Millaudon v. Martin

6 Rob. 534

Opinion

Garland, J.*

The plaintiff claims the sum of $1798 50, the balance of an account current between him and the defendant. The items in the account filed are, the balance of a former account rendered, and various charges of cash paid to the defendant, at different dates. The latter answers by a denial of any indebtedness to the plaintiff, but sets up a claim in reconvention against him for $6000, for services rendered as master of the steam towboat Pacific, which belonged to the plaintiff, for three years previous to May 1st, 1839, at the rate of $2000 per annum; for which he prays for judgment. When the cause was called for trial, the plaintiff offered no evidence to sustain his demand, but discontinued it, and at the same time pleaded the prescription of one year to the demand in reconvention. The defendant offered evidence to prove, that for about three years previous to May 1st, 1839, he was master of the steam tow-boat Pacific, belonging to the plaintiff, which was engaged in towing vessels from New Orleans to the Balize, and to sea, and back again, for hire. He proved that his services were worth $2Q00:per annum; and it is shown that the plaintiff sold the boat, about the 1st May, 1839. The demand in reconvention was presented and filed May 27th, 1841, more than one year after the suit was commenced on the account, and more than two years after the defendant had left the service of the plaintiff. On the plea of prescription, the court below gave a judgment against the defendant on his demand in reconvention, and he has appealed.

The plaintiff to sustain his plea of prescription, relies upon article 3499 of the Civil Code, which provides, that the action “for the payment of the freight of ships and,other vessels, the wages of the officers, sailors, and others of the crew,” shall be prescribed by one year. Upon this provision, apparently so clear, the counsel for the defendant have based a long and ingenious argument, to prove that the master or captain of a ship or steamboat is not an officer within its meaning, and that bis wages are only prescribed by ten years. They tell us, that among nautical men, the master of a merchant ship is not considered or called an officer, and that he does not form a part of the crew. Upon this subject, the record gives no information; but as our Code was framed by legal men, we are to presume they looked to legal works for definitions, and the meaning of particular words. — Bouvier, in his Law Dictionary, vol. 2, p. 105, gives a definition of the term “ master of a ship,” viz., “ the commander or first officer of a ship, a captain, &c.” The definition given by Professor Wilson of the words maitre de navire, is master, captain, or commander of a ship. Vide Wilson’s French and English Dictionary —verbo Maitre. The Lex Mercatoria Americana, p. 131, says, the master of a ship is he to whom is committed the government, care, and direction of the vessel and cargo. In their nomination,■'the amount of interest, not numbers, predominates ; “but when constituted, they, like all other officers of the public,” are accounta-. ble, &c. The male of a merchant ship is called “ the first officer under the master,” p. 181. Curtis, in his Treatise on' the Rights and Duties of Merchant Seamen, 161, says; “the master of a merchant vessel is that officer to whom is intrusted the entire command of the ship,” &c., appointed by the owners, and he stands towards them in a different light than towards third persons. Chancellor Kent says, “ the captain of a ship is an officer to whom great power, momentous interests, and large discretion, are necessarily confided,” &c. Notwithstanding these definitions, the counsel insists, that our Code, and the acts of Congress, do not consider the master or captain of a merchant ship as an officer. They first refer us to article 3204, Nos. 6, 7, II. It will be remembered that this article is one which states what privileges are allowed upon ships and merchandize. The first clause gives a privilege to the captain for his wages; and it was probably thought necessary to name him, as the commercial law, from motives of policy, did not give such a right. The second clause gives a privilege for money lent to the captain, to purchase necessaries for the vessel. It was necessary to name the captain, for the purpose of designating the officer to whom the money must be lent, to entitle the lender to a privilege. We see nothing in the 11th clause which can be viewed as declaring that the captain is not an officer of the ship, or calculated to raise such a presumption. It is the clause that gives the owners of goods, or merchandize, a privilege for damage sustained through the fault of the captain or crew. Article 3213 gives the captain a lien for the freight on the merchandize he transports in his ship, without which he would have lost a right accorded by the commercial law; but does that prove that he is not an officer ? The right is given, not because the captain is not an officer, but because he is the commanding officer. The mate would have the same right, if, by the death of the master at sea, or any other such cause, he should become the commander of the vessel. The name of captain implies an office, and conveys the idea of an officer, in the general understanding of the term. We have been referred to the act of Congress of 3d March, 1835, § 8, to prove that the master is not an officer. It commences by declaring, that “if any master or other officer of any American ship or vessel on the high seas,” shall maliciously beat or imprison the crew, &c., he shall be punished, &c. These' words, master or other, officer, the counsel tells us, prove that the master is no officer, and was not so'considered by Congress. To sustain this assertion, we are referred to another act of July 20th 1790, § 3, which provides, “ that if the mate, or first officer under the master, and a majority of the crew of any ship or vessel,” &c. Now, will not the words, “ mate, or first officer under the master,” as conclusively prove.that the mate is not an officer, as the words “ master, or other officer,” prove that the master is not an officer 1 It appears to us they do.

