*

(5) Pro Rata Wages. Seamen's wages, in trading *189 voyages, are due pro rata itineris. This has been so decided in the Scottish courts, and upon principles of controlling equity.(a) If the seaman dies on the voyage, there is no settled English rule on the subject of his wages. In one case, the court intimated, that his representatives might be entitled to a proportion of the wages up to his death, when the hiring wast by the month, and there was no special contract in the way; (b) and a similar opinion was mentioned by one of the judges of the C. B. in another case. (c) In a still later case (d) it was assumed by the Court of C. B., that wages of a seaman, who died on the voyage in which wages arose, were due to his representatives; but the case was silent as to the precise time to which they were to be computed. In this country, there have been contradictory decisions on the point. In the Circuit and District Courts of the United States, in Pennsylvania, it was decided, upon the authority of the laws of Oleron, that the representatives of the seamen, dying during the voyage, were entitled to full wages to the end of the voyage. (e) On the other hand, it was subsequently decided, pay. Wages are not lost if the voyage be broken up by reason of civil process against the vessel, on a claim of ownership. If the claim be unfounded, adequate damages are presumed to be awarded for the unfounded libel, and if well founded, the wages are lost by the default of the shipper. Van Beuren v. Wilson, 9 Cowen, 158. In Hoyt v. Wildfire, where the seamen were hired for a voyage from New York to the East Indies, and back to New York, and the vessel was captured and condemned on the outward voyage for having contraband goods on board, wages, according to the rate of the contract, were allowed from the commencement of the voyage until the return of the seamen, with reasonable diligence, to New York, deducting wages received while in other service, on the circuitous return. The court observed, that the rule in the French law (Ord. des Loyers des Matelots, art. 3; Pothier, Louage des Matelots, n. 203) ordained, that if the seamen were hired for the voyage, they should, in such a case, be paid their entire wages for the voyage; and if hired by the month, the wages due for the time they had served, and for the time necessary to enable them to return to the port of departure; and that there was no reason to question the soundness of the rule, or the propriety of following it in that case.

(a) Ross v. Glassford, and Morrison v. Hamilton, cited in 1 Bell's Comm.. 515. But the rule may be varied by agreement. Appleby v. Dods, 8 East, 300.

(b) Cutter v. Powell, 6 T. R. 320; [2 Sm. L. C. 1.] In this case the sailor took a note from his employer for a certain sum for the voyage, provided he continued to do his duty, and he died on the voyage. It was held, that being an entire contract, it could not be apportioned, and no wages could be claimed either on the contract or on a quantum meruit. [See Button v. Thompson, L. R. 4 C. P. 330, 340.]

(c) Heath, J., in Beale v. Thompson, 3 Bos. & P. 425.

(d) Armstrong v. Smith, 4 Bos. & P. 299.

(e) Walton v. The Ship Neptune, Peters Adm. 142; Sims v. Jackson, ib. 157; note; 1 Wash. 414, s. c.

in the District Court of the United States for South Carolina, (ƒ) and in the District Court in Massachusetts, (g) that full wages, by the marine law, meant only full wages up to the death

of the mariner; and in this last case, a very able and elab190 orate review was taken of * all the marine ordinances and

authorities applicable to the subject. The court examined critically the provisions in the Consolato del Mare, and in the laws of Oleron, of Wisbuy, and of the Hanse Towns, the ordinances of Charles V. and Louis XIV., the commentaries of Cleirac, Valin, and Pothier, and all that had been said and decided in England or Massachusetts in relation to the question. If the two decisions in Pennsylvania outweigh in point of American authority, the opposite adjudications are best supported in the appeal to those ordinances of European wisdom and policy in which we discern the deep foundations of maritime jurisprudence. (a) 1

As the payment of wages, in general, depends upon the earning of freight, if a ship delivers her outward cargo, and perishes on her return voyage, the outward, freight being earned, the seamen's wages on the outward voyage are consequently due. (b) By the custom of merchants, seamen's wages are due at every delivering port; and their wages are not affected, without their special agreement, by any stipulation between the owners and the charterer, making the voyages out and home one entire voyage, and the freight to depend on the accomplishment of the entire voyage out and in. (c) The owners may waive or modify their

1

(f) Carey v. The Schooner Kitty, Bee Adm. 255.

