
    *Van Beuren and Sands against Wilson.
    UTICA,
    August, 1828.
    Wages cannot, in general, be recovered by a nT'freigM^as been earned, and there is no fault of the master or owners occasioning the failure.
    It is not sufficient to entitle seamen to wages that the freight be lost without their fault. It must be owing to the fraud or other wrongful act, or some fault of the master or owner: or at least some act or omission on the part of the master or QWfler, over which the seamen can have no possible control.
    The defendants shipped the plaintiff, 3- seaman, on a voyage from New York to Newry, in Ireland, and thence back to a port in the United States : and the vessel was libelled in the Irish admiralty by one pretending to be owner, and the crew turned ashore, and dii charged by the captain. The vessel was detained more than a year and was finally restored; hut, in the meantime, had become so much deteriorated as to be unworthy of repair, and was abandoned in Ireland to the underwriters, and never returned to the United States. Held, that this was not the exercise of that superior force over the vessel, which should exempt the owners from liability to pay the plaintiff his wages, or damages for discharging him from the return voyage; and held, also, that the master and owners were not entirely free from fault; that they were hound to understand and risk their title; or, if it was contested in a mere civil proceeding, to take effectual means for liberating it, if" possible, on security, pendente lite so as to prosecute the voyage, and enable the vessel to earn freight.
    An action will not lie at the suit of a seaman against the owners, under the act of con gress, (7 Cong. sess. 2, ch. 62, § 3.) And see Ogden v. Orr, (12 John. 143, S. P.)
    jN error on certiorari, to the marine court of the city of J New-York. Van Beuren and Sands were sued below by Wilson, who declared in assumpsit for wages due him as a seaman on board the brig Charlotte, of which the defendants were owners; also for damages in discharging the plaintiff in a foreign port, against his will; also for work and labor done and performed, money paid, laid out and expended ; also for two months’ wages due the plaintiff by statute, for being discharged in a foreign port, and the vessel being sold.
    The defendants below pleaded the general issue, and payment, and gave notice of special matter.
    The cause was tried February 16th, 1827. The parties admitted that the plaintiff below, on the tenth day of February, 1824, shipped as cook on board of the Charlotte, to perform a voyage from the port of New-York to Newry, in Ireland, and from thence to another port, and back to a port of discharge in the United States ; and that the defendants were the owners of the brig. That the plaintiff was on board of the brig from New-York to Newry, at fourteen dollars per month ; and that the vessel arrived at Newry, and delivered her cargo. That then she was libelled by one Forrest, in the court of admiralty in Ireland, some time in the month of March, 1824, as the property of Forrest, claiming to be her owner. That the crew were then turned ashore by the proctor of the' admiralty court, and the captain took a place *on shore, where the plaintiff still continued to dp his duty, at the captain’s request. That on the 27th of April, 1824, the sum of $26 42, was paid the plaintiff, and a receipt given for services performed on board, from New York to Newry. That the vessel was detained in the custody of the admiralty, until some time in October, 1825, when, by a decree of the court, she was ordered to be restored to the captain and owners; which restoration was prevented by a mob, and the captain was killed. That the vessel had then become so deteriorated as not to be worth repairing, and was sold in Ireland and never returned. The owners abandoned her to the insurers, who compromised with the owners. The voyage was broken up, and no freight was earned on the return voyage. The freight earned on the voyage out was $1800. The amount of the freight and vessel was consumed in expenses, in Newry, in the litigation. If any thing in the nature of wages, compensation, damages, or allowance, was due the plaintiff for services, and for being discharged in Newry, it was admitted that the amount of the same should be $45, to wit, $28 for time, and. the balance, being $17, for his expenses in returning to New-York.
    Thomas Cahill, sworn for the plaintiff below,
    said the captain discharged the plaintiff below at Newry, on the 27th of April, 1824. The captain insisted upon the plaintiff’s signing the receipt in evidence, or he (the captain) would not pay him (the plaintiff) a cent; and if the plaintiff would not take it, the captain would not pay him any thing. The witness said he had a suit for a similar demand in the common pleas, as one of the crew of the same brig. That the captain said he would not pay the three months’ pay allowed by statute, into the hands of the counsel at Newry, or make any compensation other than that mentioned in the receipt. The court below gave judgment for the plaintiff for $45 damages and the costs.
    
