payment of their wages, as far as the fragments of the materials would form a fund, although there was no freight earned by the owners. In such cases, where the *196 voyage is broken up by vis major, *and no freight earned, no wages, eo nomine, are due; and the equitable claim which seamen may have upon the remains of the wreck, is rather a claim for salvage, and seems to be incorrectly denominated in the books a title to wages. Wages, in such cases, would be contrary to the great principle in marine law, that freight is the mother of wages, and the safety of the ship the mother of freight. If, however, the seamen abandon the wreck of a ship as being a hopeless case, and without the intention of returning to possess and save it, the contract between them and the owners is dissolved, and they lose their lien or privilege for any equitable compensation, whether as wages or salvage. Their claim is extinguished, and though other persons may possess the

The Neptune, 1 Hagg. Adm. Rep. 227. 1 Peters' Adm. Rep. 54. 195. 2 ibid. 426. Frothingham v. Prince, 3 Mass. Rep. 563. Lewis v. The Elizabeth and Jane, 1 Ware's Rep. 49. In Adams v. The Sophia, Gilpin, 77, and in Brackett v. The Hercules, ibid. 184, Judge Hopkinson held, that where a portion of the vessel or her cargo was saved by the meritorious exertions of the seamen, a new lien arose thereon for their wages, though the freight be lost.

b Dunnett v. Tombagen, 3 Johns. Rep. 154. The Saratoga, 2 Gallison, 164. The opinion of Judge Story in the case of the Two Catharines, 2 Mason's R. 339, concludes with the declaration, that his "review of American judicial decisions 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 earnings of freight generally a condition of the payment of wages." But in the case of the Massassoit, U. S. District Court, Mass. 1844, 7 Law Rep. 522, the allowance of claim to mariners as salvers in the case of shipwreck, is considered as a startling violation of a principle of maritime policy. So, Lord Stowell, in the case of the Neptune, 1 Hagg. Adm. R. 227, rejected the claim to the seamen as salvage, and said that it rested on the ground of wages, and indeed it is said that they are nailed to the last plank of the ship, and the last fragment of the freight. See the cases examined, and the discussions referred to, in Abbott on Shipping, 5th Am. edit. Boston, pp. 750-756. The question seems to be rather one of verbal discussion and criticism, than of a substantial distinction. (1)

(1) The maritime law, on principle of public policy, makes an exception to the rule of the common law, and allows, in case of shipwreck, an extra reward in the nature of salvage to seamen, according to their merit, beyond their wages, against the property saved, which ought not to be less than the expenses of their return home. The Dawn, 1 Davies' Dist. Ct. R. 121.

property which had become derelict, it belongs to the original owner, burdened with their claim for salvage.a

By the act of congress, one third of the seamen's wages is due at every port where the ship unlades and delivers her cargo, unless there be an express stipulation to the contrary;

■ Lewis v. The Elizabeth and Jane, District Court of Maine, Ware's Rep. 41. b Act of Congress, 20th July, 1790, c. 29. sec. 6. The English statute law relative to seamen in the merchant service, has been revised and improved by the statute of 5 and 6 Wm. IV. c. 19, which has greatly bettered the condition, and secured the protection of the rights of seamen. The provisions of the statute are commented upon with learning, candour and strong approbation, in the Law Magazine, No. 30. art. 3, an article well worthy of the student's perusal. The act is entitled "An act to amend and consolidate the laws relating to the merchant seamen of the United Kingdom, and for forming and maintaining a register of all the men engaged in that service." It repeals the acts of 2 and 3 Ann, 2 Geo. II., 2 Geo. III., 31 Geo. III., 37 Geo. III., 45 Geo. III., 58 Geo. III., 59 Geo. III., 4 Geo. IV. and 3 and 4 Wm. IV. By sec. 2, no seamen to be taken to sea, without a written agreement signed by the master and seamen. (2.) Form prescribed. (4.) Penalty for taking seamen to sea without such articles. (5.) Agreement not to affect the seamen's lien for wages, and all agreements contrary to the act void. (6.) If the seaman shall refuse to join the ship, or go to sea, or absent himself, he may be apprehended by warrant, and committed to the house of correction, at hard labour, for thirty days; though if he and the master consent, he may be delivered on board, paying costs, to be abated from his future wages. (7.) After the voyage has.commenced, if the seaman wilfully absents himself, he forfeits a ratable share of wages. (8.) Mode of ascertaining it when the seaman contracts for the voyage. (9.) Forfeiture for absolute desertion. (10.) Penalty for harbouring deserters. (11.) Periods for payment of wages. (12.) Payments valid, and no assignment or bill of sale of wages valid. (13.) When discharged, the master to give a certificate of his service and discharge. (14.) Remedy for wages by summons, &c., and the master forfeits £5 for default in prompt payment. (15.) Summary mode of recovery of wages not exceeding £20. (16.) When no costs. (17.) If ship be sold in a foreign port, the crew to be sent home at the expense of the master or owner. (18.) If hurt in the service, to be helped gratis. (19.) A register office is established. (21.) Masters of ships trading abroad, and in the home trade, to deliver list of their crews on their return. (23.) Return to be made in cases of ship lost or sold abroad. (25.) The consul takes charge of their effects, dying abroad. (26 to 37.) Regulations as to parish boys put out apprentices in the sea service. (40.) A misdemeanor to force on shore, or leave behind any of the crew. (41.) Seamen not to be discharged abroad but under the sanction of a public functionary. (42.) Not to be left abroad on any plea without such sanction. (44.) When allowed to be left behind, to be paid their wages. (48.) Ship's agreement, on arrival at a foreigu port to be left with the consul. (49.) No seaman to be shipped at a foreign port without the privity of the consul. A corresponding summary is given of the American regulations in Abbott on Shipping, 5th Am. edit. Boston, 1846, p. 223, note (1.) The subject of those regulations has been already mentioned in this volume, ante, pp. 177-180.

