
    Case No. 4,846.
    FIVE SEAMEN v. The FAIR AMERICAN.
    [Bee, 134.]
    
    District Court, D. South Carolina.
    Jan., 1799.
    
      
       [Reported by Hon. Thomas Bee, District Judge.]
    
   The question is whether these men are entitled to wages for the time they were absent from the vessel. It is contended that as this vessel was taken before she arrived at her first port of delivery, the seamen lose their wages. Lex Merc. 100. On the other hand the same book has been quoted to shew that, if a ship be taken, retaken, restored, and afterwards proceed on her voyage, the contract is not determined, and the entire freight becomes due: that wages follow freight, and are also due. This is the first case of the kind which I have been called upon to decide, ánd I have considered it fully. It will not be contended that these seamen are to blame. They were taken from their ship by superior force, returned to it as soon as they could, and have discharged their duty faithfully since. Molloy says (page 240) “that, if a vessel perishes, or is prevented by an enemy from returning, wages are lost; but if she unlades, they are due.” No such loss has occurred here. The marine laws of the Hanse Towns declare that if a mariner fall sick and be left on shore, he shall receive his wages as If he had served out the entire voyage: and this appears just, for he was not in fault. Yet in such a case, additional expense is generally incurred by the hire of a substitute. Here, there was none, for all the duty was done by that part of the original crew that was left bn board. In Mahoon v. The Glocester [Case No. 8,970] it is decided that seamen of an armed vessel, who were on shore by the captain’s order, should, nevertheless, receive a full share of prize-money, though they were on shore when the prize was made; .because they were not in fault The case was fully argued, and the decision confirmed on appeal. That decision seems to conclude the case before me. I am of opinion, however, that as the first voyage was defeated, these seamen are bound to continue with the vessel till the one now in contemplation be ended; and at the same rate of wages. Let them, therefore, receive two thirds of what is due to them; and let the remainder be paid at the next port of delivery.  