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The Miscellaneous essays and occasional writings of Francis Hopkinson, Esq (Volume 3) online

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payments to a mariner after a total difcharge from
the fervice, is what I believe no captain of a vef-
fel ever before attemipted. For whether this v/as
to be paid all at once, or at three feveral times, it
matters not ; the contrail is for three months wa-^
ges after difcharge.

There is another claim under this contrail
for fixty dollars to take the libel lant back to Ha-
rannah on being difcharged here.

N 3 The

[ 196 3

The maritime cuflom is, that if a mafter or
owner difcharges a mariner in a foreign port, be-
fore the completion of the voyage for "which he
eneaeed, fomereafonable allowance fhall be made,
over and above the wages due, to enable him to
return to his own country, or go to the port, which
by the articles, fliould have completed the voyage ;
and this allowance isufualiy the amount of one
month's wages : and it is a reafonable cuftona.,
v/here the mariner is willing to perform articles
and finifh the voyage, but the mafter or owner
thinks fit to difcharge him fooner for their own
convenience, and without jufl caufe of complaint
againfl the mariner. Therefore this part of the
contraft before us is confiflent with maritime
cuflom, but certainly unreafonable as to the funa

Whatever power a captain may have by law
to bind his owners by contrails made abroad for
the fervices of the fliip, yet he cannot oblige
them beyond what is ufual and cuflomary, without
fliewing that the unufual charge, arofe from the ne-
cefTity of the cafe. The prefent charge is exprefs-
ly made for conveying the libellant back to the
Havannah : I have therefore enquired what is the
ufual charge for a palTage from this port to the


r 197 1

Havannah, and find that forty dollars is an ample
and generous allowance.

Fraud and collufion between the captain and
Canizares the libellant, have been fuggefted,
but not proved : yet if I had not found that
this caufe might and ought to be determined
on general principles, there are two circumftances
in the cafe which would have induced a more
Uriel enquiry into the captain's condudt. The
one, which I have already noticed, is Cupifono's
lending money on hypothecation without fecurity,
or even ailcing for common intereft, which, though
a poiTible, is not a ufual occurrence. The other is a
contrail between the captain and Canizares, which
concludes with thefe remarkable words — " Each
(that is the original and copy) having the fame
Jirength as if they had been executed before a notary
public at Havannah,*^ The queftion naturally oc-
curs, and why was not this contrail: executed before
a notary public at Havannah ? An honefl captain,
who is reduced to the necefTity of binding
his owners to hard and ufual terms, would at lead
take care that nothing fliould be wanting in point
of form and public notoriety to juftify his conduft.
And, befides, 1 fufpe£l that this contrafl, which
bears a printed feal or flamp, could not be legally
executed according to the regulations of the ma-

r 198 J

ritime laws and cudoms, but in the prefence of -i
notary or fome public officer. But it was not
neceffary to clear up thefe appearances, as the
caufe may be decided on other grounds.

Upon the whole, I adjudge and decree, that
Canizares, the libellant, have and receive from
Juan Jofeph de Aguire Perez, the refpondent, the
fum of 1 1 2 dollars and 6o-9oths of a dollar, equal
to £.42: ^y Pennfylvania currency : that is to
fay :

For 5 months and 19 days wages,

from July id, to Dec. 19th, at

20 dollars per month, £'4^ 5 o

For his palTage to Havannah, 150 o

£'57 5 o
From which dedu61: 40 dollars paid

in advance at Havannah, 15 o o

There remains £-4^ 5 o

With refpe£l: to the £.^ : 12 : 6 added to the
account, and charged for a month's boarding, I
ftiall take no further notice of it, than to obfervc,
that it is neither mentioned in the libel, nor fup-
ported by any voucher or teflimony.


[ 199 1

Finally, I adjudge that the llbellant pay one
half, and the refpondent the other half, of the cofts
of fait.




1 HE queflion was — Whether the perfon of the
captain could be attached in the admiralty, in a
fuit for mariners wages ; or whether the mariner
mud look to the lliip alone for his fecurity? In the
prefent cafe, the ihip was not in port.

