BROWN et al. v. LULL, 4 F. Cas. 407

STORY, Circuit Justice. Some principles, applicable to the present case, are now so clear, that they need only be stated, although at a former time they were subject to many learned doubts. The capture of a neutral ship does not of itself operate as a dissolution of the contract for mariners’ wages, but at most, only as a suspension of the contract.

If the ship is restored, and performs her voyage, the contract is revived, and the mariner becomes entitled to his wages; that is, to his full wages for the whole voyage, if he has remained on board and done his duty, or if, being taken out, he has been unable, without any fault of his own, to rejoin the ship.

If the ship is condemned by a sentence of condemnation, then the contract is dissolved, and the seamen are discharged from any farther duty on board; and they lose their wages, unless there is a subsequent restitution of the property, or of its equivalent value, upon an appeal, or by treaty, with an allowance of freight, in which event their claim for wages revives. In the case of a restitution in value, the proceeds represent the ship and freight, and are a substitute therefor.

If freight is decreed or allowed for the whole. voyage, then the mariners are entitled to the full wages for the whole voyage; for the decree for freight, in such a case, includes an allowance of the full wages, and consequently, creates a trust of lien to that extent thereon, for the benefit of the mariners.

If the freight decreed or allowed is for a part of the voyage only, the seamen are ordinarily entitled only' to wages up to the time, for which the freight is given, unless under special circumstances; as where they have remained by the ship, at the special request of the master, to preserve and protect the property for the benefit of all concerned. These are principles now firmly established in our maritime law; and, indeed, they have scarcely been questioned at the argument. They will be found generally recognised in the learned Commentaries of Mr.

Chancellor Kent (volume 3, lect. 46, pp. 191, 192), and discussed at large in the case of The Saratoga [Case No. 12,355]; in Willard v. Dorr [Cases Nos. 17,679 and 17,680]; in Sheppard v. Taylor, 5 Pet. [30 U. S.] 675; in Spafford v. Dodge, 14 Mass. 66; in Beale v. Thompson, 4 East. 546; and in Abb. Shipp, pt 4, c. 3, § 2, pp. 458-464. and notes.

In the next place, it is ordinarily the right, as well as the duty, of mariners, belonging to a neutral ship, after capture, to remain by the ship, while there is any hope of recovery of the property; and this, generally, although not universally, may be said to be gone, when there is a sentence of condemnation; and a fortiori, when there is a sale thereof pending the proceedings, or. under the sentence of condemnation. For this doctrine, also, I may refer to the authorities already cited, and especially to the ease of The Saratoga [supra], where many of them are collected and commented on.

Now, upon these principles, there cannot be any doubt, that the libellant’s intestate, Lull, was entitled, in-the events, which have occurred, to wages from the time of his shipment up to the time of the final confiscation of the brig and cargo on "the 12th of March, 1810.

And here, ordinarily, his wages would stop, unless freight upon the award of indemnity has been allowed by the commissioners for the whole voyage, in which event he would be entitled to wages up to the time of his return to the United States, viz. to the 19th of August. 1810; for such an allowance of freight would include the wages of the master and crew up to that period; and the wages would attach, by way of trust or lien, to that fund. Then, as to the effect of the stipulation in the shipping articles, which is relied on as controlling the general right of the libellant’s intestate to wages.

It is well known, that the shipping articles, in their common form, are in perfect coincidence with the general I principles of the maritime law as to seamen’s wages. It is equally well known, that courts of admiralty are in the habit of watching with scrupulous jealousy every deviation from these principles in the articles, as injurious to the rights of seamen, and founded in an unconscionable inequality of benefits between the parties. Seamen are a class of persons remarkable for their rashness, thoughtlessness and improvidence.

They are generally necessitous, ignorant of the nature and extent' of their own rights and privileges, and for the most

part incapable of duly appreciating their value. They combine, in a singular manner, the apparent anomalies of gallantry, extravagance, profusion in expenditure, indifference to the future, credulity, which is easily won, and confidence, which is readily surprised. Hence it is, that bargains between them and shipowners, the latter being persons of great intelligence and shrewdness in business, are deemed open to much observation and scrutiny; for they involve great inequality of knowledge, of forecast, of power, and of condition.

Courts of admiralty on this account are accustomed to consider seamen as peculiarly entitled to their protection; so that they have been, by a somewhat bold figure, often said to be favorites of courts of admiralty. In a just sense they are so, so far as the maintenance of their rights, and the protection of their interests against the effects of the superior skill and shrewdness of masters and owners of ships are concerned. Courts of admiralty are not, by their constitution and jurisdiction, confined to the mere dry and positive rules of the common law.

But they act upon the enlarged and liberal jurisprudence of courts of equity; and, in short, so far as their powers extend, they act as courts of equity.

Whenever, therefore, any stipulation is found in the shipping articles, which derogates from the general rights and privileges of seamen^ courts of admiralty hold it void, as founded upon imposition or an undue advantage taken of their necessities and ignorance, and improvidence, unless two things concur; First, that the nature and operation of the clause is fully and fairly explained to the seamen; and secondly, that an additional compensation is allowed, entirely adequate to the new restrictions and risks imposed upon them thereby.

