
    Benjamin Hooper versus Nathaniel M. Perley.
    Where a seaman ships on a voyage to a foreign country, and back to the United States, and the ship is captured on her homeward voyage, the seaman is entitled to his wages for the outward voyage, and for one half of the time of the ship’s stay in the foreign port
    Assumpsit for a seaman’s wages against the defendant, master of the ship called the Volant.
    
    The parties submitted the action to the decision of the Court upon certain facts agreed.
    One Francis Moreal, an indented apprentice to the plaintiff, with his consent, shipped as a seaman on board the said ship, of which the defendant was master, on the 14th of January, 1812, foi a voyage to Europe and back to the United States, at the monthly wages of twenty-one dollars.
    
      The ship sailed from Boston, and on the 28th of March, 1812, arrived at Bayonne, in France, with her cargo, in safety. On the 16th of April, her outward cargo was unladen and completely discharged, on which day the master commenced loading with brandy for a return cargo, and on the 18th of May had laden on board 400 pipes of brandy. The ship was detained from this time to'the middle of September, waiting for a license from the emperor to depart with her cargo. The license being then obtained, and the lading completed, the ship was ready to sail on the last [ * 546 ] day of * September; but was detained by adverse winds and tides until the 5th of November, when she sailed from Bayonne, bound to Boston. In attempting to go to sea, she struck the bar, which obliged the master to take out part of her cargo, and to return to Bayonne to repair, where she was detained, partly by unfavorable winds and tides, and partly in making repairs, until the 12th of February, 1813, when she sailed for Boston, and on the 26th of March following was captured by a British vessel of war, and sent to Halifax, where she was afterwards condemned, with her whole cargo, as lawful prize, and thereby the ship, freight, and cargo, were wholly lost to the owners thereof. One month’s advance wages were paid to the plaintiff before the ship sailed from Boston, and sixty-five dollars more were paid him in France on-account of the wages due on the said voyage. The plaintiff’s said apprentice continued on board, and performed his duty as a seaman during the voyage, and until the ship was captured as aforesaid.
    If, in the opinion of the Court, the plaintiff was entitled to recover upon these facts, it was agreed that judgment should be rendered in his favor for such sum as should appear to the Court to be due to him; otherwise, that the defendant should have judgment for his costs."
    The cause was argued at the last March term in Suffolk, by French for the plaintiff and Prescott for the defendant.
    
      French
    
    contended that the plaintiff was entitled to recover wages to the time of the capture; or, if not, to the time of the ship’s leaving Bayonne; or, at the least, to the time that the outward cargo was discharged, and also for one half the time between that period and the time of the ship’s sailing from Boston. 
      
    
    
      Prescott
    
    insisted that wages were commensurate with freight; and in this case, the outward freight only being earned, the plaintiff’s claim legally extended only to the time of the discharge of the
    
      outward cargo in France. For so much and no more, the case acknowledges satisfaction. All * the time and [ * 547 ] labor, after the outward cargo was delivered, form a charge on the homeward voyage. The rule which has been sometimes assumed, of allowing half the time spent in the foreign port, when the homeward voyage has been lost, has been adopted for convenience, upon the supposition that half the time is probably spent in discharging the outward cargo, and half in lading the return cargo on board. But in this case, all the time, except the few days employed in unlading the cargo, was consumed in procuring the homeward cargo, or lost by contrary winds or other accidents, from neither of which does a claim for wages arise. 
    
    
      
       1 Peters’s Adm. Rep. 215. — Abbott on Shipping, Amer. Ed 489. — 3 John. 518, Hoyt vs. Wildfire.
      
    
    
      
      
        Abbott, part 4, c. 2, § 4. — 1 Peters's Adm. Rep. 192. — 1 Corayns on Contracts. 372, 373.
    
   The opinion of the Court was delivered at this term by

Jackson, J.

The general rule as to the wages of seamen, which has been for many years recognized and uniformly adopted in our Courts, is, that if the ship has earned one or more freights, and is afterwards lost before completing the voyage for which the seaman is hired, he is entitled to his wages up to the last port of delivery, and for half the time that the ship lies in that port.

In this case, it has, however, been argued, for the defendant, that this rule is assumed on the presumption that one half of the time is commonly employed at sucli a port in unlading, and one half in relading, a cargo; and that, when the fact is proved, the presumption must yield to the evidence, and the rule will no longer apply.

To this it may be answered, that we know of no exception in any adjudged case in this Court; although many cases are recollected, which were decided before the commencement of our reports, ip which the exception might have been made with as much propriety as in the present.

But if the rule were not so well established, it would not perhaps be easy to imagine one more just and equitable, as applied to the present case, than that before mentioned. The ship-owner contends that, as the outward voyage only was performed, he ought to be holden to pay only the wages for navigating the ship outwards, and for unlading her outward cargo. On the other hand, the seaman may, perhaps * with equal justice, allege [ * 548 ] that, as the homeward voyage only was lost, he ought to lose only the wages for the time employed in lading the homeward cargo, and for navigating the ship so far as she proceeded on her homeward voyage.

If a ship, on her outward voyage, is seized and carried into any port out of the course of her voyage, and is afterwards restored to the master, and arrives safely at her port of delivery, the seaman receives his wages for the whole time of such detention, although the ship be lost on the return voyage. On the other hand, if a ship is detained in like manner on her homeward voyage, and is after-wards lost, the seaman loses his wages for the time of such detention, as well as for all the other time consumed on the homeward voyage.

But in a case like the present, it is difficult to say whether the detention lengthened the outward or the homeward voyage. It would introduce endless perplexity and litigation, if we were in every case to inquire into the causes or motives which influenced the foreign government in ordering the detention, to enable us to decide whether it is attributable most to one or to the other part of the voyage. Suppose a vessel detained in a foreign port by an embargo imposed from political motives, without any reference to the particular ship, or the commerce in which she is engaged. There would be nothing in the nature or cause of the detention, to show to which part of the voyage it should be attributed. In truth, it would apply as well to one part as to the other; and it does not seem to affect materially the merits of the question, whether the embargo were imposed before the ship had discharged her outward cargo, or after she had begun to receive on board her return cargo. It is a detention at the port of delivery, between the outward and homeward voyage, and not constituting exclusively a part of either. If, therefore, we were at liberty, without reference to authority, to decide according to equity and good conscience, or to adopt a [ * 549 ] rule that would be most convenient * in practice, we could not, perhaps, devise one better than that heretofore established.

It appears, from the facts agreed in this case, that the ship arrived at her port of delivery on the 28th of March, 1812, and proceeded on the homeward voyage, with her return cargo, on the 12th of February, 1813. The plaintiff is therefore entitled to the wages of his apprentice to the 4th of September, 1812, which will include half the time of the ship’s stay at the port of delivery, 
      
      
         Locke vs. Swan, 13 Mass. Rep. 76. — Swift vs. Clark, 15 Mass. Rep. 173.— Moore vs. Jones & Al. 15 Mass. Rep. 474. — Giles vs. The Cynthia, 1 Peters's Adm. 203. — Boardman vs. The Elizabeth, 1 Peters’s Adm. 130.— Thomson vs. Faussat, 1 Peters’s Cir. C. R. 182. — Murray vs. Kellogg, 9 Johns. 227. — The Two Catharines, 2 Mason, 319.—Millet vs. Stephens, 2 Dane, Abr. 461.—Rand vs. The Hercules, 6 Hall Law, J. 21. — Jones vs. Smith, 4 Hall, L. J. 276. — Johnson vs. Walterstroff, 1 Peters’s Adm. 390. — Blanchard vs. Buckman, 3 Greenl. 1.
     