SEAMEN'S WAGES. The amount of the master's claim for $257, as stated in his petition, for monies expended during the voyage, for the purchase of necessaries required in the service of the ship, and wages paid to mari will shew that our system is almost wholly drawn from that jected. code. 2d. A privileged mortgage, on which, if the remedy pursued be personal, the privilege is according to the order of time only; but if the remedy is pursued in rem the privilege operates without respect to time, and according to the cause of the debt, according to Zouch; privileged, are those creditors who are to be preferred, in the course of payment, before other creditors, though prior in time, e. g. funeral charges, which are an expense of necessity, and the costs of an administration, which are for the common benefit of creditors. 3d. Implied or legal. These are given by law upon the presumed assent of the parties, where no express stipulation appears; as is the case of seamen's wages, storage of goods, and the distress for rent; of the latter description must be the libellant's case, if he has any lien at all. All the authorities of the civil law admit a ship-carpenter into the class of privileged creditors, without any regard to the place where the services are rendered; but it is not conceded by all, that he has the juš hypotheca. It is manifest his lien cannot be supported on principles of common law, since the very nature of the services of repairing a ship, precludes the idea of possession transferred from the owner. And the common law, which pursues strictly the old distinction of civil law between pignus and hypotheca only admits a lien, where there is an actual possession passed to the creditor. The extent of the incidents to a privileged debt are not necessary to be inquired into. By some civilians, cited by Zouch, a ship-carpenter is only considered as having a right of preference above other creditors, when the whole of the goods are insufficient to pay the aggregate of debts, and the jus hypotheca is denied. But Zouch, who I find is supported by the Digest, liber 20, § 21, vol. i, Corp. Juris. Civil. 1916, 1924, and 1932, supports his lien by the opinions and practice of SEAMEN'S WAGES. Gardner et al. ners, is directed to be paid. The claim for his wages is disallowed; and the prayer of the petition New Jersey. of Dr. Baldwin cannot legally be granted. the ship I have gone so much at large into this subject, that the principles established in its discussion, may regulate future claims to monies brought into court, under similar circumstances. other jurists, and the courts of Hamburgh, Holland and Great Britain, and satisfactorily explains the causes of the erroneous opinions of writers, who deny the lien of such a creditor to have arisen from not accurately attending to the difference between a simple privileged debt, strictly such, where among many of similar creditors the rule prior in tempore potior est jure, prevails, and a privileged mortgage or lien express or implied, where the cause of the debt, and not the time of its creation, governs. The reason of the lien to ship-carpenters for repairs, independent of considerations of policy, even among contending mortgagees, is, that such services preserve the specific thing from destruction, and securing such subsequent creditors does not injure prior mortgagees or creditors, since the pledge is increased in value, in proportion to such services. Valin. vol. i, states, a corresponding opinion in France, and assigns the reason of the civil law. I am therefore of opinion, that a shipcarpenter, by the maritime law, has a lien on the ship for reHow this lien pairs in port. But this lien may be relinquished or lost, by acts which shew that other securities have been substituted and may be lost by him. against the person of the ship owner, in the District Court. May proceed accepted; and the court, in examining the testimony applicable to this point, will make every presumption that a jury ought to make on the trial of questions of fact, but as the interest of no other creditor is involved in the libellant's claim, I cannot conceive of what importance it is now to ascertain whether his lien con. tinues-since the cause being a maritime cause, the court has a jurisdiction over his person as well as over the ship. The jurisdiction must in its nature be complete-it cannot be con fined to one of the remedies on a contract, when the contract itself is within its cognizance. Sundry Mariners, versus The ship Kensington, SEAMEN'S WAGES. THE amount of wages was not disputed. The seamen were charged with a sum each (the whole being in the ratio of wages, averaged on the officers and crew) for a loss to the ship, in consequence of embezzlement of part of a box of cambrics and lawns, to a considerable amount. It appeared, from circumstances, that the embezzlement took place at the time of lading the ship in Liverpool, though it was not discovered until she was unlading at the port of Philadelphia. Several persons, not of the crew, were hired to assist in stowing the vessel at Liverpool; these had the part of the cargo assigned to them to stow, of which the box plundered composed an article; but the mate and some of the with them, and were ordered by the court to con tribute to the loss out of crew were always with them, and the case or box their wages. was in a situation to admit access of the crew, as well those who assisted the labourers, as any others of the seamen. The box was discovered to have been much injured and broken open with a crowbar, or some such instrument, probably used at the time of stowage. It was contended, by the counsel for the owners of the ship, that if it could be even proved, that the labourers hired at Liverpool to assist the crew, had committed the embezzlement, they were, pro hac Mariners VS. the ship Kensington. SEAMEN'S WAGES. vice, part of the crew, and so the whole are answerable civilly, though not criminally. Court. If it could be proved that the labourers committed the embezzlement, without the participation, connivance or knowledge of the mariners, the latter would not be bound to contribute. The The policy of policy of the law which obliges mariners, engaged the law, rela- for a voyage, to be responsible for each other in such cases, does not apply when occasional labourers, or other strangers, commit depredations without the fault, negligence or connivance of all, or any part of the crew. tive to embezzlement, does not apply where strangers have been employed in lading the ship. Labourers no part of the crew. Seamen answerable for embezzle they can clearly shew that the fact was commit. ted by stran The labourers, in this case, were not part of the crew. It is true, that if seamen are hired for a voyage, and work on board the ship, in the harbour of outfit, they may sue in the admiralty for their wages, though the voyage does not proceed. But this does not warrant the doctrine set up by the respondent's counsel, who contend that the labourers are, quoad hoc, a part for whom all the crew are responsible. There is no doubt but that the seamen are answerable for embezzlement, unless they can ment, unless clearly shew either by positive evidence or strong circumstances, that it was committed by persons not of the crew. It is impossible for me to say, who committed the fact in question in this cause; it may have been either a separate, or joint act; it have been perpetrated by the labourers alone, or in company with some of the crew. But, under the uncertainty, I think the law throws the burthen on the crew. of proof on the mariners. They are prima facie gers. Burthen of proof thrown may responsible. Some of them were mixed with the labourers, and all of them had access to the box plundered. It would give an opening to danger. SEAMEN'S WAGES. Mariners VS. the ship ous and ruinous collusions and frauds, if mariners were discharged from their responsibility, merely because occasional labourers were hired, to assist in Kensington. loading a ship. Under all circumstances, I am of opinion, that the mariners must contribute, respectively, their proportion of the loss, and I decree doctrine. accordingly.* *Frequent decisions have been had, on the principles of this case. Where the crew are mixed with strangers, it behoves them to be peculiarly watchful; though, in some instances, it is severe on mariners. I have generally, however, suspected collusion, when I have enforced responsibility. One case occured, where the theft was, by circumstances strong and convincing, fixed on those not of the crew, and I decreed against any contribution. In a cause recently decided, the mate left the vessel, in a port of St. Domingo, in possession of the blacks— went on shore without securing the hatches-some others of the crew followed his bad example-and only the cook and a sick mariner remained on board. The vessel was robbed in the night, by people from the shore, as it appeared from circumstances, to me. There was much contrariety in the testimony, but I was convinced, that part of the crew partook of the plunder. There was, beside, gross negligence, which, of itself, would incur contribution. I decreed retribution, on the usual The articles lost, however, were greater in value, than the amount of wages due. I listen to testimony, to throw off responsibility, in mixed cases, in any reasonable degree satisfactory. The merchant, who increases the risk of the crew, by introducing strangers among them, cannot expect that strict and rigid proof, which is required in ordinary cases. terms. Injurious con sequences of the contrary |