much as their death, and those who remain are bound by the terms of their original contract to exert themselves to the utmost to bring the ship in safety to her destined port" (h). (1)

*In the case of Carter v. Hall (i), an action against the purser on board a king's ship, to recover wages from him on an implied contract with the plaintiff for his services as purser's steward; it appeared that the situation of purser's steward was one of considerable trust and trouble, the duties of the situation consisting chiefly in weighing and delivering out provisions to the crew, and keeping the purser's accounts. It appeared also that the purser's steward was a person known as such in the King's service, who could not be appointed by the purser without the assent of the commander, that he was entitled to the pay of an able seaman from the Crown, but that he usually received pay from the purser under a private contract with him; and evidence was adduced on the part of the plaintiff to show that it was usual for the purser to pay the purser's steward at the rate of 11. for every gun by way of annual salary: that the purser could not discharge his duty without the assistance of a steward, and that although rated as a seaman it was not usual to call upon him to act as such. It was contended, on the part of the defendant, that since the purser's steward was a person known in the service, who *received specific pay in respect of his services, he could not

(h) Stilk v. Myrick, 2 Campb. 317. 527. See also Thompson v. Havelock, 1 Camp.

(i) 2 Starkie, 361.

(1) The general principle of these decisions is, that no man is bound by a promise made, when an unconscientious advantage is taken of his situation or necessities. The case of Bartlett v. Wyman, 14 John. R. 260, affords another illustration of the principle. There, the seamen at another port in the course of the voyage compelled the master by threats of desertion to enter into new shipping articles for higher wages, and the contract was held utterly void. 3 Kent, (5th ed.) 185.

The same rule applies to a promise by a passenger to any of the crew of a wrecked vessel. Mesner v. Suffolk Bank, Mass. U. S. Dist. Ct. 1838, Boston. >

Nor is the principle confined to the case of seamen. Contracts made by pilots and salvors, under circumstances of necessity, for exorbitant or unjust compensation, are in like manner set aside. Callagan v. Hallett, 1 Caines, R. 104.

But though the ship's crew may not entitle themselves by a new contract to additional compensation for services, which their duty requires, yet there are cases in which, like other persons, they may be entitled to compensation for extraordinary services. And cases of salvage, where there has been a shipwreck, or recapture, or preservation of the property by extraordinary gallantry and enterprise, fall within this class. Clayton v. The Harmony, 1 Peters, Adm. R. 70, 79.

If political events change the risk during the voyage, as a return from war to peace, the seaman's wages are not on that account to be diminished. McCulloh . The Lette, Bee's Adm. R. 423; Shaw v. The Lette, Bee's Adm. R. 424. But see Brice v. The Nancy, Bee's Adm. R. 429.

without a special contract to that effect, recover, from the purser. For the plaintiff it was contended, that since it was the custom for the purser to employ such an agent of his own selecting, and to pay him at a certain rate, the law would imply a contract for remuneration in the particular case, although no specific contract could be proved. Lord Ellenborough said, that "at first he entertained some difficulty upon the point, but considering how very extensive the operation of the principle might be, if such an action could be supported, and if a person receiving a specific salary from the Crown, in respect of his situation could recover upon an implied contract for a remuneration for his services from the officer under whose immediate authority he acted, and that the purser had no fund allowed him out of [† 618] which such services were to be paid, he was of opinion that the plaintiff must be nonsuited."

In Clutterbuck v. Coffin (k), the plaintiff, at the request of the defendant, a captain in the Royal Navy, agreed to enter on board his ship as captain's cook, the defendant undertaking to pay him wages over and above the government pay, to which the rating would entitle him. The plaintiff having performed the service, it was held, that there was a sufficient consideration to enable him to bring an action for such wages.

