The French Ordinance adds, that in such cases the master shall not charge the owners with the payment (c). A seaman is to be found with provisions as long as he remains on board, and is willing to do his duty; if there be a want of (c) Liv. 3, tit. 4; Loyers des Matelots, art. 10, and also the Code de Com. art. 270. tion or action on the case, averring the breach of contract, or tortious dismissal. In Hulle v. Heightman, 2 East, R. 145, it was held, that a seaman having contracted to go a voyage from A. to B. and back again, with a stipulation, that he should not he entitled to his wages till the end of the voyage, cannot maintain a general indebitatus assumpsit to recover his wages pro rata as far as B., though he has been wrongfully dismissed by the master; but his remedy is either for a breach of the special contract, or for such tortious act of the master's, whereby he was prevented from earning his full wages. In this case, the voyage was not ended, when the suit was brought; and the Court considered the contract as still subsisting, and not rescinded by the illegal act of the master. In Sigard v. Roberts, 3 Esp. R. 71, where there was a stipulation, that the wages should not be paid until the voyage was ended, and the master tortiously dismissed the seaman before the end of the voyage, Lord Eldon held the seaman entitled to recover his wages in a common action of assumpsit for wages, and said, the voyage is then ended as to the man, when he is discharged from the ship by the master. The same doctrine seems to have been adopted by Lord Kenyon, in Limland v. Stephens, 3 Esp. R. 269; and was acted on in Hoyt v. Wildfire, 3 John. R. 518, where the voyage had been lost by the improper conduct of the master and owner. See also to the same effect, Ward v. Ames, 9 John. R. 138; Sullivan v. Morgan, 11 John. R. 66; Brooks v. Dorr, 2 Mass. R. 39; Luscomb v. Prince, 12 Mass. R. 576; Johnson v. Dalton, 1 Cowen, R. 543. However the rule may be at the common law, in the Admiralty a seaman may recover under like circumstances in a libel for wages, stating the facts, the Court in such case pronouncing for damages in the shape of wages. Emerson v. Howland, 1 Mason, R. 45; Orne v. Townsend, 4 ib. 541; > The Beaver, 3 Rob. 92; The Exeter, 2 Rob. 261; The Polly & Kitty, 2 Peters, Adm. 420, 433, note; The Gloucester, 2 Peters, Adm. 403, 406, note; The Little John, 1 Peters, Adm. R. 115, 119, 120. See also a case cited from Sir E. Simpson's notes, 1 Durn. & East, R. 526; Wolf v. The Oder, 2 Peters, Adm. 261; Hindman v. Shaw, 2 Peters, Adm. R. 265, and note, 266; Relf v. The Maria, 1 Peters, Adm. 193; Wilcocks v. Palmer, 3 Wash. Cir. R. 248; Hutchinson v. Coombs, Ware, 65. > Where seamen are with their own consent discharged abroad, or the ship is sold abroad, they are of course entitled to their wages up to that time; and the Act of Congress of 28th of Feb. 1803, ch. 62, provides, that three months additional pay shall be allowed, two thirds of which are to be given by the Consul of the U. States to the seaman, and the other third is to be retained by the consul as a fund to aid sick and distressed seamen. Ante, note to page 193. If this sum is not paid over, it is recoverable in the Admiralty in the common libel for wages. Emerson v. Howland, 1 Mason, R. 45, 48; Townsend v. Orne, C. C. U. S. Mass. Oct. 7, 1827, MSS. <4 Mason, 541. But it has been decided, that the seaman cannot recover in a suit at common law the whole or any part of it. Ogden v. Orr, 12 John. R. 143. See also Sullivan v. Morgan, 11 John. R. 66. See Pool v. Welch, 1 Gilpin, 143; The Dawn, Ware, 485; S. C. 26 Am. Jur. 216. The Act of Congress, Feb. 1803, ch. 62, allowing extra wages to the crew upon the sale of the vessel, and their discharge in a foreign country, applies only to the case of a voluntary sale of a vessel, and not when the sale is rendered necessary by shipwreck. The Dawn, Ware, 435; S. C. on another hearing, 26 Am. Jur. 216. But the owners will not be exempted from the payment of extra wages, if the vessel can be repaired at a reasonable expense, and in a reasonable time, and the burthen of sufficient provisions, it is a sufficient justification for his leaving the vessel, and will not deprive him of his