PETERS, District Judge.
The ship sailed from Philadelphia, after the libellants had shipped as mariners, on the 30th of August, 1810, bound for ICiehl, in Denmark; she was captured by a French privateer, and carried to Dieppe, in France, where she arrived on the 19th October, ensuing. The libel states that they remained on board, by order of the captain, at Dieppe, until the loth of May, 1812, during which time no condemnation took place; on the said 15th of May, they were ordered to leave the ship, no provision for their support having been made, and, with the consent of the captain, embarked for the United States. They demand wages up to the time of their leaving the ship.
They allege that this ship and cargo, or their proceeds, were restored and came into possession of the owners, or their agent, and pray that the master and owners, may be required on oath, to inform the court: 1st. Whether the ship had been, and when, condemned? 2nd. Whether the ship and cargo had been restored? And when the order for the restoration was made? The respondents agree in the facts of shipment, capture, and carrying into Dieppe; but they deny that the libellants remained in and with the ship until the time stated, to wit, the 15th of May, 1S12. and pray that they may be directed to make full proof of this allegation. They allege that the ship and cargo were condemned as forfeited, and the owners deprived thereof. This condemnation they allege was made known to the libel-lants, as they are informed and believe, on or before the 24th day of January, 1812. They annex true copies of letters from the supercargo, John Diehl, containing all the information they possess. They further allege that the wages were lost by condemnation. or at least their right of recovery suspended until complete restoration, and even then the libellants are only entitled to receive wages to the time of condemnation. The libellants reply that although it may be true that the ship and cargo had been condemned by order of the tribunal of prizes in France, yet the ship, and almost the whole of the cargo,'has since, by order of the emperor, been restored, and the agents of the owners have actually received the greater portion of the cargo, or its proceeds, and may at any time receive the residue thereof, as well as the ship. For proof whereof; they refer to the answer of the respondents and the papers annexed thereto. They persist in their allegation that they remained at Dieppe, by order of the captain, waiting the restoration of the ship, and that they made repeated applications to the master for leave to return home, without success. They finally pray that wages be paid up to the period when it appears by the respondents’ own showing that notice of the condemnation was given, to wit, the 24th of January, and that they may be permitted to make proof as to the residue, and on such proof being made the same may be decreed, &c.
By the letters from the supercargo, Diehl, it plainly appears that, after many delays and difficulties, the ship and cargo, or its proceeds, were directed to be restored, and that a sum equal to about four-fifths of the proceeds of the cargo has actually been paid into the hands of the supercargo. The residue is retained as a pledge that the proceeds of the colonial produce shall be exported in the productions of France. The ship, it also appears, might at any time be taken possession of by the supercargo. But he did not choose to take such possession until certain arrangements (in which he found difficulties) were made to enable him to sue the captors for damages, so that there Is no doubt in my mind that, so far as relates to the mariners, who are not concerned in the effect of any ultimate measures the owners or their agents may choose for their own objects to adopt, the restoration of the ship and cargo, or the proceeds of the latter, are to be considered as complete, to all legal intents. I therefore have no hesitation in decreeing, that the wages, up to the 24th of January, 1812, be paid with costs. The additional claim for wages to the 15th of May, 1S12, must remain for further proof. The seamen were bound to remain with the vessel until the first decree for condemnation, under their old contract, and there is no [1217]*1217doubt of their having so remained. But I have always considered the first contract at an end, when the vessel is condemned in the tribunal of the first resort, because the voyage is then broken up by a misfortune, which subjects the seamen to loss of wages; if restoration does not ultimately take place. The seamen are not bound to remain longer than the time of notice of the first decree, at the risk of further loss. But they may remain at the master’s request, waiting for the issue of an appeal. This is under a new contract entered into by both parties, and if the request to remain be general, that is, without prescribing new terms, it must be understood, that their abidance is under the terms of the old contract. I need not. therefore, consume any time in showing that proof of this new engagement must be as full as that for the establishment of the first contract. In this new contract, as well as in the old one, every man’s agreement is distinct; though all are named in the same instrument.