This case, it will be observed, differs from others above cited, in the circumstance that in them the contracts were made by persons who were not at the time competent to contract, having already bound themselves to give their entire services under a prior existing contract: here there was an agreement for service entered into while the plaintiff was in another employment, and perfectly free to contract in the manner he did. There being no plea but non assumpsit, the objection to the contract, on the ground of illegality, was not open to the defendant. (1)

(k) 4 Scott, N. R. 509.

(1) Where a crew were shipped on a voyage," to a port or ports Easterly of the Cape of Good Hope, or any other port or ports to which the master should see fit to go in order to procure a cargo," but the voyage intended by the owners was a voyage to Ichaboe, to procure a cargo of guano, which destination was concealed from the seamen ; it was held, that the seamen were not bound to work in loading the guano, at the compensation fixed by the shipping articles.

The master having agreed to pay the seamen an extra compensation, to induce them to load the guano, it was held, that the master and owners were bound by that agreement; and, that the seamen were not limited, in their claim for compensation, by the amount agreed upon at the island-they having been brought there by deception, and

In this, as in all other cases, an engagement for service, made in contravention of the rules of the common or statute law, will be void (7). (1)

(1) The Vanguard, Prince, 6 Rob. Ad. Rep. 207.

placed at disadvantage for making a contract. The Brookline, Dist. Ct. U. States, Boston, Mass. April, 1845, Admiralty, 8 Law Rep. 70. >

(1) The same doctrine was asserted in The Langdon Cheeves, 2 Mason, 58; The Franklin, 6 Rob. 350; The Leander, Edw. 33. See Stat. U. States, July 20, 1840, ch. 23, § 10; ante, 607, note. >

†CHAPTER II.

OF THE EARNING AND PAYMENT OF WAGES; AND HEREIN,

(Ss.)1. When the whole Wages are to be paid.

[† 619]

2. Cases in which a Part only is to be paid. ·Service not wholly performed by reason of Death, Shipwreck, or abandonment of the Voyage.

3. The Time at which payment is to be made.

I PROPOSE in the present chapter to consider, FIRST, the cases in which the whole wages agreed to be given to seamen are to be paid; SECONDLY, the cases in which a part only is to be paid; and, LASTLY, the time at which the payment is to be made. All that is said in this and the following chapter respecting seamen, is to be understood of all the officers in the ship, except the master, and of him also, if the subject is not inapplicable to his situation and character.

1. FIRST, it is obvious, that a seaman who has faithfully performed his service on board a ship during the whole period of the intended voyage, is entitled to receive the whole of the stipulated reward, if no disaster has rendered his service useless or unproductive to his employer. And as a seaman is exposed to the hazard of losing the reward of his faithful service during a considerable period in certain cases, so on the other hand the law gives him his whole wages, even when he has been unable to render his service, if his inability has proceeded from any hurt received in the performance of his duty, or from natural sickness happening to him in the course of the voyage (a). (1) And if a mas

(a) Laws of Oleron, art. 6 and 7, of Wisbuy, art. 19, of the Hanse Towns, art. 39 and 45, same of the year 1614, tit. 14, art. 1; French Ordin. liv. 3, tit. 4; Des Loyers des Matelots, art. 11; Code

de Com. art. 262; Chandler v. Grieves, 2 Hen. Black. 606, note (a), and by Lord Mansfield in the case of Paul v. Eden, in the King's Bench, Easter Term, 25 Geo. 3.

Netterstrom v. The Ship

(1) Our law is the same in cases of sickness of seamen. Hazard, before Judge Davis, in Bee's Adm. R. 441. And if in consequence of such sickness they are obliged to be left at a foreign port, they are still entitled to thei wages for the full voyage. Chandler v. Grieves, 2 H. Bl. 606, note. See also Hainey v. The Tristram Shandy, Bee's Adm. 414; Ex parte Giddings, 2 Gallis. R. 56;

[† 620] ter, fin violation of his contract, discharges a seaman from the ship during a voyage, the seaman will be entitled to his full wages up to the prosperous determination of the voyage, deducting, if the case require it, such sum as he may in the meantime have earned in another vessel (b). (1)

(b) Robinet t. The ship Exeter, 2 Rob. Ad. Rep. 261; The Beaver, Grierson, 3 Rob. Ad. Rep. 92; Roccus, not. 43; Old

Hanseatic Ordinance, art. 42; Hanseatic
Ordinance of 1614, tit. 3, art. 7.