After argument, it was determined, that the
captain was perfonally anfwerable. 3d Ba. 593 ^
ifl Salk. 2,Z y ift Molloy, -^S5^ 35^-


[ 200 ]



JAMES FORBES, late master of the DOLPHIK

1 HE cafe was — The libellants engaged in the
year 1782, with James Forbes, then captain of the
fliip Dolphin, for a mercantile voyage from Phi-
ladelphia to the Havannah, and back again ; for
which they were to receive, not monthly wages,
but a ilipulated fum, to be paid them at the Ha-
vannah. Whilfl the fhip was at Havannah, the
Spaniih governor of Cuba had projeded a military
expedition againil the ifland of New Providence;
and offered confiderable emoluments to fuch Ame-
ricans in port as would enter their veifels in the
Spaniih fervice, for this expedition: viz. 10 dol-
lars per ton for their veifels, and a gratuity of
700 dollars to each captain. Forbes, after paying
his crew the Ilipulated fum for the original voy-
age, propofed to them this new expedition : an
expedition not known, or thought of, at the time
of the firfl contradl, and of a nature entirely differ-

C ^01 ]

ent from the fervice for which they ftood engaged
to the iliip. The mariners decUncd this propofal,
unlefs informed what recompencc they were to
have for their time and hazard in this new fervice.
Whereupon Forbes affured them of at lead 20
dollars per month to each man, and hinted further
emoluments from the Spaniih government. Thus
affured, the mariners entered on the fervice, and
afterwards failed with the Spaniili fleet, and were
prefent at, and afTiftant in, the liege of New Pro-

The only queftion feems to be, whether a con-
tract exprefsly made fliall be fulfilled or not ?

When the Spanifli governor agreed to give 10
dollars per ton for American veffels, and a gratuity
of 700 dollars to each captain, he certainly expecl-
cd that fuch veffels flioUld be properly manned,
and fitted for the fervice. Captain Forbes know-
ing this, and knowing alfo that the propofed fer-
vice could not, by any conflrudion, be confidered
as a part of the original voyage for which the ma-
riners had contracted, enters upon a new treaty
with them. Suppofe thcfe mariners had rejeifled
ihe propofed expedition, the captain could not
have compelled them to go, but mufl have engag-
ed other feamcn for the purpofe; And there


[ 202 T

€ould have been no doubt but that the crew fliould
be paid according to contract. The prefent li-
bellants are precifely in the fituation the new crevr
would have been in, and are equally entitled.

As it is in tedimony, that the Ilbcllants were at
lealt two months in the Spanifh fervice, I adjudge,
that they have and receive from the refpondent,
jifteeri founds each ; and that the refpondent pay
the cofts of fuit, except fuch part of the faid coils
as may have accrued by the taking certain depo-
fitions, Y/hich were not admitted as evidence,
which coils the libellams are to pay*

June, 1786*


r u 1

1 HE libel in this caufe dates— That Charles
Ivloran, the libellant, entered on board the lh^p


[ 203 ]

THeurcnx, at Nantz, in France, on the 23d day of
O£toher, 1786, under an engagement for a voyage
from the faid port of Nantz to New Orleans, in
the MilTifippi ; from thence to go to Martinique,
and from thence to return to France : that Alexan-*
der Baudoin, the captain, had totally altered this
voyage by repeated deviations, ^ whereby the con-,
traft was broken, and thereupon the libellant prays
a difcharge, and the amount of wages due.

The circumftances of this cafe, appear by the
tedimony, to be thefc :

That this veiTel failed from Nantz, October 3d,
1786: that the marines underfcood, and were in-
formed, that this voyage v/as to be from Nantz to
New Orleans ; thence to the Weil Indies, and
thence back to Nantz, or to fome port in France ;
and that it would continue from 10 to 15 or 16
months : that under this exped'ation, the mariners
were regiflered at the proper office at Nantz, ac-
cording to the manner of regidering feamen in
France : that inftead of purfning this voyage, as
defignated to them, they v;ere taken three times to
New Orleans, twice to Martinique, once to Aux
Cayes, once to Havannah, and were now brought
to the port of Philadelphia : that in the courfe of
thefc fcveral voyages, the libellant and others of


L 204 ]

the Cixw, made frequent complaints of the prolon-
gation of, and deviations from, the originally in-
tended voyage, and had applied to the intendants
of fome of the ports they were at, demanding to
be difcharged, or taken back to France : but were
detained in the fervice of the fhip, by repeated
alTurances of the captain, that from the then next
intended port they fliould fail for France : that in
particular, when they were at Martinique the fe-
cond time, the whole crew complained and demand-
ed their difcharge ; whereupon the captain threw
the boatfwain and another failor into prifon : and
that the boatfwain wrote to the commanding offi-
cer of a fri(Tate there, v/ho fent for him out of
prifon, and obliged the captain to pay him the wa-
ges due, and difcharge him.

