But process may be instituted in rem against the ship. there is no fixed period of time by the marine law, within which mariners must proceed to enforce their lien for wages, though the lien may be lost to the seamen and other privileged creditors, by unreasonable delay, and suffering the vessel to pass into the hands of a bona fide purchaser ignorant of the claim. It does not, like other liens, depend upon possession. Seamen's wages are hardly earned, and liable to many contingencies, by which they may be entirely lost, without any fault on their part. Few claims are more highly favoured and protected by law, and when due, the vessel, owners and The law of England, in ordinary cases, requires the mariner to stay by the ship till the discharge of the cargo, when the other party has done nothing to supersede the existing contract. The Baltic Merchant, 1 Edw. Adm. 91. The Cambridge, 2 Hagg. Adm. R. 245, 246. In Cloutman v. Tunison, 1 Sumner's R. 373, Mr. Justice Story declared the same general principle; but Judge Peters, in Hastings v. The Ship Happy Return, 1 Peters' Adm. R. 253, was inclined to the opinion that the seamen were not bound to unlade the ship after the voyage is ended, unless specially bound by the articles. A spontaneous deviation of importance will entitle the seamen to their discharge; but by the Danish and Dutch Marine Codes, though the master enlarges or alters the voyage, he may compel the seamen to remain in the service, on a reasonable addition to their wages. This is not the English law. Jacobson's Sea Laws, 142. Institutes of the Laws of Holland, by Vander Linden, 629. The usage in the United States is to discharge the crew before unlading the vessel, and to employ other persons to perform that The service. It has now become one of the implied terms of the contract. voyage is ended when the vessel is safely moored at the wharf, and then the But if, by the terms of ten days for the payment of the wages begin to run. the contract or usage of the port, the seamen are bound to remain and assist in discharging the cargo, then the ten days only begin to run from the dis. charge of the cargo. When, in either case, the seamen are discharged, the wages are due. The Mary, D. C. U. S. Maine District, August, 1838, Ware's R. 454. Judge Peters, in the case of Edwards v. The Ship Susan, 1 Peters' Adm. R. 167, adopted fifteen working days as a reasonable time from the end of the voyage, for the unlading of the cargo and the payment of wages. ⚫ Ware's Rep. 186. 212. masters, are all liable for the payment of them." The seamen need not libel the vessel at the intermediate port where they are discharged. They may disregard *197 bottomry bonds, and pursue their lien for *wages afterwards, even against a subsequent bona fide purchaser. It follows the ship and its proceeds, into whose hands soever they may come by title or purchase from the owner. Their demand for wages takes precedence of bottomry bonds, and is preferred to all other demands, for the same reason that the last bottomry bond is preferred to those of a prior date. Their claim is a sacred lien; and as long as a single plank of the ship remains, the sailor is entitled, as against all other persons, to the proceeds, as a security for his wages, for by their labour the common pledge for all the debts is preserved. The seamen's lien exists to the extent of the whole compensation due them. There is no difference between the case of a vessel seized abroad and restored in specie or in value the lien reattaches to the thing, and to whatever is substituted for it. This is not only a principle of the admiralty, but it is found incorporated into the doctrines of the courts of common law. In the French law, the seamen's lien upon the vessel is extinguished a Pothier, Lounge des Matelots, sec. 226. Abbott on Shipping, part 4. c. 4. sec. 10. Wytham v. Rossen, 11 Johnson's R. 72. Valin, tome i. 751. Wait v. Gibbs, 4 Pick. R. 298. In the case of the Betsy and Rhoda, in the District Court of Maine, (3 V. Y. Legal Observer, 215,) very marked protection was thrown over the wages of scamen. It was held that a negotiable note, taken by a seaman for his wages, will not extinguish his claim for wages, nor his lien against the ship, unless he be distinctly informed at the time that such would be the effect, and some additional security or advan. tage be given him for renouncing his lien on the ship. b Consulat de la Mer, c. 138. 2 Valin's Com. 12. Madonna D'Idra, 1 Dodson's Rep. 37. Sydney Cove, 2 ibid. 11. The Ship Mary, 1 Payne's Rep. 180. Sheppard v. Taylor, 5 Peters' U. S. Rep. 675. Brown v. Lull, 2 Sumner, 443. 452. Pitman v. Hooper, 3 ibid. 51. after a sale and a voyage, in the name, and at the risk of the purchaser; and the preference of the seamen's claim is confined to the wages of the seamen employed in the last voyage. *Desertion from the ship without just cause, and *198 animo non revertendi, or the justifiable discharge of a seaman by the master, for bad conduct, will work a forfeiture of the wages previously earned; and this is a rule of justice and of policy which generally pervades the ordinances of the maritime nations. By the English statute law, and by the act of congress, desertion is Ord. de la Mar. tit. De la Saisie des Navires, art. 16. De l'Engage. ment, art. 19. Code de Commerce, art. 191. 