captain's adventure, and an adventure by Archer Fairfield, the amount of which does not appear.

A supercargo, or assistant, as he is called in the orders, was on board, and the master was instructed to advise with him, "in every part of the transactions of the voyage." The ship sailed from Salem 2d August, 1809; and after touching at Cagliari, proceeded to Naples, where she arrived 13th Sept. 1809; the master and supercargo having inferred, from information received at Cagliari, that they might go to Naples with safety. The ship was immediately put under quarantine. On the 21st Sept. while under quarantine, the unloading commenced by the master's order, and was continued until the 25th. The goods unladen were taken to the custom-house stores. On the 25th, the master, having heard a report that his ship and cargo were under sequestration, stopped the unloading of the cargo; but the officers of the customs required him to send ashore what was then laden into boats, and urged him to discharge the residue. This the master refused to do, suggesting the necessity of retaining what remained on board as ballast, and as a necessary security for the ship. Orders to complete the unloading of the cargo were frequently repeated, and insisted on as a condition of the master's receiving the pratique, which is understood to be a certificate of conformity to the quarantine regulations. This document was received for the ship, 13th Oct. after the quarantine had continued one month, and for the goods, one month afterwards, Nov. 13th. On the 10th Nov. the whole residue of the cargo was discharged, by peremptory orders from the officers of the customs, which the master could no longer evade. The evidence produced, gives no further account of the property until 4th Jan. 1810, when the cargo was advertised for sale, and was sold accordingly at public auction on the next day, "on account of the royal treasury." On the 3d Jan. certain officers of the Neapolitan government, entered on board the ship, unhung the rudder, took an inventory of the provisions and furniture, and sealed the hatches, leaving express orders, that they should not be opened without permission from the customhouse. On the 12th March 1810, was published a decree of JOACHIM NAPOLEON, king of the Two Sicilies, confiscating thirty American vessels, of which the Hercules was one, "in conformity to orders given from Paris," 2d Dec. 1809. Such of

the cargoes of these vessels as had not been sold, as well as the ships, were directed to be disposed of at public or private sale, as should be judged most conducive to the royal interests; and the proceeds of the sales were ordered to be deposited in bank, to be employed as the king should judge to be convenient.

Notwithstanding these proceedings, the master of the Hercules was not dispossessed of his ship, but the crew lived on board, on the ship's provisions. The confiscated ships were necessarily sold, as suited the views and convenience of the government, and captain West was in constant expectation of a similar fate. In June 1810, he made an arrangement with a merchant at Naples, (Mr. Broadbent) for assistance in the purchase of the ship at the appraised value, and to perform a voyage with her to Sicily on that gentleman's account. While this project was in train, viz. 16th June 1810, a written contract was entered into between captain West and his crew, including the libellants, by which they engaged to remain on board under his orders until he should be deprived of his command, or the ship should commence loading, in consideration of a small daily allowance for their support, and to proceed on whatever voyage should be proposed, at the monthly wages expressed in the contract. Before the contemplated arrangement with Mr. Broadbent was definitively settled, proposals were made to captain West by an officer of high rank, to proceed with the ship to Civita Vecchia, and there take in freight for Philadelphia. For this service an offer was made to give him the ship and papers, to repay the expenses of unlading the cargo, and to satisfy Mr. Broadbent relative to the contract. These overtures were readily embraced, and on the 4th July, the contract between the master and crew, on which the second count in the libel is founded, was concluded. It is for a voyage from Naples to Civita Vecchia and thence to the United States, and is signed by all the libellants.

The ship sailed for Civita Vecchia soon afterwards with convoy, and arrived there 21st July. The precise object of the voyage was not understood by the master until his arrival at that place. He then found that he was to take LUCIEN BONAPARTE, with his family and effects, to Philadelphia.

On the 8th August, he sailed for Philadelphia with the reight furnished by Lucien Bonaparte, who, with his family

and suite, were passengers on board. For this service two thousand dollars were paid in advance, and eight thousand dollars were, by agreement, to be paid on arrival at Philadelphia. Twelve days afterwards, the ship was captured by a British frigate and sent to Malta. The passengers and their property were taken out, but the ship was liberated on paying a proportion of freight pro rata, the amount of which is not stated. On the 10th of November last, the ship sailed from Malta, and arrived at Salem on the 5th of February, having touched at Gibraltar on the way, and there delivered a quantity of cotton, taken in at Malta.

On these facts it is contended for the respondent,

1st. That no freight was earned on the voyage from Salem to Naples, and that therefore the wages for that period are lost.

2d. That the confiscation of the ship dissolved the first contract, and extinguished all claim for wages under it, if no freight was earned. After that event, it is contended, there existed no legal connexion between the mariners and the ship; and that their subsequent relation to the ship depends altogether on the new contracts entered into at Naples, in June and July, 1810.

