Isaac G. Harding vs. Laban Souther & others, 12 Cush. 307

Shaw, C. J. Though this action involves but a small amount in money, it is one, we presume, interesting to the large class of persons in this part of the commonwealth, engaged in the sea fisheries. It is an action brought by the plaintiff, as cook of a vessel engaged in the mackerel fishery.

It being agreed in the statement of facts, that the plaintiff' was engaged by the skipper, or master of the vessel, at the rate of thirty dollars per month for the season, and that he performed the voyage, the master being the agent of the owners, the legal conclusion would seem to be, that the plaintiff is entitled to maintain his action. Two grounds are taken in defence, 1.

That Elijah Foster, skipper, as the master of a fishing vessel is usually called, took the entire vessel for the season, and so became owner pro hac vice, and thus by a well-known exception to the general rule which holds the general owners liable, exempts them from liability for seamen’s wages and other charges of navigation, whilst such exclusive employment and special ownership continue. But the court are of opinion that by the facts agreed, and especially by the shipping paper, which is put in, and which makes part of the case, there was no such agreement as to make the skipper owner pro hac vice.

Such a temporary suspension of the liability of general owners arises only, when they have let out their vessel, for a term of time, to another party, giving him the entire control for the time being, to employ the vessel in such voyages and enterprises as he sees fit, to engage and employ seamen, and pay all expenses incident to the navigation. But, in the present case, there was no such letting of the vessel. The shipping paper is a common document, such, we presume, as is required by the law of the United States, between the owners, skipper, and crew, for a mackerel voyage.

The master had the usual powers and privileges of a skipper, and no others; and his relations Doth to the owners and crew are to be governed accordingly. This agreement provides for the distribution of the proceeds of the voyage, amongst the owners, skipper, and crew.

And a most significant provision, showing not only an interest, but the entire control over the voyage as owner, is the stipulation of said Souther as owner, with the master and fishermen, that he will render a just and true account of the sales of all the fish which may be delivered to him by the master, and will account with the master or with each fisherman for their respective shares or proportions. This contains a clear implication that all the fish are to be delivered to the owners, who are to sell them and account to the various fishermen entitled to the proceeds, in the proportions stipulated.

The crew are, therefore, in fact, to be paid in money, from a fund to be raised by the owners, by the sale of the entire fare of fish. They are, therefore, paid by the owners and paid in money; but instead of being paid according to the time occupied, as in the ordinary case of seamen’s wages, they are paid in the aggregate, a certain proportion to the whole fare taken and brought in, and this is distributed amongst the individual fishermen, according to the number of fish taken by each, of which an account is to be kept.

The enterprise, therefore, was conducted, as usual in fishing voyages, on account of the general owners, and has none of the features of a case, in which one takes the entire vessel on shares, or at a specific charter, to man, victual and manage, at his own discretion, in which the hirer becomes owner for the time being. 2.

The other ground of defence taken is, that as the cook is mainly employed in providing for the wants of the skipper and crew, and .is, in effect, their servant, and as the cook’s wages are by the established usage of the business a charge upon what is called the small general charges, and so comes out of the shares of the skipper and crew, therefore, the skipper and crew, and not the owners, are to pay him those wages. But we think this is not a just or legal conclusion.

In order the better to understand the subject, it is necessary to look at the actual relations of the parties, as they appear by the shipping articles, and the usages of the business.

In this department of industry it has been, we believe, the policy of those engaged in it, a policy encouraged by the government of the "United States, so far as they have any control and jurisdiction over it, to stimulate the exertions of all those actually engaged in the pursuit of fishing, by making the compensation of each depend on "the number of fish he may individually take; and this again must depend upon the actual degree of skill he may acquire, and the industry with which he applies it.

But it is obvious that this cannot extend to the cook, as a large part, perhaps the greater portion of his time is necessarily employed in preparing food for the crew. And although he may be employed occasionally in fishing, his compensation cannot be equitably compensated by paying him in proportion to the fish caught by him. We find, therefore, by the general usage, that his compensation is fixed by monthly wages, which are a charge upon the small generals. The fishing articles then provide how the distribution of the whole is made, and these accounts called the great generals and the small generals are formed.

It is stipulated that from the whole net proceeds of the sale of the entire fare of fish, are to be deducted the expense for the general supplies, commonly called the “ great general charge; ” of the residue, three tenths are to go to the owners, and the residue to and among the fishermen, including the master, in proportion to the number of fish by them respectively caught.

In another clause of the articles, it is stipulated that the master is agent, &c., to engage a crew, to settle with the owner or agent, and receive from him or them the net proceeds of the voyage, and give a receipt therefor in their behalf, and after paying the “small general charge” against the crew, he shall divide the balance, &c. From these provisions several conclusions may be drawn.

We find that the cook’s wages, being a charge upon the shares in money coming to the skipper and fishermen, comes from that same common fund, from which all the other persons composing the crew are paid, the sales of the fish ; and this fund is, in the first instance, placed in the hands of the owners.

It is further manifest., that although the money for the fishermen and the cook is to be divided by the master, yet in doing this service, he is the agent between the owners and the crew, to pay á sum for which the owners are the debt* ors, and the crew the creditors, and the individual members of the crew, including the cook, have no legal claim upon the master as a contracting party with them. But there is a stipulation as above recited on the part of the seamen, that the master shall be their agent to receive their shares and give a receipt in full.

In the first place, being agent to receive of the owners, the implication is strong that the owners are those who are to pay. Again; if the owners had in fact paid over the wages of the plaintiff to the master for his use, in good faith, and the master had squandered it, this might raise a grave question, which party should lose it.

But it is proper to remark, that in such cases, such clauses in the articles are construed with great strictness, not to say jealousy, by courts of justice, in protecting the rights of seamen; and the good faith of the owners, who would defend against a claim of the seamen on that ground, would be very strictly scrutinized. But it is manifest, that an authority from the seamen to the master to act for them in receiving their dues and giving acquittances to owners, is a naked authority, coupled with no interest, and, therefore, is always revocable before executed.

In the present case, there is no suggestion that the master has received the plaintiff’s wages from the owners under this authority, and no such acquittance is relied on; on the contrary, the defendants have maintained that they were not liable as owners, and that the legal claim of the plaintiff was on the master, or master and fishermen, to whom, or on whose shares the small general charges are placed, in stating the accounts. There is one further clause in the articles, which may be considered as requiring a remark.

It is that in which it is provided that the owner or agent is not holden for any wages due on said voyage, unless by special agreement made with the owner or agent.

Here such a special agreement was made, and made in pursuance of a general usage, arising out of the necessities of the occupation, that a cook should receive wages; it being also found, as an equitable qualification of this rule, that an account is kept of all the fish the cook may-take in the intervals of his appropriate occupation, and the net proceeds then are credited to the account of small general charges, so that the master and fishermen are in effect charged with no more than the actual cost of the services of the cook.

The court are of opinion that although the cook’s wages in making up the accounts, are thrown directly upon the shares of the crew, yet this does not make the master and crew debtors to the cook for them, but leaves the owner to pay them or cause them, through the master, to be paid out of the fund placed in their hands for this purpose, and not having been paid, this action well lies against the owners. Judgment on the agreed facts for the plaintiff.