
    Wetmore and others against Henshaw.
    Where a shipcapturé duS ing her voyage, and her crew taken out and detained prisoners of tenvards, re-(theur6mast'Lr newcrew)epdrovoyage™ and kstporh ofderamedfreightitwasheid that the seamen who were ta-never restored wereh|ntitied whoievoyage! their°*proporti^e °palids to the recaptors.
    ERROR, on certiorari, from the justices’ court in the city of New-York. *
    e The plaintiff below, (Ifenshaw,) an American citizen, on the 7 16th of bebruary.^ 1813, signed shipping articlés, in the usua!r form, as chief mate of the American brig Criterion, owned by the defendants below, on a voyáge from New-York to a port or Ports in France, and back to a port in the United States. The plaintiff was to receive 50 dollars per month, one months wages being paid to him in advance. The vessel sailed from New-York on ^le 18th ^anuary, 1813, and, On her outward voyage,. was captured by a British crúizer, on the 14th oí February fol- , , J , , , , , . , lowing, who put on board of the brig a prize master and crew of British seamen; the plaintiff, and all the rest of the crew the brig, except the captain, were taken on board the enemy’s ship» atid never afterwards rejoined the brig. About two days a^ter the capture, the brig was recaptured by an American privateer> ancl carried into Port Passage, in Spain, where she or-, rived on the 23d of February, and after being detained by bad weather about a month, was carried by the recaptors into Bayonne, in France, where one half of the vessel, cargo, and freight were, by a decree of the American consul, adjudged to the recaptors, for salvage. . To ascertain the amount of the salvage, the brig was put up for sale at auction, and bought in by the original owners, and proceeded to La Teste, in France, where she arrived in October, and took in a return cargo, and sailed for New-York, where she arrived the 7th of March, 1814, having earned freight for the whole voyage, throughout, subject to the salvage paid to the recaptors- on her outward passage. After the brig was restored by the recaptors, a new crew was employed to navigate her, at an increased rate of wage's. The plaintiff having been detained as a prisoner of war in England, arrived at Nen-YorJc, in a cartel, soon after the arrival of the brig; and brought his action against the owners, in the court below, to recover the whole of his wages.
    The cause was tried by a jury, and the court charged them to find a verdict for the plaintiff for full wages during the whole voyage, deducting the month’s wages paid in advance, and the proportion of salvage ; and the jury, accordingly, found a verdict for the plaintiff for 325 dollars, on which the court below gave judgment.
    
      Griffin, for the plaintiff in error.
    Where a party comes into court to enforce the performance of a contract, he must show a performance of it, on his part The plaintiff, in the present case, does not pretend that he has performed the services for which he engaged. It is true that his failure has been occasioned by superior force, not by his own fault: but, on the other hand, it has not been occasioned by the fault of the owners. It is the misfortune of the plaintiff. He cannot call on the defendants' to pay him wages, for he has not fulfilled the contract on his part. He cannot rest his claim on a quantum meruit for services^ for he has rendered no service.
    I have been able to find but one case in which the precise question, now before the court, has been decided ; that is, the case of the Friends, in the Instance Court, before Sir William. Scott,
      
       who held, that a mariner captured in a ship, taken and carried to France, though the ship was recaptured, and arrived to her port of destination, was not entitled to his. wages beyond ^le t™e °f/capture. He considered it as a case of' private" hardship, arising out of the events of war. " • •
    Jt is true 'that Judge Peters, in the case of Howland v. The Lavinia,
      
       allowed the claim for wages by a mariner,, who had been taken out of the captured vessel, which Was afterwards recaptured, and, on paying salvage, arrived at her port- of destina- . „ x tian, and earned freight; but that was the case of a neutral Carried - in for adjudication, which is very distinguishable from1 the case of a Capture ^between belligerents : and the learned" judge himself, in a note to that case; makes this distinction, and thereby, recognises the doctrine as laid down .-by Sir William' Scott, in the case of. the Friends ; and in the cáse" of Watson v. The Rose,
      