I do not know that the admiralty law is different in the principles of evidence from the common law, which has borrowed, without acknowledging its obligations, many of its best principles from the civil codes of ancient nations. When I endeavored xo establish some rules on the subject of admitting seamen to be witnesses for each other, I had no particular view to the creation of a difference between the admiralty and common-law principles in this regard; yet the civil law requires two witnesses in cases where the common law is satisfied wjth one. The practice of civil law courts is indubitably most congenial with admiralty and maritime proceedings. On this account I shall think myself warranted in cases wherein I think it necessary for the objects of justice to adopt the civil law rule, though I have not generally attended to it. In the Admiralty Decisions. — page 211, yol. 1 [Thompson v. Philadelphia, Case No. 13.073], — the general principles I laid down on this subject will appear. But I do not perceive in them anything bearing particularly on this case. A seaman is produced (not one joining in the libel) to prove the new or supplemental en-gasrement by the captain of the Betsey with the mariners, inducing their stay at Dieppe, after the condemnation. It is not proved, on the contrary, it is denied, that this mariner was collusively omitted in the libel, for the purpose of giving evidence, or under an expectation of being served by those mentioned in the libel, when he shall sue for his wages. This could not be permitted; nor have I ever allowed mariners, joined together in a libel, to be witnessses for each other. At common law, persons joined in a suit, such as trespass, &c., for the purpose of excluding them as witnesses, have nevertheless been admitted. But seamen voluntarily connect themselves in a libel, and do not stand on the like ground. But where many enter into a contract, not joint, but several, as all ship’s articles are, I see not that one mariner may not be a'Witness, to prove the contract of his shipmate, when unconnected in a suit brought for the recovery of wages, according to the strict principles of law. I do not recollect the point having before this time been made. In common law courts, suits are always separate, on the claims of the mariners, who have not the privilege there of joining in the same suit, which they enjoy in maritime courts. The judges of common law courts do not feel the embarrassments of one who must decide both on competency and credit.
Free access — add to your briefcase to read the full text and ask questions with AI
PETERS, District Judge.
The ship sailed from Philadelphia, after the libellants had shipped as mariners, on the 30th of August, 1810, bound for ICiehl, in Denmark; she was captured by a French privateer, and carried to Dieppe, in France, where she arrived on the 19th October, ensuing. The libel states that they remained on board, by order of the captain, at Dieppe, until the loth of May, 1812, during which time no condemnation took place; on the said 15th of May, they were ordered to leave the ship, no provision for their support having been made, and, with the consent of the captain, embarked for the United States. They demand wages up to the time of their leaving the ship.
They allege that this ship and cargo, or their proceeds, were restored and came into possession of the owners, or their agent, and pray that the master and owners, may be required on oath, to inform the court: 1st. Whether the ship had been, and when, condemned? 2nd. Whether the ship and cargo had been restored? And when the order for the restoration was made? The respondents agree in the facts of shipment, capture, and carrying into Dieppe; but they deny that the libellants remained in and with the ship until the time stated, to wit, the 15th of May, 1S12. and pray that they may be directed to make full proof of this allegation. They allege that the ship and cargo were condemned as forfeited, and the owners deprived thereof. This condemnation they allege was made known to the libel-lants, as they are informed and believe, on or before the 24th day of January, 1812. They annex true copies of letters from the supercargo, John Diehl, containing all the information they possess. They further allege that the wages were lost by condemnation. or at least their right of recovery suspended until complete restoration, and even then the libellants are only entitled to receive wages to the time of condemnation. The libellants reply that although it may be true that the ship and cargo had been condemned by order of the tribunal of prizes in France, yet the ship, and almost the whole of the cargo,'has since, by order of the emperor, been restored, and the agents of the owners have actually received the greater portion of the cargo, or its proceeds, and may at any time receive the residue thereof, as well as the ship. For proof whereof; they refer to the answer of the respondents and the papers annexed thereto. They persist in their allegation that they remained at Dieppe, by order of the captain, waiting the restoration of the ship, and that they made repeated applications to the master for leave to return home, without success. They finally pray that wages be paid up to the period when it appears by the respondents’ own showing that notice of the condemnation was given, to wit, the 24th of January, and that they may be permitted to make proof as to the residue, and on such proof being made the same may be decreed, &c.
By the letters from the supercargo, Diehl, it plainly appears that, after many delays and difficulties, the ship and cargo, or its proceeds, were directed to be restored, and that a sum equal to about four-fifths of the proceeds of the cargo has actually been paid into the hands of the supercargo. The residue is retained as a pledge that the proceeds of the colonial produce shall be exported in the productions of France. The ship, it also appears, might at any time be taken possession of by the supercargo. But he did not choose to take such possession until certain arrangements (in which he found difficulties) were made to enable him to sue the captors for damages, so that there Is no doubt in my mind that, so far as relates to the mariners, who are not concerned in the effect of any ultimate measures the owners or their agents may choose for their own objects to adopt, the restoration of the ship and cargo, or the proceeds of the latter, are to be considered as complete, to all legal intents. I therefore have no hesitation in decreeing, that the wages, up to the 24th of January, 1812, be paid with costs. The additional claim for wages to the 15th of May, 1S12, must remain for further proof. The seamen were bound to remain with the vessel until the first decree for condemnation, under their old contract, and there is no [1217]*1217doubt of their having so remained. But I have always considered the first contract at an end, when the vessel is condemned in the tribunal of the first resort, because the voyage is then broken up by a misfortune, which subjects the seamen to loss of wages; if restoration does not ultimately take place. The seamen are not bound to remain longer than the time of notice of the first decree, at the risk of further loss. But they may remain at the master’s request, waiting for the issue of an appeal. This is under a new contract entered into by both parties, and if the request to remain be general, that is, without prescribing new terms, it must be understood, that their abidance is under the terms of the old contract. I need not. therefore, consume any time in showing that proof of this new engagement must be as full as that for the establishment of the first contract. In this new contract, as well as in the old one, every man’s agreement is distinct; though all are named in the same instrument.
