5. If the cargo be embezzled or injured by the fraud or negligence of the seamen, so that the merchant has a right to claim a satisfaction from the master and owners, they may by the custom of merchants deduct the value thereof from the wages of the seamen, by whose misconduct the injury has taken place (4). And the last proviso introduced into the usual agreement (1) signed by the seamen, is calculated to enforce this rule in the case of embezzlement either of the cargo, or of the ship's stores. This proviso however is to be construed individually, as affecting only the particular persons guilty of the embezzlement, and not the whole crew (m). Nor, as it seems, is any innocent person liable to contribute a portion of his wages to make good the loss occasioned by the misconduct of others (n). (2) (m) Thompson v. Collins, 1 Bos. & Pull. N. R. 347.

(k) Molloy, book 2. chap. 3. sect. 9. 2 Show. 167. 1 Ld. Raym. 650. (1) See Appendix, No. V.

(n) The same case.

Johnson & others v. Ship Eliza, November, A. D. 1807. MSS. The same doctrine seems supported by the opinion of the court in Beale v. Thompson, 4 East, 546. See also The King v. Castlechurch, 1 Burr. Sett. Cas. 70. and The King v. Eaton. id. 48.

If a person be hired as a mate, and from incapacity or ill conduct, be disgraced to the mast, a deduction of his wages will be allowed by the Court of Admiralty. Mitchill v. Ship Orozembo, 1 Peters. Adm. Rep. 250.

(2) In Lewis v. Davis, 3 John. Rep. 17., where goods had been stolen in the night time from a ship, the crew being then on shore by leave from the commanding officer, the court were of opinion that the crew were not bound to contribute to the loss. Chief Justice Kent in delivering the opinion of the court said,

admitting the rule of the maritime law to be that mariners are

to contribute out of their wages to the damages arising from embezzlements by each other during the voyage, yet if negligence be not imputable to them, and the circumstances of the case do not fix the presumption of embezzlement upon any of the crew, they ought not to contribute. Molloy does not state the rule on this subject with much precision, nor is he of much authority; but he rather seems to place it on the ground of fault or negligence; and even the limited extent to which he earries it in this instance, has been recently questioned or denied by the court in Thompson v. Collins, (1 New Rep. 347.) On the other hand the mutual responsibility of seamen has been carried to a greater extent in the decrees of the District Court of Pennsylvania (1 Peters. Adm. Rep. 243.) and further, I apprehend, than in any of the marine ordinances annexed to the reports of those respectable decisions."

In Crammer v. Ship Fair American, alluded to in the above case, Judge Peters held that where embezzlement is fixed on some of the crew; yet all are bound to contribute; and that no one is to be excused from this general contribution, though absent from the ship, and not in a situation to be capable of assisting in the plunder. See alsov. Ship Kensington, 1 Peters. Adm. Rep. 239. Knap v. Brig Eliza and Sarah. id. 200.

However in a case of embezzlement where it could not be ascertained by whom or when committed, Judge Davis decided that all the seamen were liable to contribute to the plunderage so far as it comprehended property of the owners, but not of the An appeal was entered, but the decision was finally acquiesced in. Bradish v. Ship Friendship, September, A. D, 1804. District Court, Massachusetts, MSS.

master.

It seems also that the admiralty courts will deduct from the seaman's wages all contributions for casks stove by negligence, and all other damages sustained by their misconduct. Wilson v. Belvidere, I Peters. Adm. Rep. 288. Thorne v. White. id. wages to answer con

168. But the owner cannot retain the

tingent damages. - v. Ship Washington. id. 219,

HAVING, in the three preceding

in the three preceding chapters, consid

ered the contract for service on board a mer[458] chant ship; the cases, in which the remuneration of such service is due either wholly or in part; and those, in which it is lost, or forfeited; I propose in this last chapter to treat of the means of obtain ing this remuneration by legal process.