(g) Natterstrom v. The Ship Hazard, 2 Hall's L. J. 359.

(a) If the seaman be hired by the voyage, and die during it, the standard books of maritime law, says Mr. Bell, seem to give the outward wages, if he dies during the outward voyage, and the whole, if he dies during the homeward voyage. But if he be hired by the month, it rather seems that wages will be due only to the time of his death. Bell's Comm. i 514.

(b) Anon., Holt, C. J., 1 Ld. Raym 639.

(c) Notes of Judge Winchester's decisions, 1 Peters Adm. 186, note; Abbott on Shipping, pt. 5, c. 2, sec. 3; Blanchard v. Bucknam, 3 Greenl. 1. In Thompson ɛ. Faussat, 1 Peters C. C. 182, where the vessel was lost on her homeward voyage, full wages were held due to the seamen up to the arrival at the last port of delivery of the outward cargo; and half wages from that time until her departure from the last port at which the return cargo was taken on board. This rule was elaborately supported by Mr. Justice Story, in the C. C. U. S. for Massachusetts, 1838, in the case of Pitman v. Hooper, 3 Sumner, 50, 286, 298, 299, in opposition to the decision of Judge Hopkinson, in Bronde v. Haven, Gilpin, 606, 613; and he considers it to be the settled rule, 1 See 188, n. 1.

*

claim to freight as they please, but their acts cannot *191 deprive the seamen, without their consent, of the rights belonging to them by the general principles of the marine law. The doctrine of wages was discussed at the bar and upon the bench in the case of the Two Catharines, (a) with distinguished force and research; and it was held, that where a ship sailed from the United States to Gibraltar, and there landed her cargo, and went in ballast to Ivica, and, after taking in a return cargo, was lost on the voyage back to the United States, the seamen were entitled to wages up to the arrival and stay at Ivica. It made no difference that the vessel was in ballast in the intermediate voyage. The voluntary neglect of the owner will not operate in such a case to the injury of the seamen. They are entitled to wages, not only when the owner earns freight, but when, unless for his own act, he might earn it. The wages are due by an arrival at a port of destination, when no cargo is on board, or when the owner chooses to bring the cargo back again, and when the port of destination be not, in point of fact, the port of delivery. Even if the ship perishes on the outward voyage, yet, if part of the outward freight has been paid, the seamen are entitled to wages in proportion to the amount of the freight advanced, for there is an inseparable connection between freight and wages. (b) Capture by an enemy extinguishes the contract for seamen's wages; and Sir William Scott, in the case of the Friends, (c) held that the recapture of the vessel did not revive the right, or restore him to his connection with the ship, inasmuch as he was not on board at the recapture, and did not render any subsequent service. The doctrine of this case was overruled in Bergstrom v. Mills; (d) and the American decisions have fully discussed the question, and they lay down

that when the ship is lost in her homeward voyage, the seamen are to be paid their wages up to the last port of discharge, and for half the time the ship lay there. Half the time passed in port is attributed in practice to the concerns and business of the discharge of the outward voyage, and half the time to employment by the seamen, in preparations or business connected with the homeward voyage; and it is considered to be an equitable and just apportionment, and the wages for that last half or period of time are deemed lost by the loss of the ship on the homeward voyage. (a) 2 Mason, 319.

(b) Anon. 2 Show. 291; Brown v. Lull, 2 Sumner, 443. (c) 4 C. Rob. 143.

(d) 3 Esp. 36.

1 See 188, n. 1.

*192 *a different rule, and proceed on the just principle, that the owner recovers his freight, and that is the parent of wages. They accordingly allow to the seamen taken prisoners by the captor, and detained, their wages for the whole voyage, if the same be afterwards performed, with a ratable deduction for the expenses of salvage. The like rule applies to the case of a vessel captured, and afterwards ransomed, and enabled to arrive at her port of destination. (a) Nothing can be more equitable than the rule which allows to seamen, suffering in the service, their compensation, when the fund out of which it was to arise is ultimately recovered and enjoyed by the owner. (b) And, upon the same principle, if a foreign power seizes the ship and imprisons the seamen, and they be afterwards released, and reassume and complete the voyage, and earn freight, their wages are continued during the interruption of the voyage, in like manner as in a case of capture and recapture. The Court of K. B. declared the law to this effect in Beale v. Thompson, (c) and they proceeded on the sound and incontestable principle of the marine law, that the title to wages depended on the ship earning her freight for the voyage, connected with the further fact, that the mariner were not guilty of any breach of duty. If a neutral ship be captured, and even condemned, and the sentence be afterwards reversed, and freight for the voyage allowed in damages, the seamen are entitled to their wages. (d) So, in the case of shipwreck, if any part of the cargo be saved, the wages of the seamen are to be paid without any deduction. (e) (6) Protection. Whenever freight is earned, wages are 193 due, and must be paid, and every agreement that goes to separate the validity and equity of the demand for wages, from the fact of freight being earned, is viewed with distrust and jealousy, as being an encroachment on the rights of seamen. The courts of maritime law extend to them a peculiar protecting favor and guardianship, and treat them as

