Secondly, that the provision for the transfer of the crew to another vessel in the same employ, was not in contravention of the statute:

Thirdly, that the provision for transfer was not limited to a transfer of the whole crew collectively, but that the articles constituted an agreement between the owners and each of the crew for himself, and consequently that the plaintiff was bound to serve under the original articles, and there was therefore no consideration for the master's promise to pay the increased yages: Fourthly, that there was no neglect or refusal by the defendants, without sufficient cause, to pay the plaintiff the wages really due, so as to render them liable to the penalty imposed by the

statute.

Held also, that the circumstance of the fresh articles not having been executed in the presence of a consular agent, was not an objection to their validity, provided they could have been set up.

THIS was an action brought by the plaintiff to recover from the defendants, the owners of two vessels named respectively the Custos and the Dauntless, 877. 18. 9d., the balance of a sum of 100l. alleged to be due from the defendants to the plaintiff for wages as a hired mariner and steward, and for double pay, under the 187th section of the Merchant Shipping Act, 1854, for neglect or refusal to make payment of wages within the time prescribed by the act, without sufficient cause. In the first count the plaintiff claimed certain wages due to him as steward of the Custos, and in the second wages as steward of the Dauntless. The declaration also contained counts for work and services and for *money alleged to be due from the defendants *513] to the plaintiff upon accounts stated between them. The defendants paid into court 671. 68. 9d., and, as to the residue of the demand, pleaded never indebted.

The cause was tried before Bramwell, B., at the last Summer Assizes at Liverpool. It appeared that the defendants were merchants trading to the west coast of Africa; and that the plaintiff, on the 27th of March, 1854, shipped on board the Custos (of 277 tons burthen), then lying at Liverpool, as steward for a voyage thence to the west coast of Africa and back, or for a term not exceeding three years, at the wages of 31. per month. The articles which the plaintiff signed, and which were in the form sanctioned by the Board of Trade, as required by the Mercantile Marine Act, 13 & 14 Vict. c. 93, contained amongst other terms the following:

"The several persons whose names are hereto subscribed hereby agree to serve on board the said ship, in the several capacities expressed against their respective names, on a voyage from Liverpool to the west coast of Africa, to trade in any ports, bays, or rivers therein, and back to a final port of discharge in the united kingdom, or for a term not to exceed three years: and the said crew agree to conduct themselves in an orderly, faithful, honest, and sober manner, and to be at all times diligent in their respective duties, and to be obedient to the lawful commands of the said master, or of any person who shall lawfully succeed him, and of their superior officers, in everything relating to the said ship and the stores and cargo thereof, whether on board, in boats, or on shore in consideration of which services to be duly performed,

the said master hereby agrees to pay to the said crew, as wages, the sums against their names respectively expressed, and to supply them with provisions according to the annexed scale: And it is hereby agreed that any *embezzlement or wilful or negligent destruction of any part of the ship's cargo or stores, shall be made good [*514 to the owner out of the wages of the person guilty of the same; and, if any person enters himself as qualified for a duty which he proves incompetent to perform, his wages shall be reduced in proportion to his incompetency: And it is also agreed that the regulations authorized by the board of trade, which in the paper annexed hereto are numbered 1 to 22 inclusive, are adopted by the parties hereto, and shall be considered as embodied in this agreement: And it is also agreed, that, if any member of the crew considers himself to be aggrieved by any breach of the agreement, or otherwise, he shall represent the same to the master or officer in charge of the ship, in a quiet and orderly manner, who shall thereupon take such steps as the case may require: And it is also agreed that no grog will be allowed: The crew, if required, to be transferred to any other ship in the same employ, and not to trade on their own account."

The plaintiff sailed in the Custos, and remained on board of her for some months. On the 12th of January, 1855, the plaintiff left the Custos, and, together with the master, entered on board the Dauntless (of 800 tons burthen), another vessel also belonging to the defendants, under fresh articles, with an advance of wages, viz., to 4l. per month; the new articles, however, not being signed in the presence of a consular agent, there being no constantly resident consular agent at the place where the transfer occurred. The plaintiff remained on board the Dauntless, doing duty as steward, until her arrival in England on the 22d of June, 1856. The plaintiff proved that he served in the capacity mentioned on board the Custos, and that he was induced by the captain's offer of the increased pay to transfer himself to the Dauntless.

