SEAMEN'S WAGES.

articles, that " wages shall cease on the death of the seaman." Of the legality of this agreement no doubt can be entertained, and to its omission in their contracts, merchants must hereafter attribute any claims which may be made on them, by the representatives of seamen dying on a voyage.

In the case of Jackson, administratrix, vs. Joseph Sims, the claims of the administratrix were for wages during the whole voyage, although her husband had died before the return of the ship, on board which he sailed as mate. The district court, referring to the case of Walton, et al. vs. The ship Neptune, decreed full wages, and an appeal was entered to the Circuit court. The case was heard at the April Sessions, 1806, Moylan for the appellant, and Milnor for the appellee, and the decree of the District court was confirmed by the Hon. Judge Washington. By his politeness I have been favoured with the following copy of his opinion.

Scott

08.

the brig Greenwich,

THIS was an appeal from the district court where, upon a libel by the appellee, the executrix of her husband, for his wages as mate on board a vessel belonging to the appellant, for his full wages from Philadelphia to Batavia, and back. Although he died at Batavia, the court decreed accordingly. He was hired for the whole voyage, at the rate of $30 per month. He was paid up to the time of his death.

Moylan for defendant, contended that on common law principles wages are the reward of services, and if not performed they are not due. If a man be hired for a year, and die in the middle of it, wages are due to the time of his death. 3 Vin. Ab. 5. 6. 13, if a mariner be impressed, wages are only payable pro tanto. 2 Lord Raym. 1211. That this is not a hiring by the voyage, but by the month; in the former case a gross sum is always stipulated, Abbot 265. 273, 274; it was a contract for the voyage, and not apportionable; nothing was due, Salk. 65 The true translation of the 7th article of the laws of Oleron, of what has been translated full wages, should be "ready down." In 3 Bos. & Pul. 427, one judge was of opinion, that if a sailor

SEAMEN'S WAGES.

die on the voyage, his executors can only recover wages to the time of his death.

Washington, judge. As I entirely concur in the opinion given by the district judge upon this question, and for the reasons assigned by him, I deem it unnecessary, to discuss the subject much at large. It is admitted that no decision is to be met with in the English books precisely like the present, nor have we any municipal regulations which govern the case. We must, therefore, resort to those marine laws which have always been acknowledged as authority in England, as well as in most of the European commercial nations, unless, where they have been altered or modified by the laws of particular states, but which alterations are binding only on those states.

The 7th article of the laws of Oleron declares, that if a mariner be taken sick on the voyage, he ought to be put on shore, and care should be taken of him at the expense of the ship. Where the vessel is ready to sail, she is not to wait for him, but still he is to be entitled to his full wages if he recover; and if he does not, his wife or next of kin is to have them, deducting only such charges as the master has been at for him. Now the only questions in this case are-1. Did the mariner die on the voyage? 2. Does the expression "full wages," in the above article mean, such as he has earned by his services to the time of his death, or such as he would have earned had he lived and served out the whole voyage to Philadelphia. Most unquestionably the deceased was bound by his contract to perform the whole voyage, which is described in the articles to be from Philadelphia to Batavia, and back again; and he would have forfeited the whole, had he deserted the ship at any time previous to the return of the ship to Philadelphia. I agree with the judge of the district court, that the stipulation to pay wages by the month, does not break the entirety of the contract for the voyage, but only furnishes a rule to assess the quantum for the voyage. It protects the owners from an over payment in case of a short voyage, and the mariner against the risk of receiving too little in case of a long one. It prevents either from speculating upon the other, by accommodating the reward to the length of the service.

2.-Does the expression "full wages," apply to what would have been due if the mariner had served out the entire voyage,

SEAMEN'S WAGES.

or are we to limit it to such as have been earned by service's performed.