       he held that an American "seaman, impressed out of an American " vessel by a British - cruiser, was not entitled to wages, though the vessel completed; her voyage, arid earned-freight; - The Case of Bergstrom v. Mills, was- that of a Smedislt seaman on board of a British ship ; and he continued on board y^tU the recapture. The case of Brooks v. Dorr, decided in the Supreme Court of Massachusetts, was that of a neutral vessel# an American, taken" and carried into France, and afterwards released; arid the case comes within the -distinction stated by1 Peters. - -
    Capture puts an end to the contract. Then what is the effect of a recapture ? If the seaman continues on board to "the time,' and is in a situation to perform serviced, he is entitled" to wages, on a quantum vietuit, but not on the ground of the original con-” tract. The case of Curling v. Long,
      
       tho ugh a casé of freight/ is analogous in principle. Eyre, Ch. J., says, that where a- ship, • after .capture and recapture; completes her voyage, the master,- or oWner, is entitled to, a recompense; not, however, on the foot of the old contract, but on the new-contract, which springs out of it; for the shipper having received'his goods, with the benefit of carriage, á meritorious consideration arises, which entitles - thé master to be paid for the transportation. So; in the' present case,,,if the plaintiff had remained on board, untiithe recap turc',• he could have maiiitaiiied assumpsit ■ for services rendered, a quantum meruit, but tiot on the original contract for wages*
    Though ransom is no longer permitted in England, it may be-well to see how the law stood there "when that practice was-permitted, ffi the case of Chandler v. Meade,
      Holt, Ch. J., said, that a mariner on board a, vessel cáptüred'by the enemy; arid ransomed, was not entitled to xvages, though the ship arrived in England, and delivered her cargo.
    It xvould be extremely hard and unjust, if the merchant, after paying a large sum for salvage, and being,obliged to hire a nexv erexv for higher xvages, should also be obliged to pay the wages ■of the old crexv, xvho xx-ere taken out by the captors. The hardship of the case xvill be more striking, if xve suppose several captures and recaptures, xvith salvage, and the expense of nexv crexvs. It is surely just, at least, that the old crexv, if they claim their xvages, should contribute to the expense of hiring the nexv crexv, as well as the salvage.
    
    
      Anthon and T. A. Emmet, contra.
    The error in the reaconing on the other side, arises from considering the contract for seamen’s wages as governed by the same principles as other contracts. But it is an anomalous contract, resting on the peculiar principles of maritime law. The maxim is, that freight is the mother of xvages; and the safety of the ship is the mother of freight. Cases may arise in which the seamen have performed their services to the last day, and a casualty may intervene which may deprive them of their wages. On the other hand,, cases may exist xvhere a seaman has performed no more than a day’s service, and yet hé may be entitled to recover xvages for the whole voyage. s The right of a seaman to recover his wages does not depend on the implied assumpsit arising from the performance of services, or a quantum meruit.. The court, if there is no cause of forfeiture, ‘ only inquire xvhethey freight has been earned or not. If freight is earned, nothing but the fault of the seaman xvill deprive him of his xvages.Thus, sick and disabled seamen, or those taken out of a neutral vessel carried in for adjudication, have been held entitled to their xvages, xvhere the ship has reached her destined port, and earned freight.
    Though capture annuls the contract, recapture revives it. Capture puts an end to the contract only because it renders it impossible to be performed ; for the same reason, it puts an end to the charter-party: but .a recapture completely restores it. It may be rather said that capture suspends the contract until the ultimate effect or event is known. If the contract wag i .1 absolutely and entirely annulled by capture, then, though the vessel might be recaptured the next day, the seamen might leave the ship.
    Ship owners and seamen may all be regarded as partners in the same adventure; they encounter a common peril,, and share the common calamity. In the case of the impressment-of a particular seaman, it is his individual and personal injury, not "a common calamity or peril. All the cases to be found in the books are in favour of the plaintiff below, except the case of “ the Friends,” decided by Sir William Scótt. He appears to have taken up that case, ut res nova, without examining prior decisions or authorities, and ha's decided upon whát he thought to be the equity of the case. We shall not attempt, as has been done by Judge Peters, to support• that decision, by a distinetian between a belligerent and neutral capture. We meet ft, at once, and say it is not law; unless, perhaps, it maybe saved by the distinction noticed by Parker, J., in Brooks v. Dorr, that the seamen entered upon the voyage, under a special contract,'iv the run, so that their'wages depended orí the contingency of the vessel’s arriving other 'port of destination. however, who was counsel in that case, did not put it on that ground. He admitted the general rule; but insisted, that ás the seaman did not return to his ship as. soon as she was liberated, it amounted to a voluntary desertion. Lord Eld'on, in the case of Bergstrom v. Mills, did not assent to the doctrine of Sir WilHam Scott; as' to capture, but admitted the general rule, arid put the casé on the ground that the vessel arrived at her port of destination, and earned freight. The case of Beale v, Thompson
       also supports the doctrine- for which we contend; that where freight is earned, and there is no fault in the seaman, the act of -God, or a public enemy, as an accidental wound, sickness, or capture, wall not deprive him of his wages. .The samé principle is tobe found in the French ordinance.
    
