Walton v. The Neptune
Walton v. The Neptune
Opinion of the Court
The mariners shipped at Philadelphia, the twenty-first day of December, one thousand seven hundred and ninety-nine, at the current monthly wages, to perform a voyage to the Havanna, and back to Philadelphia. They died, through accidental illness, of a prevailing fever at the Havanna, while in the service of the ship. The libellants [Walton, administrator of Strum, and Armstrong, administrator of Pagel] claim wages as due to the decedents, for the whole voyage, allowing funeral expenses and physicians’ bills. The ship arrived at Philadelphia, and earned her freight. The owner alleges, they should only be paid, pro tanto, to the time of their respective deaths.
The laws of Oleron contain the principles of all the maritime laws of the European western nations concerned in commerce; with some particular exceptions in particular cases. They are yet in force, and acknowledged in their great and leading principles, by all the trading nations; though some of their harsh and severe punishments and pecuniary mulcts, for crimes and offences, are out of use. Whenever any of their regulations are modified or contradicted, they are-so modified or opposed by special ordinances, binding only in the particular state making them. Thus in France, by the thirteenth and fourteenth articles of the twenty-ninth section of the Ordinances of Louis the Fourteenth, it is declared, that “the heirs of a seaman hired by the month, and dying in the voyage, shall be paid his wages, until the day of his decease. The half of the wages of a seaman, hired by the voyage, shall be due to his heirs, if he dies outward bound; and the whole, if he dies in the way home. And if he sailed by the profit, or freight, his heirs shall enjoy his full share, if the voyage be begun before 1ns death.” Tet even in this modification, the leading principle is preserved, of payment of full wages, or freight; in the two latter cases, because the sailor was not in fault, but by an inevitable casualty, was prevented from fulfilling his contract. There is a similar distinction in the ordinances of Charles the Fifth, as to a sailor dying in the outward passage, when his heirs shall have half; and if on the home passage, they shall have his full wages. But in Spain, where their seamen are treated with peculiar strictness, there is a local custom, that “in ships of war on India voyages, if a man die the first day of the «voyage his heirs are to be paid as much as if he had completed it.” Herein preserving the general principle on which I have dilated in the case of Hart v. The Littlejohn [Case No. 6,153]. In that case, and in this. I consider the contract to be for the voyage, though monthly wages are stipulated; to take from the mariner the risk of long, and to give to the owner the advantage of short, passages. The terms of the shipping articles prove this, and the ;orfeitures, incurred by desertion, go to the whole due the sailor, for the preceding part of the voyage, and not solely to the month in which the forfeitures attach.
I have always made freight the rule. In a former case in this court, wherein an attempt was made to cut the seamen out of their wages, for the whole of an East India voyage, by making them payable only on the ship’s return to Philadelphia, I decreed wages as far as freight was earned, the vessel having been captured on the home passage. I did not then recollect a stronger case than that before me. 2 Vern. 727. The seventh' article of the laws of Oleron is clear, in m,v view, to the present question. It makes no distinction between the out and home passage. In this
Thus, by these wise and" politic regulations, making attention to mariners the interest, as it was the duty of masters of ships. They or their owners sustain a loss by the death, but profit (in his services, and saving of the hire of another in his room) by the continuance of health, or recovery of the mariner from sickness. Hereby also giving encouragement to those who enter into this hazardous and laborious employment. Some provision being, in this way, made for them if they survive, when lingering under convalescence, or ruined by disability, occasioned by sickness or accident; or for their families, in the event of their death. This benevolent principle has always been attended to by enlightened nations. It is established in the most respectable codes of jurisprudence, among the general and leading points of justice, in contracts for personal services of every description. Common law authorities can be produced in support of it: it is grounded in the wisdom of ages. We find it recognised in the Digest of Justinian (law 3S, p. 5S): “He who has hired his services is to receive his reward for the whole time, if it has not been his fault that the service has not been performed.” The laws of the Rho-dians are inserted in this Digest.
The provisions of the general maritime laws, and the principles of the Roman, or civil law,
Although the sum in demand in this case is small, the subject often presents itself; and I wish to put the point at rest here, until an occasion for an appeal offers. 1 must be guided by what I conceive fixed principles, which ought not to be shaken because temporary in-conveniencies casually occur. I wish it to be understood, that, in the application of the general principles here I do not lose sight of the limitation mentioned in the case of The Little-john [supra]. All general rules are subject to exceptions. Capture or wreck interrupt or destroy the voyage. The sick mariner, or the heirs of one dead, can only receive wages out of the freight earned; and so far as it is earned. And in fhe ease of a ship seized for debt, or forfeited through the owner’s default, wages will be received though no freight be earned. By full wages I therefore mean, as much as he would have been entitled to, had he been on board and met the fate of the ship. In the case I have now to determine, the freight was earned for the voyage. So it was in the case of Tile Littlejohn, with the deduction of salvage — to which, if it had occurred here, I should have ordered the libellants to contribute. They must now allow all sums, lawfully chargeable against the decedents. Let it be also understood, that the sailor must not be in fault. If his sickness, disability or death is owing to vicious or unjustifiable conduct, he, or his heirs must bear the loss, propter de-lictum.
