The Niphon's Crew

WOODBURY, Circuit Justice. In this case, as no freight has been earned, it is well known that the general rale is, no wages are to be paid. Moll. 245; 1 Sid. 228; 2 Show. 291; 3 Salk. 23; 3 Hagg. Adm. 96. But there are various exceptions to this as a gen-ere 1 rale, and the chief inquiry is, whether, on the facts of the present case, it can be brought within any of those exceptions. The important principle on which the rule rests shows the ground of most of the exceptions. It rests on the idea that if a cargo be on board to be carried safely and saved in peril, the crew should be induced to use all possible exertion to save it, by making their wages in such a case depend on its being actually preserved, and thus freight earned on it. Hence originates the quaint maxim that “freight is the mother of wages.” Some have incautiously added, it is “the only mother of wages.” If it was the only one there is no ground whatever for the present libel, as it is not pretended here that any freight whatever was earned. What, then, are the other sources or reasons for wages beside earning freight? They seem to me -to rest on service performed, and an inability to earn freight, in consequence of some wrong or neglect by the owner or his agents. In such cases the owner should not take advantage of his own misfeasance or nonfeasance; and the sailor performing his whole duty, so far as regards his own exertions, a&ff successfully, should be compensated. A brief retrospect of some of the exceptions to the general rale will show whether the present case can be brought within the principles which govern them; and also whether any of them go further than I have suggested, and, as is contended here for the libellants, make the owners liable for wages on the contract of hiring and ordinary service alone, without reference to the conduct of the owner, or the saving of any part of the freight or vessel when in peril. Among the exceptions where wages are allowed, though no freight is earned, is where no cargo is put on board so that freight might be earned. Not earning it, then, is the neglect or fault of the owner; and consequently such a case constitutes one of the exceptions to the general rale. See cases, post, and Edw. Adm. 118, 119; Curt. Merch. Seam. 271, 284, 287; Laws Wisbuy, art. 17; 3 Hagg. Adm. 202; 2 Hagg. Adm. 158. This rests not merely on the original contract as the mother of wages, but on the service and freight not earned by the misconduct or act of the owner, and of which he is estopped to fake any advantage. It would be making the exception the general rale to hold the contract in all cases to be' the mother of wages, unless you considered it an implied portion of every contract of this kind, that it should be so performed when a cargo was on board as to earn' freight. Then the contract might well be regarded as the general source of wages, and still the same result follow as if freight was so regarded. As an exception, owing to carelessness of the owners, or the case at times coming within the general rule of some freight earned, they are personally liable for wages when the vessel and cargo have been condemned, and their proceeds restored at some subsequent period. Sheppard v. Taylor, 5 Pet. [30 U. S.] 699, 711. No matter whether the vessel and cargo are restored, or their proceeds, after condemnation as the lien which before existed for wages “reattaches to the thing, and to whatever is substituted for it.” [Sheppard v. Taylor] 5 Pet. [30 U. S.] 710; Pitman v. Hooper [Case No. 11,185]. In several other classes of cases, though no freight is actually earned, this circumstance is attributable to the owners, rather than the crew, and then the latter are not to bear the loss of wages. They may then be recovered of the owners, if. for instance, the latter are guilty of a wrongful deviation from their [277] contract or voyage before the loss, or guilty of a contraband trade, or of driving the crew away by cruelty, or engaging, without their previous knowledge and consent, in any illegal voyage; or by running in debt, and subjecting the ship to payment of it. 1 Hagg. Adm. 238; [Sheppard v. Taylor] 5 Pet. [30 U. S.] 687; Edw. Adm. 122; The Malta, 2 Hagg. Adm. 158; The Saratoga [Case No. 12,355]. In short, wages are payable whenever freight is lost by the fault or fraud of the master or owner. 3 Kent, Comm. 187; Hoyt v. Wildfire, 3 Johns. 