Icard v. Goold — 11 Johns. 279

Majority

p. 279

Icard against Goold.

NEWYORK,

August, 1814.

Headnote

disaster, peni, of torce, wituout fraud or ^^masier or j^e

Pfsht is for of the owners only, and does not mure to the benefit of the seamen’s cmmot beblií Qorefudir«ctiy!

IN ERROR, on certiorari, from the justice’s court of the city of Nerv-Yorlc. Goold sued Icard in the court below for J seamairs wages.

It appeared, by the return, that on the 23d of November, 1807, Goold shipped as a seaman on board the ship Gados, of which Icard was owner, and Obed Buncker master, on a voyage from New-York to Marseilles, and back to New-York, at 18 dollars per month, and received one month’s pay in advance. On , the 28th of November, 1807, the ship proceeded on her voyage, 7 7 .7 . .. 7 7 . .7 A7 . 1^-7 and while pursuing it, she was spoken, m the Gut of Gibraltar, by a gun boat under English colours, which, from the evidence, was probably a Spanish vessel. Afterwards, just the harbour of Marseilles, she was again spoken by an English frigate, who examined her papers, and permitted her to proceed. Very shortly after she was captured by a French armed vessel, while entering the harbour of Marseilles, and carried into that port, where she arrived on the 7th of February, 1808, and was put under sequestration. Two Frenchmen, with the crew of the ship, remained on board of her, living on the provisions of the ship, until the 13th of August, 1808, when the crew, including the plaintiff below, were taken from the Gados by a French government-boat, and carried on board a French frigate in that harbour, where they were kept on half allowance of provisions for several days, and then permitted to go on shore. Previous to their being taken out of the Gados, her cargo was discharged, under the direction of the custom-house officers at Marseilles, and put into the public store-house at that place. The crew of the Gados assisted in discharging the cargo, which was landed in the month of June, 1808. Captain Buncker gave directions to the crew to be particular in taking care ox the cargo at the time of its being unloaded, and superintended the same.

On the 6th of June, 1808, the Gados and her cargo were condemned as lawful prize by the imperial court of prizes at Paris, under the imperial decree of the 17th of December, 1807, on the ground that “she could no more reclaim the privilege of

p. 280

her Sag, which she had permitted to be violated by the visit of an English man of war,” as appeared by the decree of condemnation, which was registered on the 1st of August, 1808.

The cargo was insured, and after notice of the capture and abandonment by the assured, a compromise took place, on which the underwriters paid one third of the loss, and relinquished their claim to the cárgo which had been abandoned.

The ship and freight were not insured, and have been lost to the owners.

•The jury allowed wages until the cargo was unladed; and judgment for the plaintiff was rendered on the verdict below for 123 dollars.

delivered the opinion of the court. (After mentioning the facts in the case, as above stated.) These facts, in regard to the insurance, are mentioned because they were relied on at the trial below, not because they are deemed essential in the case; for the law is well settled that insurance on freight is for the indemnity of the owners only, and does not enure to the benefit of seamen’s wages, which cannot be insured, either directly or indirectly. (M‘Huirk and others v. Ship Penelope, 2 Peters’ Adm. Decisions, 276.)

The maxim that freight is the mother of mages, contains the rule which governs this case.

This maxim implies that if the freight be totally lost, by disaster, peril, or force, without fraud or misconduct of the master or owners, the seamen lose their wages. This has been adopted as a rule of policy to secure the fidelity, and stimulate the exertions of the crew, and all seamen are presumed to know this ruie an(j to contract with reference to it.^[1] ’

. Here was no fraud or improper conduct m the master or owners. It was a lawful trade, and the voyage was directly pursued, in good faith; but the vessel and cargo were captured and condemned under a French decree of the 17th of December, 1807, made while the ship was on her passage, and of which the master was entirely ignorant.

No freight was earned, and like the case of total loss by piracy, the seamen and owners must be deemed common sufferers. Wages cannot be exacted by the unfortunate seamen from the still more unfortunate owners.

The judgment below ought to be reversed.

Judgment reversed.

* See Abbot on Ships, &c. part 4. c. 3. s. 1.