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as a witnefs of full credibility : but when the na-
ture of the fecond contingency is confidered, viz.
that it is now full two years fince the marflial made
his returns, and that neither Fofter, nor any of the
concerned, have objected to the commifTions charg-

C "I J

ed, or manlfefted any expectations of receiving fur*->
ther advantages from the Lady Margaret, his ia-
tereil, if any, feems to be fo very remote, as not to
found any reafonable prefumption that it will produce
partiality^ or to carry a Jirong danger of perjury.

The ufe of teftimony, is to afcertain truth, that
juflice may be adminiftered. Therefore, v^itneffes
ought not to be rejected on flight grounds of difa-
biUty, or on mere fuggeftion of a diftant intereft,
efpecially in maritime fuits, where from the fcene
of tranfaftion, a totally difmterefted teflimony can
feldom be procured. But the court will always
make allowance in the credit, according to the

Let Fofter's teftimony be admitted.


In order to determine this caufe to my own fa-
tisfaclion, I find it neceifary to (late and confider
three points, which will, 1 apprehend, include all
the principles that can aiFe6l: this controverfy.

The firft queftion is. Whether thofe who iign-

the Holker'^s articles, after notice given that her

3 compliment

[ 112 1

compliment of mtn was full, and that nomotd.
could be received on board, and who did not go
the cruile, although their not going fliould be oc-
cafioned by a forcible reje£l:ion, ought to draw
{hares of all, or any of the prizes taken in that
cruife ?

It appears by the depofition of Henry Martin,
the keeper of the houfe of rendezvous, that al-
though Fletcher, one of the Holker's officers, in-
formed many who applied that they could not be
admitted, becaufe the privateer's compliment of
men was complete, and that they would be turn-
ed on fnore if they came on board, yet they per-
fifted to fign the articles, and even took the ad-
vantage of the officer's turning his back to fign
thofe iirticles without his knowledge, faying, they
would run their chance. If any of the libellants
lliould be found in this predicament, I fhall not
hefitate to difmifs their claim. Becaufe no man
ought to have an engagement forced upon him :
mutual confent, expreiled or implied, being ne-
ceffiiry to every contract.

The fecond qucftion is, Whether thofe who re-

gularly figncd the articles, or were duly enliilcd

by parole-agreement before the veflel's crew was

complete, and againil whom no breach of duty is

^ all edged,

r 113 1

alledged, but were turned on fliore againfl: their
will, and did not go the cruife, fhould have
fliares of the prize taken in that cruife.

But this poiiit hath been fo fully eftablilhed
in favour of the hbellants, in this court and in
the court of appeals, that it cannot be controverted
ROW. *

The third queftion is. Whether parties under
the circumflances lad mentioned, being prefent,
and fuffering the marfhal to fell and diflribute af-
ter public notice given, any prize or prizes ia
which they might have claimed an intereft, with-
out filing their claim, or giving any notice to the
marfiial that they intend fo to do, ought not to
be deemed fuch a wilful neglect, either againft
the marfhal, for not having referved their fliares,
or againfl: the captain, for omitting their names in
the return of his crew ?

In clearing up this point, it may be allowed,
that fo long as property remains in the marflial's
hands, fubje£l to the difpofal of the court, no
length of time fliould bar a legal claimant from
recovering his right.

Vol. III. H Thi

* Vide page 55.

[ ii4 J

The practice Is, for the marfiral, after he ha$,
Inade fale of a prize, to advertife in the pub-
lic papers for all perfons having any claim there-*,
in, to appear by a certain day and receive their
diflributive fhares. If, after that day, he fhould
find any perfon's names in the lift of the crev^ han-
ded to him v/ho have not appeared in perfon, or
by agent, he makes report thereof to the judge,
who, by virtue of a law of this ftate, will appoint
an agent for fuch abfent perfons. After which
diftribution is made and the accounts clofed, and
lodged in the regifter's ofEce.

Now, if any fliould think themfelves Injured by

the return of the crew, inafmuch as their names

have been omitted, and yet fhall ftand by and fee

the whole of the property diftributed, without

applying to the court or marflial for their fliares,

or giving any legal notice of their intention to

make fuch a claim, it feems to be a reafonable con-

clufion thatthey have voluntarily abandoned their

right. In the prefent cafe it is remarkable, that

thefe very libellants brought their fuit two years

ago for fhares in the Glocefter, and recovered, and

yet from that time to the prefent they inftituted no

claim for fliares in the Lady Margaret, although

this prize was, with refpedl to them, in the fame

predicament with the Glocefter.


