
    Fisher against Willing and another.
    Case Stated.
    The master the shipfor hu wages, unless it be so expressly agreed.
    A mortgagee of a ship at sea does not, merely by delivery of the documents, acquire such a pos= session, as to be liable to the master for wages accruing after the date of the mortgage.
    On the 5th of May, 1819, Robert K. Fisher, the plaintiff, was empl°ye<* by Robert Wain to command the ship Neptune 
      belonging to him, then bound on a voyage from Philadelphia to Batavia and Manilla, and back to Philadelphia, at the rate of fifty dollars per month.
    The plaintiff entered on board the ship, as master, on the same day, and proceeded in her as such from Philadelphia to Batavia, and back to Philadelphia, at which last mentioned port the ship arrived on the 16th of March, 1820. During all the time aforesaid and until the 16th of April, 1820, the plaintiff performed in all things his duty as captain and commander of the ship. On the 28th of August, 1819, the ship was sold, and assigned by Robert Wain to the defen-x dants, Thomas M. Willing and Richard Willing, in trust; and they, after the 16th of April, 1820, sold the ship, and received her freight; but the proceeds were insufficient to discharge a debt due to Palmer £s? Co., upon a bill of exchange, to' pay which the assignment in trust was made. There remained due to the plaintiff for wages for his services, from the 28th of August, 1819, until the 16th of April, 1820, the sum of 429 dollars 18 cents. The question submitted to the Court was, — whether, at law or in equity, the defendants were liable to the plaintiff for the amount unpaid of his wages.
    The assignment referred to was an indenture made the 28th day of August, 1819, between Robert Wain, of the city of Philadelphia, merchant of the one part, and Thomas M. Willing and Richard Willing, of the same city, merchants of the other part, reciting that, Whereas the said Thomas M. ■and Richard Willing were the holders of a certain bill of exchange, dated at Calcutta, the 20th day of August, 1818, and drawn by Thomas Rodman upon the said Robert Wain, in favour of Messrs. Palmer Co., for 5000 pounds sterling, payable four months after sight, at the current rate of exchange, which said bill was accepted by the said Robert on the 25th day of January last, and was afterwards duly protested for non-payment, and still remained wholly unpaid : And whereas the said Robert was desirous of providing a security for the payment of the said bill, in the manner therein set forth : Thé said Robert Wain, in consideration of the premises and of the sum of one dollar to him in hand paid, had granted, bargained, sold, assigned, transferred, and set over to the said Thomas M. and Richard Willing, the ship Neptune of Philadelphia, Fisher master, then on a voyage from Philadelphia to Batavia, &c. and back, together with all her masts, yards, sails, rigging, anchors, cables, boats, tackle, apparel, outfit, and appurtenances, (of which said ship, a bill of sale, in conformity with the Registry Act of the United States, had that day been also executed and delivered by the said Robert to the said Thomas M. and Richard Willing,J also the charter party of affreightment of the said ship, entered into and made on the 10th day of April last between the said Robert of the one part, and Abraham Kintzing, jun. and Jesse Wain of the other part, and all freight, money, demurrage, and other benefits which might be derived therefrom, together also with four certain policies of insurance, particularly described: To have and to hold, take, receive, and enjoy all and singular the premises aforesaid, with the appurtenances, unto the said Thomas M. and Richard Willing, their executors, administrator^, and assigns, upon this special trust and confidence, that is to say, that in case the said Robert Wain should, at any time before or immediately upon the arrival of the said ship at Philadelphia, well and truly pay to the said Thomas M. and Richard Willing, their executors, administrators, or assigns, the full amount of principal and interest then due upon the said bill of exchange, then that the said Thomas M. and Richard Willing, their executors, administrators, and assigns, should and would forthwith re-assign to the said Robert Wain, all and singular the premises thereby assigned; but in case such, payment should not be so as aforesaid made, then, upon the arrival of the said ship as aforesaid, to sell her, either at public or private sale for.the best price that could be gotten, to collect and receive her freight and other monies, under the ■the said charter party, and apply the same and the sales of the said ship to the discharge of the said bill of exchange ; and in case a loss of either the said ship or freight, or both, should occur upon the voyage for which the said interests were insured, then to recover and receive the amount from the respective insurance companies to whom it might appertain to pay the same, and to apply the said amount in like manner; returning to the said Robert, his executors, administratcrs, or assigns, any surplus monies which might remain in the hands of the said Thomas M. and Richard Willing, after discharging the said bill of exchange as aforesaid. Provided always, and it was thereby expressly declared to be the intention of the parties, that nothing therein contained should be deemed or taken to impair or affect the personal liability of the said Robert for the payment of the said bill, except to the extent of the sums actually received on account thereof from the .objects thereby assigned; but that he was in all respects to continue personally liable therefor, as if that assignment had not heen made, until the said bill was fully paid. (With a power of attorney' to act in the premises.)
    
