2 Melville v. De Wolf, 4 El. & B. 844 (1855). Lord Campbell, C. J., distinguished the case from Beale v. Thompson, 4 East, 546, in this, that the contract there was only suspended; an embargo being only a temporary impediment.
3 The Crusader, Ware, 449.
4 Harris v. Watson, Peake, 72; Stilk v. Myrick, 2 Camp. 317; Thompson v. Havelock, 1 Camp. 527; Abbott on Shipping, pt. ii. ch. 4, p. 146; Harris v. Carter, 3 El. & B. 559; 25 Eng. Law & Eq, 220; The Araminta, 1 Spinks, 224; 29 Eng. Law & Eq. 582. See Hartley v. Ponsonby, 7 El. & B. 872; post, § 703.
3 The Two Catherines, 2 Mason, 334; Pitman v. Hooper, 3 Sumner, 60; The Neptune, 1 Hagg. Adm. 227; Hobart v. Drogan, 10 Peters, 122; Taylor v. The Cato, 1 Peters, Adm. 48.
§ 189. By a statute of the United States a seaman is entitled to his wages " as soon as the voyage is ended, and the cargo or ballast fully discharged at the last port of delivery." 3 The construction given to this claim is, that the wages are due upon the discharge of the seamen; and if by the terms of the contract, or the usage at the place where the contract is completed, the seaman's term of service expires with the mooring of the vessel at the wharf, and before the unlading of the cargo, his claim to wages commences from such time. The question whether the cargo must be discharged before such right accrues, depends upon the custom of the port, in the absence of a special contract.1
1 Pitman v. Hooper, 3 Sumner, 290; The Neptune, 1 Hagg. Adm. 227; The Two Catherines, 2 Mason, 334; Abbott on Shipping, p. 451, n. 1 (Am. ed. 1829), and note by Mr. Justice Story; Lewis v. The Elizabeth and Jane, Ware, 41; Taylor v. The Cato, 1 Peters, Adm. 48; Giles v. The Cynthia, 1 Peters, Adm. 203; Adams v. The Sophia, Gilpin, 77; Brackett v. The Hercules, Gilpin, 184; Weeks v. The Catherina Maria, 2 Peters, Adm. 424; Curtis on Merch. Seamen, p. 285. But the Supreme Courts of New York and Massachusetts have treated the claim of the seamen as a claim of salvage, and do not admit shipwreck to be an exception. Froth-ingham v. Prince, 3 Mass. 563; Coffin v. Storer, 5 Mass. 252; Dunnett v. Tomhagen, 3 Johns. 154. See also 3 Kent, Comm. lect. 46, p. 195. But see Jurgenson v. The Catherina Maria, 2 Peters, Adm. 424.
2 Mason v. The Ship Blaireau, 2 Cranch, 240, 270; The Neptune, 1 Hagg. Adm. 236, 237; Hobart v. Drogan, 10 Peters, 108; Curtis on Merch. Seamen, p. 289.
3 U. S. Laws, ch. 56, § 6, Act of July 20, 1790.
§ 190. By act of Congress, one-third of the seamen's wages is due at every port where the ship unlades and delivers her cargo, unless there be a contract to the contrary; and if the wages be not paid in ten days after the cargo and ballast are fully discharged, admiralty process in rem may be instituted against the ship.2
§ 191. A seaman has a lien for his wages on the ship itself, and on the freight. But he has no lien on the cargo, as cargo, although so far as the cargo is subject to freight, he may attach it as security for the freight that may be due.3 In respect to the ship it has been said, that " he has a right to cling to the last plank, in satisfaction of his wages.4 This lien of the mariner is not, however, of the same nature as the common-law lien, and is not dependent on possession.5 It is merely a special charge upon the vessel or freight, and follows it wherever it goes, attaching to the vessel, or to its proceeds, according to the option of the mariner,6 and entitled to priority of payment over all the other debts of the vessel.7 It is destroyed by the utter destruction of the vessel, by total and absolute payment of the wages, or by prescription, laches, or renunciation of his right, by the mariner. There is no fixed rule, as to what lapse of time will constitute such prescription, or laches, or renunciation of right, but each case must depend on its peculiar circumstances.1 In the admiralty courts of America, the statute of limitations does not run against suits by mariners for their wages.2
1 The Mary, Ware, 456, 458; The Ship Susan, 1 Peters, Adm. 165; The Philadelphia, 1 Peters, Adm. 210; The Happy Return, 1 Peters, Adm. 255; Holmes v. Bradshaw, Dunlap, Adm. Pr. 99.
2 Act of Congress, 20th July, 1790, ch. 29, § 6.
3 The Lady Durham, 3 Hagg. Adm. 200.
4 Lord Stowell, in The Sydney Cove, 2 Dods. 13; The Neptune, 1 Hagg. Adm. 227; Lewis v. The Elizabeth and Jane, Ware, 41; Pitman v. Hooper, 3 Sumner, 50.
5 Ex parte Foster, 2 Story, 145.
6 Sheppard v. Taylor, 5 Peters, 675; Brown v. Lull, 2 Sumner, 443; The Nestor, 1 Sumner, 73; The Neptune, 1 Hagg. Adm. 227; The Dunve-gan Castle, 3 Hagg. Adm. 129; Curtis on Merch. Seamen, p. 317, and cases cited.
7 The Madonna d'Idra, 1 Dods. 37; The Sydney Cove, 2 Dods. 1; The Ship Virgin, 8 Peters, 538; The Paragon, Ware, 322.
§ 192. But this right to wages and this lien on the vessel and on every plank of her, does not apply in cases where the vessel has been abandoned as derelict and become the subject of salvage by others; but only in cases where the vessel has been wrecked and broken up, and the seamen themselves are the salvors.3
§ 193. In the next place, let us consider by what means a mariner may lose or forfeit his wages. And first, as to the modes in which he may lose his wages. Usually we have seen, that whenever freight is earned, wages are earned, and the converse of this rule is generally true, that where freight is lost, wages are lost. If, therefore, there be a total loss or capture of the vessel during her voyage, the seaman loses his wages.4 But the hypothecation, or even the sale of the ship, if not made under the authority of a competent court, will not destroy his claim for wages, and the mariner will be preferred to the holder of the bottomry bond.1 We have also seen, that the wrecking of a vessel will not always destroy his right to wages.2 Any partial loss of freight will not touch the right of a seaman to his wages, but the loss of freight must be total.8 But in case of shipwreck, it would seem that the payment of a proportion of freight, for the cargo saved, would not entitle the seamen to wages in the same proportion.4 Nor would it seem, that, if freight be advanced, the mariner would have a claim for wages thereupon, in case of destruction of the voyage, since the shipper would be entitled to recover it.5