[ tl5 1

It is very true there is no (latute of limitatJons
in the admiralty, but all things mufl be limited by
right reafon. A ftrong argument ab inconvejj'tenti
may fupply the place and have the force of a
flatute. For, if there are indeed no limits, how
long (liall the marflial wait for claimants to come
m before he (hall proceed to diflribution ? Or
if, after thofe who are legally entitled have re-
ceived their refpe£live (hares, they are to be for
ever liable to be called upon to refund, for thefa-
tisfa^tion of future latent claims, when fliall they
prefume that what they have got is really their
own ? But no reafonable apology can be made for
thofe who have knowingly fufFered diftribution to
be made without making their claim.

But it hath been fuggefled, and is indeed with-
in the view of the court, that fome part of the
monies arifmg from the fales of the Lady Marga-
ret and her cargo, may yet be in the hands of
the late marfhal. If fo, I have no doubt but that
fuch of the libellants, as fall within the defcriptioil
of the fecond point or queftion above flated, are
entitled to their refpe6live diflributive Ihares

By thefe principles I have examined the fituati-
©ns of the libellants refpedlively, which I have

H 2 carefully

I ii6 1

carefully afcertalned by the articles of enlidraent,
and the depofitions exhibited. And 1 find, that
Charles Marmet, Thomas Aihton, Patrick Kean,
James Hamikon, Patrick M'Daniel, John Craw-
ford, James Galloway, Patrick Mahoon, Peter
Sherkes, William Cole, Edward Geiner, Enas
M'Comer, Edward Crow, George Brand, James
Murray, Benjamin Lewis, Philip Jordan, John Bla-
ney, and Felix Hughes, are juflly entitled. And
thereupon I adjudge and decree, that they have
and receive a landfman's iliare each from Matthew
Clarkfon, late marfhal, of the monies that may re-
main in his handj, from the fales of the Lady Mar-
garet and her cargo, or proportionable dividends
thereof, in cafe there fliould not be fufficient to
fatisfy the whole.

And further I adjudge, that the bill in this
caufe, fo far as hath refpect to the claims of
James Barney, George Stanton Richard Fair,
Charles Keailey, Jofeph Ditz, and Daniel M'Far-
land, be difmiffed.

And laflly, I adjudge that the libellants pay the
cofls of this fuit.


C "7 I

M'CULLOCH *verfus the Ship liETIlE.

MCCULLOCH had fliipped onboard, the
Lethe, in time of war, for a certain voyage from
Philadelphia to Bourdeaux, and back again, at the
wages of ^.i8 per month. The fliip was detain-
ed long at Bourdeaux and whilfl flie was there,
peace took place. The libellant performed the
voyage, but was refufed the wages on account of
the peace, on a fuggeftion that the rilk, which
was the occafion of the high wages being remo-
ved, the libellant ought to have only cuftomary
peace wages from Bourdeaux to Philadelphia.

Judgment, in^favour of the libellant for wages
agreeable to contract.*

♦ Sec page i a j»


I "8 ]


1 HE libellants entered on board tbe Najtcy in
January, 1783, and figned articles, acccording
to cuflom, for a certain voyage to L' Orient, and
back again to the port of Philadelphia. Brice en-
gaged to ferve in the capacity of firft lieutenant,
and Woodroff, as furgeon, to the iliip, which was
an armed letter of marque. By thefe articles
Brice was to receive ;^.i8 and Woodroff £17.
per month. At this time it was war between
Great Britain and the United States of America.
The fliip fell down the river in order to commence
her voyage, but from various caufes of delay, did
not clear the Capes, fo as to enter on the high
feas, before the 20th of March following. In the
mean time, viz. on the 3d of March, peace had
taken place, and hoflilities ceafed between the beU
ligerent powers.

Whereupon, it has been alledged in behalf
of the refpondents, that £*$ per month are the

.,7 cuflomary

r 119 ]

cuflomary wages In time of peace, and a full re-
compence for fervices for navigating a fhip ; that
all above that fum is allowed in confideration of
the riilc and dangers of war. That the confi-
deration failing, and no riik being incurred, as
peace had taken place before the fliip had entered,
on the field of danger, the extraordinary wages
ought to abate, and that the libellants ought to
be content with peace wages for fervices done in
time of peace.