    That the master has been obliged to hire a new?- crew tó carry-on the ship to her ultimate port of -destination, can make no difference in this case, any more than in the case of hiring a mariner, in the place of one who has become sick or disabled by accidentri.
    
    
      
      Wells, in reply.
    
    
      Capture puts an. end to th~ contract fo wages during the voyage in which freight wa~ to become due and the reason is, that the contract cannot be performed by the parties.
      
       Recapture restores the contract, because the capacity to perform is restored. But wh~e a seaman is separated from his ship, he cannot perform his contract, His capacity to perform is not, in that case,, restored; and it is on the ground of his being in a capacityto perform his contract, not that the vessel has performed her voyage, that be beáomés entitled to wages. Suppose a vessel abandoi~ied, from necessity, at sea, should, afterwards be taken possession of, and carried into her port of destination, could the seamen who had ab~mdOned her claim their wages?
    
    
      In Beale v. Thompson,
      
       Lord Ellenbo rough says, "the right of the mariner to wages ~Iepends, first, upon the earning of freight by his owners in that voyage for which be is hired 5 and, secondly, upon the performance by the mariner of the service he has agreed to perform, in respect to such owners, during the voyage.” But the counsel on the other side puts the performance of service out of the case, and makes the right of the mariner to wages to- "depend solely on the earning freight. It has been said that the act of God, or the king’s enemies, cannot injure the plaintiff’s rights. The act of God may excuse the non-performance of the contract; but it can afford no foundation for a claim for wages, where no service has beén performed.
    In all the English cases, except* perhaps, that of Bergstrom v. Mills, the seaman, after the accident, has been restored to his ship, and in a capacity to perform his contract. In the case of Pratt v. Cuff, tried before Lord Kenyon, and cited in Thompson v. Rowcroft,
      
       and in Beale v. Thompson, the seaman, after being imprisoned seven mmiths, wa~ re'eased, with the vessel, and proceeded in her on the voyage. A seàthau, in such case, i~ considered as restored, by way of remitter, to his former state, and the contract as having continued without interruption. It is like a seaman’s returning to his duty, and,being received by the captain, after a forfeiture of wages. In the case of Bergstrom v. Mills, it is not distinctly stated that the seaman was not restored to his ship, or that he was in a capacity to perform his stipulated services. It is fairly to be inferred, however, that he was restored, and did perform his contract ; and if that was the fact,  then that case agrees With all the other cases decided in England. On the principles of the common law, them there can be nor question. • .
    But it is contended, that, by the principles of the marine law, it is enough to entitle the seamen to wages, if freight has been earned, and he has. been disabled from performing his contract, by no fault of his own. We impute no fault to the plaintiff, It was his misfortune ; but we ¡insist that:We ought not tío bear his misfortune as well as our own. ,
    As to the rule relative to seamen disabled by sickness, that rests on the principles of the, common law and humanity. . If a¡ servant.is taken sick in his master’s service, the master cannot turn him adrift, but is bound to take care of him during his sickness; Sickness is a temporary disability; the party, may return.,to Ms duty j aqd, on principles of. common law and com-t mon sense; he ought not to losé his wages. • '
    As to the death of seamen, it has been said, that, if a seatnap ^lies during the voyage, his legal representatives may recover his wages for the whole voyage remaining to be performed, But this, is manifestly unreasonable. Sickness produces a ternporary incapacity, but de<ith puts an end to the possibility of the seaman’s performing the. residue of his contract,. It is true, that Judge Peters so decided, in the case of Watson v. The Neptune,
      