and when the voyage is ended, and the cargo or ballast fully discharged, the wages are due, and if not paid within ten days thereafter, admiralty process may be instituted in rem against the ship. But 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 way 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, (1) owners and masters, are all liable for the payment of them. The seamen need not libel the

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. R. 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. Jacobsen'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 service. It has now become one of the implied terms of the contract. The voyage is ended when the vessel is safely moored at the wharf, and then the ten days for the payment of the wages begin to run. But if, by the terms of 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 discharge 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. b Ware's Rep. 186. 212.

• Pothier, Louage des Matelots, sec. 226. Abbott on Shipping, part 4. c. 4. sec.

(1) It is yet an open question, whether a person hired to load stones on board a vessel, to navigate a vessel in a river to the sea, and there lay the stone, &c., are engaged in such maritime service as will give a claim on the vessel for their wages. Packard v. The Sloop Louisa, 2 Wood, & M. R. 48.

vessel at the intermediate port where they are discharged. They may disregard bottomry bonds, and pursue their lien for *wages afterwards, even against a subsequent *197 bona fide purchaser. (1) It follows the ship and its proceeds, into whose hands soever they may come, by title or purchase, from the owner. (2) 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 re-attaches 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.b In the French law, the seamen's lien upon the vessel is extinguished after a sale and a voyage, in the name and at the risk of the purchaser; and the preference of the seamen's

10.

Valin, tome i. 751.

Wait v.

Wytham v. Rossen, 11 Johnson's R. 72. Gibbs, 4 Pick. R. 298. In the case of the Betsy and Rhoda, in the District Court of Maine, Davies' R. 112, very marked protection was thrown over the wages of 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 advantage be given him for renouncing bis lien on the ship. (3)

seamen.

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.

Sheppard v. Taylor, 5 Peters' U. S. Rep. 675.

(1) The Louisa Bertha, 1 Eng. Law & Eq. R. 665.

(2) The question when a maritime lien, not accompanied with possession, will expire, was much discussed by Mr. Justice Woodbury, in Packard v. The Sloop Louisa, 2 Wood. & M. R. 49. It seems that it will continue until the end of the next voyage, or until such time after it as the rights of third persons accrue. See, also, Leland v. The Ship Medora, id. 92. In this case, a doubt is expressed whether a lien on a foreign vessel for repairs is not waived by allowing her to depart without any attempt to enforce the lien.

(8) As to the effect of taking a note for repairs of foreign vessels, see 2 W. & M. R. 92, supra. VOL. III. 17

claim is confined to the wages of the seamen employed in the last voyage.a

*198

*Desertion from the ship without just cause, and 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 accompanied with a for

■ Ord. de la Mar. tit. De la Saisie des Navires, art. 16. De l'Engagement, 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 Mare, c. 138, expressed itself on the 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' Treatise on the Rights and Duties of Merchant Seamen, 326336. 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.

b 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. Tunison, 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