
    R. N. Gourdin vs. Preston West and Alexander Robertson, Executors.
    
      Salvage — Master and Slave.
    
    Where salvage is awarded to a slave as one of the crew of a saving vessel, it belongs not to the owner of the slave if he be hired out, but to the party to whom the slave was at the time hired.
    BEFORE GLOYER, J., AT CHARLESTON, FALL TERM, 1857,
    The report of his Honor, the presiding Judge, is as follows:
    “ The plaintiff sued in the summary process jurisdiction, and the case was this: John Magee, the testator, in his lifetime, hired a slave named John, of plaintiff, to work on board of the steamer General Clinch, which vessel he commanded. During the continuance of the contract of hiring, the steamer fell in with and saved a wreck. The claim for salvage was referred to a Committee of the Chamber of Commerce, who awarded a certain amount to the owners, officers and crew of the steamer. Persons acting as average adjusters afterwards apportioned this amount among the officers and crew according to the established usage. Capt. Magee died a few days before the award was made, and the defendants, his executors, represented the whole slave crew, including John, who was employed as steward, giving consent for them and binding them to abide the award of the Chamber of Commerce, and they received the amount awarded to the slave crew. The plaintiff took no part in the reference to the Chamber of Commerce. In the apportionment made among the crew the sum of seventy-three dollars and sixty-three cents was allowed to the steward, (John.)
    
