
    *Joseph Galloway against Isaac W. Morris, Israel W. Morris, Thomas Greaves and Thomas Mifflin.
    Master of a ship no witness to prove the propriety of his discharge of a mate in a foreign port, without a release from the owners.
    Qu. Whether such release must not be by all the owners ?
    Such grounds of discharge must be very strong to justify it.
    A privilege of 3 tons or $500 in lieu of it, payable at a foreign port to a mate, in addition to his wages, is insurable property when laid out in goods at such port.
    A mariner loses his wages on a capture from the last port of delivery, and during the half of the time of his continuance there.
    This was a suit brought by a mate against his former owners. The declaration stated four counts.
    1. That the defendants agreed to receive the plaintiff on board their ship Ariel, as chief mate in her voyage from Philadelphia to Canton, and back again, at the rate of $40 per month; to allow him 3 tons privilege, and in defect of this privilege, -to pay him $ 500 by their supercargo ; to permit him to invest $3000, and have a state room. The 2d count laid the special assumpsit with some variation. 3d count for mate’s wages; and the 4th, a general count for money had and received.
    The written agreement recited in the first count, was dated 31st January 1799, and the facts on the evidence, appeared as follows :
    The Ariel sailed from Philadelphia, under the command of .captain Jacob Coates, and arrived at Canton on the 10th August 1799. The captain was dissatisfied with the appointment of the plaintiff as chief mate, and wished that a Mr. Clarke, who went out as second mate, had filled the higher office. Hence a coolness appeared evidently to subsist between them, though the plaintiff was generally thought well of on board, and deemed an able seaman, and experienced navigator. All the witnesses agreed, that during the voyage, in the straits of Sunda, the plaintiff was much intoxicated on his birth night, during the latter part of his watch, and unfit for duty. Two of the hands on board, (the third mate and Cooper,) swore, that this was the only period wherein he appeared to them incapacitated or drunk during the voyage, and that the captain had agreed to overlook it. But the two supercargoes declared, that he was intoxicated twice or oftener, and that they felt apprehensions from his conduct ; though the captain did not complain of him t.o his face, but suffered him to keep the log book.
    Captain Coates was offered by the defendants as a witness. It was objected, that he was not a competent witness, to prove the propriety of his discharging the chief mate ; and the case of Robinett v. the Exeter, in 2 Robins. Admty. Cases, 266, (American edit. 221,) was relied on, as being expressly in point. The counsel for the defendants admitted, that he could not be received as a witness, without a release from the owners. They * r-\ Accordingly produced a release from Israel W. Morris, 44 J one of the defendants, to the captain for this purpose. This was also objected to, as not being within the custom of merchants, and therefore the strict common law rule applied, that it should have been sealed and delivered by all the owners.
    The court ordered the captain to be sworn, without deciding on the latter exception; and declaring, that they left it open to future discussion, in case it should be necessary. He deposed, that he discovered the plaintiff to be addicted to drink during the voyage ; and particularly in the straits of Sunda, where the navigation was perilous, he was so very drunk as to be unfit for duty, during his watch, and moreover brought the third mate into the same disqualified state with himself. At another time he differed with the witness without cause, shook his head and fist at him, and threatened to leave the vessel, whenever he had it in his power. On the coast of China, he was also intoxicated ; and on the third day after the ship’s arrival at Canton, he was again in the same situation. On this latter occasion, the captain desired the doctor to continue in the cabin for its security, while he visited an English ship in the river Tigris; and in his absence the plaintiff quarreled with the doctor, so that the captain was obliged to return quickly, and put him under arrest. Coates declared, that he discharged the plaintiff on the grounds of his getting drunk frequently, threatening to leave the vessel, and being guilty of behaviour bordering on mutiny, on the 9th November 1799, at Canton. The reason he assigned for not admonishing the plaintiff for his improper conduct, was, his fears lest he should quit the vessel, according to his threats.
    On the day following his discharge, the Ariel sailed from Canton, on her return to Philadelphia, was captured by a French privateer, May 1800, and carried into Guadaloupe, where the vessel and cargo were condemned. The captain and mariners lost their wages from the last port of delivery. The plaintiff shipped himself on board another vessel bound for New York, and arrived there safely.
    It further appeared, that if the 500 dollars had been paid to him at Canton, he might have insured any merchandizes bought therewith, as other American vessels were there at the time, and insurances were effected by the captain and supercargoes.
    On the 29th August 1799, the plaintiff, by a letter directed from Wampoo to the supercargoes, resigned to them his privilege of three tons, on the terms previously agreed on between his owners and himself.
    The plaintiff’s present demand was for his full wages, from *the time of the agreement until his. subsequent arrival in Philadelphia on the 17th June 1800; the 500 dollars L ^47 claimed to be due at Canton, and the like sum for his estimated profits thereon; for his travelling expences and freight of baggage from New York to Philadelphia; and a small account for provisions for sailors paid by him ; leaving a balance of $962^fa claimed by him, after crediting the different payments which had been made to him.
    The defendants’ counsel contended, that it is not only a right, but a duty in a captain to discharge an officer on board, where he gives just grounds of apprehension. The master is responsible for his own conduct and those under him. In the case of the Exeter, cited from 2 Robins. 261, there was but a single instance of intoxication, when the party was not in the discharge of his duty. Here are repeated fits of drunkenness, threats to quit the ship, and mutinous conduct. No wages could be due to the plaintiff after he was discharged. A Court of Admiralty will consider the conduct of a mariner, when they estimate his wages. 3 Mod. 244.
