The following text may have been generated by Optical Character Recognition, with varying degrees of accuracy. Reader beware!

JANUARY 16, Ig02. SHIPPING AND MARINE JUDICIAL DECISIONS. . SEAMENS’ WAIVERS. Hughes’ “Handbook of Admiralty Taw,” p 21, ascribes the importance of “I'he Contracts of Seamen,” and the at- tention given to them by courts, not to the dementia of the “skillful hands” that should “manage complicated machinery,” but to the need of having a ship “intelligently handled,’ “the man behind the gun formidable;” say- ing that “on this account the utmost encouragement to seamen” is “the estahlished policy of the law.” Hence it is that “as the courts have been liberal in the construction of the word ‘ship,’ they have been equally so in deciding what constitutes a ‘seaman’ in the modern sense. ‘The term is not limited to those who actually take part in the navigation of the ship,” and Mr. Hughes refers to section 4612 R. S., as defining a “seaman” to be “every person who shall be employed or engaged to serve in any capacity on board” any vessel; and adds, p. 23: “In order to pro- tect a seaman from imposition, «he statutes render void any agreement by him waiving any remedies for his wages.” The duress of persons under command, rather than their ignorance, the secret menaces against them by influ: ences invisible and powers dark—are greatly responsible for much of the principle. It is interesting to know that, even Rear Admiral Schley, though counselled hy Mary- land’s Attorney General, was recorded by the Court of In- quity as entitled to rights of a seaman. ‘The entry was in what was cipher to the uninitiated, and has a history. President Andrew Jackson sent this message to the Twenty-Third Congress: ‘To the Speaker of the House of Representatives: I sttbmit for the sanction of Con- gress proposals approved by me. ‘These, if adopted in the form of laws, appear well suited to the present and future exigencies of the Navy. Proposal No. 5, Sec. III. ‘Under the existing law it has been decided that if from any cause the number of members of a court martial who may assemble on any day after the proceedings are com- menced are less than five, the court is by that fact: dis- solved. It is proposed to allow a smaller number to-ad- journ from day to day for a certain time, as in many cases it might be highly useful’”—No. 545, H. R., 23rd Cong, Ist Sess. This “existing law” designated a legal trial as one which consisted of at least five members who sat “from day to day, Sundays excepted, until sentence” was “given” fArt. 39 and 45, Sec. 1624, R. S.) If such a trial was not given the accused, or if he was not present at such a trial, no sentence against him was valid. But not even for Andrew Jackson would Congress change the law. Hence we find in the Navy Regulations of 1865, p. 225, the paragraph (1238) that “if from any cause, after a court shall be sworn, the member or members required by the law to form a court shall not assemble on the day to which the court was adjourned, and the court, by that fact. should be dissolved, the proceedings up» to the period of dissolution and the fact of the dissolution itself, must be transmitted,” etc. The object of this peculiar statute was stated at length in the N. Y. Maritime Register of October 16, 1901, under the title “Interesting Old Records in Washington lLibraries,’—typographical errors of which article will be found corrected on page 10 of Oct. 23d’s issue. It was designed to secure not only a “speedy” but an “impartial” trial; 6 Op. 207. From the time a naval court is summoned and its members announced, they are at least liable to be the target for secretly given hostile aspersions and wuncrossexamined, unsworn testimony against an accused, quietly poured into their ears by per- haps well-meaning persons. If they may disperse and de- lay proceedings at their option, the opportunities become greater for insidiously whispered tales. So slight a de- lay as a day may thus make the difference between acquittal and conviction, life and death, to some accused.’ Hence Hickman on Naval Courts Martial, p. 20, says that “the adjournment of the court over one day would render the sentence void.” When members are pressed to hasten their proceedings, to keep at work, ‘their attention is en- gaged and the chances for outside testimony is reduced to.a minimum. By confining their attention to the trial daily, some security is gained against any tampering with the jury. here is a subtle meaning in the record of the Schley Court of Inquiry, that the “members thereof assembled daily since Monday, November 11, with the exception of Sundays,’ etc., while “deliberating” This entry was made by the Judge Advocate I,emley, (Art. 58, Sec. 1624, R.S.) whom the N. Y. Maritime Register ‘of Oct. 16, 1901, told that the Barron Court of Inquiry in 1807 testified to its wish to be fair by a similar entry. ‘The same treatise told him also of the “Memorial” of Midshipman F. Green, in 1830, to the ‘I'wenty-First Congress; Green’s court martial got jurisdiction over him December 5, 1827, because, so said its “minutes,” it “convened November 1, 1827, pur- suant to a warrant of the Secretary of the Navy, and was continued by adjournment from day to day till the 5th day of December.” On December 5 Green was arraigned, being tried until December 7. ‘The recital that jurisdic- tion was attained on December 5, 1827, only by daily con- f‘inuances from November 1, was approved by President John Quincy Adams (American State Papers, Naval Affairs, vol. 2, p. 133; vol. 4, p. 530.) But this statute governs only courts martial—which “try” and “sentence,” not