The shipwright at Liverpool who examined the ship was of opinion that this injury had been caused by the iron band of the cap of the bowsprit of the Tecla Carmen. The Tecla Carmen had drifted to Aberystwith, and it seems to have occurred to the master of the North American that if he could find the cap of the Tecla Carmen's bowsprit it might present evidence in confirmation of this important fact. He accordingly went down to Aberystwith: he found that the Tecla Carmen had been broken up, but he succeeded in obtaining what we are quite satisfied are the pieces of wood forming the cap of her bowsprit, with the iron band, or one of the iron bands, which bound them together. This wood was found to be crushed and split as by a collision; the cap is of elm, and bedded and wedged in it was found a piece of oak of which wood the plank of the North American is formed. The piece of plank which sustained the injury, cut out from the port bow of the North American, and the cap of the bowsprit of the Tecla Carmen, which is alleged to have inflicted the injury, were produced in the Court below and before us, and we are entirely satisfied, as the Court below was satisfied, that the collision took place with the port and not with the starboard side of the North American. 1858. December 8. Tecla Carmen starboarded; and the proba bility is the other way. But from this fact the Trinity Masters, in the Court below, But it does not have drawn the inference that the Tecla Carmen starboarded her follow that the helm; at least, we are not aware of any other evidence entitled to the least credit to show that she did so. We confess we have great difficulty in drawing this inference. Our Nautical Assessors are of opinion that, having regard to the position of the two vessels as it appears in the evidence, when the North American was first seen from the Tecla Carmen, they would have run into each other if both had held their courses, and that the North American having ported her helm just at the last moment, the collision might have taken place exactly as it did without either the Tecla Carmen having starboarded her helm, as alleged by the North American, or the North American having starboarded, as alleged by the Tecla Carmen. This certainly would be most consistent with the probability of the case. The Spanish vessel would be likely to hold her course knowing that the other ship was bound to give way; the North American would hold her course because she was not aware of anything that made it necessary for her to alter it. There seems no conceivable motive why either vessel should have starboarded her helm. In this view of the case the North American alone would be in fault from her neglect to keep a vigilant look out, and the sentence would require to be altered. 1858. December 8. men, however, as set up in her If it were necessary for us to determine this point we should be under great difficulty; for while, on the one hand, we should The Tecla Car- strongly incline to this view of the case, it must rest in a great has failed to es- measure upon the opinion of our Nautical Assessors differing tablish the case from that of the Trinity Masters in the Court below; and, in order to advise the reversal of a judgment, we must not merely doubt whether it is right, but be satisfied that it is wrong. But we think that this view of the case is excluded by the pleadings and the evidence. The Tecla Carmen rests her complaint upon this, that the collision took place on the starboard side of the North American, and that the ships would have actually gone clear of each other if the North American had not starboarded, and thereby brought her starboard bow into collision with the port bow of the Tecla Carmen. All the arguments below and before us proceeded on that basis; and we do not think that it would be consistent with the safe administration of justice to alter the judgment upon grounds quite inconsistent with the case made by the Appellants in their allegation, and in their evidence and at the bar. Sentence affirmed, but without costs. We must advise the affirmation of the sentence; but, as both parties have complained of it, there will be no costs. Clarkson, proctor for the Tecla Carmen. Rothery for the North American. March 29. In the High Court of Admiralty. THE MILFORD, BENNETT MORGAN, Master. Foreign Ship-Master's Wages-Lex Fori-17 & 18 Vict. c. 104, ss. 109, 191. In a suit by a foreign master against the freight for his wages, the question whether the freight is liable is a question of remedy and not of contract, and is therefore to be determined by the lex fori. A statute general in terms and intended for the protection of navigation applies to foreign vessels within British waters. The 191st section of the Merchant Shipping Act, 1854 (notwithstanding s. 109), extends to the masters of foreign ships, and gives them a remedy against ship and freight for their wages. THIS HIS was a suit for wages, brought by Bennett Morgan, the master of the Milford, against freight due on the voyage as under stated, and against William W. Wakman and Zalman B. Wakman, both of South Port, Connecticut, in the United States of America, the owners of the ship Milford intervening for their interest in the said freight. The owners appeared to the suit under protest. The act on protest stated that the Milford belonged to South Port, in Connecticut, U. S. North America; that Bennett Morgan was a native and subject of the United States; that in November, 1856, Morgan shipped as second mate on board the Milford, bound from San Francisco, in California, to the United Kingdom; that in consequence of a series of deaths Morgan, on the 10th of March, 1857, assumed the command and acted as master; that he proceeded to Rio Janerio for repairs, where he remained from the 9th of April to the 14th of July; for the expenses connected therewith he, as master, granted a bottomry bond on the ship and freight for 3,2297., which had subsequently been paid by the owners' agents in this country; that Morgan arrived in command of the ship in the port of London in September, 1857; that from the 11th of April, 1857, one of the crew had been appointed first mate, and had received first mate's wages