Dunnett v. Tomhagen — 3 Johns. 154

Majority

p. 154

Dunnett against Tomhagen.

NEW-YORK,

May, 1808.

Headnote

During a voy nock ivem" Tori, a ship Tah was^from necessity, aban- . doned' by the crew as a before ’leaving' her, the sea-seven °boxes ' into^he^oat’ and were, afkeiTupat sea by a vessel called the Morning-Star, and brought to New-Tork. The merchandize saved was libelled by the crew of the Mórning-Star, for salvage. In an action brought by a sea- . man of the Sarah against the master, for his wages from Greenock to the time the ship was abandoned, it was held, that no freight was earned, and that the seamen were not, therefore, entitled to wages ; though they might have an equitable lien on the goods saved, for a compensation in the nature of salvage.

FROM the return of the certiorari, directed to the justices’ court, in the city of Nerw-York, the following facts appeared:

The defendant in error, who was the plaintiff below, dedared for wages due to him as a mariner onboard the shin . . Sarah, of which the plaintiff m error, was master, on a voyage from Greenock to Nerw-York.

The defendant below pleaded the general issue, with notice of special matter. ■ The cause was tried before the just*cest by consent, without a jury, and the following facts appeared. The plaintiff was a mariner on board the Sara?li on a voyage from New-York to Greenock, and back,

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at 22 dollars per month. That the ship performed the voyage to Greenock in safety, and was abandoned as a wreck, on her homeward voyage, after beingfrom port two months. The crew, in order to save the cargo, threw overboard their own clothes and other property. By their they saved from the ship, so abandoned as a wreck, seven boxes of merchandize, which they stowed in the longboat, and then left her. After being some time at sea, they were taken up by the sloop Morning-Star, and arrived safe at New-York, with the long-boat and merchandize. The property so saved, and the long-boat were libelled in the district court at New-York, by the crew of the sloop Morning-Star, for salvage. After the merchandize and long-boat were in the custody of the marshal, an agreement was made between the libellants and the owners of the merchandize, (the plaintiff being in no wise privy thereto,) that the property should be sold at auction, and that from the proceeds, the auctioneer should pay to the libellants, such sum as should be awarded for salvage by two arbitrators, who axvarded a sum in favour of the libellants, but hoxv much did not appear. The seven boxes of merchandize were owned by sundry merchants in New- York, and the captain and owners of the Sarah had no interest in them, beyond their lien (if any) for freight. The outward Wages only, had been paid to the plaintiff. The plaintiff and all the crew, gave receipts in full; and when the receipts were demanded by the owners, they informed the men, that they should not have their wages unless they signed them. The mate and one seaman refused, and the plaintiff signed his mark, but received his pay for the outward voyage only. The boxes of merchandize sold at auction for 1,600 dollars. The wage;; due to the crew on the homeward voyage, at the time the. ship was abandoned, amounted to 414 dollars.

The court below decided, that the Sarah could not, in contemplation of laxv, be considered as-wrecked, nor the merchandize and long-boat in such a state of peril,, as to entitle the crew of the Morning-Star to salvage, to die

p. 156

prejudice of the seamen ; that as the owners had receive¿ tge goods, and thus entitled the captain of the Sarah, to his freight therefor, and that as suEcient had been saved to pay the seamen’s wages, and as the plaintiff had made a sacrifice of his own property, to save that put into the long-boat, the court, in the exercise of their legal and equitable powers, gave judgment for the plaintiff for his two months’ wages, from the time of the departure of the ship from Greenock to her abandonment -at sea.

On the above facts, the case was submitted to the decision of this court, without argument.

delivered the opinion of the court.

It is the general rule of the marine law, that freight is the mother of wages, and that the safety of the ship is the mother of freight. The reason of the rule is, that the'seamen may have an interest in the safety of the ship, and may thereby be induced not to desert her in cases of danger, but to use their utmost endeavour, even at the hazard of their lives, for her preservation.

No freight was earned in this case on the homeward voyage, because no part of the cargo was delivered by the ship» The contract was not fulfilled ; the voyage was not performed; and no freight was earned; it follows as a necessary consequence, that no wages were due.

The salvage of part of the cargo, does not take this case out of the general rule, because no freight was earned by the ship on the goods saved. It is not the saving of the cargo, but the earning of freight that entitles the seamen to wages. The owners of the ship had no valid claim for freight, as for a part performance of the entire contract, because the fulfilment of the contract, was not dispensed with by any act of the owners of the goods, nor indeed was there even a part performance by the owner of the ship. A salvor, and not the ship-owner, was here the deliverer of the goods saved. The seamen might, perhaps, have had a valid lien on the goods saved, for an equitable

p. 157

compensation, in the light of salvage, but this gave them no right of action against the ship-owners or master, on their contract for wages. The claims of salvage and for wages are totally distinct, and are to be tested by different rule-s. It must, however, be admitted, that the loose manner of using these terms in some of the books, and in the old marine codes, tends to mislead, but the confusion is easily cleared, when the terms themselves, and the principles upon which those claims respectively rest, come to be understood and applied with due precision.

The court are, therefore, of opinion, that the judgment below must be reversed.

Judgment reversed.