SEAMEN'S WAGES.

belong, one-third part of the wages which shall be

Johnson

US.

Lady

Walterstorff.

due to him, at every port where such ship or vessel the brigantine shall unlade and deliver her cargo, before the voyage be ended, unless the contrary be expressly stipulated in the contract,"

In this case, it is stipulated to the contrary: but I am of opinion that the clause in the articles relied on by the counsel for the owner of the ship, ought not to be extended farther than a stipulation, not to be entitled to demand or to receive the wages, or any part thereof, at the foreign port of delivery. The amount of the wages due at Demarara, must be considered to be, debitum in presenti, solvendum in futuro. The stipulation does not alter the substance of the contract, or the operation of law, but merely as it regards the time and place of payment.

a

I do not consider the agreement, not to demand or receive wages until the arrival of the ship at Philadelphia, to be a contract that the risk shall be insured, or the arrival guaranteed, by the mariner. It is an agreement that such wages, as were legally due at a foreign port, should be paid only in Philadelphia. The period of payment was to be fixed by the arrival and discharge at Philadelphia, in a common course of events. But the arrival at that place was prevented by a casualty, not under the control of the mariner. It is no matter whether this casualty had been wreck, or what it was, capture.

I am, under all the circumstances of this case, of opinion, and I adjudge, order and decree, that the owner of the brigantine Lady Walterstorff, pay to the libellant the wages due at the port of Demarara,

a See 2 Vern. 727.

F f

Johnson

SEAMEN'S WAGES.

and for half the time the vessel stayed at that port. the brigantine And I do order and direct, that the clerk of this

US.

Lady Walterstorff.

court adjust and report the quantum of wages, to the end that the amount of wages so adjusted and reported, be paid to the mariner, the libellant in this cause, with costs.

2

First. A demand for six dollars, each, retained by the owner, to indemnify him against a suit brought against the master, in a common law court, for running down and damaging a schooner at sea. This suit is pending and undetermined, and the captain agreed that he meant to contend the point; alleging that no negligence or misconduct on his part, or that of the crew, occasioned the accident.

Court. It is clear to me, and must be well known to the counsel of the respondent, that the detainer of the six dollars out of each of the seamen's wages, is illegal. No contribution can legally be called for from them, until a recovery is had against the master, and the quantum ascertained. It is yet doubtful whether any damages will be recovered, for the accident mentioned. The master is satisfied that none are justly due. To withhold the payment under a bare possibility, is not warranted by law. As to what the merchant deems prudent and safe for himself, such considerations cannot control or destroy contracts. If negligence or malfeazance, on the part of the master and crew, had occasioned the accident, the mariners

Mariners

VS.

SEAMEN'S WAGES.

must, no doubt, contribute; but the fact and consequences must be legally established, before such Washington. contribution can be called for.

the ship

Claim of

for short al

This point was given up, and the wages agreed to be paid.

The second demand was for a large sum, under compensation the act of congress, for payment of additional wages, on account of short allowance, during the greater part of an East India voyage home.

lowance dur

ing the voyage.

Quantity and species of pro

visions required for an East India voyage.

Navy rations

the rule by

which the al

lowance to seamen

should be determined.

It was agreed that, to satisfy the words of the act of congress (designating what quantity and species of provisions should be on board at the departure of a ship destined across the Atlantic) "and so in proportion for a longer or shorter voyage," there should have been on board, previous to sailing, two hundred and fifty pounds wholesome meat, two hundred and fifty pounds good bread, and one hundred and fifty gallons of water, for each person, of whatever capacity or description, in the ship. The ration established for the navy,* was agreed to be that, by which the allowance of provisions to mariners should be regulated. There

* See act of congress, July 1, 1797, " An act providing a naval armament," section 7, (vol. iv, p. 14,) wherein the naval ration is established.

The quantum or description of articles fixed for mariners in merchant ships, was not intended to be specifically according to the various kinds of esculents directed for the navy; but it was declared and agreed, that of such provisions as are ordered to be provided by merchants for their seamen, the quantities of the like kinds, furnished per diem, should be the same with those fixed for the navy. So of equivalents, where the designated species could not be obtained.

SEAMEN'S WAGES.

Mariners

the ship Washington.

rated as two

voyages.

were eighty-four persons on board-the length of an India voyage was agreed to be equal to two and a half voyages from America to an European port. It appeared that the Washington was amply An East Inprovided, previous to her departure from Philadel- dia voyage phia to India, not only with the requisite quantity and a half for the voyage, of enumerated articles of provisions European and water, but with a very considerable excess. In addition, there were flour, rice, and cabin-stores, in abundance. On her return, water was taken in, and provisions, though not of the specified articles, purchased. The passage was uncommonly long. Owing to over-care in the master, in putting the common ship-bread into tight casks, which happened not to be made of seasoned wood, twentysix casks, out of thirty, were spoiled on the out passage. He therefore, gave bread of a better kind, in less quantities, making out the allowance in ample proportions, with other articles equivalent. At Batavia, the bread was saved, and except one biscuit per man, yams, rice and potatoes, were given in lieu thereof. But because the ration was not delivered, in the kind of esculents mentioned in the act of congress, and some precautions taken to ensure a sufficiency of provisions, the mariners now set up this demand.

Court. The only ground for establishing a claim of the nature of the present demand, is a negligence in the master or owner, in not furnishing the ship before her departure from the port, with the quantity and species of provisions and water, required by law. Where these can be procured, no equivalents can be admitted as substitutes.

Where the

articles speci

fied in the act

of congress

can be procured, no sub

stitutes al

But in ports, where the specific articles of provi-lowed.