, and allows expenses to one who adds to the value of the property or thing, not exceeding such increase in value, which in such cases is not improper. Salvage. 2079. Any person, other than the master, mate, or a seaman thereof, who rescues a ship, her appurtenances or cargo from danger, is entitled to a reasonable compensation therefor, to be paid out of the property saved. He has a lien .for such claim, which is regulated by the Title on Liens. NOTE.-Bouvier, in his Law Dictionary, defines "salvage" to be "a compensation given by the maritime law for service rendered in saving property or rescuing it from impending peril on the sea, or wrecked on the coast of the sea, or in the United States on a public navigable river or lake where inter-State or foreign commerce is carried on."-1 Sumn. C. C., pp. 210, 416; 12 How., p. 466; 1 Blatchf. C. C., p. 420; 5 McLean C. C., p. 359; see Baker vs. Hoag, 7 N. Y., p. 557; 2 Pars. Mart. Law, p. 595, et seq., on the subject of salvage generally, and cases there cited in notes. |