       and gave wages to the administrators of a deceased manner to the end of the voyage ; and he grounded his decree on what he supposed to'bd the principles of the laws, of Oleron, of Wisbuy, and of the Hanse Towns; but if those ancient laws and ordinances are attentively examined,; it will be found that they do not bear out the decision of that learned judge. . The. question which those laws intended to decide was, whether a mariner., who had died before the conipletion of the voyage^ was entitled to any wages, and they declare that lie shall have, I)is fultwag.es, that is, without gny deduction,,. up to the time of his death.  This was the construction put upon those laws _ _ , r r , . by- Judge Davis,
      
       of Massachusetts, in a case which came before him in the District Court of the United States.
      
       It is true that the decision of Judge Peters was affirmed by Judge Washington, on appeal to the circuit court of the United States, in the case of Jackson v. Sims,
      
       in 1806 ; but in Carey and others v. The Kitty, in the District Court of South Carolina, Judge Bee, in 1808, with those of Judge Peters and ^U(I§'e Washington before him, decided differently, and allowed wages for the deceased seaman to the time of his death only. go far, then, as the opinions of the judges of the courts of the United States are to be regarded, they are equally divided. The French Ordinance declares, that where a seaman, hired the .month,' dies during the voyage, bis/heirs shall be paid/ ^IS ^ages to the time of his death ; and where the hiring is for ,the whole voyage, out and home; for an entire sum, his heirs are entitled to half that sum, if he dies on the outward voyage, and the whole,, if he dies on the return voyage. And Heath, T, in the case of Beale v. Thompson,
      
       considers a seaman dying iii the course of the voyage as entitled only to a propor-/ tionate part of his .wages. Abbot seems to doubt whether a seaman, in such case, is entitled to,any wages.
    
    In'the case of Cutter v. Powell,
      
       the master gave, a note, pro».. mising to pay the seaman thirty guineas, provided1 he continued on board and did duty for the voyage from ‘Jamaica to Liverpool The Seaman died before the ship reached Liverpool,, and the court of K. B. decided, that his administratrix was not entitled to recover the Stipulated,wages, either on the contract, Or o@’. a quantum meruit.
    
    In the case of a mariner impressed during the voyage, Lord Holt
      
       held, that he was entitled to wages, pro tanto, or for -the: part of the voyage hé had performed before he was impressed.: In that case the seaman was taken out by, vis. major, and the ship; arrived -safe;: and.earned -freight. On the principle contended for by the counsel for the defendant in error, he ought to have recovered his whole wages; but Lord Holt decided otherwise.; and on what'principle, unless it was; that'he had not performed the services fpr Which he had contracted ?/ 1 '
    Judge Peters does not question the authority of the decision of Sir Wm. Scott, in the case of the Friendsbut-, the distinction which he states,, and which is a clear and sound one, supports' that decision. Thé French Ordinance, (art. 16.) , and: Valin, regards the capture of a seamanby ;an enemy. or pirate, as his .peculiar misfortune, and declares that lie can have no. claim whatever against the master or ship owner for his ransom or wages. And the 17th article^ of the same ordinance declares only, that if a .sailor, sent, by water or on shore, in the service of the ship, should be taken and be made a slave, his ransom shall be paid at the expense of the ship, without pre-. iudice to his claim for wages. This Valin considers as a to-a ° tally different case from that of a capture by an enemy, or where a pirate takes out a particular seaman and makes him a slave. Again; it may be observed that the vessel and cargo were sold in France to pay salvage; she was purchased in, and a new crew hired. Must not, then, the former voyage be considered as having ended in France.?
    