right to his wages (d). (1) Since the earlier editions of this Treatise, the novel case has been presented to the Court of Admiralty of a woman applying for wages for service performed on board a ship. The claim was made for work in two capacities; one as cook and steward, the other as keeper of the ship and her stores, in harbor or dock; the claimant had acted also as mariner in a great degree. After the performance of the service, payment was resisted, on the ground of the sex of the applicant. The learned Judge, who presides in that Court, said, that the material point for the Court to look to, was the work done; for supposing an informality in the mode of hiring, still, if the work had been done, and properly done, it entitled the performer to the common remuneration for such employment (e). In the discussion of the cases that arose on the detention of the British ships in Russia, by the Emperor Paul, in the year 1800, it was admitted in both Courts, that in the ordinary case of an embargo, a seaman hired by the month, and remaining with the vessel, has a right to his wages during the embargo, if the ship afterwards perform her voyage and earn her freight (f). The circumstances of that detention were (d) Castilla, Stewart, 1 Hagg. Ad. Rep. 59. See also Eliza, Ireland, id. p. 186. (e) Jane and Matilda, Chandler, 1 Hagg. Ad. Rep. 187. (f) Beale v. Thompson, 3 Bos. & Pull. 405, and 4 East, 546. proof to show that she could not be so repaired is upon the owners. The Dawn, Ware, 485; The Juniata, 1 Gilpin, 193. But in a case where the seaman was discharged in consequence of a sale of the vessel by necessity, it was held, that although the seaman was not entitled to the extra wages given by the Act of Congress, yet he was entitled to a sum in addition to his wages, to defray the expenses of his return home, to be paid from the proceeds of the vessel. The Dawn, Dist. Ct. U. S. Maine, Feb. 1841, Adm., 26 Am. Jur. 216. See further, ante, 193, and note. > Where a seaman voluntarily left the ship with the consent, and at the request of the master, to serve on board another ship armed as a convoy, it was held, that he was entitled to his wages up to the arrival of the ship at her port of discharge; but no longer. Wilson v. Bragdon, 10 Mass. R. 79. (1) To the same effect is the case of Sigard v. Roberts, 3 Esp. 71. See also Dixon v. The Cyrus, 2 Peters, Adm. 411; Hastings v. The Happy Return, ib. 255, and note. S If a vessel has not the quantity and kind of provisions required by the Act of Congress, July 20, 1790, § 9, and the crew are put on short allowance, they are entitled to double wages for every day that the short allowance is continued. The Mary, Ware, 454. When a seaman is compelled to desert by the cruelty of the master, he does not forfeit his wages, but will be entitled to receive them in full to the prosperous termination of the voyage. Sherwood v. McIntosh, Ware, 109. See Steele v. Thatcher, Ware, very peculiar. The cases will be more fully stated when I come to the consideration of the loss of wages (g). (1) +2. SECONDLY, it was determined before the passing [† 621] of the repealed statutes, by which the service of seamen in merchant ships was regulated, that a seaman who was impressed from such a ship into the royal service, was entitled to receive a proportion of his wages up to the time of impressing, the ship having afterwards arrived in safety at her port of discharge (h). It has also been since decided, that he was entitled to no more (i). The first of those statutes expressly provided, that a seaman belonging to any merchant ship, who entered into the service of his Majesty on board any of his Majesty's ships, should not for such entry forfeit the wages due to him during the term of his service in the merchant ship, nor should such entry be deemed a desertion (k). It has also been decided, that a seaman belonging to a privateer, who was to have a certain share of prizes in lieu of wages, and who had engaged to serve full six months on pain of forfeiting such share, did not lose his share of a prize taken while he was in the privateer, by being afterwards impressed, and then accepting the bounty, and entering on board one of his Majesty's ships before the expiration of the six months (1). But entering, or being impressed into the King's service, was considered not to give the mariner an absolute right to his wages up to the time, nor place him in a better condition as to such wages, than he would be if he had remained on board the ship; and therefore, if the ship were afterwards captured, he lost his wages in common with those whom he left behind (m). (2) (g) Chap. 3 of this part, sect. 2. 