The counsel further rely upon a decision in 3 Sumner’s Rop. 209, to support their view of the case. This was a prosecution under the act of Congress of 1835, against the master of a ship, for beating and confining the mate; and the question was, whether the mate, who was called the chief officer of the ship, made apart of the crew. Judges. Story and Davis held, that he did form a part of the crew; and the opinion as clearly proves, that the master, too, is often included as a portion of the crew. In the piracy act of 1819, chap. 200, the public ships of the United States are directed to protect merchant vessels, and their crews, from piratical aggression, &c. This expression, as clearly includes the master and officers, as it does the sailors. So, in the piracy act of 1820, it is said, if any person, being of the crew or ship’s company, of any piratical vessel, shall land, &c., they shall be punished, &c. There cannot be a doubt, we suppose, that these words would include the piratical captain, if he were taken and prosecuted. In common parlance, we often hear it said, that “the vessel was lost, but that the crew was saved;” would any one infer from this, that the master was drowned, because, in technical language, he formed no part of the crew, and was not an officer 1

The counsel, in relying upon the French authorities, seem to forget, that it is a matter of regulation in France, under the Code of Commerce, and various ordinances, which keep up a distinction between the master and his subordinates. There are different grades of commanders. The captain, the master, and patron, depending on the size'of the vessels they command, and the voyages they make, whether foreign, or coastwise.

We have no doubt, that the master of a merchant ship or steamboat is an officer within the meaning of article 3499 of the Code, and that the action for his wages is prescribed by the lapse of one year.

We do not think, that because the defendant chooses to call his compensation a salary instead of wages, that it changes the law in relation to prescription.

The argument that steam tow-boats are not vessels performing voyages, as other vessels or steamboats, was met and decided in the case of Davis v. Houren et al., ante, p. 255.

We are further of opinion, that the defendant does not come within the exception of article 3500 of the Code, which declares, that the prescription does not ruri where there is a note given, or account acknowledged. There was no note, or account acknowledged in this case. On the contrary, the account of the plaintiff’ is denied in the answer. The last item in that account is dated the 26th of January, 1838, more than three years before the defendant set up his demand. It is not alleged, nor proved, that the sums which the plaintiff charges as having been paid to the defendant, were on account of his demand for services as master of the boat, nor can they be so supposed. The plaintiff has not proved they were paid at all, and as the defendant denies it, we take it to be true that they were not. But admitting they were so paid, the defendant cannot benefit by it, as more than three years have elapsed between the last payment and the presentation of his demand.

Judgment affirmed. *

In the cases of Littleberry E. Stainbach v. John Sharkey, and Caleb S. Benedict and others v. Edward Stow, from the Commercial Court of New Orleans; and of Paul Langlais v. Henry T. Williams, and another, from the District Court of Ascension, the judgments of the lower courts were affirmed, on appeal, in New Orleans, during the period embraced by this volume.

