122

WAGES INDEPENDENT OF FREIGHT.

oil and some portion of remnants, saved from his wrecked ship, the Holder Borden. What became of his extemporized schooner craft does not appear in the report. Had she returned to the United States, she must have been a curiosity in naval architecture, worth seeing if not saving. Held, the master and crew were not salvors, but the Hope was their property, and they were entitled to pay for transporting cables and anchors of the ship to Oahu; that the purchased brig belonged to the owner, who had a lien for compensation for service beyond risk and expenses.

In 1 Sprague, 91, and ibid. 428, 210 Barrels of Oil, and the Triumph, are instructive cases upon the quantum and merits of salvage.

And although the books make the distinction between the right to wages or salvage, the one ought not in future to be confounded with the other. Each should be designated by its proper appellation. For a good judge, stare decisis is a safe rule, where there are decisions to be followed. But without such decisions the practice may mislead, as construction and a priori reasoning may imperceptibly take the place of authority. The quaint maxim, however specious it may seem, clothed in axiomatic language as usual, that freight is the parent or mother of wages, is not now and never was a strictly legal truth. This may be tested by reference to the causes or grounds of forfeiture of wages.

Thus the seaman forfeits his wages, in whole or part, and in pœnam always, by drunkenness, insubordination, disobedience, negligence, embezzlement, desertion, or other wrongful absence; piracy, mutiny, revolt, running away with a vessel animo furandi; or any other unspeci

AUTHORITIES

DISTRESS.

123

fied misconduct, developing itself in inability or indisposition to perform his contract duty and terminating in non-performance of his contract obligations. To all these, the principle of forfeiture strongly applies; not because by these acts freight is not earned, or is lost, but because they constitute a breach of contract. The violation of the contract is the gist of the real legal offense. The loss of freight may be an incident, and often is a consequence of such violation; but cannot supplement the real offense, which is the non-performance or breach of a mariner's contract stipulation.

Under four considerations, may salvage service be proffered and rendered: in cases of distress, rescue, recapture, and derelict.

Many authorities, old and recent, may be cited to each of these conditions.

I. Where salvage has been rendered in cases of distress; and the English authorities are usually: The Sarah, 1 Rob. 312; The William Bickford, 3 Rob. 355; The Vrow Margaretha, 4 Rob. 147; The Baltimore, 2 Dods. 132; The Clifton, 3 Hagg. 120; The Ranger, 9 Jur. 119; The City of Edinburgh, 2 Hagg. 334; The Sappho, Swab. 242; The Santipore, 1 Spinks, 234; The Paris, ibid. 289; The Undaunted, Lush. 92; L'Esperance, 1 Dods. 46; The Elenora Carlotta, 1 Hagg. 156; The Nicolai Henrich, 22 Eng. L. & Eq. 615; The Houthandel, 1 Spinks. 25. In this last case, it would seem that salvors, when in possession, are authorized to take a salved ship to the port most convenient to themselves. The Silver Bullion, 2 Spinks, 74; S. C. "Shipping Gazette" of Dec. 8, 1854, and 2 Pritch. Adm. Dig. 1081-86; The Lady Worsley, ibid. 253. Salvors, retaining possession from owner's agent, forfeit

124

RESCUE, RECAPTURE, DERELICT.

salvage for misconduct. The Wear Packet, ibid. 256. The court refused to entertain claim of parties convicted for misconduct in same transaction. The Bomarsund, Lush. 77. Services accepted in distress. The Little Joe, ibid. 88; a case of ambiguous signal and information; and the case of Towle v. The Great Eastern, 11 Law Times (N. S.), 516. While the American authorities ordinarily cited, are The Blaireau, 2 Cranch, 240; The Elvira, 1 Gilp. 60; The Centurion, Ware, 477; H. B. Foster, Abbott, 222; A Raft of Spars, ibid. 291; Miller v. Kelley, ibid. 564.

II. Where salvage has been rendered in case of rescue, the English authorities are: The Two Friends, 1 Rob. 271; The Beaver, 3 Rob. 292; The Resolution, 6 Rob. 23; The Governor Raffles, 2 Dods. 14; The Francis and Eliza, 2 Dods. 115; The Salacia, 2 Hagg. 262; The Florence, 20 Eng. L. & Eq. 607. And the American authorities are: The Harmony, 1 Pet. Adm. 70; The Fair American, 1 ibid. 87; The T. P. Leathers, Newb. 421; 2 Sprague, 101, The James T. Abbott; signal for aid, a foundation for claim of salvage; ibid. 51, a Quantity of Iron. Claim of parties unnecessarily interfering with wrecked property is not admissible.