193. The commercial code of Napoleon settles the order and rights of privileged debts much more fully and precisely than the marine ordinance of Louis XIV.; and this priority in favour of seamen's wages pervades both the maritime ordinances. See supra, 168. The venerable code of the Consolato del Mure, c. 138, expressed itself on this subject with the energy of Lord Stowell, when it declared, that mariners must be paid before all mankind, and that if only a single nail of the ship was left, they were entitled to it. Consulat de la Mer, par Boucher, tome ii. 205. See, also, Cleirac upon the Judgments of Oleron, art. 8. n. 31, and Boulay Paty, Cours de Droit Com. tome i. 115. The preference given to seamen for their wages, over all other claims, upon the ship and freight, is the universal law of maritime Europe. The wages of seamen are a lien on the vessel and freight, and even on the cargo to the amount of the freight due upon it. The seaman has no lien on the cargo as cargo-it is on the ship, and on the freight as appurtenant thereto; and so far as the cargo is subject to freight, he may attach it as security for the freight that may be due. The Lady Durham, 3 Hagg. Adm. 200. When the general owner, and when the hirer of the ship for the voyage, are personally liable to the mariners for their wages, see the cases, and the examination of them, in Curtis's Treatise on the Rights and Duties of Merchant Seamen, 326-336. The master has his lien on the cargo for his freight. The cargo is hypothecated for the freight, and the freight is hypothecated for the seamen's wages. The lien on the freight is not taken away by the statute of the United States, allowing to seamen process against the vessel. See Poland v. The Brig Spartan, in the District Court of Maine, 1 Ware, 134, and the Paragon, ibid. 330, 331, where the question, as to the extent of the lien of seamen for their wages, is learnedly discussed. 11 and 12 William III. c. 7, and 2 George II. c. 36. See, also, The Jupiter, 2 Hagg. Adm. Rep. 221. Act of Congress, 20th July, 1790, c. 29. sec. 2. 5. In Cloutman v. Tu accompanied with a forfeiture of all the wages that are due, and an absence of forty-eight hours without leave, is made conclusive evidence of desertion; and whatever unjustifiable conduct will warrant the act of the master in discharging a seaman during the voyage, will equally deprive the seaman of his wages. But the forfeiture is saved if the seaman repents, makes compensation or offer of amends, and is restored to his duty.a Public policy and private justice here move together, and the maritime ordinances unite in this conclusion. The master has power to remit a forfeiture, and the penalty of forfeiture is not applied to slight faults, either of neglect or disobedience. There must be, either an habitual nison, 1 Sumner, 373, Judge Story held, that by the maritime law, the voyage is ended when the ship has arrived at her port of destination, and is safely moored, though her cargo be not delivered, and desertion afterwards does not forfeit the wages at large, but a partial forfeiture may be decreed by way of compensation for breach of duty. So, in another case, Judge Hopkinson held, that if a seaman leaves the vessel after she is moored at the wharf, at the last port of delivery, and before the discharge of the cargo, he forfeits a ratable deduction from his wages. To subject the seaman to the forfeiture of his wages, under the act of Congress of 1790, the entry in the log book, on the day of the absence, is indispensable. Knagg v. Goldsmith, Gilpin, 207. Ibid. 219. Cloutman v. Tunison, 1 Sumner, 373. The Rovena, Ware's Rep. 309. The Bulmer, 1 Hagg. Adm. R. 373. The Pearl, 5 Rob. Adm. R. 224. The Baltic Merchant, Edw. Adm. R. 86. Quitting the ship before the voyage is ended is desertion; but quitting her afterwards, and before the unlivery of the cargo, is a mere absence. The forfeiture of wages is not so absolute and total in the one case as in the other. The act of Congress of 20th July, 1790, c. 56. sec. 2. 5. 7, makes a distinction be. tween wilful absence of a seaman after he has signed the articles, and before the commencement of the voyage, and the like absence after the voyage has commenced. In the first case he forfeits wages, clothing and damages, and in the latter case he is liable to be arrested as a deserter, and to be imprisoned. Cotel v. Hilliard, 4 Mass. R. 664. Curtis's Tr. on Seamen in the Merchants' Service, 132-136. 140, 141. The master is bound, in such a case, to receive back the seaman, as a case fit for condonation, unless his previous misconduct would justify a discharge. Cloutman v. Tunison, 1 Sumner, 373. S. P. Coffin v. Jenkins, 3 Story R. 108. neglect, or disobedience, or drunkenness, or else a single act of gross dishonesty, or some other act of a heinous and aggravated nature, to justify the discharging a seaman in a foreign port, or the forfeiture of wages; nor will the admiralty courts, except in cases of great atrocity, visit the offences of seamen with the cumulated load of forfeiture of wages and compensation in damages. They stop at the forfeiture of the wages antecedently earned, and in the application of the forfeiture, the advance wages are made a charge on the *forfeited wages, but the hospital money is ap- *199 portioned ratably on the wages for the whole voyage. In these regulations the moderation of the courts, and the solicitude which the peculiar condition and character of seamen excite, are equally manifest. So, if the seaman quits the ship involuntarily, or is driven ashore from necessity, from want of provisions, or by • Lady Campbell, 2 Hagg. Adm. Rep. 5. Blake, before Dr. Lushington, July, 1839. 205. The Malta, ibid. 168. The Whitton v. The Brig Commerce, 1 Peters' Adm. Rep. 160. Thorne v. White, ibid. 175. Relf v. The Maria, ibid. 186. The Ship Mentor, 4 Mason's Rep. 84. 102. The Malta, 2 Hagg. Adm. Rep. 159. The Susan, ibid. 229, note. Hutchinson v. Combs, District Court of Maine, 1 Ware, 65. In the case of the Ship Mentor, Mr. Justice Story made some practical regulations as to the disposition of the forfeited wages, and he did not consider it to be a settled rule, that even the commission of the offence of endeavouring to make a revolt, was in all cases to be visited with a total forfeiture of wages. Though a seaman be justly discharged during the voyage for disobedience of orders, it was said by Dr. Lushington, in the case of The Blake, in the Admiralty, (July, 1839,) to be a very infirm test of the fitness of depriving him of his wages. Wages may be forfeited where the disobedience of orders is to such an extent as to render the discharge of the seaman imperatively necessary to the safety of the ship, and the due preservation of discipline. Where a seaman was sent home from a foreign port, in irons, by order of the American consul, for bad conduct of an aggravated character, and was thereby disabled, by his own fault, from the performance of his duty, his wages were deemed forfeited. Smith v. Trust, District Court of Maine, 1845. New-York Legal Observer for January, 1846. |