mediate port, and a dispensation of farther proceeding, then a pro rata freight is due. (n)

In these respects our law appears to differ from the maritime law of other countries. Roccus (0) declares, that if the ship has begun her voyage, and from accident is prevented from completing it, freight is payable for the part of the voyage actually performed. This also is the opinion of Straccha (p) and seems, with some distinctions, to be adopted in the maritime regulations of France. (9) Indeed, in the case of an interdiction of commerce after the voyage is begun, the full freight for the outward voyage is allowed. (r)

If we pass from the consideration of freight to that of wages, we shall find, as I have already stated, that foreign writers do not consider that wages are wholly lost, but recoverable pro rata itineris, where the voyage has been in part performed, and its further accomplishment has been prevented by inevitable casualty or superior force.

As to an interdiction of commerce with the port of destination, occurring in the voyage, Cleirac, (s) adopts with apparent approbation, as conformable to the civil law, the regulation of Philip 2d, that the mariners shall, in such case, receive a quarter part of the wages agreed upon for the whole voyage. (t) The French ordinance (u) declares, that, in the like case, the mariners shall be paid in proportion to the time they have been in service, and this Pothier says, is conformable with the general rules of the contract of hire. (x)

No case has been cited, in which this point has been settled in our own courts; and, as far as I have been able to ascertain, after a pretty diligent search, it yet remains for a decision in our maritime law. But if the doctrines, already settled in relation to freight, are to apply, and it seems impossible to dis

(n) Luke v. Lyde, 2 Bun. 882. Leddiard v. Lopez, 10 East 526. Osgood v. Groning, 2 Camp. 466.

(0) De Nav. n. 54 n. 81.

(p) De Nav. part 3, sec. 24.

(9) Pothier Charter Partie, n. 68–69—1 Emerig. 544-1 Valin Comn. 656. (r) Emerig. 544-1 Valin Comn. 656-Pothier Charter Partie, n. 69.

(8) Jugemens d'Oleron, art. 19. § 3, § 41.

(t) Dig. lib. 19. tit. 2. I. 15. § 5.

(u) Des Loyers des Matelots, art. 4.

(x) Pothier, Louage des matelots, 180. 1 Valin. Comm. 688.

No. XXI.

C

tinguish them, the interdiction of commerce must be deemed to dissolve the contract, and leave the mariner without any title to wages pro rata itineris peracti. Indeed, the moment it is held, that, where freight by the general law is not earned, wages are not due, the case falls directly within the authorities, which have been already examined.

My opinion as to this point, therefore, is, that war existing at the time of the restoration of the ship, and the farther prosecution of the voyage being illegal, the original contract was completely dissolved, and up to that time no further wages were due. If the case had rested here, the claim for wages must have been repudiated.

But the mariners, with the consent of the master, came on board, and did duty from the time of the restoration of the ship, until their final discharge. It was clearly competent for the master to hire and employ a crew for the preservation and equipment of the ship, and the services so performed cannot, by any reasonable construction, be referred back to a contract, which then had no legal existence. The libellants then must be deemed to have gone on board, and to have done duty, under an implied contract to receive a reasonable recompense, in the nature of wages, pro opere et labore. Upon the footing of this new contract, I have no difficulty in sustaining their claim for wages, during the time of their connexion with the ship after restoration. Full wages, however, ought not to be given for this period, because the services performed or required were not equal to the usual services in the progress of the voyage. In case of a detention, under the arrest of a sovereign, the French ordinance (y) provides that the mariners hired by the month shall be entitled to a moiety only of their wages during such detention. Under all the circumstances of this case, I shall adopt this as an equitable rule, and shall decree wages accordingly.

The next question that arises, is, whether the libellants are entitled to the two months pay under the act of the 28th of February, 1803, ch. 62. The third section provides, that whenever an American ship shall be sold in a foreign country, or an American seaman shall, with his own consent, be discharged in

(y) Des loyers des matelots, Art. 5. Valin comm. 6, 190.

a foreign country, the master of the ship shall pay to the commercial agent of the United States, for every seaman so discharged, three months pay, over and above the wages due to such seaman, two-thirds thereof to be paid to such seaman on his engagement on board of any vessel to return to the United States, and the remaining third to be retained, for a fund to refieve destitute American seamen. I agree with the counsel for the respondents, that the cases here alluded to are cases of voluntary discharge, and not cases, where the discharge has resulted from inevitable necessity or superior force, such as a total loss by capture, tempest, or other fortuitous occurrence. But I can, by no means, admit, that the present case comes within the exception. The ship was in a capacity to return home, or perform any lawful voyage, and at the time of the discharge, the libellants were attached to her service. The case falls, therefore, within the words and the mischiefs of the statute, and though the money is required to be paid into the hands of a public agent for the use of the libellants, yet as they did all the acts, which gave them a perfect title to it, and it was not paid, this court will enforce their title directly against those, who were circuitously compellable to pay it. The two months wages, however, are to be calculated, not on the original wages, but on the wages growing out of the new contract of hire.

