The Saratoga

STORY, Circuit Justice, (after reciting the facts). The question for the consideration of the court is, whether the libellants are entitled, under all the circumstances of the case, to any wages beyond what they have already received; and if so entitled, for what period wages are to be allowed? It is argued, on behalf of the respondents, that the libellants have no further claim for wages, no freight having been earned, and the voyage having been, by the capture and subsequent declaration of war between Great Britain and the United States, completely broken up and defeated. The general rule is often asserted, that to entitle the seamen to wages, freight should be earned on the specific voyage, for which they engage; and that if, by any disaster happening in the course of the voyage, the owners lose their freight, the seamen also lose their wages. Abb. Shipp, pt. 4, c. 3, § 1; Hoyt v. Wildfire, 3 Johns. 518; Dunnett v. Tomhagen, Id. 154. The reason or policy of the rule is alleged, in 1 Sid. 179, to be, that if, in case of the loss of the ship by tempest, enemies, &c. the mariners were to receive their wages, they would not hazard their lives for the safety of the ship. The rule itself also is not without exceptions; if the voyage or freight bo lost by the negligence, fraud or misconduct, of the owner or master, or voluntarily abandoned by them; if the owner have contracted for freight upon terms or contingencies differing from the general rules of maritime law; or if he have chartered his ship to take a freight at a foreign port, and none is to be earned on the outward voyage; in all these cases the mariners are entitled to wages, notwithstanding no freight has accrued. Hoyt v. Wildfire, 3 Johns. 518; Hindman v. Shaw [Case No. 6.514]; Giles v. The Cynthia [Id. 5.424]; Relf v. The Maria [Id. 11,692]; Abb. Shipp, pt. 4, c. 2, § 5; Maylne, 105: Moll. De J. Mar. bk. 2, c. 3, § 7; Moran v. Baudin [Case No. 9,785]; Roccus, De Nav. note 43. Reasonable however as the rule may seem to be, under these limitations, to those who are conversant with the maritime law of England, it does not seem to have obtained the universal sanction of the commercial world, though ii has the weight of the authority of Bynkershoek (Quaest. Pub. Jur. c. 13) to support it. Roccus (De Nav. note [480] 43) holds, that wages are due, notwithstanding the voyage is not performed, if it happen from any fortuitous occurrence, and the mariner is not in fault. Cleirae seems silently to adopt the regulations of the ordinance of Philip IX. as reasonable (Cleirae, Jugemens d’Oleron, art. 19, § 3), and Pothier considers that maritime contracts, subject to few exceptions connected with the French ordinances, are governed by the same principles as other contracts of hire, and consequently that if, after its commencement, a voyage be defeated by accident, or superior force, the mariners are entitled pro rata for their term of service (Poth. Du Louage des Mate-lots, 179, etc., 19S, 203). See, also. Abb. Shipp, pt. 4. c. 2, § G. It has been argued, that the capture put an end to the contract for wages, and therefore that no services, performed afterwards, can entitle the libellants to recover wages upon the footing of that contract. Admitting that capture, followed up by condemnation, would extinguish such contract, still such effect cannot be attributed to a capture, where there has been a recapture or restitution. And notwithstanding some contrariety of opinion, it may be safely affirmed, that such capture operates, at most, but to suspend the contract, and that by restitution or recapture, the parties are remitted to their former rights in the same manner, as if no such interruption had occurred. Beale v. Thompson, 4 East, 546; Brooks v. Dorr, 2 Mass. 39. See Weskett, Ins. tit. “Wages,” art. 11. It has been further argued, that by the capture the relation between the owners and mariners ceases; so that the latter are not bound to remain by the ship, but are at liberty, without the imputation of desertion, to abandon the voyage. Without deciding, whether the rule assumed-in some of our own courts be not more reasonable, that the mariners are bound to remain by the ship until a first adjudication (Bordman v. The Elizabeth [Case No. 1,657]. And see Lemon v. Walker, 9 Mass. 404; Weskett, Ins. tit. “Wages,” 11; 1 Strange. 403; 1 Term R. 73). it is clear, that the mariner is not bound jo leave the ship. He has a right to remain by her. and wait the event. If restored, he is entitled to his wages, if the ship proceed and earn a freight; if condemned, he may lose his wages, though perhaps, under circumstances, with a recompense for his actual services, pending the prize proceedings. And this doctrine seems founded in the interests of all parties. It would, indeed be highly injurious to commerce, to establish, that in every case of capture, upon whatever pretence, or however unfounded, the mariners were obliged immediately, without waiting the event, to quit the ship in a foreign port.2 It would often expose the owner to a lóse of the voyage, from the difficulty of obtaining a new crew, or to extraordinary expense in securing his property. On the other hand, the mariners would be no less exposed to inconvenience. They might be turned ashore without money or credit, in a foreign country, against the manifest policy of our laws. It would seem fit, therefore, to hold, that a contract entered into by mutual consent should not be dissolved unless by that consent, until such proceedings weie had, as left no ordinary hope of recovery in the original tribunal of prize. Upon the principles, then, which have been stated, the capture did not dissolve the contract for wages; at most, it was but suspended during the prize proceedings, the event of I which the parties had a right to await; and ' by the subsequent restoration of the ship, the contract revived in its full force, and remitted the parties to their former character ■ and rights. If the ship had then been in a | condition to perform her voyage, and had ac- ' tually performed it, there can be no doubt, l that they would have been entitled to their I full wages during the whole time of service, i Beale v. Thompson, 4 East, 546. But at the I time of the restoration of the ship, war ex- : isted between Great Britain and the United i States; and the further prosecution of the i voyage was not only impracticable, but highly criminal in both parties. The legal effect, therefore, of such an interdiction of commerce, was to absolve both parties from any further performance of the contract. Abb. Shipp, pt. 3. c. 1, § 3; Scott v. Libby, 2 Johns. 