CIRCUIT COURT, U. S.-MASSACHUSETTS.

The SARATOGA.-Keating, Claimant.

October, 1814.

[Of the effect of capture and detention, upon the contract between master and seamen, whether the latter are bound to wait a first adjudication-The seamen's wages are lost when the voyage is defeated and no freight earned. The seamen, having been employed by the master to refit the vessel in a foreign port, were allowed a part of their wages for the time they were so employed, although the voyage was lost The seamen having been dis charged in a foreign port, and the two months' wages, directed in that case to be paid to the consul, for their use, not having been paid, a libel was sustained for the same here.]

THE libellants shipped, as mariners, on board the ship Saratoga, on a voyage from Boston for Amelia Island, at and from thence to a port or ports in Europe; and at and from thence to her port of discharge in the United States. The ship sailed from Boston in October 1811, for St. Mary's, where she took in a cargo, and from thence proceeded to Portsmouth, in England, where her cargo was discharged. The agents of the owners having engaged a cargo on freight, at Londonderry in Ireland, for the United States, the ship sailed in ballast for that port, on the 23d of April 1812, and on the 26th of the same month, was captured by the French privateer Espadon, and carried into Roscoff in France, for adjudication. Prize proceedings were there instituted against the ship, and her hatches sealed, and all the crew, except the mates, who were permitted to remain on board, were sent to Morlaix, as prisoners. In August 1812, the captain came down from Morlaix with all the crew, excepting three, and by permission they were there employed fifteen days in tarring the rigging, and other ship's duty, and at the end of that time the crew returned to Morlaix. The ship was restored to the captain by order of the court, and taken possession of by him, on or about the first of January 1813. On the 4th of the

same month, the crew came on board and went to work, graving and painting the ship; and on the 7th of the ensuing February, the ship sailed for Morlaix, and arrived in the roads there on the same day; but did not get up to the town until the first of March following. The crew remained and slept on board until about the middle of July, in the same year, doing duty as required by the officers, and then left the ship, with the consent of the captain and the American consul, and sailed in a cartel for the United States. During the time of detention under the prize proceedings, the crew were principally maintained by the French government, and the expense, at the restitution, was made a charge on the ship. The crew, frequently during their residence in France, applied to the captain for their wages and discharge. The captain as often told them, that they might go where they pleased, but he had no money to pay them their wages, and they might, if they pleased, arrest the ship, and he would not oppose them. But they did not choose to leave the ship without payment of their wages, and the captain, from time to time, permitted them to go on shore and work, whenever they could get employment. He seemed, however, to have exercised his control over them, and declared, that if they worked on board of the cartel, before their discharge, their wages would be forfeited.

After the discharge of the crew, the Saratoga was finally made a cartel, to carry prisoners to England at a stipulated price; and from England she came with prisoners to the United States, where she arrived on or about the second of September, 1813. For this last voyage, no compensation had as yet been received.

The libellants had been paid their full wages up to the time of the ship's departure from Portsmouth; and now claimed wages from that time to the time of their discharge in France; and, in addition, the two months pay provided by statute of the 28th of February 1803, ch. 62, sect. 3, in cases of the discharge of seamen in foreign ports.

STORY, J. (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 farther 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. (a) The reason or policy of the rule is alleged, in 1 Siderfin 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 be 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. (b) 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 it has the weight of the authority of Bynkershoek (c) to support it. Roccus (d) 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. Cleirac seems silently to adopt the regulations of the ordinance of Philip 2d, as reasonable, (e) 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

(a) Abbot on Shipping, p. iv. ch. 3, § 1. Hoyt v. Wildfire, 3 John. R. 518. Dunnett v. Tomhagen, 3 John. R. 154.

(b) Hoyt v. Wildfire, 3 John. R. 518. Hindman v. Shaw, Peters' R. 264. Brig Cynthia, Peters' R. 203. Peters' R. 136, note. Abbot, p. iv. ch. 2, § 5. Malyne, 105. Molloy, book 2, ch. 3. §7. Moran v. Bandin, Peters' R. 415, Roccus de Nav. n. 43.

(c) 2 P. J. ch. 13.

(d) De Nav. n. 43.

(e) Cleirac, Judg. de Oleron, Art. 19, § 3.

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. (f)

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 a 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. (g)

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 de ciding, 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 (h) it is clear, that the mariner is not bound to 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. It would often expose the owner to a loss 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

(f) Pothier, Louage des Matelots, 179, &c. 198–203. See also Abbot, p. iv. ch. 2, § 6.

(g) Beale v. Thompson-4 East R. 546 Brooks v. Dow, 2 Mass. R. 39. (h) Brig Elizabeth, Peters' R. 128—and see Lemon v. Walker, 9 Mass. R. 404.

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 were 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 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 actually performed it, there can be no doubt, that the mariners would have been entitled to their full wages during the whole time of service. (i)

But, at the time of the restoration of the ship, war existed between Great Britain and the United States; and the farther prosecution of the 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 farther performance of the contract. (k) 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 after its commencement, no freight is payable. And the same rule is applied to cases, where the voyage is lost by accident or superior force. (1) 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. (m) If, indeed, there be a voluntary acceptance of the cargo at an inter

(k) Abbot p. III. ch. 11- 3.-Scott v. Libby, 2 John. R. 336-The Tutela, 6 Rob. 177.

(4) Osgood v. Groning, 2 Camp. R. 466. Liddard v. Lopes, 10 East 526.— Scott v. Libbey, 2 John. R. 336. Abbot p. III. ch. 7, § 5. Id. ch. 11 § 3. The Hiram, 3 Rob. 189.

(m) Richardson v. Maine Ins. Com. 6 Mass. R. 102–118.