tract is for a definite voyage, at the rate of so much per month for the whole time that the voyage continues.a In the fishing trade, the seamen usually serve under an engagement to receive a portion of the profits of the adventure. The share, or profits of the voyage, are a substitute for regular wages, and are treated as stipulated wages are treated, and the mariners are not partners with the owners in the profits of the voyage. The act of congress' extends the admiralty jurisdiction to the cognizance of suits for shares in whaling voyages, in the same form and manner as in ordinary cases of wages in the merchant service.c

*186

Every seaman engaged to serve on board a ship, is bound, from the nature and terms of the contract, to do his duty in the service to the utmost of his ability; and, therefore, a promise made by the master, when the ship is in distress, to pay extra wages, as an inducement to extraordinary exertion, is illegal and void. It would be the same if some of the crew had deserted, or were sick, or dead, and peculiar efforts became requisite; for the general engagement of the seamen is to do all they can for the good of the service, under all the emergencies of the voyage. Lord Kenyon puts the illegality of such a promise on the ground of public policy, and Lord Ellenborough on the want of consideration. It requires the performance of some service not within the scope of the original contract, as by

a Pothier, Louage des Matelots, No. 172. Walton v. The Ship Neptune, 1 Peters' Adm. R. 142.

Act of Congress, 19th June, 1813, c. 2. sec. 1, 2.

In whaling voyages from the New-England states, three tenths of the earnings of the ship are the share of the seamen.

a Harris v. Watson, Peake's N. P. Rep. 72. Stilk v. Myrick, 2 Campb. N. P. Rep. 317. 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. D. C. 1838.

a

becoming a voluntary hostage upon capture, to create a valid claim, on the part of the seamen, to compensation, on a promise by the master, beyond the stipulated wages. So, no wages can be recovered when the hiring has been for an illegal voyage, or one in violation of a statute. The law will not countenance a contract ex turpi causa, nor permit any one to lay claim to the wages of iniquity.b

A seaman is entitled to his whole wages for the voyage, even though he be unable to render his service by sickness or bodily injury, happening in the course of the voyage, and while he was in the performance of his duty. This is not only the invariable usage in the English admiralty, but a provision of manifest justice, pervading all the commercial ordinances. But if the seaman, who enters himself as competent, fails in his duty from the want of competent knowledge or health, the master may make a reasonable deduction from his wages. He will be entitled to his wages to the end of the voyage, when wrongfully discharged by the master in the course of it. The marine law very equitably distinguishes between the cases in which *187

Yates v. Hall, 1 Term Rep. 73.

The Vanguard, 6 Rob. Adm. Rep. 207.

• Chandler v. Grieves, 2 H. Blacks. Rep. 606, note. Abbott on Shipping, part 4. c. 2. sec. 1. Williams v. The Brig Hope, 1 Peters' Adm. Rep. 138. d Atkyns v. Burrows, 1 Peters' Adm. Decisions, 247. Mitchell v. The Ship Orozimbo, Id. 250. Sherwood v. M'Intosh, Ware's R. 109.

The Beaver, 3

• Robinett v. The Ship Exeter, 2 Rob. Adm. Rep. 261. ibid. 92. Keane v. The Brig Gloucester, 2 Dallas' Rep. 36. 2 Peters' Adm. Rep. 403. Rice v. The Polly and Kitty, ibid. 420. In this last case, the seamen were forced to quit the ship by the cruelty and dangerous threats of the master, and their wages were allowed. If the seaman be wrongfully discharged after he had signed the shipping articles and before the voyage begins, the rule has been asserted of allowing his wages for the whole voy. age, deducting the wages earned elsewhere in the mean time. He is entitled to a complete indemnity for his illegal discharge. Case of the city of London in the English Admiralty, November, 1839. See note to Curtis's

seamen's services are not rendered in consequence of a peril of the sea, and in which they are not rendered by reason of some illegal act, or misconduct, or fraud, of the master or owner, interrupting and destroying the voyage. In the latter case, the seamen are entitled to their wages, and the rule of the French ordinance is just and reasonable. It declares, that if the seamen be hired for the voyage, they shall, in such case, be paid the entire wages for the voyage, and if they be hired by the month, they shall be paid for the time they served, with the allowance of a reasonable time for their return to the port of departure. But if a loss in respect to ship or cargo arises from the gross negligence of a mariner, the damage may be set off in the admiralty against a claim for wages. If a seaman be wrongfully discharged on the voyage, the voyage is then ended with respect to him, and he is entitled to sue for his full wages for the voyage.d