336; The Tutela. 6 C. Rob. Adm. 177. The question then arises, whether a loss of the voyage, in consequence of an interdiction of commerce after its commencement, deprives the owner of his freight or the mariners of their wages? ¡ It seems to be a doctrine of our law, that if ' a voyage be broken up. by an interdiction of commerce with the port of destination, aft- , er its commencement, no freight is pas’able. i And the same rule is applied to cases, where the voyage is lost by accident or superior force. Osgood v. Groning. 2 Camp. 466; Liddard v. Lopes. 10 East. 526; Scott v. Libby, 2 Johns. 336; Abb. Shipp, pt. 3. c. 7. § 5; . Id. c. 11. S 3; The Hiram, 3 O. Rob. Adm. ; 180. In short, the principle seems to be, that ' there must be an actual delivery of the cargo . at the port of destination, to entitle the party to his full freight. Richardson v. Maine Ins.; Co., 6 Mass. 102-118. If indeed, there be a [481] voluntary acceptance of the cargo at an intermediate port, and a dispensation of proceeding further, then a pro rata freight is due. Luke v. Lyde, 2 Burrows, 883; Liddard v. Lopes, 10 East, 526; Osgood v. Groning, 2 Camp. 466. In these respects our law appears to differ from the maritime law of other countries. Roccus (De Nav. note 54; Id. note 81) declares, that if the ship has begun her voyage, and from accident is prevented from completing it, freight is payable for the part of the voyage actually performed. This also is the opinion of Straecha (De Nav. pt. 3, § 24), and seems, with some distinctions, to be adopted in the maritime regulations of France (Poth. Gharte Par tie, notes 68, 69; 1 Emer. 544; 1 Valin, Comm. 656). Indeed, in the case of an interdiction of commerce after the voyage is begun, the full freight for the outward voyage is allowed. Emerig, 544; 1 Valin, Comm. 656; Poth. Charte Partie, note 69. If we pass from the consideration of freight to that of wages, we shall find, as I have already stated, that foreign writers do not consider that wages are wholly lost, but recoverable pro rata itineris, where the voyage has been in part performed, and its further accomplishment has been prevented by inevitable casualty or superior force. As to an interdiction of commerce with the port of destination, occurring in the voyage, Cleirac (Jugemens d’Oleron, art. 19, §5 3, 4) adopts, with apparent approbation, as conformable to the civil law, the regulation of Philip II., that the mariners shall, in such case, receive a quarter part of the wages agreed upon for the whole voyage (Dig. lib. 19, tit. 2, 1. 15, § 5). The French ordinance (Des Loyers des Matelots, art. 4) declares, that, in the like case, the mariners shall be paid in proportion to the time they have been in service, and this, Pothier says, is conformable with the general rules of the contract of hire (Poth. Du Louagedes Matelots, 180; 1 Va-lin, Comm. 688). No ease has been cited, in which this point has been settled in our own courts; and, as far as I have been able to ascertain, after a pretty diligent search, it yet remains for a decision in our maritime law. But if the doctrines already settled in relation to freight are to apply, and it seems impossible to distinguish them, the interdiction of commerce must be deemed to dissolve the contract, and leave the mariner without any title to wages pro rata itineris peracti. Indeed, the moment it is held, that, where freight by the general law is not earned, wages are not due, the case falls directly within the authorities, which have been already examined. My opinion as to this point, therefore, is, that war existing at the time of the restoration of the ship, and the further prosecution of the voyage being illegal, the original contract was completely dissolved, and up to that time no further wages were due. If the case had rested here, the claim for wages must have been repudiated. But the mariners, with the consent of the master, came on board, and did duty from the time of the restoration of the ship, until their final discharge. It was clearly competent for the master to hire and employ a crew for the preservation and equipment of the ship, and the services so performed cannot, by any reasonable construction, be referred back to a contract, which then had no legal existence. The libellants then must be deemed to have gone on board, and to have done duty, under an implied contract to receive a reasonable recompense, in the nature of wages, pro opere et labore. Upon the footing of this new contract, I have no difficulty in sustaining their claim for wages, during the time of their con-nexion with the ship after restoration. Full wages, however, ought not to be given for this period, because the services performed or required were not equal to the usual services in the progress of the voyage. In case of detention, under the arrest of a sovereign, the French ordinance (Des Loyers des Mate-lots, art. 5; Valin, Comm. 6, 190) provides, that the mariners hired by the month, shall be