OVER SALVOR'S RIGHTS.

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be devoid of every ingredient and quality of salvage merit; approximating so nearly to the performance of stipulated duty under a contract obligation, that it may be next to impossible to discriminate the one from the other with precision. Thus a towage service may be so near akin to a salvage service as to embarrass any court; and it has, elsewhere, been already stated that a pilotage may be elevated to the rank of a salvage service. Admiralty courts, therefore, are wisely clothed with discretionary powers; and, together with legislators, are constantly modifying for the sake of ameliorating certain antiquated dogmas of the general maritime law.

In cases of derelict, distress, and shipwreck, fragments are now held subject to lien for payment of wages, even if freight be not earned. The remains of a wreck, or fragments rescued in derelict, should be sold; when sold, the proceeds should be held to constitute a fund to be applied first to the discharge of the mariner's lien for wages. Grave doubts have been entertained and expressed by high authority as to the proper designation of this compensation. Whether it should be salvage, wages, or quasi salvage, or wages in the nature of salvage, or wages paid under an exception to the rule, or generally quantum meruit, pro opere et labore. In this uncertain state of shifting and conflicting opinions and oscillating decisions, it was long doubtful what would and should ultimately be its "true designation." Kent, Story, Stowell, and Judge Ware all seemingly differed. In the Neptune (1 Hagg. 227), which was a shipwreck with fragments saved, Lord Stowell upheld a suit for wages, eo nomine; but stated it to be "an exception" to the rule making wages dependent upon the earning of

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SEAMAN'S RIGHT TO REMNANTS,

freight. Kent calls it "rather a claim for salvage," but misnamed wages (3 Kent, Com. 196). In the Two Catharines (2 Mason, 334), Judge Story says, "the claim for wages is fully supported by maritime policy." But, in the Massasoit (1844, 1 Sprague, 97), which was a case of shipwreck and abandonment, but with remnants saved, Judge Sprague says, "we may give its true designation, wages as such are recoverable." And this decision Kent, in a note (3 Com., p. 251), pronounced to be "a startling violation of a principle of maritime policy." Hitherto the decision has remained unshaken; and the courts have not appeared to be greatly startled. On the contrary, the legislators of the British Parlia ment promptly proceeded pari passu, with an American district judge, by formally abrogating all law which required the payment of wages to be thereafter dependent upon the earning of freight.

After its abrogation in England (1845), Judge Betts, in Davis v. Leslie (Abbott, 130), denounced the rule as an antiquated "figment," often "oppressively enforced against seamen."

There has been great incongruity in the courts in striving on the one hand to uphold this old axiom in its entirety; on the other, in struggling to so qualify it as to render it easy to conform to it according to circumstances.

Before England legislated, or Dana, arguendo in the Niphon's Crew, (7 Law Rep. p. 266), predicted its extinction, the old dogma was judicially extinguished by Judge Sprague; he, unlike others, not having "the fear of it before his eyes." He could not "propitiate it by a misnomer;" and would not call wages salvage; but asserted that" wages are the legitimate offspring of the mariner's contract united with performance."

THOUGH FREIGHT BE NOT EARNED.

119

The maxim has worked mischief enough already, and should have expired before British legislation, in 1845, pressed the life out of it. C. J. Kent, in Dennett v. Tomhagan (3 Johns. 156), could and should have performed its final office, and not left it for Judge Sprague.

The axiom, though quaint, is not and never was true. The mariner contracts to perform; and performance, according to stipulation, generates his title to wages. He does not stipulate to insure freight; that would neither be within his province or power. It lies exclusively within the control of the owner to secure freight or risk its loss.

Thus in the Saratoga (2 Gall. 175), Mr. Justice Story says: "If the voyage or freight be lost by the negligence, fraud, or misconduct of the owner or master, or be voluntarily abandoned by them; if the owner have contracted for freight upon terms or contingencies, differing from the general rules of maritime law; or if he have chartered his ship to take freight at a foreign port, and none is to be earned on the outward voyage; in all these cases, the mariners are entitled to wages, notwithstanding no freight has been earned."

And in the Neptune (1 Hagg. 227), the Lady Durham (3 ibid. 196); and Sidney Cove (2 Dods. 13); it was held substantially, that though in shipwreck the cargo be lost, still if the proceeds from a sale of the fragments were sufficient to cover wages, the mariner was entitled to be paid. Vide also the Reliance (2 W. Rob. 119).

It therefore appears, that the opinions of legal minds have been quite fluctuating and even antagonistic, in regard to the soundness of the maxim, that freight is

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OLD MAXIM OBSOLETE.

the mother of wages. Lord Stowell and Mr. Justice Story deliberately question its soundness; Judge Betts denounces it as an "old figment," oppressive to the seaman; and Judge Sprague (obtorto collo), like a strong man and great magistrate, grapples with the maxim itself in 1844, and tramples upon it. And his opinion preceded the enactment of ch. 112, 7 & 8 Vict., by § 17 of which it was enacted, that seamen of vessels wrecked or lost may earn and recover wages, though no freight be earned.

By sections 182 and 183 of the Merchant Shipping Act, passed in 1854 (cited as ch. 104, 17 & 18 Vict.), all agreements with seamen signing away their rights were declared null; and their claims to recover wages were no longer dependent upon the contingency of earning freight.

In England, therefore, the obnoxious, and, as Judge Betts called it," oppressive," dogma is now superseded and ameliorated by legislation. And a similar course might be wisely pursued by the Congress of the United States, unless the adjudged cases, already referred to, practically render such American legislation superfluous.

Having been so often disclaimed or disavowed, as a portion of the condensed good sense of maritime law, it may be supererogatory to further denounce it as a fancy or "figment;" and therefore the maxim may safely be left to the courts or Congress, to become ultimately obsolete in the one, or supplemented with new legislation in the other.

The authorities to uphold the controverted rule are: 1 Pet. Adm. 48, The Cato; ibid. 79, The Harmony; ibid. 204, The Cynthia; 2 ibid. 424, The Catharine Maria; 2 Mason, 319, The Two Catharines; Gilpin, 77, The

Sophia; ibid. 188, The Hercules; 3 Mass. 563, Frothingham v. Prince; 5 ibid. 253, Coffin v. Storer; 3 Johns. 156, Dunnett v. Tomhagen; and 3 Kent, Com. 195,

et seq.

Authorities not yet cited, and not upholding it, beside The Massasoit, supra, are The America, Newb. 195; The John Taylor, ibid. 341; The Wave, 2 Paine, 131; The Dawn, Davies, 121; Reed v. Hussy, Bl. & Howl. 523; The Reliance, supra, and the Holder Borden, 1 Sprague, 144.

This last case is one of singular interest in its main features. The Holder Borden was a whale-ship belonging to Fall River. She was commanded by J. J. Pell. In the Indian Ocean, the ship struck upon a coral reef, not designated on any chart; but in sight, however, of a low sand island, and many miles distant from any inhabited land. Such was her situation, that rescue seemed to be hopeless, and recovery of ship or cargo impossible. Captain Pell, however, on the reef, formed his only plan of ultimate safety which was to construct on the island a schooner craft from the materials to be saved from the stranded ship. By means of these remnants, and the structure formed from them, he hoped to secure his ship's company, and such portions of the cargo and oil, as might prove to be practicable. After months of time, toil, and perseverance, difficulties, almost insurmountable, were measurably overcome; and his craft, called the Hope, was launched, equipped, and started for Oahu. Arriving there, another vessel, the Brig Delaware, was purchased and laden. And after an absence of nearly three years, Captain Pell had the satisfaction of returning to his home port, with the purchased brig, a quantity of