III. Where salvage service has resulted in recapture, the English authorities are: The Santa Cruz, 1 Rob. 49; The San Bernardo, ibid. 178; The Haas, ibid. 286; The Amor Parentum, ibid. 303. And the American authorities are: The Harriet, Bees. R. 128; Bas v. Tingey, 4 Dall. 37; The Amelia v. Talbot and Seaman, 1 Cranch, 1; The Harmony, 1 Pet. Ad. 70; The Fair American, 1 Pet. Ad. 87.

IV. Where salvage claim is set up in cases of derelict, the English authorities usually cited are: The Aquila,

1 Rob. 37; The Fortuna, 4 ibid. 193; The Jonge Bastiaan, 5 ibid. 322; The Elliotta, 2 Dods. 75; King v. Property Derelict, 1 Hagg. 383; The Charlotte, 2 Hagg. 361; The Caroline, 2 W. Rob. 124; The Watt, ibid. 70; The Effort, 3 Hagg. 165; The Windsor Castle, 2 Notes of Cases, Supp. 13; The Clarisse, Swab. 129; The Santipore, ibid. 231; The Jan Hendrick, ibid. 181; The Persia, ibid. 166; The Orbona, ibid. 161; The E. U., ibid. 63; The George Dean, ibid. 290; The Minerva, 1 Spinks, 271; The Fenix, 1 Swab. 13; The Cosmopolitan, 6 Notes of Cases, Supp. 17; The Coromandel, Swab. 205; The Barefoot, 1 Eng. L. & Eq. 661; The Samuel, 4 Eng. L. & Eq. 581; The Florence, 20 ibid. 122; The Britannia, 3 Hagg. 153; The William Hamilton, ibid. 168; The Derelict Unknown, ibid.; The Jubilee, 3 Hagg. 43; The Champion, Brown. & Lush. 69. There a master left for assistance, and while absent others took possession. On his return, the master resumed possession and displaced the other parties. Held justified.

And the American authorities are: The Mary Ford, 3 Dall. 388; Rowe v. Brig 1 Mason, 372; The Bellona, Bee, 193; The Belle Creole, 1 Pet. Ad. 34; The Emulous, 1 Sumn. 207; The Boston, ibid. 328; The Nathaniel Hooper, 3 ibid. 542; The Henry Ewbank, 1 ibid. 400; 140 Bbls. Flour, 2 Story, 195; The Rising Sun, Ware, 378; The Bee, ibid. 322; The Elizabeth & Jane, ibid. 35; The Amethyst, Davies, 20; The John Perkins, 21 L. Rep. 87; The John Gilpin, Olcott, 77; Post v. Jones, 19 How. 161; The Galaxy, Bl. & Howl. 273; The Schooner John Wurtz, Olcott, 462; The Hercules, Gilp. 184; The Saratoga, 2 Gall. 187; The Two Catharines, 2 Mason, 319; Pitman v.

126

EFFECT OF SEA-ABANDONMENT.

Hooper, 3 Sumn. 60; 1 Newb. 412, The Delphos ; ibid. 421, The T. P. Leathers; ibid. 329, The Charles; 1 Gall. 132, Tyson v. Prior; 2 Sprague, 48, The Czarina. From these authorities it may be gathered,

First, What, in legal contemplation, constitutes derelict, by the maritime law.

Second, When, in any just sense, the mariner is so absolved from his allegiance to his ship and contract, that he may become a salvor and legally participate in a meritorious salvage claim; and, generally, what principles of maritime jurisprudence control and govern admiralty courts, in awarding salvage, fixing the amount, apportioning it among salvors, and designating the salvors in derelict cases.

Derelict has been defined by Dr. Lushington; and his definition is in consonance with the admitted practice, since 1798, of his three predecessors, Lord Stowell, Sir Christopher Robinson, and Sir John Nicholl. That definition may be found clearly and succinctly stated in the Florence (20 L. & Eq. 607); and it is this substantially that a ship or cargo when abandoned at sea, by order of the master, with no purpose of returning to, or prospect of regaining it, becomes in law derelict.

On authority, principle, usage, and in every just sense, it is a legal maritime derelict; and the direct effect is, to set aside the shipping contract as between mariner and merchant; compelling all to look out for self-preservation; while the logical and legal result is, to liberate the mariner himself from further allegiance to the ship, unless in exceptional cases.

The judgment of the master, acting on the spot, as the owner's lawful agent, is in law conclusive; and the mariner, thus released from his covenanted duty of aid