wreck, when part of the property has been saved to the owners by the exertions of the crew, they are entitled to an allowance in the nature of salvage beyond the amount of their wages. But to me they seem to prove, at least, that the opposite rule is not established, and that the question is fairly open to be decided upon principle and the authority of the general maritime law.

We will now inquire what grounds it has for its support in the general doctrines of that law. The policy of connecting the interest of the crew with the safety of the ship and cargo is deeply imbedded in the principles of the maritime law. The ship and freight are the only pledge they have for their wages. Their lien upon these and upon every part of them, attaches as a privileged hypothecation tota in toto et tota in qualibet parte, or, as it has been emphatically expressed, to the last plank of the ship and to the last fragment of the freight.' But this is the whole of their security. If the ship and freight are wholly lost, there is a total loss of wages; and though the ship may be lost on the most distant and inhospitable shore of the ocean, they are not only left pennyless to find their way home as they can, but when through many hardships they have arrived there, however long and perilous their service may have been, they have no personal claim against the owner, unless freight in the course of the voyage has been saved and put on shore. Upon the common principles of the contract of hiring service or labor, the title of the laborer to his reward depends on the faithful performance of the service, for which he is engaged, and is not liable to be defeated by the accidents of fortune. The principle which attaches the right to wages to the fortune of the vessel, or in other words, makes the right dependent on the successful issue of the enterprise, for which the men are hired, is a peculiar feature of the modern maritime law. No trace of such a principle is to be found in the Roman law, nor in the maritime legislation of the eastern empire, nor in

1 Jugemens D'Oleron, art. 3; Consulat de la Mer. ch. 132, (edition of Pardessus, 92); Emerigon Des Assurances, ch. 16. sect. 11, 2; Pitman v. Hooper, 3 Sumner's R. 50.

22 Kent's Comm. 590-1; Pothier Contrat de Louage, No. 423.

that ancient compilation, which goes under the name of the Rhodian laws. It owes its origin to the necessities and peculiar hazards, which maritime commerce had to encounter in the middle ages, when to the dangers of the winds and waves, were added the more formidable perils of piracy and robbery. The principle having been then established, and found by experience to be favorable to the general interest and security of commerce, it has been preserved in the maritime jurisprudence of Europe, when the special necessities in which it had its birth have ceased to exist.

It is then to the maritime customs and usages of the middle ages, in which this restriction upon the right of wages had its origin, that we are to look for its nature and quality, as well as for any countervailing advantages to the seamen, by which this abridgment of the rights naturally resulting from their contract was compensated, and the scales of justice, which were made to incline in favor of the employer, were equitably readjusted. If we retain the harsher principles of the old law, it is but just that we should also preserve the temperaments, by which its severity and apparent injustice were mitigated.

The earliest monument of the maritime jurisprudence of the middle ages which remains, unless we except the consulate of the sea, is the judgments of Oleron. The rule is there stated in these terms: "When a vessel is lost, in whatever place it may be, the seamen are bound to save all they can of the wreck and cargo. In this case the master shall pay them their reasonable wages, and the expenses of their return home, so far as the value of the things saved is sufficient; and if he has not money enough, he may pledge the objects saved to bring them back to their country. If the seamen refuse to labor for the salvage, there is nothing due to them, and, on the contrary, when the ship is lost, they lose also their wages."-Art. 3. The rule cannot well be more explicitly declared than in this article. If the ship is totally lost, the seamen lose their wages; but, against the effects which their exertions have rescued from destruction, they have a claim not only for the

Pardessus, Lois Maritimes, vol. 1, p. 325, note 3.

2

full amount of their wages, for that I understand to be meant by their reasonable wages, but also for a further sum to defray their expenses home. Thus we see that in the very origin of the custom which restricted the right of seamen for their wages to the effects which they saved, it was connected with another of allowing them against these effects an additional reward for their labor in saving them.

The judgments, or rolls, or, as they are more frequently called in this country, the laws of Oleron, do not appear, at first, especially, to have been sanctioned by any direct act of legislation. They are apparently a collection of maritime usages, to which custom had given the force of law; but they have at all times been referred to as of high authority by all the most commercial nations of Europe. They were the earliest digest of maritime law in the western part of Europe; and from the general wisdom and equity of their decisions, as well as from other causes, they seem, in one form or another, to have been early incorporated into the maritime jurisprudence of all the western nations of that continent. Being a work of French origin, they were received as common law in Aquitaine, Brittany, Normandy, and the whole extent of the Atlantic coast of France. In England they early acquired nearly the same authority, from an opinion there entertained, that they were originally compiled and published by Richard I., in his character of duke of Aquitaine, on his return from the holy land. In the latter part of the twelfth century, they were adopted by Alphonso the wise, king of Castile and Leon, and thus became the law of the northern coast of Spain.' They were at an early period translated and adopted as the maritime law of Flanders, under the names of the judgments of Damme and the laws of West Capelle. The third article above quoted is in its substance incorporated into the ordinance of Philip II., of 1563.3 In the more northern countries, this code does not appear to have been received as common