entitled to a moiety only of their wages during such detention. Under all the circumstances of this case, I shall adopt this as an equitable rule, and shall decree wages accordingly. The next question that arises is, whether the libellants are entitled to the two months pay under the act of the 28th of February, 1803, c. 62? The third section provides, that whenever an American ship shall be sold in a foreign country, or an American seaman shall, with his own consent, be discharged in a foreign country, the master of the ship shall pay to the commercial agent of the United States, for every seaman so discharged, three months’ pay, over and above the wages due to such seaman, two thirds thereof to be paid to such seaman on his engagement on board of any vessel to return to the United States, and the remaining third to be retained for a fund to relieve destitute American seamen. I agree with the counsel for the respondents, that the cases here alluded to are cases of voluntary discharge, and not cases, where the discharge has resulted from inevitable necessity or superior force, such aw a total loss by capture, tempest, or other fortuitous occurrence. But I can, by no means, admit, that the present ease comes within the exception. The ship was in a capacity to return home, or perform any lawful voyage, and, at the time of the discharge, the libellants weré attached to her service. The ease falls, therefore, within the words and the mischiefs of the statute; and though the money is required to be paid into the hands of a public agent for the use of the libellants, yet as. they did all the acts, which gave them a perfect title to it, and it was not paid, this court will enforce their title directly against those, who were circuitously compellable to pay it. The two months' wages. however, are to be calculated, not on the [482] original wages; but on the wages growing out of the new contract of hire. See The Two Catherines [Case No. 14.288]. See, also, The Neptune, 1 Hagg. Adm. 227. Before I close this opinion, I will advert to one or two considerations, which have been thrown out in the argument It has been argued, that if the seamen were entitled to wages, they were bound to contribute towards the expenses of procuring the release of the ship, as a general average. But I know of no rule of law, 'which subjects the seamen to contribution in such a case. The general doctrine is, that they do not contribute to general average. The only admitted exception is in case of ransom, and, perhaps, by parity of reasoning, of recapture. Abb. Shipp, pt. 3, c. 8, § 14; Id. pt. 4, c. 3, § 2; The Friends, 4 C. Rob. Adm. 143; 1 Emer. 642; 1 Valin, Comm. 752, 701. If the doctrine were otherwise, it would not apply to the present case; for the wages to contribute must be those, which are saved by the expenses incurred; and not the wages accruing under another contract. Here the very subject matter for contribution was totally lost It has been argued, on the other side, that a capture of a neutral by a belligerent differs from capture by an enemy as to its effects; that it either affords prima facie evidence of illegal conduct in the neutral, which subjects him to condemnation, and such conduct ought not to affect seamen, who are innocent parties; or such capture is wrongful, and the owners are entitled to damages equivalent to the freight. It might be a sufficient answer to this argument, that no such distinction, as to legal effects, has as yet been recognised; and so far as authorities proceed, they indiscriminately apply to neutral, as well as enemy’s captures; and further, that if the voyage be not performed, and freight be not in fact allowed, by way of damages, upon restitution, which may arise without any default of the owner, he would be compelled to pay wages, where the • general law had. as a case of the vis major, exempted him. The case also of Frothingham v. Prince, 3 Mass. 563 (same case cited 2 Dane, Abr. c. 57, § 3, p. 462), has been pressed upon the court, as a direct authority to prove, that the payment of wages does not depend upon the earning of freight, if the ship, or any of her materials equal to the wages, remain after the voyage. That case is very imperfectly reported. I have, however, examined the original record, and from a memorandum on it, I find the full wages for the homeward voyage were allowed, although the cargo was totally lost by shipwreck, and the ship herself was so much injured, that the materials sold for little more than the wages. No reasons are given for this decision, and, perhaps, it may have turned, as the defendant’s counsel have suggested, upon the ground, that under the circumstances, the seamen were entitled to a salvage equal to their wages. Coffin v. Storer, 5 Mass. 252: Abb. Shipp, pt. 4. c. 2. § C. If. however, it be incapable of this explanation, as I confess, from the examination of the record, I think may admit of question, the most that can be said is, that it is a single case standing alone against the current of authority. Decree of the district court reversed. Footnotes [2] In the Ordinances of the Hanseatic Towns, art. 49. we find the following provision in rehi- ! tion to this subject: “If the ship is arrested in j a foreign country, or the master is obliged to ] wait for his freight, or to tarry from any other i cause; during all such delay, the seamen shall i bo nourished as usual, but without having any pretence or demand for extraordinary wages: ■ and if they are entitled to any thing, they shall ¡ be paid at the port, where the ship shall dis-i charge, according to the award of experienced : men and common friends. But if any seaman i shall be so bold, as to abandon the ship upon i this pretext, he shall suffer a corporal punish- ; ment, according to the exigency of the case."