Worth v. Mumford. that he should forfeit his wages, though the vessel is lost by the irresistible power of wind and waves. To assume, as matter of law, that the mariner will not do his duty unless he knows that his wages depend upon the preservation of the ship, and the safe transportation of the cargo, is to adopt a conclusion not based upon that universal experience which is essential to warrant such a general presumption. Legal presumptions are the natural conclusions drawn by the mind from that knowledge of the usual course of things, which is furnished by ordinary observation and experience, and when such presumptions are founded, as they frequently are, upon a knowledge of human motives or of the springs of human action, they must be founded upon that which may be predicate of mankind in general. To presume, therefore, in respect to seamen, that they will not use their best endeavors for the preservation of the ship unless they know that they will lose their wages if the ship is lost, is to build a presumption on very uncertain premises. The natural desire for the preservation of their own lives may be quite as strong as with the majority of men—a stronger motive to labor for the preservation of the vessel than the hope of pecuniary reward. Mariners, moreover, are quite as distinguished for acts of disinterested heroism and devotion to duty as men of any other class, and that a rigid rule like this is not essential, to stimulate them to the full performance of their duty, is sufficiently attested by the maritime character of the seamen of the many intelligent commercial nations, both ancient and modern, among whom no such rule has ever prevailed. 4 Pardessus, Lois Maritime, 82, Art. 12. There should be, undoubtedly, a strong motive to induce the seaman to peril his life and person for the preservation of the vessel, as not only the safety of the ship and cargo but the lives of all on board may depend upon his exertions, and it is both politic and just that his right to compensation should depend upon the fidelity, faithfulness, and courage with which he discharges that perilous service; that he should forfeit all his earned wages if he has not exerted himself to the utmost to save the vessel and Worth v. Mumford. cargo, or to rescue whatever may be saved from the wreck. This is the qualification of the rule established by the recent English statute (17 and 18 of Vict., c. 104, A. D. 1855), which enacts that, "No right to wages shall be dependent on the earning of freight; and every seamnan and apprentice who would be entitled to demand and recover any wages, if the ship in which he has served had earned freight, shall, subject to all other rules of law and conditions applicable to the case, be entitled to claim and recover the same, notwithstanding that freight has not been earned; but in all cases of wreck or loss of the ship, proof that he has not exerted himself to the utmost to save the ship, cargo, and stores, shall bar his claim." Art. 183. This is all that can be rationally or reasonably demanded upon grounds of public policy, for to make his wages depend, as a further inducement to exertion, upon the ship and cargo being brought safely to the port of destination, which may be impossible, is to treat the most meritorious services as of no consideration, unless they are aided by the chances of fortune. If the seamen had, as they formerly had, any voice in determining what should be done in times of peril and danger, there might be some show of reason in making their wages depend upon the fortunate results of their efforts. But now, with a direct interest in the result, they can do nothing to protect that interest that may be contrary to the views of the master appointed to control and direct them. They have not, as they formerly had, the choice of the person to whom the management is confided. They may all be of opinion that the course pursued by the master is not the best adapted to secure the safety of the ship, but they cannot follow the dictates of their own judgment, but must implicitly obey and execute his orders. To hold, them, therefore, responsible to the extent of their wages, for a result which may spring from the incapacity of the master, or which may be inevitable under any circumstances, is to impose responsibility to an unreasonable extent. Where they are without any of the rights or advantages of joint adventurers, but the enterprise is projected for the profit and benefit of the owners, who take upon themselves Worth v. Mumford. the choice of the person who shall guide and direct it, certainly the loss should fall upon them if they have chosen unwisely, or if, subject to the risk which attends all such enterprises, it should result in the inevitable loss of vessel and cargo. In no other case of hire or service is it essential that the service should prove beneficial to the employer. If the employed has done all that he undertook to do, he is entitled to his reward. In the case of the seaman, he does not bind himself by his contract to perform impossibilities. He undertakes to do what it is possible. for him to accomplish, and, when he has faithfully done that, to deny his right to compensation is to contravene a rule equally enjoined by divine and human law-givers, that the laborer is worthy of his hire. In those of the continental nations of Europe, in which the forfeiture of wages is enforced against the seaman, in the event of shipwreck, the rule is at least made consistent by releasing him equally with the owner, in the case of wreck, from all further obligation under the contract, so that he is free to assist or not, in the preservation and saving of the wrecked property. Pothier, Cont. Maritime, No. 127; Boulay Paty, Com. de Droit Marit., Vol. II, p. 230; Valin, Com. sur la Ord. Marit., Vol. I., 704. Or in those countries where that duty is very properly enjoined upon him, the rule has generally been so qualified that if he has exerted himself to the utmost of his power to save what he can of the vessel or merchandise, he gets his wages, or an equitable compensation equivalent to wages, up to the time when his services in that respect cease, though when he neglects or fails to do so he forfeits the earned wages. This, I think, may be said to be the law in The Hanse Towns, Hamburgh, Lubec, West Capelle, Riga, Wisby, Denmark, and the Netherlands. 