Two Catherines

Upon these facts the material questions are, (1) whether the seamen are entitled to any wages beyond those already paid to them; (2) if not, whether they can claim as salvors, out of the goods saved from the wreck.

It is. in my judgment, perfectly clear, that the seamen are entitled to wages up to the time of the ship’s arrival at Ivica, and during half the time the ship remained there; for at that place the homeward voyage properly commenced. The ship’s having gone from Gibraltar to Ivica in ballast does not vary the ease, any more than it would, if the whole of the outward voyage had been performed by the ship in ballast, in which event the seamen would unquestionably have been entitled to their wages. This doctrine is not new in our courts. It was early decided in the supreme court of my native state, after full argument (see Millett v. Stephens, MSS. Sup. Ct. Mass. 1800, cited in Abb. Shipp, p. 4, c. 2, note 1; Abb. Shipp. [Story’s Ed. 1810] pp. 487, 490; Hooper v. Perley, 11 Mass. 545), and about the same period adopted by a venerable admiralty judge of our own country. Giles v. The Cynthia [Case No. 5,424], It appears to me to be a natural result of the principles held by Lord Holt in 12 Mod. 409, 442, and Ld. Raym. 639, 739. And the language of Mr. Justice Powell in Brown v. Benn, 2 Ld. Raym. 1247, demonstrates, that the admiralty had acted with the approbation of the courts of common law upon the rule, that the seamen were entitled to wages, if the vessel arrived at her port of destination, even though it might not be a port of delivery of any cargo. Nor do I consider the case of Hernamen v. Bawden, 3 Burrows, 1844, ana Edwin v. East India Co., 2 Vern. 211, as impugning this doctrine, but rather as admitting it, and turning upon the peculiar construction of the contract in that case. My ‘brother, Mr. Justice Washington, in a recent case (Thompson v. Faussat [Case No. 13,954]) adopted a rule somewhat different, deciding, that if a vessel, after discharging her outward cargo, should proceed in ballast to another port to take in a return cargo, and. after receiving it on board, should be lost in the homeward voyage, the seamen would be entitled to full wages up to her port of delivery, and half the time of her stay there; and at most to half wages from that period to the time of her departure from the port, where the return cargo was taken on board. His language, indeed, leaves it doubtful. whether even this latter allowance meets his approbation. “If,” says he, “the vessel leaves her port of destination, or unlading, for the purpose of receiving a return cargo, she is at such ports to be considered, either as on her return voyage, or as being in the same situation, as if she had remained at her last port of unlading, there to receive a cargo. If the former, then the whole of the wages from the time she left her port of unlading, including half the time she lay there, would be lost in consequence of the subsequent capture; if the latter, the seamen would be entitled to half wages only during the whole time the ship lay at the port of delivery, and the port of lading and departure. But upon no principle. that I can distinctly comprehend, can the port of lading and departure be considered as the port of delivery, or in other *429words, the termination of the outward voyage, unless there be something particular in the contract made with the seamen.” The conclusion adopted by the learned judge, is certainly irresistible, if the premises are admitted. It proceeds upon the ground, that the outward voyage terminates at the port of unlivery of the outward ■ cargo, and that there can be no intermediate voyage, which does not constitute a part of the return voyage. That is precisely the point, in which I humbly doubt the accuracy of his doctrine. If a vessel proceed from a port in the United States with a cargo to a foreign port, and there land the same, and take in another cargo for another foreign port, and after landing that cargo take in a return cargo, and be lost upon the homeward voyage, it is clear, that the seamen would be entitled to wages up to the last port of departure, and half the time the ship stayed there. The intermediate voyage would be entirely distinct from the homeward voyage. . If the vessel were lost in the intermediate voyage, the seamen would still be entitled to their wages for the outward voyage. And if in such case the vessel on the outward voyage were in. ballast, instead of being loaded, the seamen in the same event would be entitled to their wages in the same manner, as if there were a cargo on board. If this be so, it can make no difference, that the vessel is in ballast in the intermediate, instead of the outward, voyage. Whenever the vessel proceeds from one port to another in the service, and for the benefit of the owner, if he does not choose to load a cargo, it appears to me unjust, that his voluntary neglect should operate to the injury of the seamen. The general rule is, that the seamen are entitled to wages not only, when the owner earns freight, but when but for his own act he might earn it. I am not able, therefore, to bring my mind to adopt the doctrine of the learned judge, though no one has a more profound reverence for his judgment than myself, because it seems to me, that in the case proposed, the intermediate voyage in ballast neither constitutes a part of the outward, nor of the return, voyage. The great dif-. Acuity on this subject arises from the inaccurate language of the books, which speak of the earning of wages by an unlivery of the cargo at the port of delivery, as if they were not equally due by an arrival at the port of destination, when no cargo is on board, or when the owner chooses to bring the cargo back again. “Port of delivery,” in the cases, where this doctrine is found, is a phrase used to distinguish the port of unlivery, or destination. from any port at which the vessel touches in the course of the voyage for other purposes as for advice, refreshment, inquiry after markets, or in consequence of stress of weather, or other necessity. Following, therefore, the analogy of the law in admitted cases, I feel myself constrained, upon my notions of this subject, to hold, that the voyage to Iviea was an intermediate voyage, and that the seamen are entitled to their full wages up to the period of arrival, and during half of the time of the ship’s stay there. To this extent, at all events, the seamen are entitled to wages.

