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to pay their wages or the expenses

of their return home, and consequently if they refuse to aid in saving the property he has no cause of complaint. Pothier maintains the same doctrine. By the accident of major force, he says, which prevents the continuation of the voyage, the parties are freed from their engagements, and the seamen are no longer under any obligation to continue their services.' Boulay Paty without being very explicit seems silently to acquiesce in the same conclusion.'

But notwithstanding the imposing authority of these great names, it appears to me that this doctrine is exposed to very grave objections. It is true indeed as a general principle, when the performance of a contract is rendered impossible by a fortuitous event, that the parties are freed from its obligations. And in this case the prosecution of the voyage having, by an accident of major force, become impossible, the seamen are undoubtedly discharged from the principal obligation of the contract, that of performing the voyage. But as incidental to that, they are bound at all times to exert themselves for the preservation of the property entrusted to their care.

It would be singular if they were released from this collateral obligation on the happening of an event, which rendered it peculiarly necessary. It appears to be a duty resulting directly and necessarily from the nature of their engagement to render their utmost exertions on these occasions to save all that is possible for their employers. This duty is expressly enjoined upon them in nearly all the old maritime ordinances. The law is so stated by Abbot in his treatise on Shipping. And so it has I believe been uniformly held in this country. So long as these services are continued their right to wages under the contract remains in full force, and their lien against the fragment of the wreck which they preserve. But by abandoning the wreck they forfeit their

I Comm. sur Ordonnance de la Marine, liv. 3, tit. 4, art. 9, vol. i. 704.
2 Contrats Maritimes, No. 127.
3 Cours de Droit Maritime, vol. ii. 230, 231.
• Part 4, Ch. 2, Sect. 6.

2 Peters's Ad, R. 395; 2 Mason's R. 337.

wages, nor will their right be restored should the wreck be saved by other hands.'

But the question presented in this case is, whether the seamen can claim any thing beyond the full amount of wages up to the time of the actual termination of their services. It is quite clear that this claim cannot be maintained upon the common principles applicable to the contract of hiring. Having agreed to perform the service for a stipulated price, they cannot maintain a claim for extra compensation, although by some fortuitous event, that service may have been rendered more laborious, or have involved more danger than was anticipated. However just and reasonable such an allowance may in some cases be, as a pure question of casuistry, it cannot be sustained upon any established and known principle of law. Do then the principles and policy of the maritime law furnish any ground for making an exception, in favor of maritime services, to the general rule of the common law? After an attentive consideration of the subject and an examination of all the sources of information within my reach, I am brought to the conclusion that to some qualified extent they do; and I will now proceed to explain somewhat at large the grounds upon which this opinion is founded.

No case was cited at the bar, in which this question has been decided, at least in the form in which it is presented in this case. There are, however, several, in which the general subject of the claims of seamen in case of shipwreck, against the fragments which they save, is considered. Chancellor Kent in his Commentaries, in speaking of shipwreck in connexion with wages, says that “ some of the decisions in this country seem to consider the savings of the wreck as being bound for the arrears of seamen's wages and for their expenses home.” ? Here the expenses home are spoken of as a charge on the wreck, in addition to the arrears of wages. And I refer to this paragraph, not so much as an authority in support of the doctrine, as to show that the idea, that the crew may be entitled

* 3 Kent's Comm. 196 ; 2 Mason's R. 347, The Two Catherines, 3 Sumner's R. 67, Pitman o. Hooper.

9 3 Comm. 195.

to something, beyond their wages, is not such a novelty in our jurisprudence, as was supposed at the argument. In the case of the Two Catherines,' the vessel had performed her outward voyage and earned freight, and was wrecked, and the cargo totally lost on her return in Narraganset Bay, near her home port. The libel was framed with a double aspect, claiming in the alternative wages or salvage. The question, what was due to the crew, appears to have been elaborately argued at the bar, and was profoundly examined by the court. The conclusion of the court was, that no wages were due, but that the crew were entitled to salvage against the materials, which they had saved of the vessel. The court held that there was no principle of law which authorized the position that the character of seamen creates an incapacity to assume the character of salvors, and that the salvage should never be less than the amount of wages, which would have been due had no disaster happened, but may according to the circumstances of the case, be more." I am aware of the language used by the same learned judge in delivering the opinion of the court in the case of Hobart v. Droyan.' But it does not appear to me inconsistent with the decision of this case nor to take from its authority.