      
      “ Three steamers were engaged in saving tbe wreck, and tbe average adjusters were employed by tbe agents of Capt. Magee to ascertain what portion of tbe gross amount, which bad been awarded by tbe Chamber of Commerce, each steamer was entitled to.
    “ It was admitted that it is tbe usual practice for steamers to go to tbe aid of vessels ashore, and that tbe plaintiff has been for years’and still is a merchant, and doing such business as brings him into contact with vessels.
    “The plaintiff, as owner of John, sues to recover seventy-three dollars and sixty-three cents, the amount allowed to the steward by the average adjusters, and which had been paid to the defendants, executors of Capt. Magee.
    “As the service was performed by John during the contract of hiring and while he was under the control of Capt. Magee, who was entitled to the fruits of his labor, I was of opinion that the payment to his executors was proper, and, therefore, decreed for the defendants”.
    The plaintiff appealed upon the grounds:
    1. That salvage being one of the civil rights which would belong to a slave, if a freeman, and not to his hirer, is vested in his owner and not in his hirer.
    2. That the hirer of a slave, even if owner for the term, is entitled to nothing but what such slave acquires as a quantum meruit pro opere et labore; and that salvage is not such.
    Young, for appellant.
    Whatever a hired slave earns as salvage, belongs to his owner and not to his hirer; because (I.) salvage is not a quantum meruit pro opere et labore, and because (II.) the hirer is entitled only to what a hired slave earns as such, and because (III.) salvage is a civil right which the slave, if a free servant, and not his master, would enjoy and appertains consequently to bis owner — tbe representative of bis personality.
    I. Salvage is not a quantum meruit, &c. Conkling Ad. Jur., &c., 278 if. Abbott, Shipping (side page,) 554. It is not tbe subject of contract. Conkling, loco citato, 279-280; Tbe Schooner JUmubus, 1 Sum. 210. Eooles d’Oleron, Art. 4, "" ^ Le Consulat de la Mer., cb. 132, V Lois Maritimes, vol. 1, p. Guidon de la Mer., Art. 31,
    And, wbcn earned by an apprentice — tbe almost temporary slave of bis master (Hargrave’s note to Coke on Litt. 117 a.) —belongs to him and not bis master. Tbe Columbine, 2 W. Eob. 186-187; Tbe Two Friends, 2 W. Eob. 353 ; Bell vs. The Ann, 2 Peters Ad. 282; Tbe Blaireau, 2 Orancb, 270; Tbe Caroline, 7 Jurist, 660. It is owing to its character of being no quantum meruit, but only a reward for services gratuitously offered, that passengers, &c., no matter bow efficient their services, are generally entitled to no salvage. Conkling, 1. c. 274-277.
    It is awarded for services, which, if performed on land, would be entitled to no compensation. Tbe Blaireau, 2 Orancb, 266.
    If a salvor, entitled to ever so large a salvage, embezzles any part of tbe property salved, be forfeits all claim. Tbe Blaireau, 1. c. 266; Conkling, 1. c. 295 ; Abbott, 1. c. 560, note 1.
    It has been expressly so decided. Bowe vs. The Brig, 1 Mason, 375; Tbe Blaireau, 2 Cranch, 266: Bearse vs. Two hundred and forty pigs of copper, 1 Story, 325; Tbe Schooner Fmulous, 1 Sum. 210; Tbe Henry Fwbanlc, 1 Sum. 413. Tbe hirer is entitled only to what tbe slave hired to him acquires as a quantum meruit pro opere et labore, in the service for which be is hired. Smith, Master & Servant, (Law Lib. 65) 80 ; Story, Bailments, §§ 395, 394, 383-385 ; Kent, Commentaries, 2 v. 586.
    And tbe opinion, that tbe hirer of a slave is bis owner pro tem. is not supported by our decisions. Colcoclc ys. Goode & Hose, 3 McO. 516 ; Wells vs. Kinnerly, 4 McO. 123, 124; Antonio vs. Olissey, 3 Pick. 204; Perry vs. Dunlap, 1 Hill, 401; Corley vs. ClecMey, Dud. 35; Tennent vs. Dendy, Dud. 85 ; Wilder vs. Richardson, Dud. 323; White vs. Arnold, 6 Pick. 138; Stinton vs. Wren, 2 Pice Dig. 94. But is refuted by tke general doctrine of bailments. Story and Kent, as above; Spencer vs. Pilcher, 8 Leigk. 582. And by our own cases. Helton vs. Gaston, 2 Bail. 95; White vs. Chambers, 2-Bay, 70 ; Oarsten vs. Murray, Harp., 113 ; Tennent vs. Dendy, Dud. 83 ; Bacot vs. Parnell, 2 Bail., 424; Corley vs. ClecMey, Dud. 35. Compare Ponían Law on tkis subject. Tit. 2, ck. 9, §4, Institutes ; Tit. 41, ck. 1, fr. 10, § 3, Digests; and Tit. 3, ck. 18, §1, Institutes.
    III. Prom tke nature of slavery, “ a slave kas no rights wkick are not merged in or do not flow from tke rights of his owner,” and, therefore, all the rights, which a slave, if a freeman, would enjoy, are vested in his owner; consequently the owner of a letten slave retains to himself, in opposition to the hirer, all the rights which a free servant retains to himself in opposition to his master. (See cases already cited.)
    Compare Tit. 4, ch. 4, principium of the Institutes.
    And because salvage is a civil right, which the slave, if a freeman, would enjoy, and not his master.
    As in cases of seamen. ConMing, 1. c. 274. And of apprentices. Tennent vs. Dendy, to show analogy between apprentices and letten slaves, and then cases already cited' in regard to apprentices.
    And tke owners of vessels, when they receive salvage, receive it not on account of the services rendered by their servants, (seamen,) but on account of the risk run by their vessels. Oonkling, 1. c. 292.
    IV. Our view of this case supported by Small vs. The Messenger, 2 Peters, 286; The Blaireau, 2 Cranch, 240; Gonckling, 1. c. 277 ; Blander, Maritime Law, 349.
    
