Baldwin v. Bennett

6 Rob. 309

Opinions

Morphy, J.

*

This suit is brought to recover the sum of four hundred dollars, alleged to be due to the petitioner, for his services as pilot on board the steamer John Jay during two months, at the rate of $200 per month, commencing on the 16th of November, 1838.

The defence is, that on or about the time mentioned in the petition, the plaintiff engaged and agreed to serve as a pilot on board of the John Jay in the Arkansas trade, and to continue thereon from that time, until the expiration of the steamboat season on the Arkansas river, which usually terminates on or about the 1st of July of each year; that on the 10th of January, 1839, the boat left this city, with a full cargo of freight and a lot of passengers, for Fort Smith, on the Arkansas river, and the intermediate landings ; that on or about the 16th of January, at the mouth of While river, and when the voyage had but fairly commenced, and long before the termination of the season, the plaintiff, without any just cause therefor, arid without any previous intimation of his intention so to do, deserted and abandoned the John Jay, contrary to the will of the captain thereof, and took a birth as pilot on board the steamboat Burlington, engaged in the same trade ; that as no pilot could be had at the mouth of White river to supply the place of the plaintiff, the captain was compelled to run the boat to Fort Smith, and return to New Orleans with but one pilot on board, lying by a part of every night, and sustaining damage by the wrongful conduct and breach of contract of the plaintiff, in the sum of $500, which is pleaded in reconvention. There was a judgment below for three hundred and seventy-five dollars in favor of the plaintiff. The defendants have appealed.

Our attention has been called to a bill of exceptions taken by the defendants, to the opinion of the inferior Judge refusing to reinstate this case on the jury docket, from which it had been stricken, in obedience to the 17th section of the act approved the 10th February, 1841, entitled “ An act to create two additional Sheriffs for the parish of Orleans, to fix the place of holding courts of justice, and for other purposes.” The ground taken was, that so far as the statute tends to regulate and control the trial of cases which were instituted, and in which juries were prayed for prior to its passage, it violates the twentieth section of the sixth article of the Constitution of the State, and is, therefore, void. The Judge was clearly right. Under the constitutional provision relied on, no acquired rights and existing contracts can be affected by subsequent legislation ; but it is otherwise with regard to remedies and forms of proceeding. Whatever relates to the manner of conducting and trying a suit, {litis ordinatio,) is' always within the control of the Legislature, who can, at any time, make any change or modification they may think conducive to the public good, and a proper administration of justice in our courts.

Action by the plaintiff for two months wages as the pilot of a river steamer. It was proved that he had been employed for the season, at certain wages, payable monthly ; that having determined to leave the boat, he applied to the clerk in the middle of a voyage, for the paymentof two months wages then due, who refused to pay him theí; that he never applied to the captain for payment, never informed him of the refusal of the clerk, nor gave him any notice of his intention to leave. It was shown that the captain remonstrated with him for leaving, and that his departure injured the voyage; also that the steamer had made one or more voyages during the first month, and had earned freight, by which the defendants were benefited. Held, that neither the expiration of the moijth, nor the failure to pay his wages, for which the law gave him a privilege on the vessel, justified the plaintiff in leaving the steamer during the voyage ; that by doing so, he forfeited the wages of the last month ; but that one or more voyages having been made during the first month, by which freight was earned, plaintiff should have been paid the wages of the first month, and that they were not forfeited by his subsequent desertion. The well settled principles of maritime law, that where an officer or seaman employed for a voyage, at monthly wages, voluntarily leaves the vessel, before its termination, without good cause, or the assent of the master, he will forfeit his wages— that if the vessel be lost and earns no freight, the mariner gets no pay, though engaged by the month — and that even where no definite voyage is specified or terminals fixed, the contract is subject to the equitable restriction that it shall not be terminated at a time, or under circumstances particularly inconvenient to the other party, should be extended as far as applicable, to persons engaged in the navigation of our rivers and along our coasts.

This opinion was delivered in June, 1843. So much of it as was overruled by the subsequent opinion on the re-hearing, is omitted.