On the contrary, it has been urged, that the
contraft was duly and regularly made : that con-
trails are facred things, and ought to be taken
entire, and ftri^lly conftrued: that contra6ling par-
ties iliould not be admitted to explain their in-
tentions afterwards, or recede from the terms,
of their bargain, on account of future contingen-
cies, provided there was no fraud in the cafe :
that the performance of the voyage, and doing the
duty on board, are the true confideration of the
wages : that whether thefe wages are high or low
is a matter that ihould have been confidered when
the contrail was made : that as it cannot be fup-
pofed, that if the danger had been greatly encrea-
fed by the arrival from an enem.y's fleet on the
coafl, or from any other circumflance, the owners
would have allowed encreafed wages, neither


f 120 J

ouglit they to diminifli the wages, becaufe the
danger happened to be lelTened by the interven^-^
tion of peace. And laftly, that the voyage was
aftually commenced when the fhip left the port,
although flae remained long after in the river,


The advanced wages above what is cuftomary in
time of peace is in confideration of the rilk and
dangers incident to war : in the prefent cafe it is clear ^
that both parties, jwhen they made the contra6l, had

war in view, as is evident from the flations the libel-


lants were to fill, viz. the one, that of firft lieutenant, .,
and the other, that of furgeon of the fhip, offices
unknown on board of merchantmen in time of
peace. Whether it would indeed be peace or
war, was a circumftance out of the reach of the -,
parties to command. Peace, however, did take,
place, feventeen days before any rifk whatever -
was incurred on account of the war.

The cafe of infurance cited from 3d Burrow's,
p. 1237, is a leading cafe in point. The contradl
there was regularly made between parties, more
competent to be flriflly bound than common
mariners, viz. the owners of a fliip and the un^


r 121 ]

der writers, and yet it was deterraimed by all
the judges, that this contrail: ought to be liberally
conflrued ; and that the infurance premium fliould
be returned for fuch part of the voyage as had
ran no riik.

The caufe lately decided in this court, M'Cul-
loch verfus Lethe, has been quoted ; but there is
a manifeft and eiTential difference between that
cafe and the prefent. In the former, the libcUant
had actually incurred the rillc, had fubje^led him-
felf to be killed in battle, or taken prifoner, which
was the real confideration of the war wages pro-
jnifed ; in the prefent cafe no riik from war was
at all iucurred: for, although much pains hath
been taken to fliew, that the captain and crew of
the Nancy, not having heard of the peace, had fuf-
ficient reafon to think that it was war when they
failed, and conduced themfelves accordingly ; yet
the queftion is not, what might have been their
apprehenfions, but what was the reality of the
danger, or whether it was indeed war or peace
at the time ?

Had this veflel advanced into the fcene of dan-
ger, though but for twenty-four hours before
peace had taken effect, I fliould have no doubt
in allowing the hbellants their full wages, accor-


ding to the articles, upon the fame principles oa
which wages were decreed to M'CulIoch.

That the common law do£lrines refpecftlng con-
trails do not apply in all their flriflnefs to cafes ma-
ritime is evident from the conflant praflice of this
court. The enliftment of mariners have neither the
complexion nor the formalities required by the
rules of common law ; and it would be hard to bind
men fo ignorant as common mariners generally
are, to the legal conftruflion of terms , nor would
it be for the intereft of mariners, that articles
fliould be fo ll:ri611y conftrued, as the operation
"would probably be frequently much againfl them.

It appears, that when the libellants entered on
board the Nancy, it was adlual war, and that they
held thcmfelves in readinefs to do the fervices,
and encounter the dangers for which the (lipula-
ted wages had been promifed. It was not their
fault that the veiTel did not forthwith proceed on
her voyage. I fee therefore no reafon againft
their being allowed full wages for that period, and
the common ufage is to allow mariners their wages
from the time of figning the articles, let the veffel
fail when ilie may.

I adjudge that the libellants have and receive




tlieir full wages, according to contra<^, from the
time of figning the articles, to the 3d of March lad ;
and that they receive cudomary peace- wages from
the faid 3d of March, to the completion of the

SHAW werftis the LETHE.

1 HOM AS Shaw, the llbellant, entered on board
the fliip Lethe^ as furgeon, and contra£led to fervc
in that capacity from Philadelphia to Bourdeaux,
and back again, for the wages of ;^.i5 per month.
It was then war, and fo continued till the velTel
arrived at Bourdeaux : whilft (lie was there in port
peace took place. The libellant continued on
board, and returned with the veiTel to Philadel-
phia, and now demands the flipulated wages of
^.15 per moLth, notwithflanding the peace.

Much has been faid refpecling the entirety of
contracts on the one hand, and the divilibility


r 124 1

of contracts, particularly thofe of infurancc and
mercantile agreements, on the other.