      V. On tbe principle: “ cujus esi periculum ejus esse debet commodum,” owner should have the salvage earned by his letten slave, and not the hirer; for if the slave had perished in wrecking, his loss would have fallen on his owner, and not on his hirer.
    Because wrecking not being necessarily attended with loss of life, the death of a slave engaged in it would be presumed to be caused by his own negligence. OlarJc vs. McDonald., 4 McO. 223 ; Felder vs. The B. B. Oo., 2 McMul. 403.
    . And at most, bailee is liable for loss only, “ if there had been an omission of reasonable diligence,” which omission must be proved by the bailor. Story, Bailments, §§ 408, 398, 399, 406, 410. Sudgert vs. Graham, 7 B. Mon. 662 : Beverly vs. Broohs, Wheat. 100. And, furthermore, whoever hires a slave for a particular calling, warrants his fitness to perform all its duties, and can claim nothing from the bailee if he is lost when engaged in their performance. Story, Bailments, § 390 a ; Heathcote vs. Pennington, 11 Iredell, 643.
    Consequently, as wrecking is one of the duties of the seaman, plaintiff must have borne the loss of his slave, had he perished when wrecking.
    And, lastly, as plaintiff knew that it was “the usual practice” for steamers to go wrecking, and did not object, he would be concluded from claiming any compensation for the loss of his slave. McLaughlin vs. Lomas, 3 Strob. 85.
    
      Mitchell, contra,
   The opinion of the Court was delivered by

GrLOVER, J.

To a want of jurisdiction suggested in the argument, it may be answered that no such objection was taken in the pleadings or in the Court below. (Varney vs. Vosch, 3 Hill, 239.) But if the objection be properly before us the reply would be conclusive, that the case does not involve any question respecting tbe allowance and apportionment of salvage, and, exclusively witbin tbe admiralty jurisdiction. The amount of salvage and tbe average apportionment have already been settled by tbe Chamber of Commerce at tbe instance of tbe defendants’ testator, and since bis death, tbe sum awarded to John, as steward, has been paid to tbe defendants. If, therefore, they have received money to which they are not legally entitled and which ex equo et bono belongs to the plaintiff, an action for money had and received will lie to recover it back, and this is the plaintiff’s action. Because it may become necessary in the adjudication of a cáse in this Court to consider or apply principles of law which .have been settled by other tribunals, it does not follow that the latter alone have cognizance of the case. In actions on contracts of marine insurance, an objection to the jurisdiction of this court could not be maintained, because in settling questions of sea-worthiness arising in such actions, we look for aid to the decisions of Courts of Admiralty, claiming a concurrent jurisdiction. If, therefore, the want of jurisdiction had been brought to the notice of the Court, we do not perceive that the objection could have availed the defendants.

The motion to reverse the decree rendered by the Circuit Court raises the question, whether salvage awarded to a slave while under a contract for hire, belongs to the owner or the hirer.

During the continuance of such contracts, the hirer is clothed with the authority of the owner. He alone directs the labor of the slave, enforces obedience by proper discipline, and is exclusively entitled to the profits derived from' his services. His rights to this extent are established by the cases cited in support of the appeal, and it must be acknowledged that, without a distinct recognition of them, all the strong inducements which operate in the making of contracts for the hire of slaves would be wanting. ■ By the appellant’s argument the general rule is admitted, that what a slave earns in the performance of those services which the hirer may lawfully require, under the terms of his contract, belongs to him; but cases involving the compensation awarded to salvors furnish, it is said, an exception.

Salvage service consists, not only of labor rendered voluntarily, but of the skill displayed and of the risk incurred by those who undertake it — and as an inducement to meet promptly, the hazards of such a service, the courts, actingupon principles of public policy, are prodigal in the compensation they bestow. A crew shipped to perform the duties usually required of mariners and apprentices in the navigation and preservation of the ship, are under no obligation imposed by their respective articles to incur the toils and dangers incident to wrecking, and such service is, therefore, said to be gratuitous and extraordinary, and the salvor is defined by Lord Stowell to be, “ a voluntary adventurer.” (The Neptune, 1 Hagg, 227.) If a seaman or apprentice should refuse to perform the service, obedience, could not be enforced either under the shipping articles, or articles of apprenticeship. But is the service of a slave either voluntarily or extraordinary, and can he be called a voluntary adventurer who discharges duties exacted by an express contract, and the performance of which may be commanded under the penalty of disobedience? Will a hired slave be influenced to incur great personal danger, which is one of the elements of salvage service, by the temptation of a reward which he cannot hope to enjoy ? Other distinctions may be found between agreements for the hire of slaves and shipping articles, and articles of apprenticeship. Salvage service is incident to the former but not to the latter; — is an ordinary service in the one case, and an extraordinary one in the other; is bestowed gratuitously by the mariner and apprentice, and is exacted from the hired slave by the command of his qualified owner.