The general principle of the marine law is, that freight is the mother of wages, and if no freight be earned, no

Treatise on the Rights and Duties of Merchant Seamen, 299. Emerson v. Howland, 1 Mason's R. 53. Curtis, ub. supra, 299, 300, 301.

a Wells v. Osman, 2 Lord Raym. 1044. App. 533.

Parry v. The Peggy, 2 Bro. Adm.

In

b Ord. des Loyers des Matelots, art. 3. Pothier's Louage des Matelots, n. 203. Cushing's Translation, 123. Roccus, de Nav. et Naulo, n. 43. gersol's Translation, 46. Hoyt v. Wildfire, 3 Johns. Rep. 518.

• Abbott on Shipping, 472. The New Phoenix, 2 Hagg. Adm. Rep. 420. a Sigard v. Roberts, 3 Esp. N. P. Rep. 71. In the case of the Castilia, I Hagg. Adm. Rep. 59, a seaman who had left the ship in the course of the voyage, the master failing to supply him with provisions, was held not to have forfeited his wages. And in the Elizabeth, 2 Dodson's Adm. Rep. 403, it was held, that though a master be not at liberty, by the general rule, to discharge his crew in a foreign port without their consent, yet that circumstances, as a case of semi naufragium, where repairs may be doubtful or difficult, might vest in him an authority to do so, upon proper conditions, as by providing and paying for their return passage, and their wages up to the time of their arrival at home. Curtis on the Rights of Seamen, p. 301. S. C.

wages are due. This principle protects the owner, by making the right of the mariner to his wages commensurate with the right of the owner to his freight; but that the rule may duly apply, the freight must not be lost by the fraud or wrongful act of the master. The policy of the rule applies to cases of loss of freight by a peril of the sea; and it was truly and distinctly stated by the Court of K. B. in the time of Charles *II.,* that if the ship perish by tempest, fire, ene- *188 mies, &c., the mariners lose their wages; "for if the mariners were to have their wages in such cases, they would not use their endeavours, nor hazard their lives for the safety of the ship." If the voyage and the freight be lost, because the ship was seized for debt, or for having contraband or prohibited goods on board, or for any other cause proceeding from misconduct in the master or owner, it would be unreasonable and unjust that the innocent seamen should be deprived of compensation for their services, and the marine law holds them still entitled to their wages. The wages are, in such cases, allowed pro tanto to the time of the loss of the voyage, and with such additional allowance as shall be deemed reasonable under the circumstances.c

Anon. 1 Sid. Rep. 179.

↳ Malyne's Lex Mercatoria, 105. Molloy, de Jure Maratimo, b. 2. c. 3. sec. 7. Hoyt v. Wildfire, 3 Johns. Rep. 518. Jacobsen's Sea Laws, b. 2. c.

2. The Malta, 2 Hagg. Adm. Rep. 158.

In Woolf v. The Brig Oder, 2 Peters' Adm. Rep. 261, where the voyage was broken up by seizure for debt, wages up to the time were allowed, and one additional month's 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 out

Seamen's wages, in trading voyages, are due pro rata itineris. This has been so decided in the Scottish courts, and upon principles of controlling equity."

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 was by the month, and there was no special contract in the way ; and a similar opinion was mentioned by one of the judges of the C. B. in another case. In a still later case, 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 autho

ward 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, de. ducting 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, No. 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 Com. 515. But the rule may be varied by agreement. Appleby v. Dods, 8 East's Rep. 300.

Cutter v. Powell, 6 Term Rep. 320. 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.

Heath, J., in Beale v. Thompson, 3 Bos. & Pull. 425.

d Armstrong v. Smith, 4 Bos. & Pull. 299.