412

NEW-ENGLANDERS BECOME LARGELY INTERESTED.

of Nantucket, Martha's Vineyard, and Cape Cod practically and substantially monopolized the whaling business. But a new competitor appeared to share with them in this pursuit and its profits; and New Bedford, now the largest whaling port in the world, outstripped all other places; and, perhaps, it is no exaggeration to state that at least one half of all the whaling business in the United States is conducted at New Bedford.

Most of the cases reported which have occupied the attention of courts have arisen on board ships belonging to New Bedford or Nantucket. The case of Reed v. Hussey (Bl. & How. 525), decided in another jurisdiction by Judge Betts in 1836, was in reference to a Nantucket ship; the Frederick (5 Ch. Rob. 8), in 1803, though nominally a French vessel, captured by an English ship, was a case in which the sailors, intervening for their wages, were Americans.

Indeed, all the authorities to be cited in this chapter, it will appear, were American vessels or in which American rights and interests were involved, with the exception of the Sidney Cove1 and Riby Grove.2

The American cases to be cited in addition to that already referred to are Barney et al. v. Coffin (1825), 3 Pick. 115; Baxter v. Rodman (1826), 3 ibid. 435; Grozier v. Atwood (1826), 4 ibid. 234; Bishop v. Shepherd (1839), 23 ibid. 492, in the State Court of Massachusetts; in the Federal courts, Coffin v. Jenkins (1844), 3 Story Rep. 112, in which Mr. Justice Story is reported to have said, in relation to the whaleman's lay or share as compensation in lieu of monthly wages as a mariner: "This lay or share does not, according to the law, create any partnership in the profits of the voyage, as has been sometimes erroneously sup

1 2 Dods. 11.

22 W. Rob. 52.

AUTHORITIES CHIEFLY AMERICAN.

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posed; but it is in the nature of wages for seamen in the common merchant's service, and is governed by the same rules. This opinion was adopted by Lord Alvanley, in the Court of Exchequer, in Perrott v. Bryant (2 Younge & Coll. 61); in Mair v. Glennie (4 M. & Sel. 240); by the Court of King's Bench, and by the Supreme Court of Massachusetts in Boston, in Baxter v. Rodman (supra), in Rice v. Austin (17 Mass. 195, 203, 206), and in Grozier v. Atwood, supra. The same doctrine was held by Lord Stowell in the Frederick (5 Ch. Rob. 8). Indeed I consider it too well settled now to admit of any reasonable doubt."

Superadded to these authorities, the (eighteen) reported cases decided by Judge Sprague, constitute all the law accessible at present upon the interesting and somewhat engrossing subject of this chapter.

These cases are The Hibernia (1844), 1 Spr. 78; Luscomb v. Osgood (1844), ibid. 82; Jay v. Allen (1846), ibid. 130; The Holder Borden (1847), ibid. 144; Tompkins v. Howard (1849), ibid. 167; Brunent v. Taber (1854), ibid. 243; Knight v. Parsons (1855), ibid. 281; Payne v. Allen (1855), ibid. 304; Taber v. Jenny (1856), ibid. 315; Loverein v. Thompson (1857), ibid. 355; Hussey v. Fields (1858), ibid. 394; Bates v. Seabury (1858), ibid. 433; The Schooner William Martin (1859), ibid. 564; and in 2 Spr. 56, Hathaway v. Jones; ibid. 61, Bark Huntress; ibid. 65, Hall v. Hudson; ibid. 68, Hazard v. Howland (1863).