I have looked into several common law authorities on this subject. By the common law, no contract for wages was apportionable. Brooke, Abr. tit. “Apportionments; Labourers’ Contracts.” See the case of Chandler v. Greaves, H. Bl. 606. It appears expressly on enquiry, by order of the court of C. P. in 1796, into the usage of the British admiralty, a disabled mariner “was always entitled to his wages during the whole voyage.” And in this case, full wages were recovered at common law. The mariner’s disability was occasioned by an accident, happening on board the ship, and he does not appear to have met it in doing actual duty. There is no difference as to wages, between the case of a sailor disabled on actual duty, or that of one taken sick, or, owing to no misconduct, accidentally disabled while in service. In the former case, he is to be cured at the expense of the ship; in the latter, at his own charge. The ship, by act of congress is bound to furnish medicines or pay the physician’s bill:
I do therefore adjudge, order and decree, that the libellants, respectively, have and recover the sums following, that is to say, Elijah Walton, administrator of Matthias Strum, shall have and recover the sum of one hundred and thirty dollars, and Andrew Armstrong, administrator of Johannes Pagel, shall have and recover the sum of sixty-four dollars and eighty-three cents, being the balance of wages due to the said Matthias Strum and Johannes Pagel, for the whole voyage. And I finally adjudge, order and decree, that the said ship Neptune, together with her tackle, apparel and furniture, or so much thereof as may be necessary, be condemned, and that the same be sold by the marshal of this district for the payment to the libellants aforesaid of the sums of money herein before decreed to them respectively, together with the costs and charges, legally accruing, in the premises.
This fact I had taken from respectable authorities. and presumed it correct: although I knew it had been doubted by some, and contradicted by others. Among those who do not consider the parts of those laws now extant as genuine, is Bynkershoek, whose opinion has always great influence. A late writer (Azuni), who has treated with ability and extensive knowledge on maritime law. but is not free from prejudices on particular points, has taken much pains to prove, that ilie whole of the Rhodian laws were not inserted in the Digest of Justinian, though one of these laws relative to jetison, is to be found therein. He cites and comments on a number of authors for and against the authenticity of the fragments generally received ns pnrts of the Rhodian laws; and concludes against their being genuine. He asserts, that these supposed Rhodian laws, are productions of more recent date, and fabricated by more modern Greeks. He brands them with the character of “trash”; yet, however accurate his opinions may be in other respects, I see not that they merit an appellation so vituperative. They contain many of the valuable principles of maritime law. though (ns light tilings float lona) some of the least important may have been borne down to us on the tide of time. It will be seen, on examining the authorities. many whereof are cited by Azuni (see 1 Mar. Laws [New York Ed. 1S0G] p. 205, et seq. and notes), that these fragments were discovered in Rithou’s library, and first printed in Germany, by Simon Scardins. The Greek was the original language, in which these ancient laws were written. But Azuni discovers some modern Grecisms in Scardins’ copy. The evidence, appearing on the face of them, of this language is, so far as it goes, rather a proof of authenticity; even if some corruptions from the purity of the original may have crept into, relatively, modern copies. Many ancient manuscripts and authentic classical works have been discovered in monasteries, where they_have lain neglected for ages. Poggio, in the 15th century, recovered in Germany (where these fragments were found) as well as in Italy, some of the most valuable of the Roman classics, buried in rubbish and dust, in cloisters and other obscure places, where only one of his industry and talents would have sought for or found them. Pillion's library was a deiiositary more respectable: and Marquardus Freer and Leun-clavius were the editors of the laws found there, and considered them authentic. They were persons of the first grade of literary character. The Pandects were discovered at Amalfi, or Pisa, (for this is not clearly ascertained) in places no more important to their credit, than the library of Pithou was to the Rhodian laws, said to be there deposited. Nor are those who attest the facts, as to the Amalfi or Pisan copy, or copies of the Pandects, more credible than Freer, or Leunclavius. The Pisans euobled M. Azuni for attributing to their predecessors the Consolato del Mare, and the discovery of the Pandects. It appears, however, be the fact of the authenticity of the Rhodian laws as it may (according to the allegation, after due examination, of the able American translator of Azuni’s work, to whose labours and information I am much indebted) that the English compiler of the “Sea Laws.” a book generally of good authority, is egregiously mistaken, when he asserts that, these fragments of the Rho-dian laws are to be fotmd in the Italian copy
Having conceived and declared that, “the laws of the Rhodians are inserted in the Digest,” I considered myself bound to give some account of the subject. But I have no desire to enter into an unnecessary critical investigation, or controversy, on a topic in which I may have been mistaken, and misled. I have fallen into an error, if such it really is, in common with many others. After all, this assertion is, beyond dispute substantially true. It is agreed on all hands, and conceded by Azuni himself, that the Rhodians gave the principles of maritime law to the Romans, who adopted them into their Code. Their leading character is allowed to be engrafted in the Roman, as well as subsequent sea laws. See Azuni on this subject. Whether the laws, in the very words in which they were originally promulgated, or only a summary of, or commentary on, them, “are inserted in the Pandects or Digest,” is immaterial; if their general principles and distinguishing features are handed down to us. We have indisputable maritime laws, competent to guide and govern us, if what we have heretofore deemed the Rhodian laws should be rejected as apocryphal. The principles of the venerable Rho-dian Code are indubitably transfused into systems yet extant, and in high estimation. These principles have survived the ravages of barbarism, and the vicissitudes of fortune, which have reduced to imbecility and obscurity, the once powerful and celebrated people, with whom they originated. Time, which has exterminated every monument of their wealth and splendor, has perpetuated these more durable memorials of their policy, wisdom and justice; by disseminating them through distant regions, and extending their inestimable advantages to remote generations and races of men.
