turo. And he considered that there was a difference between the wages of navigation, and the wages of loading and unloading; and he cited the Art. 5. of the Laws of Wisbuy to this effect.

And Roccus (De nav. et naulo, n. 43.) is of opinion, that the wages are due whenever the master discharges the mariner, although the voyage be not completed. Salarium nautæ debetur, quando navis magister ante tempus conventionis completum, licentiam ei dederit, aut eum in terram reliquerit et per eam servire non steterit.

And in an action brought by a sailor against the captain to recover wages, wherein it appeared that by written articles the plaintiff was to go the voyage from Hamburg to Tranquebar, and from thence to any port the captain should think proper, and from thence to Hamburgh, or any other port of delivery; and one of the clauses was, that no seaman was to demand money until the voyage was ended, the cargo unloaded, &c.; the ship on her return voyage, bound to Hamburgh, was captured and brought into the Downs, where the plaintiff came on shore with a boat from the ship, accompanied with the second mate and the surgeon, and on being required to get on board, he and the other seamen said they had no victuals for the whole day, and only requested to stay till they had some, and being left on shore, they returned to the ship the next morning, when the Captain refused to receive them, and dismissed them and refused to pay them, Lord Eldon held that the Captain had discharged the seamen, and that the plaintiff was entitled to recover his wages. The voyage is then ended with respect to any man, when he is discharged from the ship, and then he is entitled to sue consistently with the articles. Sigard v. Roberts, 3 Esp. N. P. Cas. 71. See also Limland v. Stephens, 3 Esp. N. P. Cas. 269. cited page 451. note.

CHAPTER THE THIRD.

OF THE LOSS AND FORFEITURE OF WAGES.

THE wages of seamen, whether hired by the month or for the voyage, are sometimes lost without any fault on their part; and sometimes forfeited by their misconduct.

FIRST, as to the loss of wages.

1. In order to stimulate the zeal and attention of this class of persons, who are often engaged in very perilous services, the policy of all maritime states has made the payment of their wages to depend on the successful determination of the voyage (a). If by any disaster happening in the course of the voyage, such as the

loss or capture of the ship, the owners lose [444] their freight, the seamen also lose their wages (1).

(a) Molloy, book 2. ch. 3. sect. 10. 1 Sid. 179. Abernethy v. Landale, Doug. 539. French Ordinance,

liv. 3. tit 4. Des Loyers des Matelots, art. 8.

(1) This doctrine seems universally admitted in our Courts. See Judge Winchester's opinion in 1 Peters. Adm. Rep. 186. note. And Judge Peters' opinion in Giles v. Brig Cynthia, id. 203. Johnson v. Sims, id. 215. Taylor v. The Cato, id. 54. See also Hoyt v. Wildfire, 3 John. Rep. 518. Brooks v. Dorr, 2 Massa. Rep. 39. Mason v. Ship Blaireau, 2 Cranch. Rep. 240. Dunnett v. Tomhagen, 3 John. Rep. 154.

And if the ship and freight be insured and recovery of the loss had by the owner, this will not entitle the mariner to wages in such case. M'Quirk v. Ship Penelope, 2 Peters. Adm. Rep; 276. Goodridge v. Peabody, cited ante p. 433.

So if the ship become disabled on the voyage. Indeed if the ship be not sea-worthy at the outset, and the voyage be discontinued on that account, a seaman is not entitled to wages, though perhaps he may maintain a special action against the owner for the recovery of damages (b). (1) It was mentioned in a preceding chapter that the payment of wages is divisible, and that if a ship has delivered its cargo at one place, the wages, are so far due, although the ship be afterwards taken or sunk. But if a ship sail to one place in order to take in a cargo there, to be conveyed to another place, and having received the cargo accordingly, be taken before its arrival at the place of delivery, nothing is payable to the seamen for navigating the ship to the first place, because no freight is thereby gained (c). (2)

2. I have mentioned in a former part of this treatise (d), that in some foreign countries, where ransom is not contrary to law, the seamen belonging to a ship

(b) By Lord Ellenborough, Ch. J. Eaken v. Thom. 5 Espin N. P.

cases,

6.

(c) Hernamanv. Bawden, 3 Burr.

