SEAMEN'S WAGES. Walton, administrator of Strum, and Armstrong, versus, The ship Neptune. 1800. The seamen shipped for the whole voyage of the Neptune, and died before DECREE. THE mariners shipped at Philadelphia, the twenty-first day of December, one thousand seven hundred and ninety-nine, at the current monthly wages, to perform a voyage to the Havanna, and back to Philadelphia. They died, through accidenPhiladelphia. tal illness, of a prevailing fever at the Havanna, her return to Their admi nistrators claimed wages until the return of the ship, which were allowed by the court. while in the service of the ship. The libellants claim wages as due to the decedents, for the whole voyage, allowing funeral expenses and physicians' bills. The ship arrived at Philadelphia, and earned her freight. The owner alleges, they should only be paid, pro tanto, to the time of their respective deaths. The laws of Oleron contain the principles of all the maritime laws of the European western nations concerned in commerce; with some particular exceptions in particular cases. They are yet in force, and acknowledged in their great and leading principles, by all the trading nations; though some of their harsh and severe punishments and pecuniary mulcts, for crimes and offences, are out of use. Whenever any of their regulations are modified or contradicted, they are so modified or opposed by special ordinances, binding only in the particular state making them. SEAMEN'S WAGES. the ship Neptune. Thus in France, by the thirteenth and fourteenth Walton et al. articles of the twenty-ninth section of the Ordinances of Louis the Fourteenth, it is declared, that "the heirs of a seaman hired by the month, and dying in the voyage, shall be paid his wages, until the day of his decease. The half of the wages of a seaman, hired by the voyage, shall be due to his heirs, if he dies outward bound; and the whole, if he dies in the way home. And if he sailed by the profit, or freight, his heirs shall enjoy his full share, if the voyage be begun before his death." Yet even in this modification, the leading principle is preserved, of payment of full wages, or freight; in the two latter cases, because the sailor was not in fault, but by an inevitable casualty, was prevented from fulfilling his contract. There is a similar distinction in the ordinances of Charles the Fifth, as to a sailor dying in the outward passage, when his heirs shall have half; and if on the home passage, they shall have his full wages. But in Spain, where their seamen are treated with peculiar strictness, there is a local custom, that "in ships of war on India voyages, if a man die the first day of the voyage his heirs are to be paid as much as if he had completed it." Herein preserving the general principle on which I have dilated in the case of Joseph Hart against the ship Littlejohn. In that case, and in this, I consider the contract to be for the voyage, though monthly wages are stipulated; to take from the mariner the risk of long, and to give to the owner the advantage of short, passages. The terms of the shipping articles prove this, and the forfei a Ante page 115. a In the shipused in the U. States, ping articles though wages are designated yet the contract is entire by the month, for the voyage. Walton et al. tures, incurred by desertion, go to the whole due the sailor, for the preceding part of the voyage, and not solely to the month in which the forfeitures attach. the ship Neptune. Freight is al ways the rule of wages. I have always made freight the rule. In a former case in this court, wherein an attempt was made to cut the seamen out of their wages, for the whole of an East India voyage, by making them payable only on the ship's return to Philadelphia, I decreed wages as far as freight was earned, the vessel having been captured on the home passage. I did not then recollect a stronger case than that before me.a In The seventh article of the laws of Oleron is clear, in my view, to the present question. It makes no distinction between the out and home passage. this article, after declaring what shall be done with a mariner falling sick, and left on shore after the departure of the ship, it is ordained-" But if he recover he ought to have his full wages; deducting only such charges as the master has been at for him, '(to wit, better diet than the ship afforded, or more provisions than he required on ship board), and if he dies, his wife or next of kin, shall have it,” i. e. his full wages. The 59th article of the laws of Wisbuy, the 45th of the laws of the Hanse Towns, and the 56th of those of Philip the Second, which he compiled for the Low Countries, were all founded on this law of Oleron, and agree with it exactly, both if he recover his health or die in the voyage.-See note on the 7th article L. Oleron. a 2 Vern. 727. SEAMEN'S WAGES. VS. the ship Neptune. In one of these laws, the expression is general Walton et al. "he shall be paid his wages, if he recover," which, if explained by the laws of Oleron, certainly means "his full wages." But in the other law, it is more clearly expressed, "he shall be paid his wages as much as if he had served out the whole voyage." And in the event of death, I have no doubt that the words "his heirs shall have what was due to him" mean, according to the laws of Oleron, on which this is founded, "his full wages, " or according to the preceding part of this same article "his wages as much as if he had served out the whole voyage." Thus, by these wise and politic regulations, making attention to mariners the interest, as it was the duty of masters of ships. They or their owners sustain a loss by the death, but profit (in his services, and saving of the hire of another in his room) by the continuance of health, or recovery of the mariner from sickness. Hereby also giving encouragement to those who enter into this hazardous and laborious employment. Some provision being, in this way, made for them if they survive, when lingering under convalescence, or ruined by disability, occasioned by sickness or accident; or for their families, in the event of their death. This benevolent principle has always been attended to by enlightened nations. It is established in the most respectable codes of jurisprudence, among the general and leading points of justice, in contracts for personal services of every description. Common law authorities can be produced in support of it: it is grounded in the wisdom of ages. We find it recognised in the Digest of Justinian, law 38, page 58, "He who has hired his services U SEAMEN'S WAGES. Walton et al. is to receive his reward for the whole time, if it has not been his fault that the service has not been performed." The laws of the Rhodians are inserted in this digest.* These are the most ancient sea laws the ship Neptune. *This fact I had taken from respectable authorities, and presumed it correct; although I knew it had been doubted by some, and contradicted by others. Among those who do not consider the parts of those laws now extant as genuine, is Bynkershoek, whose opinion has always great influence. A late writer (Azuni), who has treated with ability and extensive knowledge on maritime law, but is not free from prejudices on particular points, has taken much pains to prove, that the whole of the Rhodian laws were not inserted in the digest of Justinian, though one of these laws relative to jetison, is to be found therein. He cites and comments on a number of authors for and against the authenticity of the fragments generally received as parts of the Rhodian laws; and concludes against their being genuine. He asserts, that these supposed Rhodian laws, are productions of more recent date, and fabricated by more modern Greeks. He brands them with the character of "trash"; yet, however accurate his opinions may be in other respects, I see not that they merit an appellation so vituperative. They contain many of the valuable principles of maritime law, though (as light things float long) some of the least important may have been borne down to us on the tide of time. It will be seen, on examining the authorities, many whereof are cited by Azuni,* that these fragments were discovered in Pithou's library, and first printed in Germany, by Simon Scardius. The Greek was the original language, in which these ancient laws were written. But Azuni discovers some modern Grecisms in Scardius' copy. The evidence, appearing on the face of them, of this language is, so far as it goes, rather a proof of authenticity; even if some corruptions from the purity of the original may have crept into, relatively, modern copies. Many ancient manuscripts and authentic classical works have been discovered in monasteries, See Mar. L. vol. i, p. 265, & seq. and notes, New York, ed. 1806. |