518; The Malta; Wolf v. The Oder [Case No. 18,027]; Cowen, 158. But here, as a cargo was on board, and it was here impossible to earn freight, and there was no interposition or neglect, or other misconduct by the owners to prevent the carrying of freight, the general rule applies in full force not to pay wages without it. And no statute exists here making an exception; and no exception by adjudged cases has been referred to or can be found which reaches the circumstances of the present case, unless a part of the vessel was saved by the exertions of these libellants, so as to entitle them to wages in the nature of salvage. Having considered the established exceptions to the general rule, and seen that none of them, or the principles of them, apply to the present case, I will now proceed to the inquiry, how, on principle or precedent, the saving of a part of the vessel can entitle a crew to recover wages, though freight was entirely lost by the loss of the cargo on board, and though no misbehavior or neglect occurred on the part of the owners to produce the loss. There has been, to be sure, in modern times, an increased tendency to allow wages, but it should be when it can be done without weakening the principle that takes the lead in and governs this subject. Thus, if wages are due because part freight has been received, or earned, or part of the cargo has been saved, so as to earn some freight, however small, full wages must be paid, Pitman v. Hooper [supra]; 3 Hagg. Adm. 199; 2 W. Rob. Adm. 52. Some cases seem to hold (The Reliance [2 W. Rob. Adm. 120]; 3 Hagg. Adm. 19, 58) that the owner is, in case of part of the cargo saved, not only liable, but that the seamen may proceed against the cargo itself. This last is very doubtful, however, unless the cargo was owned by the person who owned the vessel. Again, where in a round voyage freight has been earned out, and not back, the law is indulgent so as to pay wages out of it; and such is the rule also when freight has been separately earned to intermediate ports, at which the vessel touches on her way out or home. 3 Hagg. Adm. 201; 1 Hagg. Adm. 232. Or, at times, it is allowed to the last port of discharge, and half the time running there. Thompson v. Faucett [Case No. 13,-954]; Pitman v. Hooper [supra], and cases cited; The Juliana, 2 Dod. 504; Abb. Shipp. 740; Bronde v. Haven [Id. 1,924]; Curt. Merch. Seam. 207; The Two Catherines [Case No. 14,288]; 3 Greenl. Ev. 1; 1 Keb. 831; 3 Salk. 23. All clauses to the contrary in the shipping articles are likewise considered void, from regard to the confiding sailor, so much the ward of a court of admiralty. 2 Dod. 504; 3 Kent, Comm. 6, 194, 195; 6 Wm. IV. c. 19, § 5; Edw. Adm. 119; Pitman v. Hooper [supra]. In some countries, by statute, the law has of late been expressly altered, and wages required to be paid, though the cargo and ship be lost, and no freight earned, if a certificate be obtained from an officer that the crew did their duty faithfully to save the vessel and cargo. Edw. Adm. 123; 7 & 8 Viet., c. 112, § 17. But here no such statute exists, though ODe might not be unjust, where the weather-beaten sailor proves true to duty to the last, and more especially if the owner has, as here, insured his freight. Having no such statute here, our power to consider it so, standing with or without insurance of freight, is too questionable for justifying the adoption of such a course without legislative sanction after the pursuit of a different course for ages. In The Lady Durham, 3 Hagg. Adm. 201, Sir. John Nieoll refused to do it, unwilling, as he said, “to violate a principle and rule of law, whatever may be the hardship on the seamen.” The court there declined to pay wages out of the insurance of freight by the owner, where freight was not earned, nor prevented by the owners. How can the saving of a part of the vessel change any of these principles? The wages were not stipulated to depend on that, nor did the ancient usage make them depend on that, when it was the cargo or freight saved or secured, which was to secure wages, and not the ship. To be sure, when wages were earned by earning freight, or failing to earn it only by the neglect or fault of the master, the crew could resort to the vessel, even to the last nail or plank, for payment. Relf v. The Maria, [Case No. 11,692], note; 7 Taunt. 319; The Saratoga [supra]; Edw. Adm. 121, 128; The Neptune, 1 Hagg. Adm. 233-239. So they could resort to the freight when obtained, as a fund liable to them, and so to the owners who employed them, if wages are earned. But the lien or remedy does not usually extend to the cargo itself, neither to the cargo or its proceeds, as they belong usually to a different person. The Riby Grove, 2 W. Rob. Adm. 59, 713; Edw. Adm. 119. See Act. Cong. July 20, 1790 [1 Stat. 131]; The Lady Durham, 3 Hagg. Adm. 200. And if the cargo be owned by the owners of the vessel, and it is safely carried to its place of destination, freight is virtually earned, though not eo nomine, and wages are justly due within the principle of the general rule. 3 Kent. Comm. 149. But the vessel, as a security and a remedy for wages otherwise due, and not as a mother or cause of wages, if [278] saved, is also looked to in all countries. Curt. Merch. Seam. 313;, The Eastern Star [Case No. 4,254], The error seems to me to have been, in some cases, to regard the vessel, when saved in part or in whole, as giving a title to wages; when it is freight earned, or prevented by the owner from being earned, which consummates the title, and the vessel saved furnishes merely some additional security for payment, and in some cases means of rewarding exertion by salvage. Thus, in modern times, if only a small portion of the ship be saved in a shipwreck, it has been subjected towards the claims