*It appeared, that, on the arrival of the Dauntless at Liver[*515 pool, the plaintiff claimed to be paid wages at the rate of 41. per month for the period during which he had served on board the Dauntless. The defendants, however, refused to pay him more than at the rate mentioned in the articles under which he shipped on board the Custos; insisting that he was by those articles bound to give his services, if required, on board the Dauntless, that being a vessel in the same employ" as the Custos; and they declined to pay him even at the lower rate, unless he would agree to accept it as payment in full.

On the part of the defendants, it was objected that the captain had no authority to stipulate with the plaintiff for an increased rate of wages, and that there was no consideration for his promise to that

effect, the plaintiff being already bound by the terms of the original articles.

The learned judge directed that a verdict be entered for the plaintiff for 197. 158., being the difference between the 31. and 47. per month for the time he served on board the Dauntless, and 2l. 138. 4d., being the penalty under the 17 & 18 Vict. c. 104, s. 87, for the defendants' neglect or refusal without sufficient cause to make payment of the wages due,-reserving leave to the defendants to move to enter a nonsuit or a verdict for them, if the court should think that the plaintiff was not entitled to the increased pay, and that the penalty had not been incurred.

Brett, in Michaelmas Term last, obtained a rule nisi accordingly. He submitted that the contract under the articles was a separate contract between the owners and each seaman who signed them; that the plaintiff was bound by the articles he signed on shipping on board the Custos to serve for the stipulated period on *board any other *516] vessel in the same employ, and consequently that the master had no authority to make, nor was there any consideration for the making of, the subsequent articles,-citing Stilk v. Myrick, 2 Camp. 317, and Harris v. Carter, 3 Ellis & B. 559 (E. C. L. R. vol. 77). He also urged, that, inasmuch as the second articles were not signed in the presence of a consular agent, as required by the 160th section of the 17 & 18 Vict. c. 104, (a) they were void but upon this point no rule was granted, the court observing that the omission of that formality would not avoid the agreement, assuming that the master had authority to make it.

Edward James, Q. C., and Milward, on a subsequent day in the same term showed cause.-The plaintiff is entitled to retain his verdict for the full amount, or, if not, at all events, for the sum due to him for double wages for the ten days during which the wages legally due were withheld. The contract was for a voyage *from Liverpool to *517] the west coast of Africa and back to a final port of discharge in the united kingdom, or for a term not to exceed three years; and it contains the following stipulation,- The crew, if required, to be transferred to any other ship in the same employ." The Custos being on the coast of Africa, the captain was transferred to the Dauntless;

(a) Which enacts that "every master of a British ship who engages any seaman at any place out of Her Majesty's dominions in which there is a British consular officer, shall, before carrying such seaman to sea, procure the sanction of such officer, and shall engage such seaman before such officer; and the same rules as are herein before (s. 159) contained with respect to the engagement of seamen before shipping masters in the united kingdom shall apply to such engagements made before consular officers; and, upon every such engagement, the consular officer shall endorse upon the agreement his sanction thereof, and an attestation to the effect that the same has been signed in his presence, and otherwise made as hereby required; and every master who engages any seaman in any place in which there is a consular officer, otherwise than as herein before required, shall incur a penalty not exceeding 207. ; and if in any case the endorsement and attestation hereby required is not made upon the agreement, the burden of proving the engagement to have been made as herein before required shall lie upon the master."