      D. Lord, jun. for the plaintiffs in error.
    The services of the plaintiff below being terminated on his discharge he could recover nothing for work done; nor could he for money paid, since his expenses were neither at our request, nor for our *aeeount; nor could he recover as having fulfilled the contract of service, since the voyage was broken up.
    The plaintiff below could not recover any thing from the owners under the act of congress of February 28, 1803, § 3, (Ingersoll’s Dig. 1st ed. p. 146.) Ogden v. Orr, (12 John. Rep. 143,) is conclusive upon this point.
    It may be adcled, too, that the act relates to a voluntary discharge, and not to one where the voyage is broken up through necessity; or to a sale of a ship, or to the discharge of a seaman with his own consent; and the penalty of the payment is on the master.
    
    Under the principles of commercial law, by which this question must be judged, the plaintiff below can recover nothing.
    
      Freight is the mother of wages; and where, from the failure of the voyage, no freight is earned, no wages are due. (Abbot on Ship. pt. 4, ch. 3, § 1. Dunnett v. Tomhagen, 3 John. Rep. 154. Icard v. Gould, 11 John. Rep. 279. Wetmore v. Henshaw, 12 John. Rep. 324.) In the case last cited, there is a full discussion upon the law of seamen’s wages, by Justice Thompson.
    This rule often operates for the seaman. He may not complain when it operates against him. If sick, so that he is a burden instead of a benefit, by virtue of this rule he receives wages. If captured, and the vessel be navigated by a new crew, and earn freight, he receives wages without deduction; and this, by mere force of the rule, without regard to the policy on which it is founded; because, being separated from the ship, his interest in its safety, or in the performance of the voyage, can avail nothing to the owners. (See 12 John. Rep. 324, and Girard v. Ware, 1 Peter’s Circuit Ct. Rep. 142.) So, during a long embargo, he receives wages, according to the ultimate earning of freight, for a period when he renders no service. (Beale v. Thompson, 4 East, 546.)
    It is, therefore, entirely just to apply the rule on the other side. Accordingly, if, by capture, the voyage is defeated, and no freight earned, no wages are due. So when the vessel, being seaworthy when she sets out, becomes unseaworthy during the voyage; no freight being earned; no wages, *even for the period of service, are due. (Porter v. Andrews, 9 John. Rep. 350.) In the case cited, the court say, “ There is no case to be found which allows wages where no freight is earned, and when the loss of the voyage is not to be imputed to the default of the master or owner.” (See also Hindman v. Shaw, 2 Peters’ Adm. Dec. 264.) And where a ship was seized in a foreign country, and there condemned for a breach of its laws, wages after seizure were denied. (Oxnard v. Dean, 10 Mass. Rep. 143.)
    Now in the present case, the voyage was defeated without the fault of the master or owner. No homeward freight was earned, and therefore, no wages were due, the wages to the time of discharge being paid. And if no wages are due, it is but a subterfuge here to say that any thing is due in their stead.
    The owner cannot be made liable for the discharge of the mariner. •
    The seizure of the ship, under the claim of property, was no fault or misconduct of the owner ; and by the decree of restitution, which was conclusive as to the title, his right is affirmed, and he presented faultless on this score.
    The being subject to unjust claims and lawsuits is a contingency ; one of the chances to which, in some form or other, all things are subject. By it, the pursuing of the voyage was frustrated, the owners were prevented from employing the ship, the mariners from rendering any services to it. By the detention, not the fault of the owners, the ship becomes lost, no freight is earned, no fund is created for the payment .of wages, a common loss takes place. The owners lose the ship : they also lose the freight; they lose, in expenses, the freight which they had already received, and much more; the captain loses his life; the crew must lose their wages. If it is said that the ship being the owners’, any loss of the voyage growing out of its condition ought to fall on them, it is replied, that in case of capture, shipwreck, or supervening unseaworthiness, the misfortune is directly and primarily that of the ship ; while it is consequentially, but certainly, the loss of the seamen.
    *Was there any fault in the master’s discharging the crew, under the circumstances, after waiting as he did ? Was he to detain the crew in idleness, and at a ruinous expense, for which he could not be reimbursed for the indefinite period of a litigation in the admiralty in Ireland, concerning the property of an. American vessel ? Was it not correct in him, as soon as he saw the probable delay, to discharge his crew, who, if they had remained during the twenty-one months’ detention, would at last have lost their wages, because the ship became ruined by the delay, and could not earn freight home? Did the master, in this, break his contract, so as justly to deserve an award of damages against him and his owners, by setting the mariners free, when he found that it was impossible either for them to serve the ship, or for the ship to provide for their support or their wages ? In fine, was there ever, or can there be, a juster case for the application of the general rule of community of loss from common misfortune ? In the language of the court in Icard v. Gould, “ No freight was earned; and, as in case , of-loss by piracy, the seamen and owners must be deemed common sufferers. Wages cannot be exacted by the unfortunate seamen from the still more unfortunate owners.”
    