But the most important question still remains, whether in the events that have happened, the seamen can claim wages, as such, for the homeward voyage, they having saved from the wreck property more than sufficient in value to cover all the wages. It is laid down as a general doctrine of the English maritime 'law, from which ours is derived, that the payment of wages is dependent upon the earning of freight; if no freight is earned in the voyage, no wages are due; for, in the expressive phraseology of the ancient .law, freight is the mother of wages. Abb. Shipp, pt 4, c. 2, § 4; 2 Brown, Adm. Law, c. 5, p. 176; 1 Ld. Raym. 639; Dunnett v. Tomhagen, 3 Johns. 154. There are exceptions to the rule not necessary here to be noticed, which on a former occasion, attracted the attention of the court. The Saratoga [Case No. 12,355]. Hence, if the ship be lost during the voyage, so that no freight is earned, the mariners lose their wages. Abb. Shipp, pt. 4, c. 2, § 4; 2 Brown, Adm. c. 5, p. 180 And by parity of reason, if by inevitable accident the freight is partly lost, it seems that the seamen lose a proportion of their wages. 2 Brown, Adm. 176, 180; Poth. Lou-age de Matelots, note 186; Abb. Shipp, pt. 4, c. 2, § 6; Consolato del Mare, c. 102. The ground of this doctrine is said to be, that “if the seamen should have their wages in such cases, they would not use their endeavors, nor hazard their lives, to save the ship.” Anon., 1 Sid. 179. And the argument now. is, that the reason of the rule shows, that it does not apply to a ease of shipwreck, like the present, where the whole freight is lost; for if the seamen are not entitled to wages for salvage from the wreck, they can have no motive to remain by and use their exertions to save it. And it is earnestly contended, that all the cases, in which it has been held, that no wages are due to the seamen, are cases, not of shipwreck, but where the ship perished at sea, so that there was a total loss of ship and freight. See Molloy, bk. 2, c. 3, §§ 7, 10.

It appears to me. that upon the established doctrines of our law. where the freight is lost by inevitable accident, the seamen cannot recover wages, as such, from the ship owner. And that it is perfectly immaterial in such case, whether the ship be lost, or be in good safety. Nor- does the case of shipwreck, strictly speaking, form an exception to the generality of this rule. It more properly introduces another principle, that of allowing salvage to the crew, where they cannot earn wages, and yet perform a meritorious service. Mr. Abbott in his valuable treatise has summed up the doctrine on this subject with great accuracy. He says. “In the case of shipwreck it is the duty of the seamen to exert themselves to the utmost to save as *430■much as possible of the vessel and cargo. If the cargo is saved, and a proportion of the freight paid by the merchant m respect thereof, it seems npon principle, that the seamen are also entitled to a proportion of their wages; and this is expressly directed by the French ordinance. And for their labour in saving the cargo or the remains of the ship, they, as well as other persons, may be entitled to a recompense by way of salvage.” Abb. Shipp, pt 4, c. 2, § 0; and see 2 Brown, Adm. 175, 176. The laws of Oleron, which may be considered as the primitive groundwork of the marine law of England, evidently contemplate a recompense of the same nature. Laws of Oleron, art. 3, Cleirac. 7. Some of the foreign ordinances provide for the payment of the seamen’s wages on these melancholy occasions, if they exert themselves in saving the property, and even authorize a further reward. Others provide for a recompense in general terms. And others again direct the payment of the wages out of the relics and materials saved from the ship. Laws of Wisbuy, arts. 15, 16; Cleirac. 84; Ord. Phil. II. 1563, tit. “Average,” art. 12; Cleirac. 8; 2 Magent, 17; Hanseatic Ord. 1614, tit 9, art. 5; Ord. Rotterdam, art. 219; 2 Magens, 114; Ord. de France, liv. 3, tit 4, art. 9; 1 Valin, Comm. 703: Abb. Shipp, pt 4, c. 2, § 6; 2 Brown, Adm. 180; Hanseatic Ord. art. 44; Malyne, 27; Weskett, Insur. tit. “Wages,” 16, 17. Mr. Abbott after citing these ordinances, adds, that he has not been able to find any decision in point in the English law; but he considers it a proper inducement to be held out to seamen in cases of .shipwreck, that they may obtain their wages, if they save sufficient to pay them, asserting at the same time, that their claim on the ship for wages does not seem according to the principles of law to extend to such a ■case.