of the crew in the form of salvage, though no freight was earned. Curt Merch. Seam. 287; 3 Kent, Comm. 196; The Two Catherines [supra]; The Saratoga [supra.] But in such case the crew must have continued by the wreck, and contributed to save it; and the allowance is not on the old contract or hiring, but on this new service. Lewis v. Elizabeth and Jane [Case No. 8,321]; Adams v. The Sophia [supra]; The Reliance, 2 W. Rob. Adm. 121. Sometimes it is treated or talked of as a receiver of wages in consequence of greatfidelity, though no freight is earned, but this seems a misnomer. It is merely salvage and not wages; but whether paid as salvage or wages it does not extend beyond the value of what is saved. The Neptune, 1 Hagg. Adm. 237; 3 Mass. 563; 7 L. R. 532; The Dawn [supra]. It was -held in the case of Taylor v. The Cato [Case No. 13,7S6,] that the crew may recover an equivalent for wages from a vessel saved by them, like salvage, and not go to the owner for it, but to the rem. If all is lost seamen lose all, salvage as well as wages. But if a part of the ship is saved by the crew, they, as a sort of partners, have the first lien on it for salvage. Relf v. The Maria [supra]; The Mary, 1 Caines, 180 [Farrel v. M’Clea] 1 Dall. [1 U. S.] 392; The Nathaniel Hooper [Case No. 10,032]. The books speak of attaching this claim to the last plank saved. But this may at times be figurative, and not the small things of which lex non curat. It should mean to embrace something of value towards payment, which must therefore be beyond mere costs and charges. Figurative or not, however, it appears better on principle if not precedent, to treat the claim as salvage, where no wages have, by the general rule, or any of its established exceptions, been earned. The precedents on this point accord with this principle. And though some of them speak of wages as well as of salvage, yet they all agree in not extending the amount allowed beyond the value of what is saved, which is the rule in salvage and not in wages. In Frothingham v. Prince, 3 Mass. 563, it was held that if enough of the ship was saved to equal the wages, they should be paid, though no freight' had been earned. As this case cited no precedents, and gave no reasons, it‘would not, standing alone, be entitled to much weight. Accordingly, in The Saratoga [supra], it was considered that the decision was an anomaly so far as regards wages, and could only be sustained as an allowance, for salvage exertions, equal in amount and value to the wages. Afterwards, however, in Englatid and this country, much caution has been given to this doctrine, as to wages or salvage. In The Neptune, 1 Hagg. Adm. 239, the court allowed wagesíj» be recovered to the extent of the value of that part of the vessel saved, but no further. 3 Hagg. Adm. 202. Some cases in the courts of the United States have since gone quite to the same extent. Two Catherines [supra]; Pitman v. Hooper [supra]. See Bronde v. Haven [supra] and The Easter Star [supra], also, let in all these the exception must probably rest on the fact of the property being saved by the exertion of the crew, and not saved by others, and not claimed justly by others as salvage. See cases before cited. The case of The Reliance, 2 W. Rob. Adm. 123, is supposed by the libelants to have gone further, and to have held that if a part of the vessel was saved by the others the crew had a remedy against it or the owners for wages. But though the court there seemed very favorable to the claim made by a widow of one of the crew, and when her husband had been lost in the exercise of efforts to save this very vessel; yet they do not seem inclined to go beyond the previous case of The Neptune, in 1 Hagg. Adm. And the conclusion w'as rested on the fact that the deceased did in truth contribute by his exertions before'his death to save a part of the vessel, though others afterwards added their exertions, and thus finished the work of saving something. In the present case no part of the vessel itself was saved, and no special exertion shown to stop a leak which had broken out. But the crew thereupon abandoned her, and were taken off by another vessel. The other vessel took with them from the wreck a chronometer and certain charts, which have beeen sold since, and the proceeds given to the libelants; but some compasses, sails, and a boat were taken off at the same time by the other vessel, and retained and claimed for salvage as well as a gift from the master. Considering that these articles were saved entirely by the exertions of another vessel and crew, who are entitled to salvage, and that the captain acquiesced in their taking and keeping them on that account, and that their small value of one hundred dollars would scarcely pay the cost and expenses of libeling them, it is difficult to discover any equitable or legal claim on them by the plaintiffs. On all these considerations, cases, and facts, then, the conclusion seems safest, to which the court below arrived, dismissing the libel, and the decree there must consequently be affirmed. Footnotes [2] [From 13 Law Rep. 266.]