      I. Clizbe, contra,
    relied on Woolf et al. v. The Brig Oder, (1 Pet. Adm. Dec. 261,) as sustaining the claim of the plaintiff below. It was (he said) a case somewhat similar to the present. The brig was seized for the debts of the owner, in a foreign port. A claim was made for wages, pro tanto, and allowed, Two months’ pay in addition was also claimed, and damages for the board and expenses of the seamen; but the court, not being satisfied that the seamen were residents of, and intended to return to another country, allowed only one month’s pay additional.
    In the case cited,- the principle on which the claim of the present plaintiff below is founded, is established; and although the amount allowed is less in that case than the judgment in this, that fact does not affect the question, as it was the effect of a circumstance which does not exist in the present case, It is admitted that the plaintiff below has in fact *sustained damage by being discharged in Newry, and that damage is fixed at $45. His damage was, in fact, occasioned by the act of a third person; and it is a maxim in law, that where one of two innocent persons must suffer by the act of a third, he who has enabled such third person to occasion the loss, must sustain it. (Lickbarrow v. Mason, 3 T. R. 70.) The defendants below in this case gave the occasion for the act of the third person, which caused the loss,
    But in this case the defendants below are not innocent; for the vessel was libelled on a claim which had some foun dation, or had none; if there was a foundation, it must have been created by some act or neglect of theirs. The controversy was for the title or ownership of the vessel. The plaintiff below could not by possibility have any agency in putting the title of the brig in question. There was nothing analogous to the vis major, or inevitable necessity, or peril of the sea, or destruction by the elements, the usual case in which it is admitted that seamen lose their wages; but a simple civil proceeding in rem by a citizen of a foreign country against the property of a citizen of this. The seizure of the vessel was nobone of those casualties, the risk of which seamen are understood to run, and with an understanding as to which they enter into their contracts of service. It was a misfortune which no remissness and no imprudence or negligence of theirs could have caused, and against which no care and diligence of theirs could guard.
    The claim of the citizen instituting proceedings (if color-ably founded at all) must have been on the ground of original ownership, or of a conveyance, either by bill of sale, mortgage, hypothecation, bottomry, respondentia, recognizance or statute, or on the ground of indebtedness by the owners' and the process of attachment against their property accidentally found in a foreign country ; each of which supposes some act or neglect of the owners, and renders them not legally innocent.
    Again, it is perfectly evident that the defendants below ought to have known that their title to the vessel was clear and unimpeachable before contracting with the plaintiff,. and subjecting him to so injurious a hazard as that of being discharged *in a foreign port, where the damage to him might be most serious.
    Suppose the defendants below had, immediately on the arrival of their vessel in Newry, confessed a judgment to a creditor residing there, under which the sheriff of the county had come and taken possession with the posse comitatus, and turned the crew out of the vessel: could it be endured that this should be called a taking of the vessel by a vis major 1 and where is the difference between such a supposition and the fact ? (Woolf et al. v. The Brig Oder, 2 Pet. Adm. Rep. 261.)
    But if the claim of the libellant was without colorable foundation, it is still more clearly apparent that the defendants below do not stand on such an equality of situation with the plaintiff, as to subject him only to the loss. In that case, the libellant and all concerned with him were trespassers and liable to answer to the owners in damages for all the loss they might have occasioned. While the discharged and injured mariner could only look to his owners for reparation, they could in fact recover, in their action of trespass, their own damages, and the damages of that very mariner; and for anything that appears in the case, the owners may have prosecuted such an action, and may have recovered in it the very damages for which the mariner is now contending. At all events, it does appear from the case, that the defendants below succeeded in the action brought by-the libellant; their vessel was decreed to be restored to them, and the expenses therefore must have been decreed to them also; and as they afterwards abandoned to the underwriters, and were paid by them for their vessel, they have in fact lost nothing, while the loss of the plaintiff below is admitted to be $45.
    The plaintiff below was discharged very soon after the libelling of the vessel, and long before it was or could be known whether she would be condemned as unseaworthy or abandoned to the underwriters, or earn freight on her return voyage ; and the only ground on which she was ultimately abandoned was, the injury she sustained from the delay and protractedness of the litigation, (which, as has already been shown, must have arisen from the act or neglect *of the defendants below.) The right of action of the mariner accrued on the discharge, and the equities of the parties must be determined from the facts which had previously transpired. Subsequent acts, unless by new agreement can exert no control over their rights, no more than could those which existed previously to the first shipping. (1 Pet. Adm. Dec. 186, 7, note.) The relations of the parties ceased on the discharge, (1 Pet. Adm. Dec. 203, 215, 254,) and the after unseaworthines's of the vessel could not affect the sailors. She was seaworthy when they were discharged. It is only where freight- is lost by disaster, as loss or capture, that seamen lose their wages. (Hoyt v. Wildfire, 3 John. 520.) Besides, the owners might have redeemed their vessel, by giving security to abide the event of the litigation, and so1 avoided the loss of her by the long delay.
    Seamen are entitled to their stipulated Wages, if they have been guilty of no fault by which their wages xvOuld be forfeited, although the voyage is not performed. (Hoyt v. Wildfire, 3 John. 520, 522, note and the cases there cited. 1 Pet. Adm. Dec., 182.)
    If the defendants below had wished to avoid this action, they should have complied with- the requisitions of the statute, and paid the 3 months’ wages into the hands of the consul at Newry. If they were not liable in this action, the provisions of the' statute are'virtually nugatory; for the vessel was finally sold in Newry. (Act. of Cong, of 28th February, 1803, 6 U. S. L. old ed. 206. 2 Pet. Adm. Dec. cxxv. cxxviir.)
   Curia, per Sutherland, J.