1 Pardessus, Collection des Lois Maritimes, vol. 1, pages 301 and 306; Vol. 2, page 29; 1 Black. Comm. 418; 2 do. 423.

* Pardessus, Lois Maritimes, vol. 1, chap. 9.

Part 4, art. 12; 4 Pardessus, 24.

law; but the general principles and usages which it established were incorporated into their own ordinances. The whole of the first twenty-five, which were the primitive articles, are transferred to the ordinance of Wisbuy, from the fifteenth to the thirty-ninth article. The seventeenth article of the laws of Wisbuy is almost a literal translation of the third of Oleron. The Hanseatic ordinance, without copying so closely the article of Oleron, arrives at nearly the same conclusion. In case of shipwreck, the crew are required to assist the master in saving the wreck and cargo, for an equitable compensation in salvage, to be taken from the wreck and the merchandise, according to the judgment of arbiters. If the master has not money, he shall carry the seamen back to their country if they choose to follow him. But if the seamen do not assist, the master is not bound to pay them any thing, and those, who have not done their duty, are liable to corporeal punishment. Where the ship perishes, the whole that is saved is pledged to pay the totality of the wages. The law of Denmark requires the master and crew to save the ship and her rigging as well as the cargo, and a compensation shall be paid them according to the opinion of good men. On the other hand, the freight due from the shippers on the merchandise saved, as well as the wages of the crew, shall be paid in proportion to the part of the voyage performed. The mariner, who will not aid in saving the ship and cargo shall lose his wages, even what has been advanced, and be regarded as infamous. The same rules are established by the laws of Hamburgh. The crew are bound to exert themselves to save the vessel and cargo for an equitable recompense, and if they refuse their assistance, the master shall pay them neither their wages nor any thing else. The law of Lubec substantially agrees with that of Hamburgh. It requires the master and crew to exert themselves to save the vessel and cargo, and allows them an equi

1

1 Ordinance of 1614, tit. 4, art. 29, and tit. 9, art. 5; Ordinance of 1591,

art. 45.

2 Code of Frederic II., 1561, art. 24; Pardessus, Lois Maritimes, vol. 3, p.

250.

3 Statute of 1603, tit. 17, art. 1; 3 Pardessus, 325.

1

table compensation, to be determined by arbiters. He who does not assist shall be paid nothing, and shall besides be deprived of his wages. The Prussian law also enjoins the same duties upon the crew, and requires the merchant to pay them a liberal reward, honestum premium viri boni arbitrio. The maritime code of Charles XI., of Sweden, as well as several of the ordinances of the northern nations, prescribes particularly the course to be pursued by the master on these occasions. He shall first save the crew, then the rigging of the ship, and lastly the cargo; for the saving of which he shall employ the boat and the services of his crew, for an equitable compensation. When the ship and cargo are entirely lost, the master and crew can demand nothing that is due to them. But if they save of the wreck the amount of their wages, they shall be paid without deduction. No one shall have reward for a salvage who has not aided; and he who has saved effects, may detain them until he is paid. And, finally, the maritime legislation of Russia inculcates the same principles, imposing on the crew the obligation of saving what they can from the wreck, and giving them an equitable compensation for the salvage."

The French ordinance of marine of 1581 was framed upon a review of all the antecedent maritime legislation of Europe, improved and corrected, it is said, by information sought from practical men in every part of the continent. And so admirably was the task executed by the great man who digested it, that from its first publication it was generally acknowledged as constituting in some sort the text of the commercial law of all nations. In this celebrated code, we find the same principles established and confirmed. When the ship and merchandise are entirely lost, it is followed by an entire loss of wages. But if any part of the vessel is saved, the seamen engaged for the voyage or by the month shall be paid their wages. If merchandise only is saved they shall be paid their wages in proportion to the freight received. But at

1 Official Code, 1586, tit. 3, art. 3; 3 Pardessus, 444.

* Code of the Duchy of Prussia, 1620, lib. 4, tit. 12, art. 3, § 3.

3 Code of Charles X1., 1667, part 5, chap. 2; 3 Pard. 170.

4 Statute of Riga, 1672, tit. 5, art. 1; 3 Pard. 520.