1211. (i) Clements v. Mayborn, in the King's Bench, Trinity Term, 24 Geo. 3. (k) 2 Geo. 2, c. 36, s. 13. (1) Paul v. Eden, in the King's Bench, Easter Term, 25 Geo. 3. (m) Anon. 2 Campb. 320, note. (1) The right to recover wages during the time of an embargo, if the voyage be afterwards completed, or a new voyage substituted, was recognised in Marshal v. Montgomery, 2 Dall. R. 170. Indeed the same principle applies, or may be applied, as in the case of freight, for an embargo does not dissolve the contract of affreightment. See ante, note to page 596, and to page 598. So, if in the course of a voyage a vessel be seized and carried out of her way, and detained for a long time, but is afterwards restored and arrives at the port of delivery, the seamen are entitled to wages during the detention, and up to the delivery of the cargo, although she is afterwards lost on the return voyage. Hooper v. Perley, 11 Mass. R. 545. See also, Weskett, Insur. tit. Wages, 11, 12. (2) Where a ship is captured, and a seaman is taken away from the ship, and afterwards she has been rescued by the remaining crew and performed her voyage, full wages have been decreed to the seaman so taken away for the whole voyage. Watson v. The Rose, 1 Peters, Adm. 132; Hart v. The Little John, 1 Peters, Adm. 115. So, *By the 5 & 6 Wm. 4, c. 19, it is enacted, that notwithstanding any agreement to the contrary, entry into the naval service of his Majesty of any seaman in the merchant service, shall not be deemed a desertion, or incur any penalty or forfeiture whatever, either of wages, clothes, or effects, or other matter or thing (n). And that when any seaman shall quit a mer*chant ship in order to enter into the naval service of his (n) Sect. 45. if the ship has been recaptured. (Ibid.) Howland v. The Lavinia, 1 Peters, Adm. 123. But in such cases, a proportionate sum is to be deducted for the salvage upon the rescue or recapture. And if after a capture of a neutral ship, she is released and performs her voyage, the seamen taken out of her are entitled to full wages for the voyage, deducting any wages earned in the intermediate period. Singstrom z. The Hazard, 2 Peters, Adm. 384, 446; Brooks v. Dorr, 2 Mason, R. 39; Wetmore v. Henshaw, 12 John. R. 324. And where after capture a ship has been ransomed and performed her voyage, the seamen taken out on the capture are entitled to full wages for the voyage, they contributing from their wages to the ransom. Girard v. Ware, 1 Peters, Cir. R. 142; Post, page 639, 640, 643, and note. See Brooks v. Dorr, 2 Mass. R. 39; Spafford v. Dodge, 14 Mass. R. 66; The Saratoga, 2 Gallis. R. 164; Brown v. Lull, 2 Sumner, 447; Sheppard v. Taylor, 5 Peters, 675; Pitman v. Hooper, 3 Sumner, 50, 286. > But where a neutral seaman has been impressed, and has never rejoined his ship from choice or necessity, it has been decided, that he is not entitled to full wages ; but it seems, that he is entitled to pro rata wages in the one case to the time, when he might have rejoined the ship; in the other, to the time of impressment. Watson v. The Rose, 1 Peters, Adın. R. 132; Hart v. The Little John, Id. 115; Howland v. The Lavinia, Id. 123. In the case of Brown v. Lull, 2 Sumner, 443, it was held, that "the capture of a merchant ship does not itself operate as a dissolution of the contract for mariners' wages, but at most, only as a suspension of the contract. If the ship is restored, and performs her voyage, the contract is revived, and the mariner becomes entitled to his wages; that is, to his full wages for the whole voyage, if he has remained on board and done his duty, or if, being taken out, he has been unable, without any fault of his own, to rejoin the ship. If the ship is condemned by a sentence of condemnation, then the contract is dissolved, and the seamen