If the question were entirely new, it might, perhaps, be more consistent with the principle of the rule, that the earning of wages shall depend on the earning of freight, to hold, that the case of shipwreck constituted an exception from the rule, and that the claim to wages was fully supported by the maritime policy, on which the rule itself rests. The French marine ordinance provides, that in case the ship is taken or wrecked, with a total loss of ship and goods, the seamen shall claim no wages. Ord. de la-Marine, lib. 3, tit. 4, art. 7; 1 Valin, Comm. 701. Pothier in commenting on this article, says, that this is for reasons of expediency, to the end, that the fortune of the seamen may depend on that of the ship and merchandize, and thus the motive of their personal interest might prompt them, in case of accident, to make greater efforts for the preservation of the ship and merchandize. Poth. De Louage des Matelots, note 184. I quote, however, from the excellent translation of Mr. Cushing (pages 111, 112), to whose labors we are indebted for a work, that should be in the hands of every maritime lawyer. This is precisely the reason assigned in 1 Siderñn, 179; and it is most obvious, that if by the loss of the whole cargo the wages of the seamen are lost, they can have but little inducement-to expose themselves to perils and difficulties in saving the materials of the ship. The French ordinance, therefore, properly follows up the maritime policy by providing, that if any part of the ship be saved, seamen engaged by the voyage or month shall be paid the wages, that have fallen due, out of the wreck preserved; and, if goods'alone are saved, shall ,be paid in proportion to the freight received, and shall moreover be paid for their days’ work in saving the wreck and cargo. Ord. de la Marine, lib. 3, tit. 4, art. 9; 1 Valin, Comm. 703; and see Jac. Sea Laws, 148, 151. Thus nailing the interest of seamen to the last plank of the ship, and the last remnant of the cargo. Valin commends in the strongest terms this doctrine, not only as just in itself, but as intimately connected with the public good (1 Valin, Comm. 701); and the other foreign ordinances, giving wages in addition to salvage, manifest the strong opinion of the commercial world on this subject. See, alsc, Weskett, tit. “Wages,” arts. 16, 17; 2 Browne, Civil & Adm. Law, 180, 181; Code de Commerce, lib. 2, tit. 5, arts. 258. 259.

But whatever may be the true doctrine on this subject in respect to wages, I am clear, that upon principle the seamen are entitled to salvage for their labour and services in preserving the wreck of ship and cargo, or either. It is a claim founded in natural justice, and sustained by the most obvious motives of public policy and interest. It has been urged at the bar, that the crew, while their contract continues, can never be entitled to salvage, and that when their connex-ion with the ship is dissolved by shipwreck, they can claim no more than common salvors. It is admitted, that for ordinary exertions in the discharge of their duty the crew are not entitled to salvage, because such exertions are fully compensated by their wages, and are stipulated for by the very nature of their contract. See Newman v. Walters, 3 Bos. & P. 612: Mason v. The Blaireau, 2 Cranch [6 U. S.] 240. But to assert, that the crew in no case can become entitled to salvage is begging the very point in controversy; and no authority in support of the assertion has been, or, as far as my researches extend, can be adduced in its support. Sir William Scott on one occasion said, “it may be in an extraordinary case difficult to distinguish a case of pilotage from a case of salvage, properly so called, for it is possible, that the safe conduct of a ship into a port under circumstances of extreme danger and personal exertion may exalt a pilotage service into something of a salvage service.” The Joseph Harvey, 1 C. Rob. Adm. 306; and see Newman v. Walters, 3 Bos. & P. 612. Yet pilotage arises from contract, and ordinarily induces *431.no right to salvage. The rescue of a ship after capture from the hands of the enemy by the original crew is a meritorious case of salvage, although it can scarcely be contended, that such capture immediately works an utter dissolution of the contract, or goes farther than to suspend it during the hostile occupation.