and, desiring to have the plaintiff's services on board that vessel, he offered to increase his wages to 47. per month, in consideration of the increased duty which from the larger size of the vessel would be cast upon him; and the new articles were accordingly signed. It is clear that the service on board the Dauntless was not required of the plaintiff as a duty, otherwise no new articles would have been entered into. The main question here is, whether there is anything in the former articles to preclude the defendant from entering into this new engagement. It is submitted that there is not; for, the stipulation as to the transference of the plaintiff's services to another vessel, is inconsistent with the provisions of the 17 & 18 Vict. c. 104, and void as against the seamen; and, further, it applies not to individual seamen, but to a transhipment of the entire crew. The 149th section of the 17 & 18 Vict. c. 104, enacts that "the master of every ship, except, &c., shall enter into an agreement with every seaman whom he carries to sea from any port in the united kingdom as one of his crew, in the manner hereinafter mentioned; and every such agreement shall be in a form sanctioned by the board of trade, and shall be dated at the time of the first signature thereof, and shall be signed by the master before any seaman signs the same, and shall contain the following particulars as terms thereof, that is to say,-1. The nature, and, as far as practicable, the duration of the intended voyage or engagement: 2. The number and description of the crew, specifying how many are *engaged [*518 as sailors: 3. The time at which each seaman is to be on board or to begin work: 4. The capacity in which each seaman is to serve: 5. The amount of wages which each seaman is to receive: 6. A scale of the provisions which are to be furnished to each seaman: 7. Any regulations as to conduct on board, and as to fines, short allowance of provisions, or other lawful punishment for misconduct, which have been sanctioned by the board of trade as regulations proper to be adopted, and which the parties agree to adopt: and every such agreement shall be so framed as to admit of stipulations, to be adopted at the will of the master and seamen in each case, as to advance and allotment of wages, and may contain any other stipulations which are not contrary to law provided, that, if the master of any ship belonging to any British possession has an agreement with his crew made in due form according to the law of the possession to which such ship belongs or in which her crew were engaged, and engages single seamen in the united kingdom, such seamen may sign the agreement so made, and it shall not be necessary for them to sign an agreement in the form sanctioned by the board of trade." The 182d section, which was obviously introduced for the protection of seamen against improvident agreements, enacts that every stipulation in any agreement, inconsistent with any provision of the act, shall be wholly inoperative. It is true, that, as regards the voyage originally contemplated, these terms were complied

with; but the articles were manifestly inconsistent with the 149th section, and more especially with the second stipulation contained therein, as to the number and description of the crew. The transfer might be to a vessel for a totally different voyage; and the words "any other ship in the same employ" do not necessarily confine it to a vessel belonging to the same owners. The 150th section, art. 4, con*519] tains a provision as to transfer of services to another ship. The 156th section shows that the construction now contended for is the correct one it enacts, that, "in cases where several home-trade ships belong to the same owner, the agreement with the seamen may, notwithstanding anything herein contained, be made by the owner, instead of by the master, and the seamen may be engaged to serve in any two or more of such ships, provided that the names of the ships and the nature of the service are specified in the agreement; but, with the foregoing exception, all provisions herein contained which relate to ordinary agreements for home-trade ships shall be applicable to agreements made in pursuance of this section." Here, the agreement contains neither the name of the ship to which the transfer is to be made, nor the nature of the service which is to be substituted. The 160th section, which provides for the engaging of seamen in foreign ports, contains the same requirements as under s. 149. But, assuming that the plaintiff is not entitled to recover the larger amount claimed, he is at all events entitled to double wages for the period during which the defendants withheld the pay stipulated by the articles for the service on board the Custos, under the 187th section, which enacts that "the master or owner of every ship shall pay to every seaman his wages within the respective periods following, that is to say, in the case of a home-trade ship, within two days after the termination of the agree ment, or at the time when such seaman is discharged, whichever first happens; and in the case of all other ships (except ships employed in the southern whale fishery, or on other voyages for which seamen by the terms of their agreement are wholly compensated by shares in the profits of the adventure) within three days after the cargo has been *520] delivered, or within five days after the seaman's *discharge, whichever first happens; and, in all cases, the seaman shall at the time of his discharge be entitled to be paid on account a sum equal to one-fourth part of the balance due to him; and every master or owner who neglects or refuses to make payment in manner aforesaid, without sufficient cause, shall pay to the seaman a sum not exceeding the amount of two days' pay for each of the days, not exceeding ten days, during which payment is delayed beyond the respective periods aforesaid, and such sums shall be recoverable as wages." The mere fact of the plaintiff's claiming too much, did not absolve the owners from paying or tendering what was really due and here there was no evidence of any tender.