SEAMEN'S WAGES.

ers; he is under the orders of the master, in his ordinary duty; but his contract is not subject to arbitrary control. He may forfeit his right to command and wages, by fraudulent, unfaithful, and illegal practices; by gross and repeated negligence, or flagrant, wilful and unjustifiable disobedience; by incapacity, brought on him by his own fault, to perform his duty, or palpable want of skill in his profession. These are very different from the charges alleged, but not satisfactorily proved, in this cause. I do not therefore think that the captain was justifiable in displacing the mate for the causes assigned. The safety of the ship often depends on this officer, who is sometimes more trustworthy and capable than the master; and commonly placed by the owners to encrease the security of their property. In case of the absence, incapacity or death of the captain, the command and responsibility devolve on the mate.* The causes of re

* In a late case, in the district court, (January, 1807,) a question was made as to the responsibility of a mate, who, by the death of the captain, became master, by succeeding to that birth on a voyage. One under these circumstances, was offered as a witness, on the part of the owner, in a suit, by a mariner, against the ship and owner. It was said he was not answerable to the seaman for any wages; a liability for which, only attached by contract made with the late master; he was, therefore, disinterested in any event. On the other side it was contended, that by operation of law, the liability grew out of service, and not positive contract. If it did not reach farther than to the late master's death, it was operative for all wages accrued since that event.

Court. I will not determine this point, so as to preclude further investigation, if it shall arise in a question directly. I will not refuse to admit the witness, if it is pressed. But there

Atkyns

vs.

Burrows.

Mate not be

ing lawfully displaced, and offering to do his proper duty, should

have been received.

If a loss accrues when

the mate is unlawfully displaced, the

master must answer.

SEAMEN'S WAGES.

moval should, on all these considerations, be evident, strong and legally important.

The second point depends on the first-the mate tendered himself ready to perform his duty as mate, but the master refused to receive him in that capacity: he was not bound to act in any other station. If any loss accrued to the owners hereby, the master, and not the mate, is responsible. If a common mariner even rebels, disobeys and refuses to do his duty, but repents in time and offers amends, and a return to, and faithful discharge of his duty, the master is bound to receive him. If the master will not so receive and reinstate him, but discharges him, the maritime laws declare that he may follow the ship, and recover his wages for the whole voyage.

I do not think it necessary to determine the point made in this cause, "Whether the mate is, or is not, bound when the voyage is ended, to assist in unlading the cargo?" The mate seems peculiarly charged with this duty (however it may be

is other testimony, perhaps sufficient. I incline strongly to the opinion of the counsel for the owner. The necessary, but casual successor to the late master, is only accountable for his own transactions. Bills of loading signed by his predecessor, do not bind him, though he may be responsible for the goods, if on board, in their condition at the time he succeeds to the command. He must sue in the admiralty as mate; and his wages, as such only, are recoverable here.a His claim for services, as temporary master, either demanded as additional wages, or as a quantum meruit, must be agitated elsewhere.

Other testimony was produced, a compromise took place, and the point subsided.

a 2 Rob. Adm. Cases, vol. ii, p. 196, Philadelphia edition.

SEAMEN'S WAGES.

Atkyns

Burrows.

with the mariners) and he offered to perform the service. I have on many occasions, given my opinion on the subject of the duty of mariners, under similar circumstances with the mate. On the Wages dewhole, I think wages must be paid agreeably to the contract in the shipping articles.

creed.

K k

The second

mate's wages disputed, because he was

seaman.

THE contract for wages in this case was not denied, but proof was adduced to shew that the complainant was incompetent, and did not understand not a perfect perfectly the duty of a mariner.-Yet it appeared, that he had fulfilled all the duties commonly required from a second officer, about two weeks excepted, when he was sick. At the end of this period the master intermitted his office of second mate, and turned him before the mast. It It appeared from circumstances, that the captain was personally acquainted with the complainant before the contract. It was in proof that he was a midshipman in the service of the United States, on furlough, and had acted in that capacity during several cruizes. Court. The true ground of all such enquiries is, whether or not, there has been fraud and imposition practised? If this fact is made out, the contract is not binding on the party deceived. This is a principle in both the common and maritime laws. If one ships as an officer, or mariner, and either expressly or impliedly, professes himself a mariner capable of thoroughly executing the contract, and it turns out otherwise, this court is in the constant habit of denying wages on the claim entirely; or allowing a quantum meruit, according to circum

stances.

The proof of such false professions must

SEAMEN'S WAGES.

every

be made out, and the fraudulent conduct designated, in some satisfactory way. In the case before me it is my belief, that the master was acquainted with the capacity of the complainant, as to seamanship; and that no fraud was practised. He made the engagement under a knowledge of the true state of the complainant's nautical abilities, or deficiencies. I am neither desirous, or accustomed to decide on other than such as appear to me legal principles. Where these justify me, I will take fit occasion to encourage our midshipmen (having leave of the executive so to do) to enter into the merchant service, as a laudable mode of perfecting themselves in seamanship, instead of dissipating and wasting their time. I have always considered our navy a great school, among its other benefits, for teaching young men of education and respectable connexions, nautical knowledge. Although they may not be perfectly competent in all the drudgery and details of seamanship, they may, and very many do, acquire a sufficient knowledge to qualify them for commands in merchant ships. Other qualifications than those of mere seamanship, are required in those who act as officers in ships. I have had too frequent opportunities of perceiving, that many of those who are capable before the mast, are miserably incompetent on the quarter deck. Qualities, not commonly discovered by mere seamen, are here indispensably called forth. However desirable it may be, that an officer shall have gone through every grade of the occupation to which he is devoted, it often happens that those who have not practically or manu. ally acquired their knowledge of all the duties of

Mitchell

VS.

the ship Orozimbo.

Midshipmen on furlough,

should be encouraged to enter into the

merchant's

service.