It has been urged for the libellant, that the
voyage to Bourdeaux and back again, mud be con-
fidered as one entire voyage ; and that if this
velTel had been infured, or chartered, there could
have been no apportionment of the premium or
hire on account of the peace*

Against this doclrine, the cafe of Stephen/on
vcrfus Snow, 3d Bur. 1237, has been cited, and ful-
ly confidered. The cafe was — a ihip was infured for
a certain premium, to fail from London to Halifax;
the infured warranting that fhe fhould fail. with
convoy from Portfmouth. She arrived at Portf-
mouth, but the convoy was gone. Whereupon
a return of premium was demanded, dedudling
only the cuftomary infurance from London to
Portfmouth. The entirety of contradls was here
urged againfl the infurers, but over-ruled by the
whole court, who confidered the contraft as divifi-
ble, and having reference to two dillinft voyages,
'yiz. from London to Portfmouth, and from thence
to Halifax ; and determined that as the riilc of the
fecond voyage had never been begun, the premi-
um for that had never inured*


r ^^5 ]

This cafe appeared at firft view to apply elofc^
]y to the prefent ; but, on a nearer infpection, I
find that the warrantee to fail with convoy was
the ground of that decifion. I: was that alone
v/hich rendered the voyage divifible, becaufe it
v/as of the elTence of the contract. Had the lliip
failed without, and been loft, the infurers v/ould
not have been anfwerable. Had (he been infured
from London to Halifax, without any condition
annexed, and had flopped in her way at Portf-
mouth, and proceeded no further, the voyage
would not, I apprehend, have been deemed divi-
fible on that account, nor the premium appor-
tioned ; fo that the warrantee to fail with convey
was the foundation of the contrail, which fai-
ling, the contra6l failed, fo far as the fame had
refpeft thereto. The voyage from London to
Portfmouth feems to be no more than a necelTary
pafTage to the place where the fubflantial part of
the contrail was to take efFe£l ; where the premi-
um v/as to be earned by the commencement of the
riik under the condition fpecilied.

But I find nothing parallel with this in the ar-
ticles of the fliip Lethe : no contingency mention-
ed; but only a fimple contrail for a voyage to Bour-
deaux and back again, in conCderation of certain


t 125 3

fervices to be performed on the one part, and cer-
tain wages to be paid on the other. If there i^
any fimihirity in the two cafes, it confifts in this :
that, as in the one, the faihng with convoy was
the ground of the quaniiim of the premium \ fo in
the other, the war was the ground of the quantum
of wages. In the cafe referred to, the contingen-«
cy was fully recognized in the contrail : the iliip
v/as warranted to fiil with convoy, but no con-
tingencies are provided for in the Lethe's articles.
If the infured veiTcl had failed Vv^ith the convoy,
though but for one day, and returned, it cannot
be fuppofed that any part of the premium would
have been reflored.

That the mere arrival of a veffel at a port or
ports cannot be conflrued as a divilion of the voy-
age delineated by the articles, is manifefl from a
current of law and pra61:ice : fo it was determined in
the cafe of Bernon verfus Woodbridge, Douglas,
ySZt ^^''^ nuraberlefs charter parties, infurances,
and articles for mariner's wages have reference to
circuitous voyages. Nor was it underftood, that
a fortuitous increafe or diminution of the riilv, or
any alteration of circumftances between one port
of deftination and another, would alfe^l the con-
tract, unlefs provided for by the terms of the


r 127 J

But it hath been (Irongly urged, that the high
X^'ages promifed, and the nature of the fervice to
be performed, have reference to war only ; and
that as peace took place whilil the veiTel was fafe
in port, the voyage, from the manifeil objedt of
the contrail, became divifible: and that it would
be very hard to bind the mafter or owners to
the moft fevere conftru^lion of the articles, and
make them pay for fervices, which, from an
unforefeen change of affairs, were rendered im-

Although there is an equitable force in this
argument, yet, under the circumfhances of the cafcg
there feems to have been an obvious duty on the
part of the mailer to have entitled him to an
equitable rehef from the binding force of the arti-
cles. He iliould have propofed to pay off the
crew at Bourdeaux, and tendered a new contra£i:
on peace eflablifliment, protefting againfl the for-
mer articles. Nor is this a mere ceremony, but
what fubflantial juftice feems to require. The
mariners, under the articles, could not leave the
lliip without incurring a penalty. If then they are
detained on board without any explanation, not-
withflanding the great change of circumfiances,
they had fuilicient reafon to conclude, that they
were continued in the fervice upon the terms of
4 the

C 1-8 1

tiie fiibfidlng contra6l : and this rcafoning will WtH
apply if the cafe be reverfed. Suppofe the mari->
ner had engaged in time of peace, and war had
broke out during the voyage, and he had made no
declaration that he was dilTatisfied with the terms
of his contraft, or expected war wages in confi-
deration of the riik he v/as to run, 1 believe there
are few mafters of veiTels who v/ould not urge his
filence as an acquiefcence in the continuation of
the contraft, and bind him down to the terms of
the original contrail.