      P. A. Browne, for the plaintiff,
    cited Whit. on Liens, 8. 13. 1 Ray. 393. Portland Bank v. Stubbs, 6 Mass. Rep. 422. 2 Black, f Christian's note) 445. Watkinsan v. Bernadiston, 2 P. Wms. 367. Abbot, 9, 10.
    
      Binney, contra,
    cited Wilkins v. Carmichael, Doug. 101. Clay v. Sudgrave, 1. Salk. 33. Baily v. Grant, 1 Ray. 632. Hook. v. Moreton, 1 Ray. 397. Hussey v. Christie, 9 East. 426. Smith v. Plummer, 1 Barn. & Ald. 575. Abbott, 85. 94. 460. Jackson v. Vernon, 1 H. Bl. 116. Twentyman v. Hart, 1 Starkie, 366. 1 Holt on Ship. 353.
   The opinion of the Court was delivered by

Tilghman C. J.

This cause comes before us on a case stated, to which I refer'for the material facts. The principal question is — whether the plaintiff, who was master of the ship Neptune, on a voyage from Philadelphia to Batavia, and back to Philadelphia, had a lien on the ship for his wages. The plaintiff contracted for his wages with Robert Wain, the owner, before the vessel sailed from Philadelphia. The defendants are but stakeholders, the money in their hands being held in trust for certain persons to whom Mr. Wain was largely indebted, and for whose use he executed a mortgage of the said ship Neptune, while on her voyage, to the defendants, with power to sell in case the debt was not paid in a certain time.

That the master has not-a lien on the ship for his wages, unless it is expressly so agreed with his owners, seems to be as well settled as any principle of maritime law can be. But the mariners and the mate have a lien, and may libel the ship in admiralty for their wages. The reason is, that the master : , . , ,; . , contracts with the owners on their personal credit, but the mariners and mate contract with the master on the credit of the ship. I refer to the cases of Clay v. Sudgrave, 1 Salk. 33. Hook v. Moreton, 1 Raym. 397. Baily v. Grant, 1 Raym. 632. Wilkins et al. v. Carmichael, Dougl. 101. Smith v. Plummer, 1 Barn. & Ald. 575. Hussie v. Christie et al., 9 East. 426, and Abbot on Ship. 460 (London Edition.) I know of no authority or dictum to the contrary, except it be the case of Watkinson v. Bernadiston, 2 P. Wms. 367, cited by the counsel for the plaintiff. In the report of that case by Peers Williams, no mention is made of a lien for the master’s wages ; but in Mr. Coxe's note, where the case is stated as extracted from the register, it is said, that the Master of the Rolls held the captain’s and mariners' wages to be a lien on the ship. There may have been something peculiar in the contract between the captain and the owners, which, gave him a lien on the ship, in that case; otherwise the Master of the Rolls was clearly mistaken in the law. For an opinion, that, in general, the captain has a lien on the ship for his wages, would be contrary to all authority both before and since the case of Watkinson v. Bernadiston. As to its being in equity, that can make no difference, for this is a point on which law and equity must be the samé. But it is said, that, in the case before us, the plaintiff is at least entitled to recover from the mortgagees (the defendants) his wages for all the time that he commanded the ship, subsequent to the date of the mortgage. It certainly is a hard case on the plaintiff, who seems to have little chance of recovering from Mr. Wain ; but that cannot alter the law. Pie contracted with Mr. Wain, and there is no privity between him and the defendants'. If the ship had come to the actual possession of the defendants, and they had retained the plaintiff in their service without any particular contract, the law would have raised an assumption. But the kind of possession which was vested in the defendants by the mortgage and delivery of the ship’s documents, is not sufficient to make them responsible. The plaintiff still acted under his contract with Mr. Wain, and if the debt for which the ship was mortgaged, had been paid at any time before or immediately after her arrival at Philadelphia, the property would have been revested in Mr. Wain. The case of Martin v. Paxton, decided by C. J. Abbot, (reported in 1 Holt on Shipping, 353) bears a strong resemblance to the one before us. It was there held, that the mortgagees of a ship, who were the registered owners, were not liable to a claim for wages by a sailor, though they accrued upon a voyage which was prosecuted for the benefit of the mortgagees,'and the ship’s freight and earnings during the voyage were, made over to them, Dy the same deed which conveyed the ship, as a security for advances. The reason assigned was, that the plaintiff'had made the contract on which he sued, with the mortgagor, (the master of the ship) and had given credit to him : he, therefore, and not the mortgagees, was liable.

The defendants have thrown no unnecessary impediments in the way of the plaintiff’s recovery. They have agreed to a fair and candid statement of the case, and are very willing to pay, if the Court shall think that the plaintiff is entitled to a recovery. But they have no right to give away the property of those persons for whom they act in trust. The plaintiff has done his duty, and acted faithfully, as master of the Neptune; audit would give me pleasure, if I could say that he is entitled to payment from this fund in the hands of the defendants. But this I cannot say, without setting a bad precedent, and breaking down established principles. I am of opinion that judgment should be entered for the defendants.

Judgment for the defendants.  