If a certain sum for the voyage be agreed upon, that sum would constitute the full wages, and is distinguishable from no wages at all, as in case of 6 T. R. 320. Cutter vs. Powell, or, when they have been forfeited by the misconduct of the mariner, or wages pro rata when they have been partly earned or are not forfeited. But every doubt with respect to the meaning of that expression is cleared away by the decision in the case of Chandler vs. Greaves, (Hen. Black. 606. note) a mariner was engaged on a voyage from London to Honduras, from there to Philadelphia, and back to London. The articles were drawn in the usual form, and such I take to be the articles in the contract now before us. The mariner being disabled, and totally disqualified from rendering any future service on the voyage, was left at Philadelphia, and the vessel returned to London. The court determined that he was entitled to his full wages, and he accordingly received the same wages to which he would have been entitled had he proceeded with the vessel to London. This case, not only determines a principle which is in all its parts applicable to the present, but it accedes that full wages mean the aggregate amounts of all the monthly sums which would have accrued upon the completion of the voyage. This decision is expressly founded upon the 7th article of the laws of Oleron, which entitles a sick sailor who is left behind to full wages, and the same act declares, that what such sick sailor would be entitled to, passes to his widow or next of kin, in case of his death.

I am therefore of opinion that the decree of the district court ought to be affirmed.

eight hours,

and were entered in the

log-book as deserters.

They were re

ceived again

on the return

of the ship they claimed

wages for the

voyage. The

court was of

opinion that the mariners

having been

THE brig Commerce had been on a long circuitous voyage of between two and three years. She touched at a foreign port, on her way home, on board, and where, on a difference with the master, the seamen went on shore, as it was alleged, without the master's leave. An entry, agreeably to the act of Congress, was made in the log-book, of their having been absent without leave, for the space of fortyeight hours. The seamen denied the accuracy of this entry. A reconciliation took place at the foreign port, and the sailors were received, without any new agreement. They continued to perform their duty until the arrival of the brig at Philadelphia, where the voyage ended. A suit was commenced against the master and owner for the balance of Entry in log. Wages for the voyage. The entry on the log-book before stated, was offered to repel their claim to all pel claim to wages precedent thereto, which were said to be forall precedent

received on board again, the forfeiture

of their wages was waived, and a decree was entered

for the libellants.

book pro

duced, to re

wages.

The court

feited.

Court. This is an attempt at severity, which would not per the law will not justify. It is much to be desired

mit the entry

to operate.

that all our mercantile citizens better understood those principles of the marititime laws, which in courts of justice we are bound to follow. Crimes and offences of seamen are rigorously punished; but mariners, with all their too numerous faults, are

SEAMEN'S WAGES.

US.

the brig Commerce.

considered by all maritime nations objects of nation- Whitton et al. al concern. Their contracts are placed under the cognizance of national courts, bound to proceed by fixed rules, and circumscribed by principles of law. Seamen are deemed the sinews, or more aptly in our ships, called "the Hands," of naval power, strength and security. Without the aid of this intrepid and hardy class of men, under national government and direction, commerce might be annihilated. An extended sea coast, convenient for trade and a source of wealth, would be subjected to invasion by foreign foes, and depredations by neighbouring freebooters; and so become a ruinous curse, instead of a public blessing. To say, that without commerce, the nation would have no seamen, is true; but it is as true, that without national protection, in which mariners bear a prominent part, there would be no commerce. The uses made of them in commerce, though of primary importance, are not exclusively regarded. They are encouraged and protected by all the maritime laws, for other and more extensive national purposes, as well as for those in which commercial individuals employ, and profit by, their services. Their frailties are by these laws forgiven; and their offences, so far as these affect contracts, are pardoned on repentance, compensation or offer of amends and return to their duty. Public policy and private justice, as it is fit they should, here move together.

In the case before me, it is unnecessary to enquire into any other fact, than that of the mariners having been again voluntarily received on board, by the master, after the alleged forfeiture. This fact is conceded: the master's thus having received

Y

Mariners

being again

received on

board is a

waiver and pardon of for

feitures.