[The following explanatory note relative to the Rhodian laws has been added by Judge Peters as a correction to the above note. It is reprinted from 2 Pet. Adm. 478:]
Not having considered it so important to establish (if I were capable of so doing) the authenticity of the Rhodian fragments, as to show that the principles of the Rhodian laws were inserted in the Digest of the Justinian, all the facts relative to these fragments were not sufficiently attended to. Nor were the compilations of Justinian then examined farther than occasional references required. It is alleged in tiie note that the fragments were first printed in Germany. It appears they were first printed at Basle in Swisserlnnd. by Scardius, in 1561; and afterwards, in 1596 at Frankfort, in Germany', by Leunclavius and Marquardus Freer. They were Germans, and the latter was the pupil of the celebrated Cujas or Oujaccius, as was also Pierre Pithou or Pithoeus. In this note it is suggested, that the fragments were found in Germany. This does not appear clearly in any of the books I have had opportunities of consulting. The Pithous, Pierre and Francis, were brothers, and sons of an eminent civilian. They were Frenchmen; and the former most celebrated. He was a Protestant, and had a miraculous escape from the infamous massacre of St. Bartholomew. Both were consulted on great juridical and diplomatic questions, being eminently famed for their talents and accurate knowledge of the Roman laws; many valuable portions whereof (collected and preserved in their libraries) were by them “brought forth from the obscurity in which they had been buried for ages.” Pierre was styled tiie Varro of France: his library was in Paris, and accounted the most valuable collection in his time. The Rhodian fragments were discovered in the library of Francis Pithou; which was also greatly valued, when public libraries were rare. In these fragments, as published by Scardius, Azuni discovers Latin words written with Greek letters. Such should have been styled “Latinisms.” However the fact of authenticity may be, it appears the most probable, that the text of the Rhodian laws was not inserted in the Pandects: though it is asserted by respectable jurists (cited by Sehomberg, Illustrations 390,1 that the Romans, and after them the Greek emperors, "regulated all matters of trade and navigation by the Rhodian laws, which were, on that account, admitted into the Pandects.” To admit them verbatim seems to have been inconsistent with the plan of these collections, which was to condense and abridge, and not exactly to copy the Roman or other laws, the principles whereof were adopted. This became the custom of jurists, not only of the period in which the Digest was formed, but of succeeding ages. It has not yet ceased, though it is condemned by writers of eminence, as a practice which has tended to supersede the use of the original laws: and thereby occasion their loss and final destruction. The Basilica or Proeheiron of the Emperor Basil or Basilius is only an epitome of Justinian’s Code, which has always been considered of the highest authority; and to form the most essential part of what is called “Corpus Juris Romnno-Civilis.” —a title applied, in its strict sense, solely to the Institutes, Code and Novels of Justinian. Tbe use of the Basilica, encouraged by the Greek emperors, may have superseded that of the Roman Code; and occasioned its laying so long in obscurity.
Always bound to submit, with the respect I owe. to the laws, .vet having frequently seen the inefiicacy, and in several instances the danger, of medicines administered ignorantly, or carelessly, I have not been jwrfectly satisfied that the seamen should pay the bill for medical advice, which to complete the intent of the provision should be charges on the ship. But finding the weight of authority that way, I have yielded. It is certain that medicines administered without due knowledge of the disease, are as often fatal as the malady, if not more so. Congress intended a benefit to the mariner, but he had better pay for medical advice, than risk the consequences of indiscreet use of the medicine chest. In numerous instances, physicians’ bills, especially in the West Indies, have balanced the claim for wages. By the terms in the alternative, in the act of congress, that if the ship has no medicine chest, the owners shall pay the physician’s bill, it seems, that if the ship is furnished with the chest, the sailor must pay for advice; but the ship must supply medicine.
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