To this libel and teflimony, the refpondent hath
urged iu reply :

That no contract or articles betv/een the cap-
tain and the crew of this fliip have been exhibited:
that the libel itfelf is deficient in form ; and that
'ct the deviations from the original voyage be what
they may, the libellant hath for his part juflified
the whole, by figning a verbal procefs on board
the Ibip, on the 30th of April lafc, certifying that
the fliip ITieureux had fultered dampge by florm,


t 2^5 "^

and agreeing to put into the port of Philadelphia in
diftrefs, which verbal proccfs fo figned, has been
exhibited in this court.

As there is no ordinance of the United States,
or a£i; of the legillature of Pennfylvania touching
the prefent object, the claim of the llbellant, who
is a French fabje6l, and was ihipped in France,
will be bed determined by the marine ordinances
of the country to which he belongs, and under
which he engaged in the fervice of this vefTeL
Thefe ordinances ftridtly prohibit any captain or
mafter of a velTel from receiving on board his iliip
any mariner, as fuch, who is not entered in his
rolle d'equipage made up in the commilTary's
office, or bureau de claffes of the port v/here the
velTel fhall be. See, Grd. de Mar. vol i. p. 422.
and p. 715. Now as it has not been denied but that
the libellant has ferved on board this lliip ever
fmce fhe failed from Nantz, it is in vain to
call upon him for proof of the contrail made at
Nantz, fmce the rclle d'equipage, or a copy of
it, is always in the captain's hands, and never in
the mariner's. Had no fuch contraft taken place
as mentioned in the libel, or iliould the libellant
demand larger wages than had been agreed upon,
the captain would have fhewn the rolle d'equi-
page againfl him. As he has not done this, al-

r 2c6 "j

tliough in his power, It follows that the allegatioii
of the libelant muft: be admitted as true. Indeed
it is in pofirlvc tefliinony, that the libellant entered
on board at Nantz, and was to receive fifty hvers
per month wages, which is fiiflicient proof of a

The next point is to confider the repeated dc«
vlations from the original voyage, and how far
this llioLild operate in releafmg the mariner frorti
his contTd.Cc, To lay it down as a general rule,
that the leail deviation from a dedgn^iZed voyage
iliould invalidate the articles and difcharp-e the ma-
riners from the fliip*s fervlce, would perhaps be
condruing thofe articles too finally, and v/ould cer-
tainly be very injurious to commerce. Shipping
articles ought not to be judged by the fame rules
with a policy of infarance, or a common law con-
tra^, their object and ground of reafon being
quite diiTerent. Yet grofs and unnecefTary devia-
tions fliall free a mariner fi'om his enp[ap[ement.
But there is no prefent occafion to fix a general
rule. This canfe mud be determined by pofitivc
lav/ : and there is an ordinance of France exprefs
to the purpofc Mar. Ord. vol. I. p. 548. art. 4. —
" If at any time after the arrival and difcharge of
the vef[d at the port of her delli nation, the cap-
laui or maficr, inflead of returning:, fcall freight


C 207 3

or load his fliip to go ellewhere, the manner*
may leave her if he choofes, unlefs it has been
otherwife determined by his fpecial agreement."
And this rule is further inforced by Valin's com^
mentary on the article*

There appears to me a flrong prefumptioii
that the the boatfwain, who was paid and difchar-
ged at Martinique by order of the commander of
a frigate there, claimed the benefit o^ this ordi-
nance. It is faid, indeeed, that his mother was
dead, and that he had bufmefs in France ; but
this I think would hardly be admitted as a fufEci-
ent reafon to difcharge a mariner in the midd of a
voyage. It is plain that Baudoin did not deem it
fufficient, for he put the man in prifon for deman-
ding his wages and difcharge.

The objecTtions to the libel in point of form arc
not fufficient to invalidate the fuit. It is not indeed
fo fpecific as might be willied, but the fubflance
of the complaint is alledged, viz. an engage-
ment for a certain voyage, a total deviation from
that voyage, and a citation prayed for, to flicw caufe
why the w^ages accrued fliould not be paid, and the
iibellant difcharged.

• 4 Ths

r 2c8 ]

The verbal procefs figned by the libellant on
board the (hip, is the next circumftance relied upon
by the refpondent. But this cannot have the
operation expe6ted. If the ihip was really in
diftrefs jthere is no doubt but that any mariner
would fign his confent to put into a llrange port
to avoid impending danger, and refit the damaged
rigging. But this deviation occafioned by necef-
fity cannot ferve as a juflification of former devia-
tions where no fuch neceility occured.

I am clearly of opinion, that if this caufe was tri-
ed before a French court of juftice, the libellant
could not be refufed the benefit of the mariners
ordinance exprefsly in favour of his claim.

I adjudge that the libellant Ihall have his wages,
at the rate of fifty livers per month, from 06lober
23d 1786 ; and that the refpondent pay the coils
of this fuit.