Before I close this opinion, I will advert to one or two considerations, which have been thrown out in the argument. It has been argued, that if the seamen were entitled to wages, they were bound to contribute towards the expenses of procuring the release of the ship, as a general average. But I know of no rule of law, which subjects the seamen to contribution in such a case. The general doctrine is, that they do not contribute to general average. The only admitted exception is, in case of ransom, and, perhaps, by parity of reasoning, of recapture. (z) If the doctrine were otherwise, it would not apply to the present case, for the wages to contribute must be those, which are saved by the expenses incurred; and not by the wages accruing under another contract. Here the very subject matter for contribution was totally lost.

(z) Abbot, p. III. ch. 8, § 14. Id. p. IV. ch. 3, § 2. The Friends, 4 Rob. 143-1 Emer. 642. 1 Valin. Comm. 752, 701.

It has been argued, on the other side, that a capture of a neutral by a belligerent differs from capture by an enemy as to its effects. That it either affords prima facie evidence of illegal conduct in the neutral, which subjects him to condemnation, and such conduct ought not to affect seamen, who are innocent parties; or such capture is wrongful, and the owners are entitled to damages equivalent to the freight. It might be a sufficient answer to this argument, that no distinction as to legal effects, has as yet been recognised; and so far as authorities proceed, they indiscriminately apply to neutral, as well as enemy's captures; and further, that if the voyage be not performed, and freight be not in fact allowed, by way of damages, upon restitution, which may arise without any default of the owner, he would be compelled to pay wages, where the general law had, as a case of the vis major, exempted him from payment.

The case also of Frothingham v. Prince, (a) has been pressed upon the court, as a direct authority to prove, that the payment of wages does not depend upon the earning of freight, if the ship or any of her materials equal to the wages, remain after the voyage. That case is very imperfectly reported. I have, however, examined the original record, and from a memorandum on it, I find the full wages for the homeward voyage were allowed, although the cargo was totally lost by shipwreck, and the ship herself was so much injured, that the materials sold for little more than the wages. No reasons are given for this decision, and, perhaps, it may have turned, as the defendant's coun sel have suggested, upon the ground, that under the circumstances, the seainen were entitled to a salvage equal to their wages. (b) If, however, it be incapable of this explanation, as I confess from the examination of the record, I think it is, the most that can be said is, that it is a single case standing alone against the current of authority.

Decree of the District Court reversed.

Selfridge for the Libellants.

Prescott and Hubbard, for the Respondents.

(a) 3 Mass. R. 568.

(b) Coffin v. Storer, 5 Mass R. 252-Abbot p. IV. ch. 2, § 6.

MASSACHUSETTS.

DISTRICT COURT, U. S. MAY, 1811.

RAND, et al. v. the ship HERCULES.

DAVIS, F. The libellants, mariners on board the ship Hertules, Edward West, master, on a voyage from Salem to Europe and back to Salem, claim wages at the rate expressed in the shipping paper, from 17th July 1809, to 25th Feb. 1811. There is a second item in the libel, on a contract made at Naples, 4th July 1810, to proceed to Civita Vecchia and home, at a less rate of wages than is expressed in the original shipping paper, executed at Salem. Stipulation is given by Nathaniel West, owner of the ship, to abide the final decree. The wages claimed by the second item are not controverted; but it is contended, that the events and circumstances of the voyage, preclude all claim for wages, for any services of the libellants on board the ship, prior to the last contract.

The libellants shipped at Salem, 17th July 1809, for a voyage to "Europe and the East Indies, or back to Salem." The or, ders given to the master, 1st Aug. 1809, by West, the owner, directed him to proceed to Cagliari, Palermo or Messina, as he should find most eligible; and having disposed of the cargo, to return to Salem, touching at any of the Spanish ports in the Mediterranean, there to take in freight for the Spanish Main or colonies, if any advantageous offer should occur. The markets designated for the outward cargo are Cagliari, Palermo and Messina, "except," it is added, "it amounts to a certainty you can go to Naples, and sell there for much greater prices, and without the least doubt as to the safety of the property." The cargo, amounting to sixty thousand dollars and upwards, was wholly owned by West, owner of the ship, excepting the