are discharged from any further duty on board; and they lose their wages; unless there is a subsequent restitution of the property, or of its equivalent value, upon an appeal, or by treaty, with an allowance of freight, in which event their claim for wages revives. In the case of a restitution in value, the proceeds represent the ship and freight, and are a substitute therefor. If freight is decreed or allowed for the whole voyage, then the mariners are entitled to the full wages for the whole voyage; for the decree for freight, in such a case, includes an allowance of the full wages, and consequently, creates a trust or lien to that extent thereon, for the benefit of the mariners. If the freight decreed or allowed is for a part of the voyage only, the seamen are ordinarily entitled to wages up to the time for which the freight is given, unless under special circumstances; as where they have remained by the ship, at the special request of the master, to preserve and protect the property for the benefit of all concerned." See 3 Kent, (5th ed.) 190, 191. In the case of Pitman v. Hooper, it was held, that if freight is earned by the voyage, whether greater or less, and whether actually received by the owner or not, the right of the seaman to his wages accrues, to the full extent of the freight earned. 3 Sumner, 50. The same is true not only where freight is earned, but also, where it might be earned. S. C. 3 Sumner, 286. This was a case of capture, condemnation, and subsequent restitution. > *Majesty, and shall thereupon be received into such service (not having previously committed any act amounting to and treated by the master as a total desertion), he shall be entitled immediately upon such entry to the delivery up of all his clothes and effects on board such merchant ship, and (in case the ship shall have earned freight) to receive from the master the payment of the proportionate amount of [† 622] his wages up to the period of such entry, either in money, or by a bill on the owner of such merchant ship; all which clothes, effects, money, and bill, such master is required to deliver up to him accordingly, under a penalty of 251. for any refusal or neglect, to be recovered with full costs of suit. If no freight shall have been earned at the time of such entry, then the master is required to give the seaman so entering a bill upon the owner for his wages to the period of such entry, payable on the ship's safe arrival at her destined port; but in case the master shall have no means of ascertaining the balance due, he shall deliver to the seaman a certificate of the period of his services, and the rate of wages he is entitled to, producing at the same time to the commanding officer of his Majesty's ship the agreement entered into with the seaman for the voyage, and the master is thereupon entitled to receive from the officer of his Majesty's ship a certificate, testifying that the seaman has entered into such ship of his Majesty to serve, as proof that the master has not parted with the sea*man contrary to the provisions of the Act (o). If a seaman falls sick and dies during the voyage, the laws of Oleron (p), of Wisbuy (q), and of the Hanse Towns (r), direct that his wages shall be paid to his heirs, in general words, without distinction as to the terms upon which he was hired and it is not clear whether the payment thus directed, is to be understood of a sum proportionate to the time of his service, or of the whole sum that would have been earned if he had lived to the end of the voyage. The French Ordinance distinguishes between the case of a hiring by the month, and a hiring for the voyage; and in the first case directs the payment of wages up to the day of the death of the seaman ; in the last case, it directs the payment of half the stipulated sum, if a seaman dies on the voyage outward, and the whole, if he dies on the voyage homeward (s). A similar rule had been laid down in the case of a hiring by the voyage, in the (0) 5 & 6 Wm. 4, c. 19, s. 46. (p) Art. 7. (q) Art. 19. (r) Art. 45. (s) Liv. 3, tit. 4; Loyers des Matelots, art. 13 and 14. The same rule is laid down in the Code de Com. which also gives half the wages if the mariner dies at the outward port, art. 265. |