Although contracts for salvage are not generally obligatory upon the owners of property saved ; yet a contract made by tbe master of a sbip witb tbe mariners to perform all tbe duties that pertain to tbe business of wrecking, in consideration of stipulated wages, might be enforced, and would require service neither voluntary nor extraordinary; because to such employment salvage service would be incident; and in what respect does tbe plaintiffs agreement witb Capt. Magee differ from such a contract. When vessels were seen in imminent hazard, tbe General Clinch and her crew were usually employed to render assistance, which was known to tbe plaintiff when be hired John, and consequently, be was advertised that this was in tbe course of the ordinary business for which bis services were required. Unless it be conceded that tbe hiring was in reference to such service, (and on this admission the appellant’s argument rests,) tbe risk attending it would be assumed by tbe hirer, and consequently be would be entitled to salvage, which is tbe consideration awarded for tbe labor, risk and skill — cujus est jpericuhim, ejns esse debet commodum.

John was one of the agents employed by Captain Magee, subject to bis orders and compelled by contract to yield obedience in discharging- a duty required in tbe ordinary course of bis business-and although, when tbe apportionment of salvage is made, reference must be bad to each individual composing tbe crew, tbe amount awarded for John’s services belongs to Captain Magee, — not because be incurred tbe attendant risk, but because bis contract witb tbe plaintiff confers the right to receive it. Such a disposition of tbe salvage would add to tbe inducements which influence masters of vessels to undertake tbe performance of a dangerous service. If a steamer engaged in tbe coasting business, — as tbe General Clinch was, — be manned by hired slaves in whole or in part, and salvage earned by tbe crew should be awarded to tbe owners of tbe slaves, tbe temptation to incur risk would be withheld from him who alone if governed by cupidity, can command tbe performance of tbe duty. If tbe danger to life is greater in this than in other employments, the owner can indemnify himself against the increased hazard by a stipulation for higher wages.

We do not perceive the analogy suggested between mariners and apprentices and hired slaves in respect to the compensation bestowed for salvage. The reward is offered to encourage personal labor and risk, and is distributed per capita among the adventurers, which distribution cannot efn-brace one who neither voluntarily incurs the danger, nor personally enjoys the compensation. As the service consists of different elements, it is argued that the actual value of the time and labor should be awarded to the hirer and the estimated value of the risk to the owner ; but this is inconsistent with the apportionment made among mariners and apprentices, who are entitled to the consideration given for the whole service and not for a part. If the hirer is entitled to the fruits of so much of the service as consists of labor, his right must rest on the terms of the contract which secure to him the earnings derived from the undivided service.

The only case to which we have been referred, in which salvage was awarded to a slave, is Mason et al. vs. The Blaireau, (2 Cranch, 240.) The amount allowed was directed to be retained for the owner of the slave, who was then resident abroad, and it does not appear that any other claim was interposed. The conflicting rights of owner and hirer were not discussed nor adjudicated. It may be that the slave was a mariner shipped for the voyage under shipping articles, or that some contract was made stipulating for a disposition of the salvage. It is enough, however, that the question raised here was not submitted to the Court nor was it decided.

The consideration which leads a majority of the Court to sustain the judgment below is, that it is consistent with the agreement of the parties, construed according to those rules which regulate contracts usually entered into for the hire of slaves, and as distinguished from shipping articles. If John was employed in a dangerous service and contrary to tbe terms of tbe hiring, it is admitted that tbe salvage awarded belongs to tbe hirer, because be assumed tbe risk and undertook to answer for tbe consequences of such service. If tbe service was authorized by tbe contract, then it would also belong to him, because it was incident to an employment for which the contract provides.

Tbe motion to reverse tbe decree is therefore dismissed.

WhitNBR and Mujstro, JJ., concurred.