      
       4 Rob. Adm. Rep. 143.
    
    
      
       1 Peters' Adm. Dec. 123.
      
      See also, Hart v. Littlejohn, ib. 115.
    
    
      
       1 Peters' Adm. Decis. 132.
      
    
    
      
      
         3 Esp. N. P. Cases, 36.
      
    
    
      
      
         2 Mass. Rep. 39.
      
    
    
      
      
         1 Bos. & Pul. 637.
    
    
      
      
         Cited in Wiggins v. Ingleton, Ld. Raym. 1211.
      
      See Abbot on Ship (3d Ed.) 445. p. iv. ch. 3. s. 2 b.
    
    
      
      
         Dunnett v. Tomhagen, 3 Johns. Rep. 156. lcard v. Goold, 11 Johns. Rep. 279. Eaken v. Thorn, 5 Esp. N. P. Cas. 6.
      
    
    
      
      
        Chandler v. Grieves, 2 H. Bl. Rep. 606. Note. 1 Peters' Adm. Rep. 125. 128. 142. 155. and Sims v. Jackson, in note.
    
    
      
       In the case of Chandler v. Grieves, cited by the counsel, the verdict was for the wages only to the time the ship left Philadelphia, and the court having discharged the rule, the judgment could have been for no more than the verdict.
    
    
      
      
         4 East's Rep. 546-566.
      
    
    
      
      
        Valin, 748, 749. Liv. 3. tit. 4. art. 17.
      
    
    
      
      
         1 Peters' Adm. Dec. 116—149.
    
    
      
      
         Anon. Sid. 179. Wiggins v. Ingleton, Lord Raym. 1211. Chandler v. Meade, ib. cit. Hornaman v. Bawden, 3 Burr. 1844 Yates v. Hall, 1 Term Rep. 79. per Buller, J.
    
    
      
       4 East's Rep. 546-562.
    
    
      
       4 East, 43 Ib. 560.
    
    
      
      
        1 Peters' Adm. Rep. 142.
    
    
      
      
        Comyn, in, his-treatise on Contracts, (vol. 1. p. 375.) seem?, so iounderstand it. He states.tbe principle’decided .in that case to be, that “‘if a ship is captured in- tlie coursé ofJ tier voyage, but is afterwards recaptured, and, arrives, with her crerv, at the port of dslijvery, the seamen áre entitle^ to their wag^s.”, . ’ " 1
    
    
      
      
         Abbot on Ship. (Storey's ed.) 478, in note.
    
    
      
       Peters' Adm. Rep. 157.
    
    
      
