1 Mariners the ship But other cannot be obtained. Master the expenditure. SEAMEN'S WAGES. sions cannot be obtained, it would be unreasonable to suppose, that the spirit and intention of the law, Washington. do not permit equivalents, of other good and whole. some esculents, to be substituted and supplied, in wise, if they place of provisions damaged or consumed. The owner or master is to take the best precautions to procure good and wholesome enumerated articles, which is often difficult in foreign ports. But they are not answerable for accidents happening to them, without negligence on their part. After the requisite quantity and species are taken in (where they can be obtained) the master is the sole judge of judge of their their expenditure. He must not wantonly deprive the crew of an ample allowance. It is not his interest, nor does it comport with his own comfort, or the safety of the ship, to produce, by unwarrantable privations, discontents, ill-humour and Causes which debility, in the crew. But if the voyage is likely to be uncommonly procrastinated; if provisions are, abridging the by accidents, diminished in quantity, he may, justifiably, abridge the usual allowance. There is not the shadow of reason to complain, where other provisions are substituted, for enumerated articles, damaged, consumed, or not to be procured. It appears, in this case, that there is no reasonable or legal ground of complaint. I therefore dismiss this excuse the master in quantity of provisions. claim. MARINERS' wages and claim for short allowance. Also petitions of the master and physician for payment out of remnants and surplus. The voyage was from Philadelphia to Canton, and back to Philadelphia, with liberty to go to other intermediate ports. 1806. A suit was commenced for mariner's wages, in A claim of which sundry disputes arose, of no general impor- compensatance. The wages were decreed, and the vessel allowance. directed to be sold for their amount, together with a sum adjudged to the seamen for twenty six days short allowance of provisions, at one day's pay to each mariner, for every day full allowance was not served out. It was contended that, with respect to some of the mariners shipped in foreign ports, the voyage should be considered, so far as they were concerned, as commencing at the ports of shipping them respectively. And as the act of congress only contemplated voyages from the United States, the case of a seaman engaged in a foreign port was not within its purview. But this objection was overruled for the following reasons. The voyage was entire, and commenced at Philadelphia, and there ended. The intermediate circumstances became engrafted into the entire voyage, and this rode over all subordinate considerations. The act of apply to seamen shipped ports. congress does in foreign SEAMEN'S WAGES. the ship Gardner et al. There could be no subdivisions, or apportionments, except as to the time of service of the respective indiNew Jersey. viduals, which determined the amount severally due to them. Endless confusion and difficulties would arise, from such distinctions among the crew, each of whom participated in the general contract, and had the same rights to any benefits, as they shared in all disadvantages, arising out of that contract. The deficiencies of provisions accrued on the home passage, in which all the mariners were alike engaged. Species, quantity and allow. ance of provisions, how fixed. A claim by the master for sums dishim, and for bursed by wages. The decision in the case of the ship Washington, was taken as the guide to determine the quantity and species of provisions, required on a voyage from China; and the navy ration, the rule by which the allowance was adjusted. Substitutes for articles enumerated in the law on this subject, were allowed. The live-stock, though legally excluded, was, by consent counted in, and yet there was a large deficit on the whole. The payment for the short allowance, at the rate directed by law, was therefore decreed. The ship was sold by the marshal, under the decree; and the monies arising from the sale, were brought into court. There remained a surplus or remnant, after payment of all sums adjudged to be paid, and the costs and charges, accruing in the suit, and on the sale. A petition of James Cooper, the master, was presented, stating, that he had expended, during the voyage, for pilotage, mariner's wages, and other charges necessary for the use of the ship, two hun a Ante page 220. SEAMEN'S WAGES. Gardner et al. vs. the ship dred and fifty seven dollars, which remained unpaid. And that there were due to him, for wages as master, eight hundred and twenty-seven dollars and New Jersey. sixty cents. Another petition from William Baldwin, was also presented, stating, that he was employed as physician in and for the ship, on her voyage from Philadelphia to Antwerp, Canton, and back to Philadelphia. And that there remained due to him for his services on board, one hundred and sixty-seven dollars. The petitioners prayed that the sums due to them respectively, should be paid out of the surplus monies, remaining in court, after payment of all sums decreed, and the costs and charges thereon. The claim for payment to the petitioners was insisted on, under the authority of a dictum of sir William Scott, in the case of the Favourite, which it was alleged, justified a payment to the master. The justice of his claim was farther enforced, by the reasoning in 2 Brown's Civil and Adm. Law, 95, where the propriety of the master suing in the admiralty is advocated, though it is admitted not to be practised. Abbot, 94, was cited to shew, that money, paid by the master on a foreign voyage, was a lien on the ship. The general doctrine, that whatever court had possession of the principal, had power over all incidents, was relied on, to support the claim of the physician. Court.-When I first came into this court, I made, in several instances, distribution of surplus monies, under the idea, that I had the power so to do, a Rob. Adm. Cases, vol. ii, p. 197. Phila. ed. Gg Claim by a the amount physician for due on a contract with the owners, for board. services on SEAMEN'S WAGES. Gardner et al. agreeably to the doctrine now stated, to justify me in US. the ship There must be a lien le gally and pre cedently fixed, to en title claimant to payment out of rem granting the prayers of the petitions. But on expeNew Jersey rience, I found myself involved in many difficulties and mistakes, in the application of this doctrine. It was one among the mass of irregularities I had to encounter, before I established, by frequent decisions, and with much consideration, the general principles which now prevail. I found it best and safest, to fix some general rules, applicable to most cases, though at times, some anomalous instances should occur, inducing particular hardships. The rule, by which I have governed myself for several years past, is, that it shall appear, that a sum claimed out of the surplus or remnant, is either of itself, or in its origin, a lien on the ship, or other thing out of which the monies were produced. This rule is not only justified by the practice of the civil law, but in the English chancery, and even in their courts of common law, wherein they are governed, when the case requires, by the principles of other courts, having concurrent cognizance of the subject matter, either incidental, or in chief. Many authorities may be produced to support this position. In chancery, the monies arising from sales of lands, are distributed as liable to the same trusts or liens, to which the land itself was subjected; and so of the produce of any subject or thing, originating the suit, or matter, under the cognizance or the enquiry of the court. Whensoever the courts of common law have occasion to determine questions of admiralty jurisdiction or cognizance, the principles of decisions in the admiralty courts are pursued. Their strict adherence to preferences, given by liens at common law, is invariable. But it is rare indeed, if at all to be dis nants and surplus. |