No general principle of commercial law is better settled, than that no Wages are allowed to seamen where no freight is earned; unless the- loss of the voyage and freight is to be imputed to the default of the master or owners. It- has accordingly grown into á legal maxim, that freight is the mother of wages. (Abbott on Ship. pt. 4, ch. 3, and cases there collected, 3 John. 154, 11 John. 279. Whetmore v. Henshaw, 12 John. 324.) In the- last case, this question is elaborately discussed by the Counsel and by the judge, who delivered the opinion of the court. See also 9 John. 350; 1 Peters, Adm. Rep. 142; 2 id. 264 ; 10 Mass. Rep. *143.) The rule is founded on considerations of policy, growing out of the peculiar nature of the service-; and is intended to give to seamen the strongest inducements to exert themselves to the utmost, for the safety and preservation of the ship. (1 Sid. Rep. 179.)

The rule being admitted, the question in this case is, whether the loss of the return voyage, and consequently of the freight, was owing to the default or misconduct of the owners or master of the vessel.

The vessel, after the discharge of her cargo at Newry, was regularly libelled in the Irish admiralty court, in March, 1824, by one Forrest, who claimed to be the owner; and the captain and crew were turned ashore by the proctor of the court. The captain provided for the crew until the 27th of April, when he paid them their wages to that time, and discharged them. The vessel was detained in the custody of the admiralty until October, 1825, when, by the decree of that court, she was ordered to be restored to the captain and owners; which was prevented by a mob, and the captain was killed in the affray. The vessel had then deteriorated so much as not to be worth repairing. The owners abandoned to the underwriters; the vessel was sold in Ireland, and never returned to this country. The voyage of course was broken up, and no return freight earned.

