1 Brown v. Jones, 2 Gall. 481; Willard V. Dorr, 3 Mason, 91, 161; The Sarah Ann, 2 Sumner, 206; Pitman v. Hooper, 3 Sumner, 286; The Rebecca, 5 Rob. Adm. 102.
2 Ibid.; Brown v. Jones, 2 Gall. 481.
3 Lewis v. The Elizabeth and Jane, Ware, 41. In this case, Mr. Justice Ware says: " The general rule founded on principles of policy, is, that wages are dependent on the successful termination of the voyage. Seamen have then their threefold remedy, against the master, the owners, and the ship. Until that time their right to wages, and consequently their lien on the ship, are but inchoate and contingent. They become perfect on her safe arrival at the port of destination. Any misfortune that destroys the voyage, puts an end to the claim for wages, or rather prevents its ever coming to maturity. Shipwreck, followed by abandonment, seems necessarily to involve this consequence. The contract is dissolved. The connection of the crew with the ship is at an end. The property is derelict, and the finder acquires a possession and an interest, which the master and mariners cannot legally disturb. They have no longer a right to intermeddle with the goods. The rights of the owner continue, but if he does not appear and make his claim within a year and a day, the title, subject to the salvor's lien, by the law of nations, as now understood, accrues to the sovereign." The Aquila, 1 Rob. Adm. 34; Valin, L. 4, tit. 9, art. 27; Jacobsen's Sea Laws, B. 4, ch. 4; Dunnett v. Tomhagen, 3 Johns. 154.
4 Abbott on Shipping, pt. v. ch. 3, § 1, p. 571; Appleby v. Dods, 8 East, 300; Abernethy v. Landal, 2 Dougl. 539; Pitman v. Hooper, 3 Sumner, 50.
§ 194. Again, if freight be lost by the negligence or misconduct of the master or owner, or be voluntarily abandoned by them, or if the owner contract for freight upon terms or contingencies differing from the general rules of the maritime law, or if no cargo be furnished to the ship on either the outward or the homeward voyage, the mariner will be entitled to receive his wages; and these form an exception to the general rule, that freight is the mother of wages.6 The rule in this respect, as stated by Mr. Justice Story, is, that seamen are entitled to their wages, where freight is or might he earned.7
1 The Sydney Cove, 2 Dods. 11; The Madonna d'Idra, 1 Dods. 37; The Lady Durham, 3 Hagg. Adm. 196.
2 Ante, § 188.
3 Pitman v. Hooper, 3 Sumner, 67, 286.
4 Pitman v. Hooper, 3 Sumner, 67, 286; The Neptune, 1 Hagg. Adm. 227.
5 Pitman v. Hooper, 3 Sumner, 67, 286, overruling the anonymous case in 2 Show. 283. See Watson v. Duykinck, 3 Johns. 335; Griggs v. Austin, 3 Pick. 20.
6 The Saratoga, 2 Gall. 175; Woolf v. The Oder, 2 Peters, Adm. 261; Hoyt v. Wildfire, 3 Johns. 518; The Two Catherines, 2 Mason, 319; Pitman v. Hooper, 3 Sumner, 290; The Juliana, 2 Dods. 504; Van Beuren v. Wilson, 9 Cow. 158.
7 Pitman v. Hooper, 3 Sumner, 289. In this case Mr. Justice Story said: "The general formulary, as laid down in Lord Tenterden's Treatise on Shipping (Abbott on Shipping, pt. iv. ch. 2, § 4, p. 447), is this: * The payment of wages is generally dependent upon the payment of freight. If the ship has earned its freight, the seamen, who have served on board the ship, have in like manner earned their wages. And, as in general, if a ship, chartered on a voyage out and home, has delivered her outward bound cargo, but perishes in the homeward voyage, the freight for the outward voyage is due; so, in the same case, the seamen are entitled to receive their wages for the time employed in the outward voyage, and the unloading of the cargo, unless by the terms of the contract the outward and homeward voyages are consolidated into one.' To language so very general, certainly nothing further than general truth can be, or ought to be attributed. In truth, however, the language is far from being accurate; and it is not comprehensive enough to embrace the exceptions to the general rule, or even all the cases which fall within it. Thus, it is not true in every case in the maritime law, that the payment of wages is dependent upon the payment of freight; for if freight be earned, it is wholly immaterial, whether it be paid or not. So the earning of freight is by no means necessary in all cases to give a title to wages; as, for example, where the ship performs her voyage without the owner having furnished any cargo, or where there is a special contract between the owner and freighter, varying the right to freight from the general law; as where the freight is made dependent upon the performance both of the outward and the homeward voyage. The case of shipwreck, where materials are saved from the wreck, furnishes a still stronger illustration; for in such a case the seamen earn their wages, as far as the materials saved go, even though the freight for the homeward voyage is wholly lost. So that a moment's reflection will teach us, that the general text of Lord Tenterden does not contain a full or an accurate exposition of the whole doctrine applicable to the subject. It affords one, out of many illustrations of the maxim, In generalibus versatur error. If the doctrine be susceptible of any exact generalization (which perhaps it is not), it would be more correct to say, that the general rule, though not the universal rule, is, that the seamen are entitled to wages for the full period of their employment in the ship's service for any particular voyage, in which freight is or might be earned by the owner."
§ 195. In the next place, a seaman may, by his conduct, forfeit his wages either totally or partially, and whatever amounts to a breach of duty may affect his wages. Desertion, which, in the maritime law, signifies not merely an unauthorized absence from the ship, but an unauthorized absence with intent not to return, animo non revertendi, constitutes a forfeiture of all title to wages, and to rights in the proceeds of the voyage in the nature of wages.1 If a seaman quit a ship without leave, or in disobedience of orders, but with an intent to return to duty, although he would be punishable not only by personal chastisement, but by damages by way of diminished compensation, yet such conduct does not constitute the offence of desertion for which the maritime law enacts a forfeiture of all antecedent wages.1 By statute of the United States, however, it is enacted that forty-eight hours absence from the ship without leave, if a proper entry thereof be made in a log-book, shall be deemed a desertion.2 This statute is only construed to give to the mariner, who absents himself without leave, the space of forty-eight hours, within which if he return, he is not guilty of desertion. But if he do absent himself, it is at his own peril, and if he be unable, through any chance, to rejoin the ship, he forfeits his wages.3 But although desertion is generally attended with a total forfeiture of wages, yet there are cases, where the party either has a strong excuse, and the circumstances are exculpatory or alleviating, or where, having a locus poenitentioe, he acknowledges his fault, and offers to return to duty within a reasonable time, in which only a partial forfeiture will be decreed.4