It is fo natural to expecl fome declaration of
the will of contracting parties, when circumftances
out of the reach of either have occurred, which
totally alters the principles upon which the con-
tract was formed, that an omiiTion of fuch decla-
ration can have no other interpretation, but that
of wilful neglect or deep defign, neither of which
is the law difpofcd to countenance. Hence, pro-
bably, arofe the cuftom of proteds, in cafes of
wreck, illegal capture, fire, and other unforefeeii
and unavoidable accidents.

One Other argument hath been urged for the
rcfpondents, viz. that freight is the mother of wa-
ges j inferring, that as this veffel received only-

t 129 ]

peace freight from Bourdeaux to PhlIadelphia,no
more than peace wages ought to be allowed for
that part of the voyage.

It does not appear in teftimony what freight
this veiTel received : but if it did, I fee no force in
the argument. There is, in fa6l, no connexion be-
tween freight and the quantum of wages : nor are
the mariners ever privy to the terms on which a
cargo hath been fhipped. It is only a lav/ of po-
licy which arbitrarily makes the payment (not the
rate per month) of the wages to depend on the
fafe conduct of the cargo, in order to induce the
mariners to exert themfelves in cafe of wreck, to
fave as much as pofTible, knowing, that if the whole
be iofl, they mud lofe the whole of their wages.
If the freight is thus called the mother, the fervice
performed may well be deemed the father, of the
manner's wages, that being the real and legal con-
fideration. There is no doubt but the mariner
fliall have his wages, in cafes where no freight at
all is received ; as in veflels failing with ballad on-
ly, which often happens. The truth is, tlic mari-
ner's lien is on the ihip, and not on the cargo. Nor,
was it ever known, that freight could be at cached
in the merchant's hands to anfwer for mariner's

Vol.- III. I wjges.

t «3o J

wages, but the fliip is liable under all circurn-'

I have not noticed the fhip's going to TenerifFc
from Bourdeaux before flie came to Philadelphia,
as this eircumfliance, if it has any operation at all,
mufl be againfl the mafler, who ought not to bene*
fit by his own deviation from the articles.

After mature confideration, I cannot find fufii-
eient reafon to give a difierent decifion now, from
what was lately given in the cafe ofM'Culloch,
againfl: the fame ihip. The continuation of the
libellant on board, after it was known that peace
had taken place, without any declaration of the
mafter, that he expelled the terms of the contra£l
ftiould be changed, is too flrong a circumflance to
be got over.

But, as I think it a hard cafe, I would recom-
mend an appeal ; that the law and arguments may
be again confidered by another court.


That the libellant receive wages agreeably to
the contra6i:; and that he pay one half, and the re-
fpondent the other half of the cofts of fuit.

N. B. An

r 13^ 1

N. B. All appeal — and the court of appeals con^
firmed the above fentence; and gave the appellee
cofls of fuit, and interefi: ori his wages, from the
date of the decree in the admiralty.




Ithe collier.

1 HIS veffel was attached under an a£tof af-
fembly, allowing perfons concerned in building,
repairing, fitting out, and furniiliing veffels for a
voyage, to fue in the admiralty, as mariners fue for
wages — paffedthe 27th of March, 1784.

The bill was difmiffed, and the libellant adjudg-
ed to pay cofls, on account of the badnefs and in^
fufficicncy of the work done.





IN September, 1779, Silas Talbot, being on a
cruife in the floop Argo, difcovered, and purfued
the brig Betfey, a Britifli letter of marque, about
200 tons burthen, armed with 8 fix pounders, and
laden with 214 puncheons of rum, aiid one quar-
ter calk, and bound from Montferrat or St. Chrif-
topher's, -to New York, then in the poirdTion of
the enemy. After an engagement of two hours,
Taibot captured the Betfey ; put one, Weft on
bpard,''as prize mafter, together with eleven of

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Online LibraryFrancis HopkinsonThe Miscellaneous essays and occasional writings of Francis Hopkinson, Esq (Volume 3) → online text (page 6 of 17)