Yalin indeed considers, that by the shipwreck the dissolution of the contract of the seamen necessarily follows, because the voyage is broken up. He supposes, that in such a case the seamen are free to abandon every thing, because there .is not due to them by •the owner of the ship personally any wages or pay for expenses home, and of course there is nothing to say to them, if they refuse to work in saving the wreck. And he adds, perhaps it would be just to withhold from .seamen who refuse to work, the wages fallen ' due, if any thing is preserved; but there must be a law expressly to decide it, for their wages are due out of .the property, which is specially affected by them, whether they do or do not contribute to save it. 1 Valin, Comm. 704. Pothier adopts the same doctrine, declaring, that by the accident of superior force, which prevents the continuation of the voyage, both parties are released for the future from their engagements, and the seamen no longer owe their services; and for this reason he holds, that they are to be paid for their days’ labour afterwards performed in saving the wreck of the ship or cargo.' Poth. Louage de Matelots, note 187 (Cush-ing’s translation) p. 113. I confess, that I doubt the general doctrine here stated. It is more consonant to reason, to justice,, and to - the nature of the contract, to hold, that in all cases of disaster the seamen are bound to remain by, and preserve the ship and cargo, as far as they can; and to punish their neglect by a forfeiture of any wages, which have been previously earned in the voyage. Although the voyage be broken up, or ended, it does not follow, that the contract of the seamen is dissolved, any more than a charter party would be dissolved by a shipwreck, so as to exempt the master from any care of the cargo. Duties may remain to be performed by master and seamen for the preservation of the ship and cargo, after the voyage is broken up. .or becomes impossible to be pursued. And, in my judgment, it is a just interpretation of the maritime law on this subject to hold, that the duty of the seamen continues on these melancholy occurrences, as long as they can be useful in preserving the property at risk, and gathering up its fragments. And I feel the more confidence in this doctrine, since it stands approved by the laws of Oleron (Laws of Oleron. art. 3; ■Cleirac. pp. 7. 8); and by the most respectable foreign ordinances (Ord. Phil. II., 15G3, tit. “Average.” art. 12: Cleirac. 8; 2 Magens, 17; Ord. Antwerp; Weskett, tit. “Wages,” 11; Ord. Rotterdam, arts. 210-220; 2 Magens. 114: Weskett, tit. “Seamen,” 4; Hanseat. Ord. tit. 4, art. 29; Kuricke’s Jus. Marit. Hans. 661, 751; Hanseat. Ord. 1597, art 44; Malyne, 26; 5. P. Cleirac. 104; Laws of Wisbuy, ait. 15; Cleirac. 84); as well as by the authority of enlightened writers on the common law, and maritime law (Abb. Shipp, pt. 4, c. 2, § 6; Newman v. Walters, 3 Bos. & P. 612; Weskett, tit. “Shipwreck,” 1, “Wages,” 16, 17; Com. Dig. “Navigation” (I. 5); Cleirac. p. 8; Kuricke Jus. Marit Hans. 751; Giles v. The Cynthia [Case No. 5,424]; Weeks v. The Catharina Maria [Id. 17,351]).

Assuming, therefore, as I do, that the crew . were not ipso facto discharged- from their contract by the shipwreck, but were still bound to labor for the preservation of ship and cargo, I am of opinion, that this does not disable them from claiming as salvors for extraordinary exertions in cases so perilous and fatal. It cannot be, that they are bound to labor, where there is no possibility of earning any reward; and if, by the very nature of the case, they are excluded from wages, that very circumstance raises a title of compensation by way of salvage. The sole ground, upon which they are denied salvage in common cases, is that they are earning wages within the line of their ordinary duty; and when this'is removed, they stand upon the same right as other persons, to be paid a compensation pro opera et labore. In my humble judgment, there is not any principle of .law, which authorizes the position, that the character of seamen creates an incapacity to assume the character of salvors; and I cannot but view the establishment of such a doctrine, as mischievous to the interests of commerce, inconsistent with natural equity, and hostile to the growth of sound morals and probity. It is tempting the unfortunate mariner to obtain by plunder and embezzlement, in a common calamity, what he ought to possess upon the purest maxims of social justice. And how stand the authorities on this subject? It appears to me, that in our own country there is, and for a long time has been, a great weight of judicial opinion in its favor. Judge Peters has uniformly sustained the right of salvage of the seamen in cases of shipwreck; and though he has been supposed at the bar to have allowed wages, eo nomine, in such cases, it is most manifest from his own expositions of his doctrines, that he considered the wages as merely a mode of ascertaining and fixing the rate of salvage. In Taylor v. The Cato [Case No. 13,786]; Giles v. The Cynthia [supra]; Weeks v. The Catharina Maria [supra] (see Weskett, tit. “Wages,” 17). speaking of a ship- - wreck, he says, “The claim of the sailor is not under his contract for wages out of the freight; but in a new character, as a salvor, he regains a rightful claim to wages restored by his exertions in rescuing the articles saved, whether parts of the ship or ear-go. from tíre perils or loss, to which the wreck had exposed them.” And the lan*432guage of Judge Winchester in the case cited at the bar, may be interpreted in the same manner. Relf v. The Maria [Case No. 11,692, note]. See Consolato, c. 133, 136; Cleirae. Juris, de la Marine, art. 18. The case of Frothingham v. Prince, 3 Mass. 563, has been supposed to have decided, that the seamen in eases of shijjwreck were entitled to wages, as earned in the voyage. When that case was reviewed by this court in The Sara-toga [Case No. 12,335], it was thought susceptible of the other explanation. And 1 am the more confirmed in that opinion, by what fell from the court in a more recent ease. The late Chief Justice Parsons argued the . case of Frothingham v. Prince for the plaintiff, and in- delivering the judgment of the court in Coffin v. Storer, 5 Mass. 252, where the vessel was wrecked on. the homeward voyage, after stating, that the wages of the outward voyage were due, he added, “the other wages would have been lost by the wreck, had not sufficient been saved to pay them. They are then a charge on the property saved, in the nature of expenses towards the salvage.”