In the case of the Cato," the ship was lost at sea, and the crew taken from the wreck by another vessel. Part of the crew of the Cato assisted that of the salvor vessel in saving a portion of the cargo, and they were allowed to claim, as subordinate and auxiliary salvors, one half the share that was allowed to the crew of the salvor ship. Judge Peters observed, in delivering his opinion in that case, that "the third article of the laws of Oleron has been produced, together with the commentaries upon it, to show that seamen saving from a wreck are entitled to a reward, when suffi. cient property is saved, beyond the amount of their wages. I have,” he says,

never disputed the doctrine in cases to which it seemed applicable.” In another part of his opinion he adverts to a previous decision he had made in the case of the Belle Creole upon a state of facts similar to those of the Cato, and

says, " I do

1 2 Mason, 319.
3 10 Peters, 122

2 P. 332-340.
•1 Peters's Ad. R. 42.

the capes

not exactly recollect by what rule I estimated the quantum of wages I ordered to be paid out of the surplus to the officers and crew of the Belle Creole, but I think it was beyond the amount of wages.” I shall have occasion presently to remark particularly on the third article of the laws of Oleron, and it will be seen how it applies to the present case. The case of the Catherine Maria, was that of a vessel foundered at sea. A part of the cargo was saved by the aid of another vessel, in which the crew was brought home. Salvage was allowed to the crew of the salvor vessel, and the crew of the lost vessel were allowed their wages from the property saved, which was part of the cargo, not only to the time of the abandonment of the ship, but to the time when the goods were brought into port and were taken into the custody of the marshal under the process of the court. In the case of the brig Sophia, the vessel was wrecked on her return voyage to Philadelphia, on

of the Delaware. The cargo was entirely lost, but some of the spars and rigging of the vessel were saved. The seamen filed a libel against the relics of the vessel for their wages, and the mate a separate libel claiming salvage. The court held, that the claim for wages could not be sustained, on the ground that freight is the mother of wages, and that when the freight is entirely lost, no wages. eo nomine are due. But it was further decided, that although nothing could be recovered as wages, the seamen were entitled to claim as salvors, and that the amount, which would have been due as wages, had the disaster not happened, might be recovered as salvage. The libel of the seamen was therefore dismissed, and the mate recovered the amount of his wages under the title of salvage.

All these cases clearly sustain the principle, that the seamen in the event of shipwreck, are entitled to claim, against the property, which they have saved, in the quality of salvors. It is true, that in the case from Gilpin, this seems to be treated as a substitute for the claim of wages, and to be measured by the amount which would be due if the disaster had not occurred. In the other cases, it is clear that the court thought it might exceed that amount, and in that of the Catherine Maria more was in fact awarded. And if the claim is valid for salvage, it would seem, as in all other cases of salvage, it must be discretionary as to the amount, to be determined by the particular circumstances of the case. But all these cases are open to one general remark, which may be thought to detract something from their authority in support of the principle contended for in the case at bar; it is this, that it seems to have been tacitly assumed, that the wages were lost by the calamity, which prevented the earning of freight, and therefore, if the seamen could not be rewarded for their services in the way of salvage, they could claim nothing. Undoubtedly, it was formerly the doctrine of the English courts, that freight was the only fund out of which wages could be claimed, and of course when freight was not earned, no wages were due. But that is now overruled in England,' and it was never received in this country but with material qualifications. Freight is indeed the natural fund for..the payment of wages, and the seamen have a privileged claim against it. It is a right which does not stand merely on a dry rule of positive law, but is derived from the nature of things, for it is in part the product of their own labor. But, by the maritime law, the ship is as much pledged for wages as the freight. When the interests of third parties are involved, as between underwriters, when the ship and freight are insured by separate policies, it would seem, upon principles of natural law, that the freight ought first to be exhausted, and the vessel resorted to only as a subsidi. ary fund when the freight proved insufficient. This was the opinion of Emerigon, and in a proper case the court may perhaps have the power of marshalling the funds to meet the claims of natural justice. But at all events, the seamen are to be paid their wages, when enough for that purpose is saved of the ship or freight.' It is not pretended that these authorities establish the principle as a settled rule of jurisprudence in this country, that upon ship

12 Peters's Ad. Rep. 44A.

Gilpin's R. 77.

Holt, Law of Shipping, 275.

? i Hagg. R. 227, The Neptune. 3 Traite des Assurances, Art. 17, Sect. 11, 53. * 3 Sumner's R. 60; Pitman o. Hooper. VOL. XXVI.—NO. LI.


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