courts@hat merely “examine and inquire,” (Art. 4o, -58, Sec. 1624, R. S.) *With President Dewey’s court it was only a common law duty, so to speak, to hold daily sessions. Yet, notwithstanding its most irksome sittings, ‘the besieged of the vociferous bombardment from Sep- tember to “November 11” never asked Schley to waive Bmw se re onan on s Aa tn nn THE MARINE RECORD, © “daily assemblies,” to give it a vacation, and no one even suggested that he could do so. Schley’s right was a sea- man’s right, the right of a man under known and un- known duress, and what he might yield to did not count. Tow little appearances do count in support of a sea- man’s alleged waiver, how little possibly superior intelli- gence in the seaman should avail, is illustrated in a case. where a naval court martial lost jurisdiction by running off the track of this Art. 45, Sec. 1624, R. S. The ac- cused, M., an officer, was absent throughout the whole of one day’s session of the court, while it was “proceed- ing” in his “case” only. ‘That session was entitled on the record as the “Twelfth Day” “of the proceedings of the general court martial convened in the case of” M. If the court had demanded M’s presence he would have been present. The session was necessary to the continuity of the court’s jurisdiction. This, the record confesses; for it omits to record more than the bare meeting of the members, at inconvenience to them all, at the early, un- usual, unofficial, non-jurisdictional hour of 8 a. m. This session (like the remainder of the proceedings against M) was held in a chapel of a navy yard, while M. was Ixept. in arrest nearly a mile and a half away on a receiving ship. By colliding with the breakfast hours of the pro- vost martial and M., and necessitating. an earlier rising than usual and long abstinence from breakfast (until re- turn from the 8 a. m. meeting) M’s health, then fragile, might have been shocked or impaired possibly so -seri- ously that he could not attend to: his “defense,” which the court required him to prepare that very day. ‘The earli- ness of the meeting was caused by an insufficient excuse —the desire of some of the members for an idle outing trip on a steamboat. It cost M. his presence at the trial and. the pleasure of an after-breakfast three-mile walk.in the fresh air. He certainly :lid.snot assent to all this. Had he filed a written protest the resultant, ugly mood of - members deprived, by the-record’s exposure, of a pleasure jaunt, could not have helped his cause. No other protest of his was recorded than this: “Eleventh Day. At the re- quest of the accused the President then said that the ac- cused would be excused from attending the meeting to- morrow.” Were absence of an accused from any session permitted “other charges” than those within the jurisdic- tion of the court as defined by Art. 43, Sec. 1624, R. S., might be “urged,” charges unwritten’ and unrecorded on the ground that they were “interlocutory questions” (Svc. 270 of the regulations designated in 116, U. S., 180).,A sentence might be partly or wholly founded on such. Ih Weirman ‘vs. U. S: 36° Cl) where the showed that Weirman, a landsman in the navy, was “ab- sent during the whole of one day’s proceedings in his case,” the Court of Claims contributed this to the law of sgamen’s- waivers : ’ “The petition, probably with intent to put the whole case before the court, concedes that the claimant and his counsel (who was a naval lieutenant) would have. been permitted to be present had either applied for leave, and that neither objected to the absence of either, and neither was present; that the assembling of the court. martial on that day was otherwise in conformity to order. The ques- tion therefore, presented, is whether the absence of a prisoner or his counsel for one day during the sitting of a court martial without request to be present or objection . to the court’s sitting without the presence of the prisoner renders the sentence of the court void.” Citing various decisions the Court held that it was void where the ac- cused was charged with disobedience in supposed viola- tion of Art. 4, Sec. 1624, R. S., and liable to be sentenced as provided by that statute. This is the law governing proceedings for breach of statute, but as a seaman’s status approaches that of a person under arrest, such a decision as that of Crain vs. U. S., 162, U. S. 644, is pertinent. This reads: “In Hopt vs. Utah, 110 U. S., 570, this court, observing that the public has an interest in the life and liberty of an accused, said; ‘that which the law makes es- sential in proceedings involving the deprivation of life and liberty, cannot be dispensed with or affected by the consent of the accused.’.” Washington, D. C. ror or or EASTERN FREIGHT REPORT Messrs. Funch, Edye & Co., New York, report the con- dition of the Eastern freight market as follows: There is no special feature regarding the freight market, ‘rates in all directions remaining practically the same. ‘The list of cotton charters this week shows a larger volume of business, but the rates accepted in most cases are without change. Charterers do not show any disposition to take up any further tonnage for January loading, and with the cotton season drawing to a close, we do not anticipate much further tonnage. The transac- tions reported for coal cargoes show an increase, but the fixtures advised in this issue are mostly for West Indian ports, and doubtless are to cover contracts made ahead. Another fixture for case oil is reported for Bombay, but the rate accepted, viz.: 15c. is on the basis of previ- ous charters. Business from the Gulf remains stagnant, and there is little or no demand on the part of shippers to make further commitments. There is no business of any consequence for sailing ves- sels in our market, which continues slack, and as the sup- ply is considerably in excess of any likely requirements, rates are barely quotable. Grorck F. Ormsry. petition . (COLLABORATED SPECIALLY FOR THE MARINE RECORD. © Damages.