    The claim of wages until the plaintiff’s arrival in America, after the Ariel had been captured, is contradicted by all the authorities. A mariner by capture loses his wages from the last port of delivery, and half the time he was in port to unlade. 1 Ld. Raym. 739. A seaman shall recover wages pro rata, for the part of the voyage he had performed before he was impressed, if the ship out of which he was pressed arrives at her delivering port. But if the ship is captured, though ransomed afterwards, he loses his wages. 2 Lord Raym. 1212. The wages of a seaman are not payable, if the vessel be lost or taken before she arrives at the port of delivery. 3 Burr. 1844. An officer or sailor who has engaged to serve on board a letter of marque, for certain wages during the voyage, and a share of all prizes, is not entitled to any part of the wages if the ship is taken before she completes her voyage, though he shall have been sent from the ship before the capture, as prize-master on board a prize taken in the course of the voyage. Doug. 520 (539.)
    The opinions found in the books, that seamen may insure goods bought abroad with their wages, do not apply to the present case, because the 500 dollars relate to the inward as well as outward voyage. Where sailors engage by the run, they are not entitled to wages unless the whole voyage is performed. And so was the decision in the late case of Cutter v. Powell, where the party died before the arrival of the ship. 6 Term Rep. 320. The perquisite of the average price of a negro slave, as £ 0-1 *sold in the West Indies, in addition to the monthly 44 J wages of 61. stipulated to be paid to a chief mate, could be considered in no other light than as wages, by Ld. Ch. Jus. Eldon, 2 Bos. and Pull. 119. The 3 tons privilege here come in aid of wages, and the 500 dollars to be given in lieu of them partake of an uninsurable quality, and like the three privilege slaves, free of expence, agreed to be delivered to a mate in addition to 5I. per month wages, on the ship’s arriving at the port of sale, in Webster v. De Tastet, could not be recovered in an action against the underwriters. 7 Term Rep. 157.
    The plaintiffs’ counsel divided their argument into three heads : 1. Was the plaintiff legally discharged by the captain ? 2. If not, does the capture of the Ariel preclude the payment of the $500, and reasonable profits thereon ? 3. Whether goods bought with the $500 were insurable.
    1. It is admitted that an officer may be discharged by the captain for gross misconduct, but it must be in a clear case. It is said in 1 Mol. 252 (lib. 2, c. 3. sec. 2) that if a mariner shall commit a fault, and if the master shall lift up the towel three times before any mariner, and he shall not submit, the master at the next place of land may discharge him. In the case of the Exeter before cited, Sir William Scott lays down the rule, that little less than absolute necessity is required to bear out an order of discharge in a remote country. 2 Robins. 226. And he gives the reason in the beginning of the case. If an officer is discharged for insufficiency, it may not be easy for him to procure another situation; and he is in danger of losing not only his present footing, but more particularly those prospects of promotion, which depend in a great measure on the character that has travelled along with him during his former employs, and has been the most valuable fruit of a life of service. However, only such indulgence should be shewn him as the equitable considerations of public utility require, which can seldom in such cases, any more than in others, be separated from particular justice. Ib. 216, 217. He gives his opinion with great good sense and knowledge of the world, as to the matter of drunkenness, and disobedience to lawful command. Ib. 218. And in pa. 219 he says, the captain should take the precaution to do, what always ought to be done in a matter so tender as the discharge of an officer; to call the attention of the passengers and crew to the circumstances attending it, that the propriety of the act may be properly warranted, and vouched by as much evidence as possible. In one instance of intoxication the witnesses agree, but for this the plaintiff was forgiven by the captain. It * -i *is true, the latter swells the account beyond the other 4491 witnesses, but there must be a strong bias on his mind. He is answerable to the plaintiff for his conduct, and is interested in defending its propriety. If the plaintiff had been an habitual drunkard, would not many instances of it have occurred in a voyage exceeding six months ? If he was negligent or inattentive to his duty, would not the captain -have openly reprehended him for it, instead of confiding the log book to his care ? Has no one else on board heard his threats to leave the ship, or been a witness of his mutinous conduct ? How comes it that all these particulars have not been pointed out on the different occasions to the passengers and crew on board ?
    2. It cannot be denied, that if the plaintiff was prevented by the captain’s unjustifiable act from returning in the Ariel, he must be considered as having performed the voyage. If he was illegally hindered from coming back in the ship he went out in, he ought to receive wages for returning in another -vessel. The 500 dollars for the three tons privilege was stipulated to be paid by the supercargo, and the payment must necessarily have been intended to be in Canton. 'If this sum is considered as wages, according to the reasoning of the adverse counsel, then it falls within the case in 1 Ld. Raym. 739, and the - other authorities; and the plaintiff might, if he had thought proper, have returned the goods purchased therewith by some other vessel in port, or in the vessel in which he had safely arrived at New York. It is clear, that if he had left the Ariel without reasonable cause at Canton, after receiving his wages thither and the 500 dollars, there might be a recovery against him by his owners.
    3. Almost all ordinances forbid the insuring seamen’s wages, and the reason is, that-their own interest may lead them to do all they can for the ship’s preservation. Pothier 33, § 39. But when it is said that no insurance can be made on seamen’s wages, it must be understood to mean on such wages as are not due till the voyage be entirely finished, for if they engage to go a long one, and covenant to have some money paid them abroad, to lay out in goods to bring home, insurance may be made on such goods. Wesk. 587. 1 Mag. 18, 19. In such a case, they are to be considered in the same light with other men. Park Insur. 13, 14. In most countries, seamen are allowed to insure such goods as they purchase with the wages they receive abroad, and the restraint in Great Britain is meant only to apply to such wages as are not due till the voyage is entirely fin ished. 1 Marsh. Insur. 75. 1 Emerigon 235, 236. In Webster v. Tastet, 7 Term Rep. 157, the wages were not to be paid until *the vessel arrived in the West Indies, and on that ground were held not insurable. It is possible that the *- ^ Ariel might have been saved from capture, if the exertions of the plaintiff had been added to those of the crew, in his return home. And if the 500 dollars worth of goods had been shipped in another vessel, it could have had no effect on the exertions of the plaintiff to preserve the Ariel.
   Shippen, C. J.

