Bartlett v. Wyman

14 Johns. 260

Opinion

Spencer, J.,

delivered the opinion of the court. The court are of the opinion that the judgment of the court below is erroneous, and that the defendant below was not bound by the new articles entered into at Beaufort, for several reasons:

1. As being in contravention of the policy of the act of congress of the 20th of July, 1790 (Vol. 1.134.) This statute requires, unport in the United States, to any foreign port,J^fiare he proceeds prentices, or servants, declaring the voyage, and term of time for which the seame.n, or mariner, shall be shipped. In the preintermediate port, to ex: ^ o _ ________ deserting the ship, and to sanction this exaction by holding the contract, thus extorted, binding on the master of the ship, would be, not only against the plain intention of the statute, but would be holding out encouragement to a violation of duty, as well as of contract. The statute protects the mariner, and guards his rights in all essential points ; and to put the master at the mercy of the crew, takes away all reciprocity.

(a) on the voyage, to make an agreement in wrffl^or print, with every seaman, or mariner, on board, with the exception of apsent case this was done, a per month, for the whole

2. It is very clear that the owners are not bound by the master’s contract; because he had no power to make it. They were already bound by the shipping articles, and the obligation was mutual. He had no authority to give more than the sum for which they had originally stipulated to perform the voyage. If so, then the exaction of higher wages may be considered as an undue advantage taken of the master’s situation.

3. The promise to give higher wages is void for the want of consideration. The seaman had no right to abandon the ship at Beaufort; and a promise to pay them an extra price, for abstaining from doing an illegal act, was a nudum pactum.

4. The written agreement, at the port of departure, is the only legitimate evidence of the contract, and a mariner can recover nothing not specified in the shipping articles, where those articles have been entered into. (1 Comyn on Contracts, 369. 5 Esp. Rep. 85. Peahens Nisi Prius, 72. 2 Bos. <§* Pull. 116.)

5 In the present instance, the master never intended to be bound, for he never executed the new agreement.

On these grounds, the court' cannot hesitate in saying the judgment below must be reversed.

Judgment reversed.

Vide Callagan and others v. Hallett and Bowne, 1 Caines' Rep. 104.