1804. BEALB versus THOMPSON. BEALE versus THOMPSON. JOHNSON versus BRODERICK. A SEAMAN, detained in Russia under the late embargo, in 1800, who is permitted by the captain to return, and serve on board upon being taken off the embargo, is entitled to wages, during the time he was on shore and absent from the ship by force thereof ; his contract being for the voyage, and to do his best endeavour for the ship, and not to neglect or to refuse to do his duty by day or night, nor go out of the ship on board any other vessel, nor be on shore under any pretence without leave, under the penalties of 2 Geo. II. c. 36, and 37 Geo. III. c. 73; and twentyfour hours absence, without leave, to be deemed a total deser tion. Capture, even hostile, does not defeat the right to wages, where the captors, instead of proceeding to condemnation, release the ship, and thereby pronounce that their act is not a valid seizure. IN ERROR from the court of Common Pleas.-AsSUMPSIT for wages due to the plaintiff as a mariner on board the ship Aquilon, on a voyage from the port of Hull to Petersburgh, and from Petersburgh to London, at 51. 10s. per month, from the time of his entering into the service of the defendant until the final end and completion of the said voyage. The declaration alleged the safe arrival of the Aquilon at Petersburgh, and her return from thence to London; and that during the whole of the said voyage the plaintiff continued and remained in and on board the said ship in the service of the said defendant as such mariner, and ship's cook, as aforesaid. There were also counts for wages as a seaman, on a quantum meruit, and for money paid, laid out, and expended, for money had and received, and on an account stated. Plea, the general issue. The record then set out the postea, and that a special verdict was found before Lord Alvanley, C. J. at the Westminster sittings after Michaelmas term, 1803, as follows:-The plaintiff, a British seaman, on the 8th day of September, 1800, executed articles to serve as 4 a seaman in a British ship, called the Aquilon, of which the defendant was owner, at the wages of 51. 10s. per month, on a voyage from Hull to Petersburgh, and from thence to London; and that in consideration of the said monthly wages, the plaintiff should and would perforin the above-mentioned voyage; and the defendant did hire the plaintiff for the said voyage at such monthly wages, to be paid pursuant to the laws of Great Britain. And the plaintiff did promise and oblige himself to do his duty and obey the lawful commands of his officers on board the said ship, or boats thereunto belonging, as became a good and faithful seaman and mariner, and at all places, where the said ship should put in or anchor at, during the said toyage, to do his best endeavours for the preservation of the said ship and cargo, and not to neglect or refuse doing his duty by day or night, nor go out of the said ship on board any other vessel, or be on shore under any pretence whatsoever, till the voyage should be ended, and the ship discharged of her cargo, without leave first obtained of the master, captain, or commanding officer on board; and in default thereof it was agreed, that he should be liable to the penalties mentioned in the 2 Geo. II. c. 36, and 37 Geo. III. c. 73.; and further, that twenty-four hours absence, without leave, should be deemed a total desertion, and render the plaintiff liable to the forfeitures and penalties contained in the acts above recited; and also, that the plaintiff should not demand or be entitled to his wages, or any part thereof, until the arrival of the said ship at the above-mentioned port of discharge, and her cargo delivered; and that if the plaintiff should well and truly perform the above-mentioned voyage, he should be entitled to the wages or hire that should become due to him, pursuant to the said articles. The plaintiff accordingly sailed on board the said ship, which arrived at Petersburgh on or about the 18th of October in the same year, and continued there in prosecution of the purpose of the voyage, until the 5th of November; on which day the following order was issued by the Russian government: "Whereas we have learned that the island of Malta, VOL. III. No. 15. 1804. BEALE versus THOMPSON. 1804. BEALE versus THOMPSON. lately in the possession of the Hercule, has surrendered to the English troops, but as yet it is uncertain, whether the agreement entered into on the 30th of December, 1798, will be fulfilled, according to which this island, after its capture, is to be restored to the Order of St. John of Jerusalem, of which his majesty, the emperor of all the Russias, is grand master: His Imperial majesty, being determined to defend his rights, has been pleased to command that an embargo shall be laid on all English vessels in the ports of his empire till the above-mentioned convention shall be fulfilled." In consequence thereof guards were placed along the shore to prevent the crews escaping from their respective ships until the 10th of the same month of November, when such part of the crew of each ship, as were British subjects, were taken out by a Russian guard, and marched into the interior of the country. On the 18th and 21st days of the said month of November, the following proclamation appeared in the Petersburgh court gazette. "The crews of two English ships, in the harbours of Narva, on the arrival of a military force to put them under arrest, in