
    Hoyt, survivor, &c. against Wildfire.
    NEW-YORK,
    Nov. 1808.
    A seaman was hired for a voyage from New-Yori to titmce’io^Ccmton, and back The ship'was laden with artides contraband of war, the course of the voyage to master^ under wantof water which was not deviáted, ¡norder to put into ^France** E and while proceed-mg m the route to that island, track of the ost tensiblevoyage, was captured by a British condemned^ The seaman board Po*f the •Snj'bVAfrigate, shipped to Lonwhénc»°he sai ledtoivilmingftom^henceto Nenn-Yirk. In an action against the owner for wages, it was held, that he was entitled to his wages, according to the contract, from the time he shipped on board, until his arrival in Nov:York, deducting such wages as he had earned and received during his absence.
    One seaman is a competent witness, in a suit brought by another seaman for wagys, earned on board of the same ship, though he may have a common interest with the plaintiff as to the point in controversy. The objection goes only to his credit.
    
    THIS cause came before the court upon a return to a certiorari, directed to the justices’ court in the city of New-Tork.
    
    
      4 Wildfire declared against Hoyt, in the court below, in an act^on °f trespass on the case, for the non-payment of wages due to him, as a seaman on board the ship Hampton, (Skillings, master,) of which Hoyt, survivor of Hoyt Es Tom was owner. Hoyt pleaded non-assumpsit, and on ... the trial, before the justices, Wildfire produced two seamen as witnesses, who were on board the same ship, and had like demands for wages against Hoyt. They were objected to, as incompetent, on the ground of interest, but were admitted by the court. The plaintiff below then called on the defendant for his shipping articles, who refused to produce them, alleging as a reason, that the suit was against the owner, and not against the master, who was absent, and must be supposed to have the articles, and kecause he had not had reasonable notice to produce them,
    The further hearing of the cause, was then postponed, from the 11th August to the 1st September, to give Hoyt an opportunity to produce the shipping articles. On that day , . - r _ , , the parties appeared, and Hoyt tailing to produce the artides, Wildfire was allowed to give parol proof of their contents. He proved, that on the 9th April, 1806, he shipped on board the Hampton, as a seaman, by signing the usual shipping articles, on a voyage from Nexv-Tork to Bombay, and from thence to Canton, and. from Canton back again to New-Tork, at 18 dollars per month. The ship was loaded with pitch, tar, canvass, rigging, anchors, and other naval stores, being contraband of war. The •ship left the port of New-York, and after being out about four months, and while on her direct course to Bombay, she was ordered to put into the Isle of France, under pretence of being in want of water. After being 48 hours out of her course to Bombay, and in her deviated route to the Isle of France, and in sight of the port in that island, she was, on the 1st August, 180S, captured by an English frigate, and the vessel and cargo were, afterwards, condemned. When the Hampton altered her course,for the Isle of France, and at the time of her capture, she had plenty of water on board, and was in no distress. The captain, when he was proceeding to the Me of France, charged the crew to say, in case the ship should be boarded by an English man of war, that they were putting in for want of water, when, in fact, there were several casks concealed in the hold. The plaintiff below was put on board the English frigate, and, after being detained for some time, he left her, and sailed for London, where he arrived on the 15th Aprils 1807. From London he came to Wilmington, and from thence to New-York, where he arrived about the 20th August following, after an absence of 16 months. From the time of his capture, until his return to New-York, he had been two months on wages, and had also received two months wages in advance, at the commencement of the voyage.
    
      Hoyt proved, that it was customary for a vessel to clear out for one port, when she was, in fact, destined for another ; that this practice made no difference as to seamen’s wages, nor was it customary to acquaint seamen with the concealed port of destination.
    The court below decided, that the act .of congress of 20th July, 1796, makes it obligatory upon the master of a ship, when he enters into a contract with a seaman, to go a voyage, not only to define the vpyage particularly, but imposes the performance of it as a duty ; that this act is to be construed strictly ; that no custom can be set up to destroy or vary a contract entered into in good faith, under á statute; that the contract here was not kept in good fa¡th . ancj tjjat a deceit was practised upon the plaintiff, who was, therefore, entitled to judgment for his wages, according to the contract, from the time he shipped O'ti board, until his return, deducting the sums paid in ád-i vanee, ánd the wages received while in another service ; and a judgment was accordingly entered for the plaintiff below, for 213 dollars.
    The cause was submitted to the court, without argument.
   Kent, Ch. J.