1 Pardessus, 471, 522; 2 id., 474, 520, 543; 3 id., 298, 385, 418, 422, 522, 250; 4 id., 84; Degroot, d. 1. s., 42; V. D. Keessel, Thes. 694; 2 Mayens, 114. In Sweden it depends upon whether sufficient for that purpose has been saved from the materials of the vessel. 3 Pardessus, 120. By the French code, if the vessel and cargo are totally lost by capture Worth v. Mumford. or peril of the sea, the seamen lose their wages. If, however, some part of the vessel is saved, they are paid out of the proceeds of what is saved; but if that will not suffice, and any part of the cargo is preserved, then they are to be paid as far as the freight upon that will suffice. Code de Commerce, Liv. 2, Tit. 5, Art. 258, 259. But the French jurists treat the contract as dissolved by the act of shipwreck, and as operating to release the seamen from all further obligation and duty; so that, if they exert themselves to save anything from the wreck, they do so because it is their interest to secure what they can of their wages. But such is not the effect of the shipwreck upon the seaman's contract, as the maritime law has been understood and expounded in this country and in England; but the seaman is bound, by what Lord Stowell calls his "covenanted allegiance to the ship," to exert himself to the utmost of his power to save and preserve whatever can be secured from the wreck, and as long as it is possible to render such a service he continues, in virtue of the contract, under the control and direction of the master. The Reliance, 2 Wm. Rob. 119; The Neptune (supra), The Niphon, 3 Law Reporter, N. S., 266, 4 id., 496; The Two Catharines, 2 Mason, 337; Pittman v. Hooper, 3 Sumner, 50; The Dawn, Davies' R. 137; The Massasoit, 7 Law Rep., 522; Visner v. Suffolk Bank, 1 id., 249; Abbot on Shipping, Part 5, Chap 2, p. 271, 6th Am. Ed.; Curtis on Merchant Scamen, 287, 289. No principle is now better settled in the Admiralty Courts of this country and of England, than that the seaman is bound to render this service by virtue of his contract, and it may now also be regarded as well settled, that he cannot for performing this service have any claim as a salvor, who is under no contract, but is a mere volunteer interposing for the rescue and preservation of wrecked property. If, then, the seaman is bound to labor for the preservation of the wrecked property, and cannot for that service claim as a salvor, the contract continues in force as long as that service continues to be rendered, and its obligations must be reciprocal, for if it is binding on one party Worth v. Mumford. it must be binding on the other. If the seaman is not discharged from the contract by the act of shipwreck, as the French jurists have held, but is bound to labor and service under it as long as a fragment of the vessel or of the cargo can be preserved, neither can the other party be discharged from the obligation to pay him the stipulated wages, as long as he continues in the performance of duties growing out of his contract. The service in such case continues unaffected by the act of shipwreck, until the services of the seamen are no longer necessary, to which time he is entitled to all the earned wages. according to the stipulation of the contract. Both parties are then released from all further obligation under it, and the voyage or adventure is at an end. The gross injustice of denying the seaman's right to compensation for discharging a duty, that he was held bound by the contract to perform, has been so apparent that we find courts giving him wages in such cases, but calling them by a different name, such as salvage or quasi salvage, at the stipulated rate of wages, or wages in the nature of salvage. But it is wages, and not salvage, that he is entitled to. The Massasoit, supra. The right to them does not grow out of the fact that enough has been saved from the vessel to pay them. His claim upon the ship arises from his lien, which is a security collateral to the principal contract. It is not created by the act of shipment, but existed from the beginning and is never extinguished as long as anything remains of the vessel. This being the construction of the law, and it is inevitable from the doctrine, that the scaman is bound by the contract to exert himself to the last, to save and preserve what he can from the wreck, it follows that a forfeiture of wages can take place only in cases where there is a total loss of vessel and cargo. This is the only conclusion that will harmonize this doctrine of the extent of the seaman's obligation, under the contract, with the stern rule of forfeiture laid down in Siderfin. It is not necessary to carry that rule further than in the language in which it is laid down in that case: "the seamen lose their wages if the vessel is captured by enemies or lost by tem |