liability to the seamen. Upon his claim for his own wages, I have found more difficulty in coming to a conclusion satisfactory to my own mind, than on any part of this case; and the opinion which I have adopted as most reasonable and equitable, I do not profess to hold free from all doubt. The books are extremely barren of authorities on this point.

ers.

It is a well settled principle of law in this country that the master has no remedy for his wages against the vessel. Whether this be a principle of the general marine law may perhaps admit of doubt. By the law of France the master is allowed the same privilege against the ship for his wages, and in case of misfortune against the savings from the wreck, as the seamen. This is the provision of the Ordinance de la Marine, L. 3. tit. 4, arts. 8 and 21; 1 Valin, 701 and 752, and this provision is continued in the Napoleon code. Code de Commerce, 352. I cannot see on what principle of justice or policy the master is to be excluded from all benefit from the savings from a wreck, while the right of the crew is admitted. But the general principle is too firmly established in this country to be called in question. 1 Paine's Rep. 73, The Grand Turk; 1 Peters's Ad. R. 228, The New Jersey. One reason assigned for making this distinction against the master is, that he contracts on the personal responsibility of the ownBut this, instead of a reason, is manifestly little more than another mode of stating the principle. Another and a more satisfactory reason given is, that he is the proper person to receive the earnings of the ship and pay them over to those to whom they of right belong; 1 Peters Ad. Rep. 229; and that he has a lien on this freight for his own wages. 1 Paine's R. 76. He is entrusted with the control and management of the vessel as the confidential agent of the owners, and is often, in the course of the voyage, called upon to incur responsibilities and make advances in the ship's service for their benefit. It is a necessity which arises from the nature of his employment. In cases of imperious and overruling necessity he may hypothecate the ship and even the cargo; but it is very questionable at least whether he must not first exhaust his own means and credit before he can resort to this extraordinary and onerous mode of relief. The Hero; 2 Dodson, Adm. R. 139, Holt's Law of Shipping, 342-3; Jacobson's Sea Laws, 354. Besides these incidental responsibilities, he is, according to universal usage, by the very terms of the contract, made di

rectly answerable to the seamen for their wages; and this is in conformity with a rule of the marine law as old as the law itself. On what principle could this rule have been so universally established, but this plain and sensible reason, that the captain is entitled to receive the freight, the common fund out of which not only wages but every other ordinary charge on the voyage is to be paid.

In the case of Goodridge v. Lord, 10 Mass. Rep. 487, it is said by the court that the captain may retain freight in his hands to pay the seamen's wages; and in that of Lane v. Penniman, 4 Mass. Rep. 92, it is ruled, Chief Justice Parsons giving the opinion of the court, that he has a lien on the freight for the necessary disbursements which he makes during the voyage, which takes precedence of the owner's title to it. This decision is fully supported by that in White v. Baring, 4 Esp. N. P. Cas. 22. The captain had rendered himself liable for the amount of some repairs which became necessary in the course of the voyage, and the owners had become bankrupt before its termination. The shippers, after notice had been given them by the master of his demand against the freight, paid it over to the assignees of the owners. The master brought a suit against them for the amount of his liabilities, and also for his primage, which was purely a personal demand due to him as master. Lord Kenyon said that the captain 'having contracted and rendered himself personally liable for articles furnished the ship, he thereby acquired a lien on the goods as well as freight, that his lien is co-extensive with his liabilities to the ship's creditors, and of course the payment made by the defendants was made in their own wrong.' Lord Kenyon, in the short abstract of his opinion, avoids touching on the claim of primage, and in the brief report of the case it does not appear whether this was or was not included in the verdict.

I have no doubt of the soundness of the doctrine of these cases. Why does not his prior right for his wages rest on as good ground as for his liabilities or disbursements? The money is as much due to him in one case as the other, and the credit has in each grown out of the same service, a service which has contributed to create the fund against which his claim is made. I can see no sufficient reason for making a distinction between them. His wages are as much a charge on the earnings of the ship as those of the seamen, or as the advances which he makes for incidental expenses. What re

mains, after these are discharged, constitute the net freight of the owners. Besides, if the reason given for excluding the master from admiralty process against the ship, that he has a lien on the freight, means any thing, it means that he is a privileged creditor against the freight. A lien ex vi termini imports a privilege. If it is not this, it is nothing. Upon the whole, finding that he has a lien on the freight for his disbursements, and seeing no reason in law or justice for making a distinction between this claim and that for his wages, I do not feel the authority for introducing a distinction against him which I do not find established.

But in point of fact the freight on the goods taken on freight had been attached before the filing of this libel, by the seamen, and a decree has passed in their favor which will absorb the whole fund. This necessarily brings up the other question, whether the master's lien for his wages extends to the merchandise of the owners which he has brought home. Without touching this as a general question, I put my opinion on the peculiar facts of the present case.