June 1788-


r ^og J

John thybout
alexander baudoini

iHYBOUTwas a mariner belonging to the
fame fliip and under the fame circumdances with
Charles Moran, libellant in the foregoing canfe,
but did not join in the libel with Moran ; becaufe,
as it was faid, the captain kept him on board con-
fined till the determination of that fuit fhould be
known. But he now filed his complaint, claiming
his wages and difcharge.

Council for the refpondent, in addition to their
arguments in the former caufe, alledged that the
laft voyage from New Orleans, was authorifed by
governm.ent to procure fupplies for that city, w^iich
had juft then fuifered by a terrible fire ; and fe-
condly, that the libellant had made a new^ contrafl
at New Orleans, and w^as entered accordingly on
the rolle d'equipage there. In proof of thefe alle-

Vol. III. O g^tionsj

gations, copies and tranflations of the flilp's pa-*
pers were offered in teflimony. But the libel-
lant's council obie<5led to the admiflion of thefe
papers. Whereupon an argument was had on
this previous queftion. After confideration, the
judge gave his opinion as follows.

The queilion now before me is — Whether cer-
tain papers, prefented to the court as copies and
tranflations of the manifeil, rolle d'equipage, &c.
of the fliip L'Heureux, refpe£ling her lafl voyage
from New Orleans, fhall be admitted as teflimony
in the caufe now in agitation, or not ? And it is de-
clared, that the defign in procuring thefe papers
is to prove, firfl, an authorifed and neceifary devi-
ation from the original voyage contracted for at
Nantz; and, 2dly, a new engagement made by
the libellant at New Orleans.

The correCtnefs of thefe copies, and the au-
thenticity of the originals, arefuppofed to be efla-
bliihed by the depofition of Mr. John Leamy ;
and the fidelity of the tranflations are certified by
the notarial feals of fworn interpreters.

The fidelity of the tranflations is, I think, fuf-
ficiently afcertained, becaufe the tranflator is ofH-
cially known to the court, being commiflloned by,


t 211 J

and anfwcrable to government for the due execu-
tion of his truft. But it is not fo certain what evi-
dence iliall be fufficient to authenticate the inftru-
ments of officers of a foreign country, fo as to
give them the force of legal tedimony in our courts.
The authorities that have been cited all refer to
cafes, where the originals, the copies, and the
certifying officers, were all within the realm of
England, and therefore do not come up to the
point in queftion.

Mr. Leamy*s depofition as to the authenticity
of thefe papers is founded on his belief only, and
not on pofitive teftimony, as appears on his crofs
examination in thefe words : '' The faid deponent
*^ being crofs-examined, faith, that he does not
*^ perfonally know any of the perfons who have
■*' figned any of the original papers before men-
" tioned, nor did he ever fee any of them write :
*' and that he, the deponent, had no papers in
*' his cuftody with the hands and feals of the
** above mentioned perfons to them, to compare
" the faid papers with, except the fignature of
" the prefent governor, with which he did not
■*' compare them."

But, fccondly, it is manifeft, that thefe papers
were copied and tranflated in this city, pending


[ 212 J

this fuit, and within the cognizance of the court.
Why then were not the originals exhibited, that
the tranllations might be made by the dire^lion,
and under the authority of the court, after having
had the opportunity of infpe<51ing thefe originals,
and judging of their authenticity ? It has been at-
tempted to fliew that this could not be done*.
But as the court of admiralty is always open, and as
thefe papers were in the city for at leail fome days,
there was time fufficient to have them compared,
copied, and tranflated by authority. The court
hath a right to the befl teflimony that can be pro-
cured with any reafonable convenience ; and as
the originals of thefe papers were in the hands of
the refpondent's council, and they have not
thought fit to file them as exhibits in the caufe, I
fliall not now admit the copies taken by their di-
rection. I think fuch a precedent might have dan-
gerous future confequences.

The argument then proceeded on the merits,
and nearly the fame grounds were travelled over,
which had been taken in Moran's cafe.


* The captain failed from Uie port during the fuit, and took the
original papers with him.

[ 213 J

After advlfement, judgment was given as
follows :

John Thybout, the prefent libellant, having
fliipped at the fame time, and under the fame
contra(Sl:5 with Charles Moran, whofe fuit was
lately decided in this court, the teftimony exhibit-
ed in Moran's cafe has been applied to this.