Footnotes

*

Bullard, J, was not present on the argument of this case, and, consequently, took no part in the decision.

*

Schmidt, for a re-hearing. The counsel of the appellant never contended, nor meant to contend, that the captain was not an officer of the ship, in the usual acceptance of the word officer. This, on the contrary, was distinctly admitted, and they traced the etymology of the word, from which it is evident that the captain, having important duties assigned to him, was unquestionably an officer, nay, the commanding officer of a vessel. If the controversy, therefore, had depended solely on the solution of the question, whether the captain is an officer in the usual sense of that word, as the court seem to suppose, no difference of opinion could possibly have arisen, and the counsel of the appellant would have abstained, both out of respect for the court, and for themselves, from urging any argument on a question so clear as to be almost self-evident.

The doctrine of the appellant’s counsel was this ; that the captain, although, an officer, was not one of the officers spoken of in the 3499th art. of the Civil Code, which provides, that the wages of the officers, sailors and others of the crew, are prescribed by one year.

The grammatical construction of the sentence shows, that the word crew controls the whole, and the provision is equivalent to the declaration, that all the officers, sailors, and others comprising the crew of a vessel, must claim their wages within one year after the termination of the voyage. The appellant contends that the captain of a vessel is not included in this provision. The Civil Code, when it intends that a law shall apply to the master, invariably uses the word captain. Vid. Civil Code, art. 3904, nos. 6, 7, 11; art. 3213, &c. The provisions of the 3499th article, were intended more especially for the protection of the captain, who hires the crew and all the officers, and who is personally liable for the payment of their wages, and who, in almost every case, pays such wages. It would be a strange anomaly to apply to the captain, and make him the victim of, a law, which, beyond all doubt, was made to protect him against the demands of those he had employed, after a certain lapse of time, and particularly in foreign ports, where he would, most probably, not be prepared with the evidence requisite for his defence.

The provisions of the 3499th article, are a literal transcript of the 433d article of the Code de Commerce of France, and the expressions on the French side of the Civil Code of this State, are copied, verbatim, from the last named article.

A general rule of construction, requires us to look to the motives and intentions of the legislature, whenever it becomes necessary to interpret ..the meaning of a legal enactment. So, when one country re-enacts a law already existing in another, the natural and the only legitimate presumption is, that the law thus adopted was intended to have the effect in the new country, which it had in the country from whose legislation it was borrowed ; and this inference becomes irresistible, when, on a comparison of the laws, you find, as in the present instance, that the language is identical.

But if this be true, the observations of the court, that “ the counsel, in relying upon the French authorities, seem to forget that it is a matter of regulation in France, under the Code of Commerce,” <Spc. are inexplicable.

It is evident, that the counsel have not forgotten the regulations of the French Code of Commerce, since, in both their oral and written arguments, its provisions are cited; and the doctrine which they have urged upon the court, is, that the regulations of the Civil Code of this State, being copied , from, and identical with those of the French Commercial Code, regard should be had to the latter in the intepretation of the former. The counsel of the appellant have also shown, that Pardessus, Droit Commercial, Vol. 3, p. 110, no. 667, says : “ Lorsqu’on vent distinguer le capitaine, et qu’il est en opposition avec ceux qui lui sont sulordonnés, ces derniers prennent le nom de gens de l’equipage.” Now the term gens de Véquipage, is the identical expression used in the 3499th article of the Civil Code of this State; and as it is only used in opposition to the captain, and to designate the persons under his command, the provision is inapplicable to him.

In addition'to this, it should be taken into consideration, that steam towboats were not in existence when the law was made; that the masters of these vessels are salaried officers, employed by the year, which is not the case with masters of merchant vessels; that, in order to make the article of the Code affect them, it is necessary, first to show that it was applicable to captains of merchant vessels performing voyages, and then by analogy to apply it to masters of tow-boats ; and that too, in a matter of prescription, which is never, in any case, extended by analogy so as to include cases not provided for by the strict letter of the law.

Re-hearing refused.