SEAMEN'S WAGES. Where a reciprocity of decision, in certain cases, is necessary, the court of one country is often guided by the customs, laws, and decisions of the tribunals of another, in similar cases. But the change. in the form of our government has not abrogated all the laws customs and principles of jurisprudence, we inherited from our ancestors; and possessed at the period of our becoming an independent nation. The people of these states, both individually and collectively, have the Common law,* in all cases, consistent with the change of our government, and the principles on which it is founded. They possess, in like manner, the Maritime law, which is part of the Common law, existing at the same period; and this is peculiarly within the cognizance of courts, invested with maritime jurisdiction; although it is referred to, in all our courts *The feudal parts of this law, and such as are inconsistent with the principles of our government are not, nor can they be, in force. Those who are best acquainted with its wise and just principles, as they relate to contracts, and the property, as well as the personal rights of individuals, admire the Common law as the venerable and solid bulwark of both liberty and property. Statute laws innovating upon it, have seldom been found, on experience, to be real improvements. Those who do not know the Common law suppose it to be every thing, that it is not. Its rules and principles are not arbitrary, but fixed and settled by the wisdom and decisions of the most respectable and intelligent sages, of both ancient and modern times. Many of the objections raised against it shew a want of acquaintance with its system and principles. Some of these objections are founded in innovation made by statutes altering or obscuring, the Common law. Others have nothing in either common or statue law to support them. SEAMEN'S WAGES. et al. US. the ship Catharina. This court verned by the maritime must be go code we pos sessed before the revolu tion, where law or by a change of cir not altered by cumstances. on maritime questions. It is, then, not to be dis- Thompson puted, on sound principles, that this court must be governed in its decisions, by the maritime code we possessed at the period before stated; as well as by the particulur laws since established by our own go. vernment, or which may hereafter be enacted. These laws and the decisions under them, must be received as authorities, in this, and other courts of our country "in all cases of admiralty and maritime jurisdiction," to which, by the constitution, it is declared "the judicial power of the United States shall extend." Nor shall I think myself warranted to exclude more modern expositions, or adjudged cases from being produced here. Whatever may, in strictness, be thought of their binding authority, I shall always be ready to hear the opinions of the learned and wise jurisprudents or judicial characters of any country. On subjects agitated in this court, often deeply affecting the property and reputation of the suitors, I am not so confident in my own judgment, as not to wish for all the lights and information, it may be in my power to obtain, from any respectable sources. If, in any instance, the laws or the decisions under them, shall be found or deemed severe, or not suited to a particular exigency or course of trade, parties may mould their contracts at their will, according to circumstances, by mutual agreement and consent. Let the law be what it may, Modus et conventio vincunt legem, in all contracts, not radically against common justice, moral and political obligation, and those principles which the law will not suffer to be destroyed or perverted for private pur Parties may contracts at mould their in cases not against com their pleasure, mon justice. et al. vs. the ship Catharina. SEAMEN'S WAGES. Thompson poses.* If under a contract, by a casualty, a particular inconvenience arises from the general principles of the maritime law, the party must submit. He must consider what he loses or pays as a contribution to the great and general interests of commerce, or the predominant policy and advantage of his country.† * The conditions of bonds, or considerations of promises, or agreements in contracts accounted illegal and void, are numerous and well known to lawyers. A contract cannot be legally binding which defeats its own object—such as that no suit shall be brought at all for a bona fide debt, agreed to be paid—a condition in a deed to do an act malum in se, as to beat, or kill a man, or commit any crime-Insurance on an illegal voyage-Bonds for general restraint of trade are void, though good where the condition is not to carry it on in any particular place-A bond to a third person that the obligor, a witness, shall not prosecute one confined for felony, perjury, &c. and many other instances which might be given. A bond with impossible conditions is absolute, and the condition a nullity. An agreement or contract not to bring a suit to enforce performance is, if made at the time, well. But if made posterior to the bond, contract or agreement, it amounts to a general release. † The cause, in which the foregoing opinion was delivered, was of a mixed character. Part of the complainants were foreigners; and bound to return home with the ship. Although with a view to sail out of our port, at our high wages, they endeavoured on pretext of deviation, to obtain their discharge; the cause was dismissed as to them-they were referred to their own courts for decision. Wages were decreed to two American seamen, who were by contract to be discharged here. In the case of Willendson vs. the Försöket, post, the principles adopted by the court, relative to foreign seamen are further elucidated and explained. SEAMEN'S WAGES. Joseph Hart, a mariner, versus The ship Littlejohn. DECREE. JOSEPH HART, in July, one thousand seven hundred and ninety-nine, shipped, as a mariner, on board of the American ship Littlejohn, at Edenton, in North Carolina, on a voyage from thence, to Liverpool, in England, and back to Edenton. The ship went to Liverpool, and delivered her cargo. On her return, she was captured, by a French cruizer, in the possession of which she remained about eight days. She was recaptured, by an English frigate, and carried into Lisbon; where she was restored, on payment of salvage, and arrived, from Lisbon, at Philadelphia, where the mariners, who came in her, were discharged. The libellant was taken on board the French cruizer, and carried into France, a prisoner. Being there released, he worked his passage home. The queston made, in this cause, is, "Whether this mariner, who was forcibly taken from the ship, in which he was engaged for the voyage, shall be paid, pro rata, to the time of capture, or shall have his full wages for the voyage?" Without entering into the facts, as to the voyage being ended at Philadelphia, or not; the cause was put on the question stated-to it, therefore, I shall confine myself. Joseph Hart the ship Seamen, un der like circumstances, allowed wages in many instances. SEAMEN'S WAGES. I have, heretofore, in many instances, decreed, that seamen, under like circumstances, with the Littlejohn. libellant, should be paid their full wages for the voyage. I have always supposed, that if the ship, owing to the absence of one, or, more mariners, thus forcibly taken away, was at the expense of hiring others, this extra expense was chargeable as an average loss;* or, in an account, for spoliations on our neutral commerce, if the capture was made by the subjects of a power in amity with us, and was finally adjuged unlawful; yet, having only the right to determine the question of wages, I have not given my opinion, as to consequences, or entered into collateral enquiries.† I had grounded my opinion, in cases like the present, and those of sailors falling sick, during the voyage, on the authorities cited by the libellant's * If it can be charged at all, as average, it must be as what is called petty average; as a disbursement, the master was bound, necessarily, to furnish, for the benefit and safety of both ship, and cargo. †This case was determined, at a time, when arrests of our ships, by others than the French, were, for the purpose of adjudication, for breaches of neutrality. And when in Europe, some attention was paid to the laws of nations, and special conventions, and by the courts of the belligerents, the payment of salvage, was decreed by the British courts; and submitted to under no positive regulation. It was said, by them, to be an affair of comity, in treating our ships on the same footing with those of their own nation. The fact is, that no salvage is due, in common cases, where neutrals were taken out of the possession of a belligerent, and bona fide carrying in, for examination, by a competent and impartial tribunal. But between the French, and the United States, there then existed partial hostility. See a note to the case of Clayton et al. vs. the Harmony, ante page 78. |