This doctrine was fully expounded by Lord Stowell, in his admirable judgment in the case of The Juliana, 2 Dod. 504; and it was much considered by this court in the case of Harden v. Gordon [Case No. 6,047], and it has received the high sanction of Mr. Chancellor Kent in his Commentaries (volume 3, § 40, p. 193). I know not, indeed, that this doctrine has ever been broken in upon in courts of admiralty, or in courts of equity.

The latter courts are accustomed to apply it to classes of cases far more extensive in their reach and operation; to cases of young heirs selling their ex-pectaneies; to cases of reversioners and remainder-men dealing with their estates; and to cases of wards dealing with their guardians; and above all, to cases of seamen dealing with their prize money and other interests. See 1 Story, Eq. §§ 381-340, and the authorities there cited. If courts of law have felt themselves bound down to a more limited exercise of jurisdiction, as it seems from the cases of Appleby v. Dods, S East, 300, and Jesse v.

Roy, 1 Cromp., M. & R. 316, 329, 339, that they are, it is not, that they are insensible of the justice and importance of these considerations, but because they are restrained from applying them by the more strict rules of the jurisprudence of the common law, which they are called upon to administer. Tried by the tests above stated, the stipulation in the present articles must be. held void; for the onus probandi is on the ship-owner to establish both the knowledge of the seamen of the nature and extent of the operation of the clause; and that a full and adequate compensation therefor was allowed to the seamen.

Neither of these facts appears; and the presumption, therefore, is, that neither of them had any actual existence. If it were necessary to discriminate between the two clauses, I should be disposed to construe the first in mitiori sensu, as limited to a final loss of the ship, without restitution or salvage, by capture or other calamity, in the course of the voyage, and not to a mere taking or other loss not followed by such a total destruction of the voyage.

But it is unnecessary here to sift its exact purport, because, upon the general considerations already stated, the entire clause may be at once laid out of the case. The next objection, which has been rather glanced at than pressed upon the appeal, is, that the commissioners did not allow by their award the full compensation claimed by the owner. But it must be taken, that the compensation was a full indemnity for his loss; for such was the duty imposed by law upon the commissioners; and they cannot be presumed to have departed from it.

That a larger claim was made, is no proof, that a full indemnity was not allowed. Merchants are not understood to be in the habit of confining claims of this sort to the very minimum of their supposed losses. They are more apt to err, if at all, upon the side of studied exaggeration.

The real objection, however, which has been raised under this head is, that the owner has not had awarded to him the full value of the ship and freight; but, that the underwriters upon certain policies of insurance have had awarded to them the sum of $2,000 (being the amount, which they paid to tHe owner under their policies,) and that therefore the underwriters, and not the owner, are liable pro rata for such a proportion of the wages, as the sums awarded to them bear to the whole value of the ship and freight.

Now, the decisive answer to this objection is, that the seamen have nothing to do with these policies of insurance, or with any rights of the underwriters derived under them. They are strictly res inter alios acta. The right of the underwriters is not an adverse interest; but derivative under the testator by his own voluntary act of cession or assignment, resulting by operation of law from his-having received full compensation under the policies.

Suppose the testator had assigned his whole interest in the ship and freight,, instead of a partial interest, for a valuable consideration; could it be for a moment admitted, that he could thereby change his-own responsibility to the seamen, or turn them over for their compensation to mere strangers? Certainly not. It-is quite a different question, whether they might not proceed upon their implied trust or lien against the proceeds, in whosesoever hands they could find them.

But the ship-owner, by his-own voluntary act of cession, cannot discharge himself from his original liability under his contract; for the value of the ship and freight, to whomsoever paid, must be-deemed a payment by his consent and for his benefit. The same question was made in. the case of Brooks v. Dorr, 2 Mass. 39, and was there disposed of upon reasoning and principles entirely satisfactory. The next and last objection, which has-been made, is, that the respondents have received certain instalments only of the sums awarded under the treaty, and not full payment.

It is admitted, that they have received far more than is sufficient to pay all the wages of the seamen, and that is sufficient to dispose of this objection. The wages-of seamen attach as a lien to the ship and freight, and their proceeds, into whoseso-ever hands they may come, as a claim or-privilege, having a priority to be satisfied before all other claims. As it has been sometimes expressively said, they are nailed' to the last plank of the ship. The ship is a pledge for the payment, while a single fragment remains of the wreck or of its proceeds. See 1 Pet. Adm. 186, note [Relf v.

The Maria, Case No. 11,692]; The Neptune, 1 Hagg. Adm. 227; The Sydney Cove, 2 Dod. 13;. The Two Catharines [Case No. 14,288]. Upon the whole, my opinion is that the li-bellant is entitled to maintain her suit, and to recover wages from the time of shipment (4th September, 1809) to the time, when-Lull arrived in the United States (the 19th of August, 1810,) that is to say, for eleven and a half months, deducting therefrom one month’s advance, to wit, $207, deducting $18, which leaves a balance in her favor of $189;. which is the very sum decreed by the district court. That decree is therefore affirmed with costs.