       The expressions of the law of Oleron are: “ Item, quand il arrive qu’aucun maladie attaque un des mariniers de la Nef, en rendant service en la dite Nef, le maitre le doit mettre hors de la.dite Néf, et luy doit trbuver logis,” &c. u'Eí si la Néf étdifc preste a faire voyage, elle ne doit point demeurer pdur luy ; et s’il guerit, il doit avoir son loyer tout complant, en rabutant les frais, si le maitre luy en a fait: Et s’il meurt, sa fémme et ses prochains le doivent avoir pour luy.” Jugemens D'Oleroñ, 1. 7. Chirac, in his commentary on this article, says, that the I9th article of the Ordinances of Wisbury, the 45th article of the laws of the Hanse Towns, the 27th of the ordinances of Charles V., and the 16th of Philip IL, compiled for the Low-Countries, are all compiled or extracted from this law of Oleron, and are exactly similar, in regard to a mariner who falls sick, whether he recovers his health, or dies daring the voyage. Chirac, Les us et Coutumes de la Mer. p. 25. See also p. 143—174. These different maritime laws and ordinances may be traced up to the very ancient and celebrated code entitled 11 Consbloto del Mare, as the source from whence they have been derived. In the edition of the Consolalo, printed at Venice in 1737, with the Commentary of Casaregis, chap. 125,126* 127, it is said, “ That if a mariner shall be taken sick and die in the ship, he shall-be paid all his wages.” Se marinar o che sará ammalato et morirá nelle nave, debba esserc pagato di iuito il suo salaria, (cap. 125.) “ A mariner hired for the voyage, who, by the will of God, dies before the ship sets sail, ought to have a fourth part of his wages* which shall be delivered and paid to his heirs ; and if he should die after the ship has set sail, and before she arrives at her port, the half of the wages is due to the deceased mariner, and ought to be paid to his heirs: and if he has received the whole of his wages before his death, the whole shall belong to him, and go to his heirs.” Marirw.ro che sará accordatoin viaggio, et per voloniá di Dio muore innanzi di haverfatto vda, debba haver il quarto del salaria, et sia consignato, e data a gli heredi; et se morirá dipoi che havesse fatto vela, et innanzi chefusse dove la nave fata porto, le 7nela del.salaiio debba essere del morto, el debbasi dar alii suai heredi, et si havesse ricemdo iuito il salaria innanzi che morisse,.iuito. debba Csser suo, el data a i suo heredi, che patrone di nave, ne di 7iavilio non puó niente contrastai'e ne dimandare, (cap. 126.) ‘4 If the mariner is hired by the month, and shall die, his wages, for the time he has served, shall be paid: to his heirs.” Se il maiinaro e accordato a mesi, et morirá, sia pagato et data alii suo hgredi per guello che havesse servitto. (cap. 127. ) These-three chapters should be taken together; and the general position stated in the 126th chapter is to be understood with the clistinctions and explanations contained in the two following chapters. It is so understood by Casaregis, in his Commentary; and the sárae distinctions as to the time when the death happens, arid the terms of the contract of hire* are adopted in the ordinances of Charles V., and in the Marine Ordinance of France. It is clear, from a careful examination and comparison of all these ancient ordinances with the commentators, that the construction .put by Judge Davis on the Law of OlerOñ, is the true one: viz., that a seaman who is taken sick in the service of the ship, and dies, is entitled-to his wages to>the time of his death, without any. deduction for the time of his sickness. .
    
    
      
      
         This was the case of Natterstrom, administrator of Taylor, v. Ship Hazard, decided. 31st May, 1909. The elaborate and learned opinion of the Judge, in this case, is to he. found in the second volume of Hall's Law Journal, p. 359—382.
    
    
      
      
         Ordon. de la Mar. art. 13, 14. 1 Valin. Com. Liv. 3 tit. IV. p. 746.
    
    
      
      
         3 Bos. & Pull. 406-427. See S. C. 4 East, 546.
    
    
      
      
         Abbot on Ship. part 4 ch. 2. s. 3.
    
    
      
      
        6 Term Rep. 320.
      
    
    
      
      
        Wiggins v. Ingleton, 2 Lord Raym. 1211.
    
   Thompson, Ch. J.,

delivered the opinion of the court.

The plaintiff below, as mate of the American brig Criterion, signed the usual shipping articles for a voyage from New-York to a port in France, and back again to the United States. On the voyage, the brig was captured by a •British ship of war, and the plaintiff and the rest of the crew were taken from on board, and never afterwards rejoined the brig. About two days after the capture, the brig was recaptured by an American vessel, and restored, on payment of salvage, and performed her voyage, and earned freight. The plaintiff claimed, and has recovered, in the court below, his full wages for the voyage, deducting his proportion of the salvage, and the advance of one month’s wages. The question now submitted to this court is, whether this recovery can be supported?