delivered the opinion of the court. The general rule of maritime law is, 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 ; but if the same be lost by the fraud or other wrongful act of the master, the reason of the nils does not apply. It is just, as Well as agreeable to the maritime law, to distinguish between the cases, in which the services of the seamen have not been rendered, in coll* sequence of the perils of the sea, and in which they have not been rendered, by reason of the act of the master Or owner. If a setuhah'be wrongfully discharged from the service, his Wages Will still continue down to the termination óf the voyage. (Abbott, 354.) So if the voyage be interrupted and lost, by the act of the master or owner, the seamen have a v.alid claim for an adequate compensation. The maritime ordinance of Lewis XIV. (des Loyers des Matelbts, art. 3.) provides for this Case, by Ordaining, that if the voyage be broken Up, after it has commenced, by the act of the owner or master, the seamen hired for the voyage, shall be paid their entire Wages for the Voyage, and those hired by the month, the wages due for the time they had served, and for the time necessary to enable them to return to the port of departure. “ The master,” says Pothier, in his remarks on this article, (Louage des Matelots, n. 203.) “ ought not to be discharged, from his engagements, because the break- ' , , ,,, ing up of the voyage was Ins own act, and a debtor cannot, by his own act, discharge himself of his obligation.’ The judgment in the court below was conformable to this rule of the French law ; and the rule on this subject in the English law does not, as I apprehend, differ from the marine law of France, though I have not met with any adjudged case that is in point, and a recent nisi prius decision looks strongly the other way.

In Eaken v. Thorn, (Abbott, 3d. ed. 444. 5 Esp. N.P. 6.) it was ruled by Lord Elknborough, that if a ship he not seaworthy when she sails, and the voyage is lost by that means, the seamen cannot recover their xvages ; for the rule is general, that the ship must perform her voyage to entitle the seamen to xvages, and the neglect of the oxvner in sending out an uns.eaxvorthy ship, might be the object of a special action on the case. Whether the loss of freight, by reason of the xvant of seaworthiness in the vessel, forms one of the exceptions, I am not pre-=pared to say ; but the rule that the voyage must be performed, is certainly not universal, and xvithout exception. A voyage lost by the fraud or misconduct of the master, and that so palpable as not to be denied, is not xvithin the reason of the maxim, that freight is the mother of wages. The policy of the rule xvas xvell and distinctly assigned in a case in 1 Sid. 179. xvhere it was held, that .if the ship perish by tempest, enemies, fire, Sic. the mariners lose their wages “ for if the mariners were to have their wages in those cases, they would not use their endeavours, nor .hazard their lives for the safety of the ship.” The counsel for the plaintiff in -the case of Abernethy v. Landale, (Doug. 539.) stated it .to have -been held, that -.if a ship be seized for debt, or for having contraband goods on board, the sailors had a right to their wages up to the time of the seizure. What decision or authority was alluded to, .does not appear : but this is undoubtedly the settled doctrine -in the treatises on the English marine law. In ■“ the discourse of oxvners and masters of ships and mariners,” contained in the “ sea-laws,” p. 457. it is stated as the rule of law, that “ if a ship happens to be seized for debt, or otherwise to become forfeited, the mariners must receive wages, unless in some cases where the wages are forfeited as well as the ship ; as if they have letters of marque, and instead of that they commit piracy, by reason of which there ensues a forfeiture of all. But lading prohibited goods on board a ship, as wool, and the like, though it subjects the vessel to a forfeiture, yet it does not deprive the mariner of his wages ; for the mariners having honestly performed their parts, the ship is tacitly obliged for their wages.” The same doctrine is maintained in Malynes’ Lex Mercatoria, (p. 105.) and in the collection of sea-laws annexed to Malynes.

We may, therefore, consider this as a.rule of the marine law, both in Lrance and England.

The act of the master, in sailing to the Isle of France, with articles contraband of war, under the 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 in good faith, and, as the court below observed, a deceit was practised upon the plaintiff. The ship and freight were justly lost, by a wilful violation of neutral duty ; and the plaintiff below had the soundest claim upon the owner, for the equitable compensation which was allowed to him.

A question was made in the court below, whether the other seamen, who had a common interest in the point in contest, were competent witnesses. The fact would, no doubt, work strongly against the credit of their testimony, and they have been held incompetent in a court of admiralty. (1 Peters’ Adm. Dec. 211.) But as they were not directly interested in the event of the suit, they were competent witnesses, by the rules of this court.

We are, therefore, of opinion, that the judgment below must be affirmed.

Judgment affirmed. 
      
       These are the words of Malloy, in his treatise de jure Maritimo. (v. 1. p. 354. b. 2. c. 3. sect. 7.)
      
        JRoccus seems to think that the seamen are entitled to their stipulated wages, if tiie voyage is not performed, provided they have been guilty of no fault, by which their wages would be forfeited. Solarium nauta debetur, quando navis magister ante tempus conventionis compleium, licentiam ei dederit, aut eum in terram reliquerit et per eum serviré non steterit• Item debetur nauta salartum convention, cum magistro navis, etiam si magister non naviget ex casu fortuito, et sine culpa ipsius magistri, licet nauta non serviat, dummodo ipse nauta absque licentia magistri navem non dcrelinquat. (De nav. et naulo. no. 43.)
      The principle that the seaman is entitled to his full wages, though he does not perform the voyage, when the defect of service is not imputable to his fault; or where the loss of the ship or service is owing-to the fault or misconduct of the owner, is recognised by judge Peters, in several cases which came before him in the district court of Pennsylvania. (Peters’ Adm. Dec. v. 1. p. 118, 122, 193, 276, and note, p. 481.)
     