Brooks v. Dorr, 2 Mass. R. 39. A fortiori, they are entitled to full wages, if sent ashore on the ship's service, and they are there taken sick. Hart v. The Little John, 1 Peters, Adm. 117. If the seaman, however, recovers, and may rejoin his ship, and neglects it, he is not entitled to wages beyond the period, at which he could rejoin it. Williams v. The Hope, 1 Peters, Adm. 138.

If the disability of a seaman takes place before the voyage begins, no wages are due, if he does not proceed on the voyage. Ex parte Giddings, 2 Gallis. R. 56.

< But if the seaman, who enters himself as competent, fails in his duty from a want of competent knowledge or health, the master may make a reasonable deduction from his wages. 3 Kent, (5th ed.) 186; Atkyns v. Burrows, 1 Peters, Adm. 247; Mitchell . Orozimbo, 1 Peters, Adm. 250; Sherwood v. McIntosh, Ware, 109. >

(1) This is also the law in America. Mahoon v. The Gloucester, 2 Peters, Adm. 403; Rice v. The Polly, Id. 420; Wisberg v. The St. Oloff, Id. 428; Keane v. The Gloucester, 2 Dall. R. 36; Hoyt v. Wildfire, 3 John. R. 518; Ex parte Giddings, 2 Gallis. R. 56; Ward v. Ames, 9 John. R. 138; Emerson v. Howland, 1 Mason, R. 45. In this latter case, a doubt was expressed, whether the deduction of the wages earned in the intermediate period was correct in all cases, when the whole wages for the voyage would not under the circumstances furnish an adequate indemnity.

< Sometimes wages have been allowed up to the prosperous termination of the voyage; and in other cases, up to the time of the seaman's return to the country where he was originally shipped, without reference to the termination of the voyage. See Emerson v. Howland, supra; The Beaver, 3 Rob. Adm. 92; The Exeter, 2 Rob. Adm. 261; Hoyt v. Wildfire, 3 John. 518; Brooks v. Dorr, 2 Mass. 39; Ward v. Ames, 9 John. 138; Sullivan v. Morgan, 11 John. 66; Hutchinson v. Coombs, Ware, 65; The Nimrod, Ware, 9; Ante, 194, note.

The wages, which he has earned in the mean time, may be deducted from the expenses of his return, but not from the wages due from the vessel from which he was wrongfully discharged. Hutchinson v. Coombs, Ware, 65; Emerson v. Howland, 1 Mason, 45.

The damages in such cases are to be measured by the injury, according to the circumstances of each case. Emerson v. Howland, supra; Hutchinson v. Coombs, Ware, 65, 69, 73.

If the master detains the clothing of the seaman, the value of it may be recovered in the same libel. Hutchinson v. Coombs, supra.

The above rule of damages has undergone some mitigation in a case where the vessel was so injured, that it was doubtful whether she could be repaired, or at all events must wait a long time in a foreign port to undergo repairs, and the seamen were discharged as in a case of mere misfortune, approaching almost to a necessity.

In such a case, it was held, that the seamen could demand their wages only up to their own return in as direct a mode as possible, and the expenses of return. See The Elizabeth, 2 Dod. Adm. 403; 3 Kent, (5th ed.) 187, and note; The Dawn, Ware, 495. > There is a technical rule applicable to the Courts of Common Law, and the nature of the remedies therein, which requires to be noticed. Allusion is made to the manner, in which redress is to be obtained for an illegal discharge of a seaman abroad, whether it can be given in a simple suit for wages, as earned, or by a special declara