There is little satisfaction to be derived from the examination of adjudged cases on this subject; for we find much confusion, and great diversity of opinion, among very able and learned judges on the quesiion. From an attentive examination, however, both of the English and American decisions, I am satisfied, that the weight of authority and principle is in favour of allowing full wages. It is a contract of a peculiar kind, .owing to the nature of the service, and is regulated by-principles of policy which are calculated to secure the faithful service of seamen. The governing rule is, that wages are payable out of, and depend upon, the fund created by the earning of freight, and not upon the performance of service. Hence, it has become a maxim, that freight is the mother of wages. The event of earning freight seems to be the contingency upon which the right to wages is to depend. It may seem, at first view, unjust, that ship owners should be compelled to pay wages when no service has been performed; but it would be, at least, equally hard upon seamen, to deny to them their wages, when the non-performance of the service was net occasioned by their own fault or misconduct, but by.. a vis major,- over which they could have no control,. ■ The great principle upon which the counsel -for the plaintiffs in error seem to have rested the cause is, that the capture dissolves the contract, and that the seaman’s right to wages, afterwards, depends upon the perfomance. of. services. This proposition appears to me too broad-to'be supported. If the contract-be dissolved, and entirely at an end, it would be optional with the ship owner, upon recapture* whether or not to employ the same seamen. But this never could be- admitted. No case'will be found to warrant such a principle. If the seamen are ready and willing to perform the service, agreeably to the terms of "the shipping articles, there can be no doubt but that the master would be bo(und to receive them. The effect of the capture is to dissolve the contract, if no' restoration takes. place, because it cannot be executed; but if, 'by any subsequent event, it can be carried into, execution, the rights of the parties are restored; and the performance of the contract is deemed only to have been suspended. ■ , • -

In the case of the Friends, (4 Rob. Ad. Rep. 116.) which has principally been relied upon by the plaintiffs in error, Sir WilHam Scott seems to admit, that the recapture revives, the. contract, as to the seamen on board at the time of the' recapture, It is not, however, to be denied, but that the point decided in that Case .is directly against the right' to reco ver wages in cases like the one before us¿ -In opposition to this, however, may be put the case of Bergstrom v. Mills, (3 Esp. Rep. 36.) where Lori Eldon says, there is no doubt, that if a ship does not perform her voyage, the sailors have no title to wages. Bat it is equally certain, that if the voyage is performed, a temporary interruption shall not defeat the'claims of the seamen. The temporary interruption here alluded to, was á capture," and détention of the vessel until recaptured.

. In the case of Curling v. Long, (1 B. & Pul. 637.) Lord Cli. j. Eyre, considers capturé as putting an end .to the cohtract , of freight; and that repapture and services performed, would raise a' consideration that would support an - action of assumpsit, not on the foot pf the old contract,, but on a new contract which springs out of it. Lord Aioanly* however, in Beale v. Thompson, (3 B. & Pul. 430.) denies this doctrine. He says, “ I admit that capture puts an end to the contract; but I do not admit, -nor do the cases establish, that capture one clay, and recapture the next, will put am end to the contract ; and with great deference to the dictum of Lord Ch. J. Eyre, in the case of Curling v. Long, I think that capture and recapture do not put an end to the voyage. That capture, followed by a total loss does, but capture followed by recapture does not; and God forbid it should; for when a ship is taken infra prmsidia hostis, and becomes the prize of the enemy, if capture puts an end to the voyage, the sailors are not interested to retake the vessel, for although the crew should rise on the enemy, and recapture and bring back the ship, they are to be told, she has been Captured, which puts an end to the contract for wages.”

The view here taken of the effect of capture and recapture upon the voyage, and the contracts in relation to it, appear to me to be founded in good sense and sound policy. It would be useless for me to travel over all the cases, and notice the various opinions which have been thrown out on this point; they are certainly not reconcileable with each other. And it strikes me, that the one maintained by Lord Eldon and Lord Alvanly, is the most fit and proper to be adopted. To these might be added that of Lord Ellenborough. (4 East, 558.) Malloy also lays down generally, that if a ship be taken, and after-wards retaken, and restored, and proceeds on her voyage, the contract is not dissolved.