Withers, J.,

dissenting. It is a necessary consequence of the relation of master and slave, that whatsoever of property the latter acquires belongs to the master. This follows, as a consequence, from the substantial principle, that tbe civil rights of tbe slave are centered in tbe master. Tbe doctrine is more generally true in relation of master and slave than in that of master and apprentice. It is not disputed that if salvage be earned by an apprentice, not a slave, that acquisition will be tbe peculium cf tbe apprentice, not of tbe master.

Tbe ground upon which such acquisition is held to be appropriated to tbe person who holds a slave upon a contract of hiring, is, that he is the owner of tbe slave, pro hac vice, that is, for tbe term of the hiring, and entitled to all acquisitions meantime, as tbe absolute owner is generally.

Many of our cases have treated him who hires a slave for a term, as the purchaser of the services of the slave for and during that term ; and such decisions are not only authority for us, but satisfactory authority, because they are founded on solid grounds. Tbe question is whether such doctrine carries to such temporary purchaser tbe salvage awarded, under tbe law maritime, to the slave, who performs tbe office of humanity, which that law so anxiously encourages and rewards ?

Salvage is tbe reward, allowed by maritime law to persons, wbo, though not bound by duty nor induced by interest so to do, save a ship or its loading from impending perils of the sea, or recover them after actual loss at sea. Such a person is called a voluntary adventurer, in the cause of humanity, at sea, for like service on land, in case of fire, storm, or earthquake, does not meet with the reward bestowed by the law of the sea.

It is argued that the law maritime addresses the sentiments of the master of a vessel, and hence he is to represent the slave under his authority on hire in the apportionment of salvage, and to absorb it, because it is his action and risk that is encouraged and rewarded. The question occurs, why then is the award made per capita; why is it the peculium of the apprentice or common sailor? If the humane emotion of the master of a vessel is the object addressed, then in those eases where a slave may be' the master, (and it is presumed he sometimes is,) the address, if effectual, must be to Ms sentiment of humanity reinforced by the reward in expectancy.