"

}

1. According to the observation made in a former part of this treatise (a), the jurisdiction of the Courts of Common Law can in this case be exercised only by.. suit against the person; but the jurisdiction of the Court of Admiralty may be exercised by process against the ship. In this Court alone therefore that principle of the maritime law, which holds the ship in specie, to be subject to the claim of wages earned by service in it, can be carried into effect. The Court of Admiralty was originally constituted for the adjudication of causes and disputes arising upon the high sea, and within the juris◄ diction of the Lord High Admiral, whose deputy the Judge of that Court formerly was. The proceedings therein, being according to the course of the Civil Law, appear to have been very unpopular in ancient times; and two statutes were made in the reign of King Richard the Second, upon the complaint of the Commons of

(a) Part 2. ch. 3. sect. 25.

t

England, to define the limits of its jurisdiction; by the first of which it is "accorded and assented, that the "admirals and their deputies shall not meddle from "henceforth of any thing done within the realm, but "only of a thing done upon the sea, as it hath "been used in the time of the noble prince [459] "King Edward grandfather of our Lord the "King that now is :" (b) by the other, " It is declared, "ordained and established, that of all manner of con"tracts, pleas, and quarrels, and all other things, arising within the bodies of counties, as well by land as 66 by water, and also of wreck of the sea, the Admiral's "Court shall have no manner of cognizance, power,

ແ

nor jurisdiction" (c). Considering these statutes with reference to the present subject, it is evident that, if the seaman's claim to wages be in reality founded on the performance of his service in the navigation of a ship on the high sea, the Court of Admiralty must have cognizance of the claim; and on the other hand that, if the claim be in reality founded on the contract made for performance of such service, and such contract be, as it usually is, made on shore, or in a port or river, within the body of a county, the Court of Admiralty can have no cognizance of it. In this view of the subject, it is difficult to distinguish the case of the master from that of the persons employed under his command; the nature and place of the service, and the place of the hiring, are in both cases usually the same. Nevertheless a distinction has long been made between them, and is now become a settled rule of law. In pursuance of this distinction the seamen have now in ordinary cases a three

(b) 13 Rich. 2. st. 1. c. 5. (c) 15 Rich. 2. c. 3.

fold remedy, against the ship, the owners, and [460] the master; the master, whether appointed to that office at the commencement (d), or succeeding to it in the course (e), of the voyage, can only sue the owners personally in a Court of Common Law (1) But as he generally receives the freight and earnings of the ship, and may pay himself out of the money in his hands, he has not often occasion for the aid of a Court of Justice to obtain his right. The suit of the seamen in the Court of Admiralty is frequently spoken of as an excepted case (f), and an indulgence, granted to them on account of the convenience and advantage of proceeding in a Court, in which all may join in one suit, and payment may be obtained out of the value of the ship; and of the presumption that they, who contract with the master, contract with him on the credit of the ship: whereas the master, who contracts with the owners, is presumed to trust to their personal credit (2).

(d) Ragg v. King, 2 Stra. 85& 1 Bernard: 297. and King v. Player, there cited. Clay v. Sudgrave, or, Snellgrave, Salk. 33. 1 Ld. Raym.576. 12 Mod. 405. Carth. 518.

(e) Read v. Chapman, 2 Stra. 937. The FAVOURITE, De Jersey, 2 Rob, A. R. 232.

(f) In the cases cited in the two last notes.

(1) So held in Montgomery v. Henry, 1 Dall. Rep. 49. See Gardner v. Ship Jersey, as to what sums will be paid out of remnants and surplusses in the Courts of Admiralty, 1 Peters Adm. Rep. 223. See also as to the right of the master to sue in the Admiralty, 2 Brown. Civ. and Adm. Law. 95.

(2) The Constitution of the United States has expressly delegated to the Courts of the United States, all causes of Admiralty and Maritime jurisdiction. The act of Congress, regulating seamen in the merchants' service, provides that the seamen may sue in the Admiralty Court for their wages. Act, 20. July,