—Libelant shipped as seamen for a voyage to Alaskan ports and return. On reaching a port in Alaska they refused to further perform their contract, and’ an- — nounced their intention to leave the vessel on the ground — that she was unseaworthy and unsafe. The master pro cured a warrant from the commissioner, tinder which libelants were arrested and imprisoned until the vessel left, when they were returned on board. ‘They served during the remainder of the voyage, and were then discharged and paid in full. ‘They were, in fact, not justified in their at- tempt to quit the vessel, and the master acted in good © faith and under legal advice; neither he nor the attorney having knowledge that the law permitting such procedure had been repealed. their; illegal imprisonment. Rep. (U. §.) 767. Injury to Servant.—Negligence of Fellow Servant.— Plaintiff was fireman on defendant’s steamboat, and while at work the water gauge became cracked. On discover- ing’ it; the engineer directed plaintiff to turn the valves and — shut off the water, and while doing so- plaintiff was in-— jured by the explosion of the gauge. The glass was not apparently defective, and it was shown that gauges were liable to break at any time, in which case the engineer made repairs by taking out the broken glass and substi- tuting a new one, a supply being kept on hand for the purpose: Held, That the duty of making repairs of such character was not one which devolved on the master, so as to niake the engineer defendant’s representative in making the same, but was one of the ordinary duties of the engineer as a servant, and that his negligence in: directing plaintiff to shut off the water without warning him of the — danger was‘ that of a co-servant, for which defendant was. not responsible. Manning vs. Genesee River & L. O Steamboat Co., 73 Ni Ys pUpp. 077... : Carriers—Insufficient Accommodations of Steamship— Action for Death of Passenger.—Libelant’s intestate pur- chased: tickets for passage, meals, and berths for himself, wife, and daughter on :respondent’s steamship from a lake port in Canada. On presenting them, he was told that berths could not be furnished, not having been reserved, and the vessel having an extraordinary number of passen- gers, owing to its being the close of the summer season, when an unusual number of passengers were returning from the lake resorts. He insisted on going, and was then told that if he would accept a cot or mattress for him-. self, his wife and daughter would be furnished with a berth. He accepted the offer, and the officers procured a number of mattresses from a dealer, one of which he took, and on whiclr he slept. On reaching port the next-morn-~ ing, he was taken with a chill, which developed into- pneumonia, from which he died a few days later.. Suit was brought under the Canadian statute civing a right of action for wrongful death, it being alleged the death was caused by the dampness af the mattress; no claim being made on the ground of breach of contract. . Held, that under the facts shown, respondent was not chargeable with negligence, the officers of the vessel having done all that was reasonably possible to meet an extraordinary emer- gency, but that in accepting the accommodation offered, with knowledge of. the conditions existing, deceased as- sumed whatever risk was involved. Van Anda vs. Rau Nav. Co. of Ontario, Limited, 111 Fed. Rep. (U. ») 765. Excessive Speed in Fog.—The steamer George W. Rcby. going up Lake Huron in a dense fog, heard fog signals some three miles ahead, which proved to be from the Florida passing dawn. She checked speed to four or five miles, which the evidence tended to show was not as low as she might have reduced and maintained steerageway. She continued to hear the fog signals, which were ap- proaching and apparently keeping the same bearing, from one to three points off the port bow. When the vessels were some half a mile apart she blew two passing signals, of one blast each, at intervals, which were unanswered, and she then blew an alarm. There was a confusion of signals, but a passing agreement of two whistles was finally established, each vessel thinking such signal first came from the other. The Roby, on answering the sup- posed passing signal from the Florida, starboarded and reversed her engines, but had not lost her headway when she struck the Florida and sunk her. The Roby had a lookout, but he was not on duty, the only lookout being the master on the pilot house, who was also engaged in navigating the vessel, giving the signals, and blowing his fog whistle by hand. Held, that the Roby was in fault, (1) for not reducing speed to bare steerageway, as re- quired by Rule 15, (2) for not maintaining a proper look- out, and (3) for not stopping and reversing, at least as early as the time when her second passing signal was not answered; since the fact that the bearing of the Florida as the vessels approached each other apparently remained unchanged should have advised the master that her course was drawing nearer his own, and that in proceeding he was running risk of collision. The George W. Roby, 111 Fed. Rep. (U. S.) 601. Held, that under the circumstances, libelants would be awarded $10.00 each as damages for — The South Portland, 111 Fed. .