Then as to the risk, so great an element in this maritime principle of law. However, in a general sense a slave is property, he is a person when his life is at. stake, and if that be forfeited in obeying a humane impulse, the loss is the absolute owner’s, even though he be on hire, for if the master as in this case, hires his slave to a seafaring man, he knows that he may be called upon to perform the hazardous service of wrecking as incident to the service for which he is let to hire, and therefore, if his life be sacrificed, as the consequence of a wrecking adventure and by no special and blameable negligence on the part of him who hires, the entire loss of the slave as property is that of the absolute owner. The object of the maritime law of salvage, “looking (as expressed in 1 Sum. 400) to the common interest and safety of the whole commercial world, in cases of this sort,” may well be subserved by bolding that tbe absolute owner of a slave, let to hire, bas tbe inducement held out to bim of salvage, by way of reward, to commit bis slave to tbe hazards of wrecking when tbe contingencies of a seafaring life invite to tbe service, instead of clogging tbe contract 'of hiring with a restriction which would not harmonize with tbe enlarged humanity which lies at tbe bottom of tbe law of salvage, aiming at tbe great end of preserving life, in imminent peril, as well as property. Strongly corroborative of this view is tbe doctrine that tbe owner of tbe cargo of a salving ship is entitled to no salvage, because be is secure in tbe liabilities of others to reimburse bis loss if it occur from a deviation by tbe master for salvage, while tbe owner óf tbe vessel is held entitled to share liberally in tbe salvage, provided be bas not clogged tbe master in respect to salvage adventure, by restrictive instructions, and in tbe latter case bis reward will be far-more restricted. This award to tbe owner, is founded upon tbe policy of encouraging tbe owner to forbear such odious and (as it would seem unexampled) instructions, and in such, cases the amount awarded is irrespective of actual loss from consumption of time, enhanced wages, or loss of insurance:. (vide more at large upon this subject tbe observations of Justice Story in tbe case of The ship Nathaniel Hooper, 8 Sum. 575,) it is presumed that tbe master bas an implied authority from tbe owner to deviate or delay and imperil tbe ship in an adventure for salvage, and tbe owner shall freely participate in tbe reward consequent thereupon, to tbe end of an astute and high policy, to wit: that tbe master shall not be estopped, on tbe one band, to render a great office of humanity for a great and common good, nor tempted on tbe other to imperil, unreasonably and recklessly, by tbe hope of selfish gain, tbe property of tbe owner, and multiply bis liabilities, which would result from permitting bim to absorb tbe entire reward. There seems to be a striking fitness in this reasoning, for tbe case in band. There is an intelligible and politic principle in it. It combines tbe interests of the absolute owner of the slave and of him who hires in just moderation, and blends both with the solid considerations upon which the law of salvage reposes. The master uses the ship of one and the negro of another in the enterprise for salvage. It shall be implied in the absence of express restriction to the contrary, that he has equally the authority of each so to do; and that each may be induced to permit the risk, he shall, by parity of reason, have the reward. The inducement to the master. of the vessel,' (and if owner and master it will be precisely the samef);beingi'still sufficient to secure the exertion on his part which'the- lasy se%s with rewards to encourage to the reasop-abje,pxtent, yet, sofadjusted as not to inflame selfishness extravagantly.. • Qpe, consideration makes it especially desirable to;-give to thdb&ner the salvage awarded to or for the exer&qns’b'f-the slave.* It is this: that if he who hires have the rewalsd, he maybe tempted himself to trespass upon humanity by sending slaves held on hire into reckless danger of life, in hazardous communications with a vessel, or persons in distress, where he would not risk himself or others who acted under their own sense of -prudent restraint or circumspection, and when his own property or. that of his owners, may not be involved in the risk, equally or at all. The only way to moderate a dangerous selfishness on the part of the master, in respect of the vessel, we have already seen, is to award salvage to the owner of it, and the reason is stronger to do the like towards the owner of the slave in proportion to the enhancement of the risk to which the slave will be exposed. So far as the decision o'f the Court is led by the idea that the reward sought in this action, is part and parcel of the emolument earned by the slave in the course of his labor and service, and as such belongs to the estate of the de-ceasedwho purchased such labor and service, (and this upon the authority of a current of our decisions,) it is believed that error lurks in that proposition. The authorities cited do abundantly maintain, tbat salvage is awarded, not pro opere et labore, tbat it is not on any conception of quantum meruit; tbat it is above contract; tbat a Court of Admiralty will disregard a contract made by those wbo save witb those who are rescued; tbat the service is gratuitous, and the reward decreed, not for the time employed, the value of what is saved (for bow could life be estimated?) nor according to burthen of the labor, nor for the risk of life or property, for none of these singly, but for all combined, and in addition to all as well as in an eminent degree, the award is decreed, the xebbiuu. AbicjA ui jjiujjoi uy uj cuibcuvui always thau the risk of bis life, andPafere' consuming time and fatiguing body less«sc the risk of life being the risk of tbWowner ojfffslave, so far as the question in this cáse is concerned, this would point to the owner as the proper recipient of the bounty. Thei’e is not time, nor is there necessity to reproduce here, the authorities which amply sustain the propositions just above laid down. These propositions lift this case above the grounds upon which our own cases, touching owner and hirer, have been decided, which may be assumed to be right, but depend upon principles not at all common to them and the cause now before us. But if, in obedience to our cases, ■ there should be apportioned to the defendants so much of the salvage awarded for John as would compensate for the mere service, labor or time, then it may be done by making the requisite estimate growing out of the evidence touching that matter.

It is admitted, that the plaintiff knew when he let his slave on hire that he was committed to a service of which wrecking was an incident, and from this the consequence is deduced, that wrecking being a part of the service which it was known be might render, the emolument must go to him who bought the services. But non constat: the true proposition is, that he knew his slave might be employed in such extraordinary service or adventure and if lost thereby he could not call upon McGee for indemnity, yet he also knew that such risk was the owner’s, and the extraordinary earnings would be his.

Having indicated, and aiming at no more, the prominent considerations which withhold a concurrence with the majority of this Court, extended illustration must be left to those who have leisure and taste to pursue the subject.

Wardlaw, J. I join in this dissenting opinion.

Motion refused.  