I do not know that the admiralty law is different in the principles of evidence from the common law, which has borrowed, without acknowledging its obligations, many of its best principles from the civil codes of ancient nations. When I endeavored xo establish some rules on the subject of admitting seamen to be witnesses for each other, I had no particular view to the creation of a difference between the admiralty and common-law principles in this regard; yet the civil law requires two witnesses in cases where the common law is satisfied wjth one. The practice of civil law courts is indubitably most congenial with admiralty and maritime proceedings. On this account I shall think myself warranted in cases wherein I think it necessary for the objects of justice to adopt the civil law rule, though I have not generally attended to it. In the Admiralty Decisions. — page 211, yol. 1 [Thompson v. Philadelphia, Case No. 13.073], — the general principles I laid down on this subject will appear. But I do not perceive in them anything bearing particularly on this case. A seaman is produced (not one joining in the libel) to prove the new or supplemental en-gasrement by the captain of the Betsey with the mariners, inducing their stay at Dieppe, after the condemnation. It is not proved, on the contrary, it is denied, that this mariner was collusively omitted in the libel, for the purpose of giving evidence, or under an expectation of being served by those mentioned in the libel, when he shall sue for his wages. This could not be permitted; nor have I ever allowed mariners, joined together in a libel, to be witnessses for each other. At common law, persons joined in a suit, such as trespass, &c., for the purpose of excluding them as witnesses, have nevertheless been admitted. But seamen voluntarily connect themselves in a libel, and do not stand on the like ground. But where many enter into a contract, not joint, but several, as all ship’s articles are, I see not that one mariner may not be a'Witness, to prove the contract of his shipmate, when unconnected in a suit brought for the recovery of wages, according to the strict principles of law. I do not recollect the point having before this time been made. In common law courts, suits are always separate, on the claims of the mariners, who have not the privilege there of joining in the same suit, which they enjoy in maritime courts. The judges of common law courts do not feel the embarrassments of one who must decide both on competency and credit. On the latter, the jury have the exclusive decision. I have therefore reluctantly admitted one mariner in any case to prove the contract of another, though I believe it has been done. In 3 Johns, p. 513 it is truly said by Chief Justice Kent that “where seamen having a common interest in the point in contest are admitted as competent witnesses, the fact would, no doubt, work strongly against the credit of their testimony.” Of this opinion I have always been. Having to decide on their credit, I have avoided, rather than pointedly refused, admitting their testimony, to save myself the pain of disregarding their allegations on oath, in cases (and they are too common) in which I deem them careless, or worse. I know not how to relieve myself where points of this sort are pressed on me (and counsel by so doing may serve a turn which may reverberate on themselves in some future cases) but by establishing a rule that the civil law practice, of two witnesses, shall in the case in question, and others similar, be adopted; and I request that this may be considered as the practice here. I do not deem the interest of the seamen in the present case so connected as that some may not have separate circumstances attending their claims. Part of the original crew may be retained, and others discharged. Whatever the predominant interests may be, it is neither greater nor less, in this supplemental or protracted contract, than that which prevailed in the original agreement, or shipping articles; and 1 think that, as it regards their contracts, their interests may be more correctly styled similar than common. 1 admit the seamen as competent, but I shall expect further testimony. For the satisfaction of my mind on the point of credit, no specific rule can be established in any case.
I have considered the certificates of Captain Itisbrough, exhibited in this case, which strongly imply that the seamen were retained by his consent, and at his request. It is scarcely probable that they would have remained if he had discharged them and assisted in the means of their return, as he did when the minister of the United States would no longer permit them to be supported at public expense. But there is no direct proof of this part of the case.
Charles Plexon is certified by Captain Ris-brough to “have waited the decision of the said ship, until the Cth of May, 18X2, when [1218]*1218he was ordered by Joel Barlow, American minister in Paris, to embark for the United States, as he could not be supported at the expense of the American government any longer. Dated at Dieppe, May 15th, 1S12.” John Harris has a similar certificate. George Middleton has also a like certificate. I see no such paper relating to William Powell. If the seamen were detained by the consent of the captain, they should have been supported at the expense of the ship; but it appears as soon as their support by the government of the United States or its agents was withdrawn, the sailors were ordered to return. This creates an ambiguity in the certificates, and requires explanation, which either party may give.