If, then, the contract has not been dissolved, upon what principle can the seamen be denied their wages ? The voyage has been performed, and freight earned, and no voluntary act done by them to forfeit their wages. That the right to wages does not depend upon the actual performance of service is settled by the case of Chandler v. Greaves, (2 H. Black. 606. note.) In that case, the seaman was taken sick, and left on the voyage; and Lord Loughborough, at the trial, thought he was not entitled to wages: but the court, upon a motion for a new trial, said that the marine law ought to be followed in the construction of the contract, and directed an inquiry to be made as to the usage in the court of admiralty in such cases; and' it was ascertained to be the established rule, that a disabled seaman was entitled to his wages for the whole voyage, although he had not performed the whole. The same rule is laid down by Abbot, (354.) who observes, that as a seaman is exposed to the hazard of losing the reward of his faithful services during a considerable period, in certain cases, so, on the other hand, the law gives him his whole wages, even when he has been unable ío. fsnd'er-Ms services, if- his inability has proceeded from any hurt received in. the performance of his duty, or from natural sickness happening, to him in the coürse of the voyage. And such is also' the rule of the laws of Oleron, (art. 6. and 7.) the great, leading principles of which are received and adopted by most of the commercial nations of Europe" as a part of their maritime code. If such be the established rule with respect to sick and disabled seamen, it. must apply, with equal, if not greater force, to seamen forcibly taken- from a vessel. • There is- the same loss of service in the one case as in the other; and the same expense incurred by the owner to supply their places.

On an examination of the decisions of the courts in this country, so, far as they have fallen under rily observation, it appears to have been Uniformly considered, that seamen; in case§ like the present, were entitled to full- wages; This precise question has frequently come ■ under the consideration of Judge Peters, in the district court of Pennsylúañia, where he has held, that a seaman is entitled-, of not, to wages, according to the fate of the freight, which? is' a particular' fund upon which his right 1$. to depend. . If this fund is lost, the seaman suffers with the ship owner, and reaps not the reward of his dangers and his toils. But he is entitled to- wages ■ in all cases where the defect of service is not imputable to himself. If he has-been prevented from performing the voyage by force, he is to be paid-full, wages, deducting what-he may have earned in other service. ' It is highly fit and proper that a seaman should lose his wages where the non-performance of his contract is imputable to his own fault, negligence, or misconduct; but he ought not to suffer, or have his risk or responsibflity increased by circumstances he could not control, where the fund to. which he Ivas to look, though temporarily in danger, is -ultimately safe. (1 Peters’ Adm. Dec. 115, 123.)

The, principles upon which these decisions are, bottomed, have been sanctioned and affirmed by Judge Washington, in the circuit court of the United States. (2 Peters’ Ad. Dec. 184.) Cases like this, have been considered, in principle, as standing on the same' footing with those where the- non-performance of service has been occasioned by sickness; in which -cáse, although death'-ensues before,the termination-of the voyage,, full wages have been decreed by Judge Peters, and sanctioned by Judge- Washington. (1 Peters' Ad. 142. 157. and 157. note.) And this is, indeed, conformable to the principle adopted in Chandler v. Greaves, already referred to. Judge Bee, m the case pi Carey v. Schooner Kitty, (1 Bees’ Rep. 255.) held a different doctrine, and limited the recovery of wages to the death of the seaman; although he admitted that, according to the laws of Oleron, Wisbuy, and the Hanse Towns, wages for the whole voyage were recoverable; but he thought proper to follow the French ordinances, which, he said, were otherwise^ The case of Brook and Dorr, decided by the unanimous opinion of the supreme court of Massachusetts, (2 Mass. Rep. 39.) is directly in point on this question, and is entitled to very respectful attention. The late chief justice of that state, who was counsel for the defendant, did not pretend but that the plaintiff was entitled to his full wages, but argued that they were to fall upon the underwriters, and not upon the ship owners, they having abandoned. He admitted, that it was a general rule, that if a seaman has done nothing by which he has incurred a forfeiture of his wages, he is entitled to them, until the completion of the voyage; and said there was no case Avhere Avages had been recovered for part of a voyage, unless Avhere the mariner had died during the voyage. ■

Upon the Avhole, therefore, I think that the weight of judicial opinions on this subject is decidedly in favour of allowing to the plaintiff below his full Avages; and that this is in conformity .to the principles and policy which ought to govern the construction of contracts for seamen’s wages. The judgment of the court below must, accordingly, be affirmed.

Judgment affirmed.  