The charterers here are the owners for the voyage. The master is hired by them, and is in their employment. He fulfils his part of the contract and performs the voyage successfully, but when he arrives in safety, bringing with him his whole earnings for seven months' service, he finds that his employers, two months before the service is completed, without making any satisfactory provision for his wages, had assigned their whole property, including what was in his hands, for the benefit of their general creditors. It was in effect not only an assignment of all his wages earned up to the time of the assignment, but of all the additional wages which would accrue to the completion of the voyage. He is named, it is true, as a creditor in the assignment, but his claim is postponed to several more favored creditors to a large amount; in the meantime the fruits of his service are taken out of his hands, and he is left to pick up a satisfaction from the remnants of an insolvent

estate.

This is certainly a case of very strong equity, but it is admitted that the books contain no decision in point to sustain the master's claim. In the argument it was compared to the lien of a factor for his commissions, and to the vendor's right of stoppage in transitu on the insolvency of the purchaser. It has some points of analogy and some points of difference

with both these cases. It is like the factor's lien, inasmuch as the goods are in his hands, and the claim is for a meritorious service to these goods; and it is assimilated to the vendor's right of stoppage in transitu by the insolvency of his employers, with this distinction in his favor, that the possession is with him, and he retains all the priority over other creditors which that can give. His case may also be likened to the lien which an artisan has, for his pay, on the particular thing about which he has expended his labor and skill, an equitable lien, which is always favored in law. It is repugnant to all our ideas of equity that the master should be required to part with these goods to the creditors of his employers, claiming either under the assignment or attachment, until he has a compensation secured to him for the time, labor, and diligence which he has bestowed for the benefit of this identical merchandise. It is on the principles of natural justice a charge on the specific goods, and the owner on his insolvency cannot, consistently with these principles, assign them but subject to the charge. Sitting in a court, which, while it adheres to the principles of law, is required by its duty to decide ex æquo et bono, and by its constitution is enabled to deal with the cases falling within its jurisdiction, in a larger and more liberal spirit of equity than the severe and technical rules of the common law will admit, after the most diligent examination which I have been able to give the case, I have come to the conclusion that I can do justice between the parties without impugning any of the rules of law, but consistently with those rules, and I accordingly decree in favor of the libellants' lien.

ART. IV.-SEAMEN'S WAGES.

DISTRICT COURT OF THE UNITED STATES,}

MAINE DISTRICT,

June Term, 1828.

James Poland et al. Libellants, v. The freight and cargo of the brig Spartan; Jacob Quincy and Charles Fox, Joseph E. Foxcroft, Robert H. Thayer, Claimants.

The seamen have a lien by the maritime law on the freight as well as the vessel for their wages.

This lien is not taken away by the statute of the U. S. for the government of seamen in the merchant service, (vol. 2, ch. 56, sect. 6,) which allows process against the vessel.

When a ship is taken by a charter-party, by the terms of which the charterers are to bear the expense of victualling and manning, and they become the owners for the voyage, the seamen have a lien for their wages on the cargo shipped on the account of the charterers, for a charge in the nature of freight. The charterers having become insolvent and assigned their property in trust to pay their creditors, among whom the seamen were named, it was ruled that their wages were a privileged claim against the cargo, which was to be preferred to the title of the assignees under the assignment, and to that gained by the attaching creditors, and that they were not bound to wait to receive their wages in the order fixed by the assignment.

When property is taken for security in the admiralty by a warrant of attachment, the attachment may be dissolved and the property restored to the claimant on his filing a stipulation, with sureties, according to the form used by the

court.

THE facts upon which this case turns are few. William J. and Charles E. Quincy chartered the brig Spartan of Zadock Prince and others, owners, for a voyage from Portland to the Western Islands, and back to Portland. The charterers, by the terms of the charter-party, were to victual and man the ship, and bear all other charges, and pay for the hire of the vessel at the rate of one dollar per ton, by the month, in thirty days after the termination of the voyage. The crew were

shipped by the charterers, who had the entire use and control of the vessel. She sailed on the 20th of September, 1827, performed her voyage successfully, and returned to Portland on the 25th of April last, with a cargo of 3806 quintals of barilla, and a few other articles belonging to the charterers. Of the barilla, 1616 quintals were shipped by a Mr. Thayer, on freight, and consigned to himself, and 2290 were shipped on account of the Messrs. Quincies. While the vessel was absent on her voyage, the charterers having become embarrassed in their business, made an assignment of all their property, including the return cargo of their vessel, to Jacob Quincy and Charles Fox, in trust, to pay their creditors in a certain specified order of preference. As soon as the brig arrived the cargo was also attached by sundry of the creditors of the charterers. No provision was made for the payment of the wages of the seamen, except in the order in which they stood on a schedule of creditors attached to the deed of assignment. On this, the claims of several creditors to whom the charterers were indebted to a large amount, were preferred to that of the seamen. To secure their wages they filed their libel, in which they claim to be paid out of the freight earned in the voyage, in the hands of the captain, and also for process against that part of the cargo which is owned by the charterers, that it may be holden to respond to them for the amount due for wages.