There are only three new exhibits in the pre-
fent caufe : viz. a proteft made by captain Baudoin
and his officers, foon after his arrival at Phila-
delphia, dated the 17th of May lad, and two de-
pofitions ; one of William Matthie, a paifenger on
board the I'Heureux, and the other, a fecond de-
pofition of Baflian Gaudin, who had given teflimo-
mony in the former caufe. The purport of the
protefl is to fliew, that this fliip was driven by a
N. N. E. florm into the port of Philadelphia, in
diftrefs, and the tenor of the two depofitions tends
diredlly to contradift the alTertion of the protefL

From all that appears in teftimony, this veffel
was bound from New Orleans to the port of
Nantz in France : and Matthie, the paifenger,
received a palTport from the governor's fecre-
tary at New Orleans, to be admitted on board


[ 214 J

as a pafTenger to Nantz. How then it could poffi-
bly happen, that this, or any other veiTel, being
in the latitude of 25" 3' north, fliould be driven
by a violent N. N. E. wind, to the latitude of
2,^^ 4' north, where the verbal procefs was made
on board, is to me quite incomprehenfible. But
as 1 do not think the libellant's claim does at all
depend upon the validity of either the verbal pro-
cefs, or the fubfequent proteft, I fhall obferve no
further upon them.

It is manifefl to me, that the libellant hath been
detained in the fervice of this fliip an unreafonable
length of time beyond the period of the voyage
contracted for : that the original agreement made
at Nantz, between the captain and his crew, has
been violated and diiTolved by frequent unnecelTary
deviations : that the promifes of the captain, at
every deviation, to return immediately to France,
have been repeatedly broken : and that, if this
caufe was tried before a French court, under the
marine ordinances of that country, there is no
doubt but that the libellant would recover his wa-
ges, and obtain his difcharge.

I fee no reafon for diftinguifliing this from

Charles Moran's cafe : and therefore, I adjudge,

that the libellant iliail have his wages, at the rate

4 of

F 215 ]

of 30 livrcs per month, from the 23dof Oaober,
1786, to the 30th of June lad; dedufling 180 li-
vres, which he acknowledges to have received ;
and that the refpondent pay the cods of fuit.

July, 1788.





Rev. Mr. W I L L I a M SMITH,




Call no aid, no mufes to infplre.
Or teach my breaft to feel a poet's fire :
Your foft expreffions of a grief fincere
Bring from my foul a fympathifing tear :
Taught by yori* voice, my artlefs numbers flow,
I figh in verfe, am elegant in woe.
And loftier thoughts within my bofom glow ;
For when in all the charms of language dreft
A manly grief flows genuine from the breafl :
What generous nature can efcape the wounds.
Or fteel itfelf againll the pow'r of melting founds ?

Oh ! could I boaft to move with equal art
The human foul and melt the flony heart j

A 2 , ODE

C 4 1

My long lov'd friend fhould thro' my numbers fliine.

Some virtue loft be wept in ev'ry line :

For virtues he had many — twas confefl,

That native fenfe and fweetnefs fill'd his breafl j

But cooler reafon checks the bold intent,

And to the talk refufmg her confent,

This only truth permits me to difclofe,

That in your own you reprefent my woes,

Andfweeter than my fongis your harmonious prole.

September y I754»


C 5 ]



.ARK ! hark ! the fweet vibrating lyre
Sets my attentive foul on fire ;
Thro' all my frame what pleafures thrill
Whilfl: the loud treble warbles fhrill.
And the more flow and folemn bafs
Adds charm to charm and grace to grace.

Sometimes in fweetly languid ftrains
The guilty trembling firing complains :
How it delights may ravifhed ear
"When the expiring notes I hear
Vanifti diflant and decay ! —
They fleai my yielding foul away.

Neatly trip the merry dance,
And lightly touch and fwiftly glance ;
Let boundlefs tranfport laugh aloud
Sounds madly ramble mix and crowd,
Till all in one loud rapture rife,
Spread thro' the air and reach the fides.

But when you touch the folemn air.
Oh ! fwell each note diflin^t and clear ',
In ev'ry flrain let forrow figh,
Languifh foft and fweetly die.



So fhall th* admirM celcftial art,
Raife and tranfport my ravifh'd heart |
Exalt my foul, and give my mind
Ideas of fublimer kind.
So great the blifs it feems to prove
There muft be mufic too above.
That from the trumpets filver found
Of wing'd arch-angels plac'd around
Thy burning throne— Oh ! king of Heaven
Mofl perfe6l harmony is giv'n :
Whilll happy faints in concert join
To make the mufic more divine.
And with immortal voices fing
HOSANNAHS to their glorious KING,


I 7 ]



•EAUTY and merit now are join'd.
An angel*s form, an angel's mind

Are fweetly met in t/jee ,•

1 2 3 4 5 6 7 8 10 12 13 14 15 16 17

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