(a) Girard v. Ware, 1 Peters C. C. 142.

*

(b) Hart v. The Ship Littlejohn, Peters Adm. 115; Howland v. The Brig Lavinia, ib. 123; Singstrom v. The Schooner Hazard, ib. 384; Brooks v. Dorr, 2 Mass. 39; Wetmore v. Henshaw, 12 Johns. 324; Brown v. Lull, 2 Sumner, 443.

(c) 4 East, 546.

(1) Willard v. Dorr, 3 Mason, 161; Brown v. Lull, 2 Sumner, 443 S. P. See post 299, n. (c).

(e) Pitman v. Hooper, 3 Sumner, 50, 61, 67.

wards of the admiralty; and though they are not incapable of making valid contracts, they are treated in the same manner that courts of equity are accustomed to treat young heirs dealing with their expectancies, wards with their guardians, and cestuis que trust with their trustees. They are considered as placed under the influence of men who have naturally acquired a mastery over them. Every deviation from the terms of the common shipping paper (which stands upon the general doctrines of maritime law) is rigidly inspected; and if additional burdens or sacrifices are imposed upon the seamen without adequate remuneration, the courts will interfere and moderate or annul the stipulation. (a) It has accordingly, under the influence of these just and humane considerations, been held, that an additional clause to the shipping articles, by which the seamen engaged to pay for all medicines and medical aid further than the medical chest afforded, was void, as being grossly inequitable, and contrary to the policy of the act of Congress. (b) It has likewise been decided, that a stipulation that the wages of the seamen, earned in the intermediate periods, should depend upon the ulti

(a) The Minerva, 1 Hagg. Adm. 347; The George Home, ib. 370. Shipping articles are only conclusive as to the amount of wages and the voyage. On all collateral points the courts of admiralty will consider how far the stipulations in regard to seamen are reasonable and just. The Prince Frederick, 2 id. 394; Brown v. Lull, 2 Sumner, 443, s. P. The voyage must be designated with as much particularity and precision as the case admits of, and the articles must not be so loosely drawn as to leave the seamen exposed to unanticipated and experimental voyages. Vide 1 Hagg. supra. [Ante, 185, n. 1.] The English statute of 6 Wm. IV. c. 19 has made new and more strict regulations relative to shipping articles for the greater protection of the rights of the seamen. It is a point not precisely settled, how far the duty of obedience on the part of the seamen extends beyond the service of their own ship. The contract does not extend to any other service. But the Consolato, c. 148, par Boucher, ii. 224, allows the master to order the seamen, in certain cases, to help another vessel in distress; and it is said, in the case of the Centurion, Ware, 482, that if a wreck be met with on the voyage, the master may send his seamen to attempt to save it. So, according to the sense and usages of the general maritime law, the master may employ his vessel and crew in rescuing life, and even property, from destruction, under certain circumstances. 1 Sumner, 336. See infra, 313. The learned author of the Treatise on the Rights and Duties of Merchant Seamen, Boston, 1841, 35, seems to conclude, that the seamen are not bound, stricto jure, to obey orders for services not within the contract. But in my view of the subject, a strict construction of the articles must in many cases give way to a larger construction, founded on the necessities of mankind, the controlling influences of the moral sense, and the imperative duties of humanity.

(b) Harden v. Gordon, 2 Mason, 541; [Freeman v. Baker, Blatchf. & How. 872. see The Cypress, ib. 83; The Sarah Jane, ib. 401; ante, 188, n. 1.]