delivered the court’s charge, after stating minutely the evidence.

There can be no question but that an inferior officer may be guilty of such misconduct as may justify the captain in discharging him in a foreign port. But it ought to be in a clear case, and on good grounds. For the reasons urged by the plaintiff’s counsel, absolute necessity almost is required to justify the measure. Three grounds are all edged here, but of the threats to leave the ship or of mutinous behaviour, we have no proof except from captain Coates. It is very extraordinary that he did not complain of this at the time to the other persons on board, and he is certainly interested in defending his own conduct ; yet it must be acknowledged, that he is corroborated in his present account, by the letter he wrote to the plaintiff from Canton, assigning the reasons of his dismission. These circumstances will have their proper weight with the jury. As to the alledged intoxication, if we adopt the account of the supercargoes, that he was twice or oftener in liquor, it does not prove that he was frequently drunk. 'Once indeed in the Straits of Sunda he was most unjustifiably drunk, and unfit for duty during his watch; but after the captain had granted him his pardon for this misconduct, he ought not to have remembered it, except on some new offence. We hear of no other instance but this when he was disabled from doing his duty, and the habits of maritime life will not warrant us in laying down too strict a rule of morals, as applicable to seafaring men during a voyage of one half of the year.

If the jury shall be of opinion that the discharge at Canton was not justified by the circumstances of the case, they will consider that the 500 dollars was payable there by the supercargoes, from the nature of the contract, in lieu of the three tons privilege. This privilege he surrendered to them upon the terms of the contract, though he made no formal demand of the money. If he had received this sum and invested it in goods, which he had shipped in the Ariel uninsured, he would have lost the whole on her capture. But he might legally have insured such goods purchased with money then earned, and it appears by the *authorities cited, that there is a solid distinction between *451] such a case and another where the wages were contingent, and depended on the full completion of the voyage. Though he might also have insured the reasonable profits on such goods, yet the measure not being very common, it is not probable it would have been pursued by a seafaring man ; and it does not seem reasonable that the plaintiff should, as matters have turned out, be placed in so much better situation than all the other officers and mariners on board, against whom there has been no charge or insinuation of misconduct.

The plaintiff is not entitled to wages on the return voyage from China to Philadelphia. Where a vessel has been captured, the wages of the seamen are lost from the last port of delivery, and so has the law been held ever since the case in 1 Ld. Raym. 739.

Messrs. Ingersoll and Porter, pro quer.

Messrs. Rawle and Franklin, pro def.

So that upon the whole, if the captain unduly dismissed his chief mate, the wages in the voyage to Canton and for half the time of the Ariel’s continuance there, together with the 500 dollars, seem justly due to the plaintiff, after deducting the monies he has received. Interest is generally allowed on contracts at least from the commencement of the suit, but circumstances may alter the rule, of which the jury are the proper judges.

Verdict, pro quer. for 399r7oo dollars.  