In this voyage, though not so entirely disastrous as many others from the United States to the same port, there was still a heavy loss. In determining on the operation of these adverse incidents, I am solicitous to form a correct decision, and to place to the account of each the just portion of the misfortune according to principles of law. In the present state of the world, and in the peculiar situation of American commerce, cases not unfrequently occur dissimilar in material circumstances, to any which we find previously decided. We must refer to general principles, and from their application and by cautious analogies from previous determinations, declare the result; adjusting, by equitable considerations, what positive authority has not decisively settled. In deliberating on cases of this description, the indignant feelings excited by a view of the severe execution of the Continental System on our enterprising and unoffending countrymen, ought not, perhaps, in this place, to be fully expressed. I cannot forbear, however, to remark on one feature of the transaction which perplexes the investigation and augments the difficulty of making a correct decision between the parties: I mean the denial of papers or documents illustrating the pro

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ceedings against the vessel and cargo, by which, if produced, the nature and grounds of such proceedings would be seen and understood, and their legal operation in regard to collateral questions satisfactorily determined. No such documents are exhibited, excepting a newspaper copy of the decree of 12th March 1810; and it is testified by reputable witnesses, fellowsufferers with captain West, that they could not be procured. There might have been left no alternative to the injurious authors of those acts of outrage, but to choose between silence and sophistry. Still, such a departure from the laudable course of civilized nations in proceedings against foreigners and their property, should be reprobated in every region where truth may yet be expressed and justice find an advocate.

This case is clear of all exceptions to the conduct of the seamen. They performed their duty faithfully, adhered to the ship in all the difficulties attending the voyage, and brought her home in safety to the owner. Have the difficulties occurring in the voyage, extinguished their claim, in whole or in part, to the wages promised in the first shipping paper executed at Salem?

The general dependence of wages, on the earning of freight, is admitted; but I am not satisfied that freight should not be considered as earned under the circumstances of this voyage:

If the ownership of the vessel and cargo had been in different persons, the question of freight could be considered more distinctly and to better advantage; for an actual contract would have existed in such case. Here the respondent must be viewed as owner of both vessel and cargo. The adventures of Fairfield and of the master, are too inconsiderable to make any difference applicable to the points under consideration, no express contract relative to freight exists, but the union of interests which precludes the necessity of such a contract, does not destroy the connexion between freight and wages, and we may properly contemplate the subject as if the ship had actually received goods on board, the property of other persons to be transported on freight, or as if the vessel had been chartered for the voyage specified.

In such a view of the transaction we ought to consider the contract for freight to be a reasonable one, and to be made with all due precautions, having regard to the nature of the voyage, and the peculiar perils attending the destination of the ship. No. XXI.

D

Now, it appears, that a voyage to Naples, or to any other place under French control, was not originally contemplated. By orders prepared previously to those under which the ship was ultimately dispatched, the voyage marked out is to Algiers, Tunis, Cagliari, or "some other neutral or privileged port." When the final orders were given, and a voyage to Naples was authorised, it was evidently under great apprehensions. With those views of a voyage to Naples, if the owner of the ship at the time those orders were penned, had shipped no property of his own, but had merely chartered his ship or taken on board property on freight for that destination, it must be presumed, that a prudent regard to his own interest, would have suggested such an adjustment of the contract, as to encounter only the risk of transportation, and would have left the earnings of his ship dependent on the safety of the property, after her arrival at Naples. If, from tempting offers of high freight, or from any interest in the profits of the adventure he should be induced, under such circumstances, to make the reception of freight dependent on the safety of the property after its arrival at the place of destination, yet such a contract would not, in my opinion, create a similar dependence of the seamen's wages on the freight, unless it were distinctly stated to them, and the terms of their shipment should have expressed such a condition.

After a deliberate consideration of this contract, and its incidents, it is my opinion, that the claim of the libellants on the outward voyage, is not defeated by the circumstances which have been stated: nor do I conceive it necessary for authorising this conclusion to resort to the guarded contract relative to freight, which I have supposed the nature of the voyage would reasonably impose on the ship owner. The ordinary contract of freight without any special provisions would, I apprehend, secure freight to the owner of this ship, or, at any rate, sufficient for the payment of wages on the outward voyage.

In case of a vessel let to freight, and the object of the voyage being defeated by prohibitions, in the country or place to which the vessel is destined, the Consolato del Mare makes the earning of freight dependent on the knowledge of the parties; if both the owner of the ship and of the goods are informed of the existence of impediments, but still are disposed to encounter the risk, the freight is not payable in case the voyage be interrupt