Dunnett v. Tomhagen

New York Supreme Court

Dunnett v. Tomhagen

3 Johns. 154

CourtNew York Supreme Court

DecidedMay 15, 1808

StatusPublished

Cited by12 cases

This text of 3 Johns. 154 (Dunnett v. Tomhagen) is published on Counsel Stack Legal Research, covering New York Supreme Court primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook

Dunnett v. Tomhagen, 3 Johns. 154 (N.Y. Super. Ct. 1808).

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Opinion

Kent, Ch. J.

delivered the opinion of the court.

It is the general rule of the marine law, that freight is the mother of wages, and that the safety of the ship is the mother of freight. The reason of the rule is, that the'seamen may have an interest in the safety of the ship, and may thereby be induced not to desert her in cases of danger, but to use their utmost endeavour, even at the hazard of their lives, for her preservation.

No freight was earned in this case on the homeward voyage, because no part of the cargo was delivered by the ship» The contract was not fulfilled ; the voyage was not performed; and no freight was earned; it follows as a necessary consequence, that no wages were due.

The salvage of part of the cargo, does not take this case out of the general rule, because no freight was earned by the ship on the goods saved. It is not the saving of the cargo, but the earning of freight that entitles the seamen to wages. The owners of the ship had no valid claim for freight, as for a part performance of the entire contract, because the fulfilment of the contract, was not dispensed with by any act of the owners of the goods, nor indeed was there even a part performance by the owner of the ship. A salvor, and not the ship-owner, was here the deliverer of the goods saved. The seamen might, perhaps, have had a valid lien on the goods saved, for an equitable [157]*157compensation, in the light of salvage, but this gave them no right of action against the ship-owners or master, on their contract for wages. The claims of salvage and for wages are totally distinct, and are to be tested by different rule-s. It must, however, be admitted, that the loose manner of using these terms in some of the books, and in the old marine codes, tends to mislead, but the confusion is easily cleared, when the terms themselves, and the principles upon which those claims respectively rest, come to be understood and applied with due precision.

The court are, therefore, of opinion, that the judgment below must be reversed.

Judgment reversed.

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Kent, Ch. J.

delivered the opinion of the court.

It is the general rule of the marine law, that freight is the mother of wages, and that the safety of the ship is the mother of freight. The reason of the rule is, that the'seamen may have an interest in the safety of the ship, and may thereby be induced not to desert her in cases of danger, but to use their utmost endeavour, even at the hazard of their lives, for her preservation.

No freight was earned in this case on the homeward voyage, because no part of the cargo was delivered by the ship» The contract was not fulfilled ; the voyage was not performed; and no freight was earned; it follows as a necessary consequence, that no wages were due.

The salvage of part of the cargo, does not take this case out of the general rule, because no freight was earned by the ship on the goods saved. It is not the saving of the cargo, but the earning of freight that entitles the seamen to wages. The owners of the ship had no valid claim for freight, as for a part performance of the entire contract, because the fulfilment of the contract, was not dispensed with by any act of the owners of the goods, nor indeed was there even a part performance by the owner of the ship. A salvor, and not the ship-owner, was here the deliverer of the goods saved. The seamen might, perhaps, have had a valid lien on the goods saved, for an equitable [157]*157compensation, in the light of salvage, but this gave them no right of action against the ship-owners or master, on their contract for wages. The claims of salvage and for wages are totally distinct, and are to be tested by different rule-s. It must, however, be admitted, that the loose manner of using these terms in some of the books, and in the old marine codes, tends to mislead, but the confusion is easily cleared, when the terms themselves, and the principles upon which those claims respectively rest, come to be understood and applied with due precision.

The court are, therefore, of opinion, that the judgment below must be reversed.

Judgment reversed.

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Bluebook (online)

3 Johns. 154, Counsel Stack Legal Research, https://law.counselstack.com/opinion/dunnett-v-tomhagen-nysupct-1808.

Opinion

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