SEAMEN'S WAGES.

master's representation. The master is personally
liable for wages, though the seaman may proceed
in rem, against the ship, or in personam, against the
owner. It is his interest to throw the responsibi-
lity off himself. If the vessel is not valuable enough
to discharge the lien, or the owner is in bad circum-
stances, and the master solvent, he must pay the
debt. Instances have not been wanting in this
court where unjustifiable endeavours have been
made, by masters, to charge the ship with seaman's
wages. In some cases, where funds had been fur-
nished and misapplied; in others, to secure them-
selves. But suppose the master's testimony given
in a proceeding in rem, and a decree on the merits
against the demand, the success of the seaman in a
prosecution in personam thereafter, if their circum-
stances permitted further proceeding, would be'
hopeless. I would not be understood, so to apply
particular instances, as to affect general character
or principles, but a practice liable to great abuses,
ought to be avoided, and other testimony may be
procured. The law removes from testimony, per-
sons even remotely interested; especially where their
testimony is not the only proof which can be obtained.
Having, on the admiralty side of this court, to judge
of both competency and credit, I wish to avoid ex-
posing myself to the painful task, of rejecting testi-
mony for want of credit. Although I might not be
often placed in this predicament, yet such a situa-
tion might occur.
The line between competency
and credit is often imperceptible, and difficult to
draw.

She

AN American vessel had shipped her hands in Philadelphia, for what is called a trading voyage, having as usual cleared out for the "West Indies" or elsewhere, and to return to Philadelphia. She went to several ports, and finally was wrecked on her way to Jamaica from the Spanish continental possessions, after having been at a port which was at first alleged not to be a port of entry, or place of delivery of a cargo. But it turned out that a regular custom-house was there established, and the ship there paid port charges, and passed through the usual forms. The object of the last voyage was to load with woods, and other productions of that coast. The only question before me was-How far the demand of the seamen should extend? The wages were claimed to the time of the loss of the vessel, as it was said, enough had been saved to pay them. The owners and captain alleged, that all the wages were lost with the wreck. They denied that the port on the Spanish main was a port of delivery, though it appeared that some goods, part of the cargo, or captain's adventure, he being a part owner, which were not saleable at Jamaica, had been carried to the main, and at this port disposed of.

SEAMEN'S WAGES.

The case of Hernaman vs. Bawdent,a was relied on to shew that it was an entire voyage, though some small matters had been delivered at the Spanish port. It was insisted on in argument, that this was no more a delivering port than Newfoundland, which is settled by the British case not to be so. And a voyage for woods, &c. on the Spanish coast, is in its consequences as to wages, the same as one for fish to Newfoundland. Where no cargo is delivered, no freight is earned; and no wages can be payable, where no freight is earned, as the latter is the fund to discharge the former. Vessels go with salt and casks to Newfoundland, which gradatim, as the fish are caught, are sent on shore, and of course delivered, to cure and enclose them. No more was done in the present case, than to put on shore some provisions, though these were disposed of, to furnish means for the progress of the ship.

Court. There can be no doubt of the principle that wages are due to seamen in cases of capture or wreck, to the last port of delivery, and for half the time the vessel staid there.-This is settled law in this court. The wages for the interval, after the vessel leaves her last port of delivery to the time of the wreck depend on circumstances. The sailors must assist in saving the ship and goods, or so much thereof as possible, so as to entitle them by way of encouragement, to their wages out of the property saved. But there is no question here to induce me to go into this part of the case minutely. The only point seems to be whether the Spanish port was

a 3 Burrow, 1844.

b Laws of Oleron, art iii. Les us et coutumes de la mer. 8.

SEAMEN'S WAGES.

one of delivery, in legal contemplation, under the circumstances of this case.

I do not see the bearing of the case in 3 Burrow, on the present cause. The voyage, in that case, was, in fact, from England to Spain, with a load of fish, to be taken off the banks of Newfoundland; where the ocean, and not a port of delivery, afforded the prey, which was to be caught by the ingenuity and labour of the crew, and which was then to compose the cargo. The salt and casks were the means of preserving and enclosing, after the fishing-lines and tackle had been employed to take and secure the object of the voyage. These (the salt and casks) were used in and about the cargo, and re-shipped in the vessel, with the cargo, of which they were part, on the further prosecution of the voyage. Of course, there had been no delivery, or any contemplated sale or purchase; the voyage being, in its nature and object, entire. Whaling and sealing voyages, and those on coasts where the cargo is to be obtained in a similar way, and not at a port of usual entry, as an article of traffic or purchase,* are to be considered in a simi

* A ship went from the United States to the N. W. coast, for furs, ultimately destined for Canton. The seamen shipped by the freight; i. e. they were entitled to a certain portion of the freight earned. I held this to be an entire voyage, from the United States to Canton.

The vessel was not successful in obtaining a full cargo on the coast; having arrived out of season. She called at a port, on her way to Canton, where skins had been left by a vessel not fit to proceed. These skins were carried, on freight, to Canton,

SEAMEN'S WAGES.

lar predicament. Possibly a voyage to cut wood, and reclaim it from a state of nature, though on land, which was not here the case, might be compared in its principles, to the case in Burrow.

I think the force and true meaning of "freight" has been much misconceived. It is a technical expression. It does not always imply that it is the naulum, merces, or fare, for the transportation of goods. It is applied to all rewards, hire or compensation, paid for the use of ships; either for an entire voyage, one divided into sections, or engaged by the month, or any period. It is also called freight (and it is to be determined on the like legal principles) in the case of passengers, transported in vessels, for compensation. In Saxon, from which much of the English language is derived, it is called fracht, whether it be a compensation for transportation in ships by sea, or carriage by land, either of goods or persons, in gross, or detail. Many of the commercial terms, as well as the laws and customs of the sea, are derived from the Saxons, who were, for a great length of time, the most extensively commercial and nautical people of Europe. There can be no distinction in reason and law, whether this freight, or hire, be actually paid by one, for the use or chartering of the ves

a Ante page 125.

and the cargo thereby completed. I considered the seamen entitled by the contract to a proportion of the whole freight; as well on the furs obtained on the coast, as on those taken in at the intermediate port.