This review of American judicial opinions establishes it as a common and received doctrine, that the 'wages recovered in cases of shipwreck are recovered in the nature of salvage, and as such form a lien on the property saved. And in this view, they are perfectly consistent with the rule, that makes the earning of freight generally a condition of the payment of wages.

I find also, that Mr. Weskett, in his work on Insurance, states “that it is still frequently practised in England, to allow the wages of the master and sailors to be paid to the time of their discharge, out of the produce of the wreck of the ship and goods saved; and if the saved materials, after deducting the general charges of salvage, are insufficient for that purpose, the seamen to be satisfied therewith; unless the freight is insured and recovered, and in that case the seamen, (freight being the mother of wages) to recover the whole of their wages from the master or owner.” This is certainly strong evidence of a general usage on this subject, especially as he considers, that the statutes of 12 Anne, St. 2, c. 18, and 26 Geo. II., e. 19, had allowed them salvage, without mentioning wages, and thereby, as he supposes, had “excluded the master and mariners from any other claim, formerly customary, as for wages.” Weskett, Inst. tit. “Wages,” art, 17. It is not necessary to consider, whether Mr. Weskett’s construction of these statutes be correct or not. It is sufficient, that the English usage was in conformity with the principles of the American decisions.

Upon the principle, then, that the seamen are entitled to salvage, the only remaining question is, as to the quantum of salvage. This .is a highly meritorious service on their part, and was attended with no inconsiderable peril and difficulty. The remnants and appurtenances of the wreck, greatly exceed the amount of the wages from the last port of departure; and under such circumstances, 1 should not be scrupulous in allowing the seamen a liberal compensation. There is no ease, in which the seamen have been allowed a less sum than the wages due to them; and the positive commands of foreign ordinances, and the clear language of our own adjudications, all point to the same allowance. It appears to me, that there is sound policy and wisdom in fixing in ordinary cases of this sort, a settled salvage, at least to the extent of wages earned; leaving an additional recompense to be made in cases of extraordinary danger and gallantry, where the service is greatly enhanced by the preservation of life, and the great value of the property at stake. It will stimulate seamen to great intrepidity and alacrity in performing their perilous duties, and prevent those contests and embarrassments, which are always felt, when compensation is to rest in a floating and undefined discretion. I shall, therefore, allow, as salvage, the wages of the seamen for the homeward voyage up to the time of the commencement of the present process, the ship not having then actually reached her port, but the seamen having been discharged from farther duty.

A question has been made at the bar, as to the party by whom this charge is ultimately to be borne, by the underwriters on the ship, to whom she has been abandoned, or by the original ship owner. As all the parties in interest have requested a decision on this point, to prevent farther litigation, I am willing to declare my opinion, that in this case it must be borne by the underwriter on the ship. It is not like .the ordinary charge of seamen’s wages, which are a charge upon the ship owner, and are to be borne by the freight; but it is an expense in the saving of the materials of the ship for the benefit of the underwriters on the ship, and as they exclusively receive the benefit, they are to receive it cum onere. The case of Frothingham v. Prince. 3 Mass. 563, is directly in point; nor do I. think, considering the circumstances of the ease, that any thing ruled by the court in Coffin v. Storer, 5 Mass. 252, weakens the effect of the former decision. If it does, in my judgment the former stands upon the true principles of insurance. See 2 ISmer. p. 177, c. 17, § 2, and seg.

Decree accordingly.