The earliest case (the Frederick, supra,) occurred in 1803. A French ship, engaged in the South whale fishery, was captured by the English; the captured ship having on board American sailors. The prize ship was neither really or ostensibly American, but was avow

edly French. Between France and England hostilities commenced 16th May, 1803, and a blockade of the Elbe and Weser was proclaimed June 28, and July 26, 1803. The hearing and decision was had on the 7th September, 1803. At the trial, the American master and mariners intervened, as claimants for their wages or specific shares, upon the ground, doubtless, that it was their property and must be restored to them as neutrals. But it was held otherwise, and they were taken to be French sailors; their national character was concluded by that of the ship; being on board an enemy ship, they could be deemed no other than enemy seamen, without relaxing the general rule; the ratio of wages, being the ordinary mode of carrying on that particular species of commerce (the whaling business), must be deemed a material part of the trade itself; and therefore the American sailors, being on board a French ship, were deemed by Sir William Scott to be precluded from claiming wages, while on board an enemy ship, which impressed upon them the same character.

This first case seems to have anticipated several of the subsequent judicial decisions, as to the legality of compensating whalemen by lays or shares instead of monthly wages.

The next case was in 1815 (the Sidney Cove), in which the mariner was adjudged to be entitled to wages, but not precisely upon the ground that an agreement for a lay or share in the profits was an exact equivalent. For, on the objection of Dr. Lushington, then of counsel for the respondent, so much of the summary petition, as related to the contract in the eventual voyage for whales and seals, was rejected by Lord Stowell; and the wages for £8 per month for the chief mate,

SIDNEY COVE AND RIBY GROVE.

415

as stipulated for at London, was allowed. The objection taken was, that the agreement for a share of the proceeds or profits, after leaving New South Wales, was in the nature of a special contract, and so not cognizable in the Admiralty Court.

The other English Admiralty decision, to which reference is usually made, is that of the Riby Grove, which came before the court in 1843, when Dr. Lushington was the presiding judge of the Admiralty in England. And the same difficulty in regard to special agreement seemed to confront him as judge, as did formerly his predecessor in 1815, in the case of the Sidney Cove; when, upon the same ground, an exception was taken to the jurisdiction of the court; that is, that a court of Admiralty could not take cognizance of the stipulation for shares of the profits for compensation, because it was a special contract. And Dr. Lushington declared that he felt bound to reject the summary petition; as he did, ultimately, upon the three following grounds :— "First, because the contract was a special contract, such as is described by Lord Tenterden as ousting the jurisdiction of this court.

66

Secondly, because I conceive that I am confirmed by the authority of Lord Stowell in so doing.

"And, lastly, because the contract being in the nature of a partnership, I should have, in entertaining the question, to encounter such difficulties as would render it impossible for the court to arrive at a just and equitable result."

With this reference to the English decisions of the Sidney Cove and Riby Grove, it is difficult to perceive how the conclusion can be reached, that the doctrine, as held by the highest authorities in England in Admi

416

USAGES OF THE TRADE, AS RECOGNIZED BY

ralty, is in unison with those of the United States, as to the legality of compensation by lays; although such a doctrine seemed to have been foreshadowed by Sir William Scott in the earlier case of the Frederick, in 1803, and has been cited to that point by Mr. Justice Story in Coffin v. Jenkins, supra.

Passing then the English authorities, we come to those cases which are reported as decided in the American State and Federal courts.

The first of these cases in order of time is that of Barney et al. v. Coffin (1825), 3 Pick. 115; in which the opinion of the Supreme Court of Massachusetts was given by its Chief Justice, Parker; who, speaking of whaling voyages, said, "they are of themselves peculiar, and almost confined to Nantucket and New Bedford;" and of the whale fishery itself, as a branch of business of a peculiar character, where peculiar usages may be expected to be found. And usage, in commercial matters, either is or may become law. The usage for the captain to make advances to the mariners and retain out of their shares enough to cover his disbursements on their account, was there recognized to be right and lawful. C. J. Parker observed that "nothing can be more reasonable, and indeed necessary than that, in voyages of this sort, which are prosecuted from pole to pole and through almost every climate, the wants of the seamen should be supplied; and if there were no security upon their earnings, there would be nobody to advance."

In 1826, in the case of Baxter v. Rodman, the same objection was revived which was made in 1815 in the Sidney Cove (supra), viz.: that, as the mariners were to share in the proceeds, they were legally and technically