In Woolf and others v. Brig Oder, (2 Peters’ Adm. Rep. 261,) the vessel was seized in a foreign port for the debt of the owner; and the seamen were discharged. They were held to be entitled to their wages. This was, doubtless, on the well settled ground, that the seizure was attributable to the fault of the owner. (2 Bro. Adm. 182. Vin. Abr. Mariners, (E.) pl. 7. Mai. Lex Merc. 105, c. 23. Mol. B. 2. ch. 3, $ 7.) So in Hoyt v. Wildfire. (3 John. 520,) the seamen were shipped, ona voyage from New York to Bombay. The master deviated from his course, and sailed towards the Isle of France, under pretence of being in want of water ; and while thus sailing, was captured by an English frigate, and the vessel and cargo were condemned. It appeared that the want of water was a mere pretence; and the court say, “the act of the master, in sailing to the Isle of France, with articles *contraband of war, under pretence of a want of water, was a fraudulent act; and from the testimony in the case, there is every reason to conclude, that this was the original destination of the ship, known to the owner, though concealed from the seamen. The contract entered into with the seamen was not kept with good faith. A deceit was practised upon them. The ship and freight were justly lost by a wilful violation of neutral duty, and the seamen had the soundest claim upon the owner for an equitable compensation.” And the general rule is there repeated, that if freight be lost during the course of the voyage, by a disaster or peril, arising from accident or superior force, the seamen lose their wages; büt, if the freight be lost by the fraud or other wrongful act of the master, the reason of the rule does not apply. It is not sufficient that the freight be lost without the fault of the seamen. The capture or wreck of the vessel may be without their fault. It must be owing to the fraud, or other wrongful act of the master or owner, or else the1 loss of the freight carries with it the loss of the seamen’s wages.

The issue of the proceedings in the Irish admiralty court shows that the claim which was preferred against the defendant’s vessel, and which caused the breaking up of the voyage, was without foundation. What color there was for it, we have no means of judging, as the result only of the proceedings is stated in this case.

But I am inclined to think, that civil process, issuing at the instance of an. individual, for the purpose of trying a private right of property, is not that species of superior force which will exempt the owners of a vessel from the payment of seamen’s wages, although it may break up the voyage, and prevent the earning of freight. It does not seem to fall within the policy of the rule. (Vid. 1 Sid. Rep. 179.) Every individual is supposed to know his own title to the property in his possession; and to be capable of taking the legal precautions necessary to prevent that possession from being interrupted ; and the law is supposed to award an adequate compensation for the damage which may result from án unfoundéd prosecution, in the costs , and indeed express compensation *for loss of freight might be given in this instance to the successful party. (Vid. 3 Mason’s Rep. 165, 6.) Besides, there is hardly any civil proceeding, which necessarily changes the possession of the property, thé title to which is to be tried, until the final termination of the suit. In proceedings in rem, to enforce a claim of the alleged owner, the defendant can probably retain the possession of the vessel, or other property libel-led, or, at least have it restored, when the preservation of the property requires it, on giving competent security to return it, if finally condemned. The owners of the vesse in question, or the master, might probably,- on showing proper cause, and on giving security according to the course of the court, by deposit or otherwise, have retained, or been restored to the possession of the vessel, although libelled, and have prosecuted their voyage without any essential interruption. (Clerke’s Adm. Practice, tit. 41, 43.) It is no answer to this argument to say, that it was not, or may not have been in their power to obtain the requisite security in a foreign land. It is the duty of owners to furnish the masters of their vessels with the means of obtaining all the credit which the exigencies of the voyage may require. But independently of this consideration, the being subject to unfounded claims and lawsuits is a contingency, the peril and consequences of which, I think, ought to fall exclusively upon the owners. It is a matter of mere private concern, the damages or probability of which, the seamen have no means of calculating, and cannot, by any effort or exertions on their part, avert. But the perils of the seas, and the danger of capture, they can in some degree estimate, from knowing the destination of the vessel, the length of the voyage, the cargo on board, and the pacific or belligerent state of the maritime powers ; and they-can not only estimate the danger, and therefore exercise a discretion as to the voyages in which they will embark, but they have in their own skill, enterprise and courage, the means of diminishing, if not entirely averting it. These considerations appear to me to constitute a marked distinction between the two classes of cases.

*In Eaken v. Thom, (5 Esp. Rep. 4,) the voyage was broken up in its progress by the vessel being unseaworthy, without any imputed fault of the owner; and Lord Ellen-borough held, that though the mate could not recover his wages, eo nomine, yet, he might recover damages, in an action on the case. The suit before us was so shaped, as to cover not only a claim for wages as such, but damages for omitting to furnish a seaworthy ship, and discharging the plaintiff below, in a foreign land. The amount in either view, was admitted by the parties to he the same.

The plaintiff below, therefore, was entitled to wages, or, perhaps more properly speaking in this case, damages to the amount of his wages for the return voyage.

The plaintiff below could not sustain his suit under the act of congress of February 28th, 1803, (Ingersoll’s Dig. 146.) The case of Ogden v. Orr, (11 John. 143,) is decisive upon this point.

Judgment affirmed.  