1844, on a voyage to Newfoundland for fish to be carried to Spain.

(d) Ante, part iii. chap. viii. s. 14.

(1) This doctrine is doubted in Hoyt v. Wildfire, 3 John. Rep. 518.; and seems overruled by Judge Peters, in Hindman v. Shaw, 2 Peters. Adm. Rep. 264., where in a case of unseaworthiness in the course of the voyage, he decreed wages up to the time when the mariner, who refused to go on in another vessel, left the ship. But he seemed to think that if the unseaworthiness had existsd at the beginning of the voyage, the merchant would be a delinquent, and the seaman might claim wages as in the common case of a voyage broken up by the fault of the

owner.

(2) But see on this point the note under

P ᏎᏎᎢ,

captured and ransomed, are bound to contribute a portion of their wages toward the ransom by way of general average. This point is in itself of no importance in this country, because ransom is prohibited by our law; but the payment of salvage upon re- [445] capture is analogous to the payment of ransom, and was so considered by Sir Wm. Scott in a late case in the Court of Admiralty (e). In an action brought for the wages of a seaman after a capture and ransom of the ship, and which was tried before Chief Justice Holt, the Chief Justice is reported to have decided that the seaman was entitled to nothing, he being unable to prove that by the custom of merchants he was entitled pro ratâ, as was insisted on his behalf (ƒ).

2. b. But it seems to be the better opinion, that in the case of capture and recapture, if the ship perform her voyage and earn her freight, a mariner who has not been separated from her, is entitled to his wages upon the footing of the original contract (g), subject perhaps to a proportionate salvage. In conformity to this opinion, at the trial of a cause before Lord Eldon, when his Lordship presided in the Court of Common Pleas, a seaman recovered his whole wages af- [446] ter capture and recapture of the ship (h). The

(e) The FRIENDS, Bell, 4 Rob. A. R. 143. The prize acts do not mention the freight; they only direct a portion of the value of the ships, vessels, boats, and goods re. stored, to be paid as salvage. But as the goods, if taken to the place of destination, are valued there, the freight is of course included in the valuation, and so the freighter may pay salvage upon it; in one case, an eighth of the freight was ordered to be deducted as between the owner and freighter. The RACE

HORSE, White, 3 Rob. A. R. 101.

(f) Chandler v. Meade, mentioned at the end of the case of Wiggins v. Ingleton, 2 Ld. Raym. 1211.

(g) Molloy, book 2. ch. 4. sect. 14. as to freight, which depends upon the same principle. But see the dictum of Eyre, C. J. in Curling v. Long, 1 Bos. & Pull. 637. which is contrary.

(h) Bergstrom v. Mills, 3 Esp. N. P. Cases, 36.

owners did not insist upon any deduction as contribu tion to the salvage, but put their defence on another ground, which they failed to establish. In another case, a mariner, who had been hired for a voyage from Newcastle to London and back, at a certain sum, and was captured on board two days after the ship's departure, and taken out and sent to France, instituted a suit in the Court of Admiralty for wages; the ship had been retaken, carried to the place of destination and performed her voyagé; the owner however had been obliged to hire another person at London to return to Newcastle with the ship, in the place of the plaintiff. Under these circumstances the learned Judge of that Court held, that the plaintiff was not entitled to any thing; but it seems from the language of the report, that if the plaintiff had remained on board, his interest would have been thought to have revived upon the recapture (i). (1)

(i) The FRIENDS, Bell, 4 Rob. A. R. 143.

(1) This case in Robinson's Reports seems contradicted as to the general principle by the case of Bergstrom v. Mills, 3 Esp. N. P. Cas. 36., which was approved by the Court in Beale v. Thompson, 4 East. Rep., 560. and was denied on mariner's shipping for monthly wages in the following case. The plaintiff was a mariner shipped for monthly wages on board the ship Ariadne, on a voyage from Boston to Charleston, S. C. and thence to London, and thence to her port of discharge in the United States. The ship sailed to Charleston in ballast, took in a cargo on freight, and on her passage to London was taken by a French privateer, carried in and after a detention of eight months released. The ship then sailed for London, and there delivered her cargo and received full freight money. The plaintiff at the time of capture was taken out of the ship, carried as a prisoner to France, and after two months was released, and