consequence of the embargo laid on them, having made resistance, fired pistols, and forced a Russian sailor into the water, and afterwards weighed anchor and sailed away; his Imperial majesty has been pleased to order, that the remainder of the vessels in that harbour shall be burned. His Imperial majesty, having received from his chamberlain Stalinskoi, at Palermo, an account of the taking of Malta, has been pleased to direct that the following note shall be transmitted to all the diplomatic corps, residing at his court, by the minister presiding in the college for foreign affairs, count Rostopskin, and the vice-chancellor, count Panin. His majesty, the emperor of all the Russias, has received circumstantial accounts respecting the surrender of Malta, by which it is actually confirmed, that the English generals, notwithstanding the repeated remonstrances on the part of his majesty's ministers at Palermo, as well as from the ministry of his Sicilian majesty, have taken possession of Valetta, and of the island of Malta, in the name of the king of Great Britain, and have hoisted his flag only. His Imperial majesty's just indignation having been raised by this violation of good confidence, he has resolved not to take off the embargo that has been laid on all English vessels in the Russian parts, until the agreement of the convention, concluded in 1798, shall have been completely carried into execution." On the 14th of January, 1801, his Britannic majesty in council issued the following order: "Whereas his majesty has received advice that a large number of vessels, belonging to his majesty's subjects, have been and are detained in the ports of Russia, and that the British sailors, navigating the same, have been and are detained as prisoners in different parts of Russia; and also, that during the continuance of these proceedings, a confederacy, of a hostile nature, against the just rights and interests of his majesty and his dominions, has been entered into with the court of Petersburgh by the courts of Denmark and Sweden respectively: his majesty, with the advice of his privy council, is thereupon pleased to order, as it is hereby ordered, that no ships or vessels, belonging to any of his majesty's subjects, be permitted to enter and clear out for any of the ports of Russia, Denmark, or Sweden, until further order: that a general embargo or stop be made on all Russian, Danish, and Swedish ships and vessels whatsoever, now within, or which hereafter shall come into any of the ports, harbours, or roads, within the united kingdom of Great Britain and Ireland, together with all persons and effects on board the said ships and vessels; but that the utmost care be taken for the preservation of all and every part of the cargoes on board any of the said ships and vessels, so that no damage or embezzlement whatever be sustained: and the right ho noarable the lords commissioners of his majesty's treasury, the lords commissioners of the Admiralty, and the lord warden of the Cinque Ports, are to give the necessary directions herein as to them respectively appertain." On the 16th of January, 1801, his Britannic majesty in council issued the following order: "Whereas his majesty has 1804. BEALF versus THOMPSON. 1 1804. BEALE versus THOMPSON. received advice that a large number of vessels, belonging to his majesty's subjects, have been and are detained in the ports of Russia, and that the property of his majesty's subjects in Russia has, by virtue of several orders and decrees of the Russian government, particularly one bearing date the 29th day of November, old style, (corresponding with the 10th of December, new style,) been seized and directed to be applied, in violation of the principles of justice, and of the rights of the several persons interested therein, his majesty, with the advice of his privy council, is thereupon pleased to order, as it is hereby ordered, that no bills, drawn since the said 29th day of November, old style, (corresponding with the 10th of December, new style), by or on behalf of any persons being subjects of or residing in the dominions of the emperor of Russia, shall be accepted or paid without licence from one of his majesty's principal secretaries of state, first had in that behalf, until further signification of his majesty's pleasure, or until provision shall be made in respect thereof by act of parliament, whereof all persons concerned are to take notice and govern themselves accordingly." The captain and crew of the Aquilon, including the plaintiff, remained up the country till the 28th of May in the succeeding year, during which time they were kept within certain bounds, and from the time they were taken from their ships, were treated in other respects as if they had been prisoners of war. On the 28th of May, in the succeeding year, the said captain and crew were marched back to Petersburgh, and returned on board the ship, and afterwards proceeded on the voyage to London; the ship went out to Petersburgh, in ballast, to bring a cargo to London, and was to be paid freight for that cargo by the ton. The plaintiff did his duty as a seaman on board the ship during the said voyage, and the ship received the same freight as if she had been detained, and no more. After the captain and crew returned on board the ship, the Russian government issued the following order: Quoique l'intention magnanime de S. M. l'empereur de toutes les Rus-ics, de rendre pleine et entiere |