since that date; that by the law of America the master of an American ship has no lien upon, or right of action against, the freight for wages earned as master of such ship; and that such was well known to be the law by judges, advocates and lawyers in the United States of America; that Morgan's wages as first and second mate had been tendered to him since the arrival of the ship in England, but that he had refused to receive the same; and prayed the Court to pronounce only for the wages due to Morgan as first and second mate, and to condemn him in the costs of the petition. The answer on behalf of the master took issue on the law of the United States, and asserted that the master of an American ship has a lien on, and a right of action against, freight earned in such ship whilst under his command, and prayed the Court to pronounce for the right of Morgan to proceed in this Court against the freight earned whilst he was master. As to the American law the parties agreed to use as evidence certain opinions of American lawyers on a case submitted to them in the Jonathan Goodhue, a New York vessel, lately sold under authority of the High Court of Admiralty of England, at the suit of a bottomry bond holder. One question there raised was as to the master's lien for wages on the freight. 1858. March 29. 1858. March 29. By what law is the question to be decided? Addams, Q.C., for the master, contended that on the balance of evidence as to the law in the United States, before the Court, it must be taken to have been ruled in the case of the Spartan (a), that a master has a lien on the freight for his wages as well as for liabilities or disbursements on behalf of the ship. Phillimore, Q.C., and Robinson, contrà, in support of the protest: This is an American ship, and the master is an American subject. What law is the Court to look to in deciding the question? It must be either the lex loci contractús or the lex fori: if the former, the burden of proof is on the claimant to establish clearly the foreign law under which he claims, and that burden is very far from being discharged by showing that the American law is in a contradictory and conflicting state on the point, which is the utmost the opinions before the Court can show; and even then the case in the Court of last resort in the State of New York, Van Bokkelin v. Ingersoll (b), is in our favour. On the question of the lex fori, we contend that it is not applicable at all to this case. Don v. Lippmann (c), determined that the remedy must be taken according to the law of the country in which it was sought, but that the meaning of a contract must be determined according to the lex loci contractús. In this case the original contract entered into in America was limited by the United States law, which we take to be, that the master has no lien on ship or freight for his wages; and that is part of the contract which the Court has to act upon. If, however, the Court should be of opinion that the lex loci is not applicable, then comes the question whether it is to be the general maritime law as administered by the Court before the statutes which modify it, or whether the law as laid down by the Merchant Shipping Act. The 17 & 18 Vict. c. 104, s. 191, gives the master the same remedies for wages in the Court of Admiralty as seamen; but the 109th section limits the application of the third part of that statute to seagoing ships registered in the United Kingdom, and to ships registered in any British possession under certain circumstances. In the Golubchick (d), the Court held that questions of wages were to be decided by the general maritime law. DR. LUSHINGTON:-This is a question of great importance and of some difficulty; but as the subject has been discussed in another case some time since, and I have taken the matter into full consideration, I shall not delay pronouncing the opinion at which I have arrived. The main question is, whether the Court 1858. March 29. ought to apply the lex loci contractús or the lex fori; and if the latter, whether the law maritime as administered previous to the changes made therein by statute law, or the law as it now stands under the Merchant Shipping Act. It is impossible not to be struck with the inconveniences which might ensue if the Court is to be governed by the lex loci contractús; in every case in which a foreign seaman or master sued, the Court would have to inquire into the contract and into the law of the country under which it was made; and the difficulties with respect to the United States of America is very great, for, though the decisions of their Supreme Court may, generally speaking, be binding, yet the laws of their different states vary in their application of maritime law as well as in their municipal regulations; and the cases cited show that this is so as to proceedings against ship and freight on account of wages and advances. We know quite well that this Court had no jurisdiction as to masters' wages, but it is by no means so clear what were the rights which a master might have had in a Court of Equity against ship, cargo and freight. The facts of the case, as stated in the pleadings, Facts of the are few and simple. Morgan is a subject of the United States. He shipped on board an American ship at San Francisco as second mate. By the successive deaths of the first mate and master he became in possession of the ship as master. As first and second mate, and also as master, he now proceeds against the freight; wages have been tendered up to the time when he became master, and issue is taken as to the right of lien on freight. I have very serious doubts whether the question as to the law of the United States is the true question, and whether I am called upon to give any opinion upon that law. a case. As master, his right to sue depends on the Merchant Shipping Act. Turning then to the law ordinarily administered in this Court: Morgan is before the Court as a foreigner and as master of vessel. We all know that as master he could not by the old maritime law have sued for wages in the Admiralty Court at all; a master had no locus standi here till the Legislature gave him, first, a remedy in the case of insolvent or bankrupt owners; and secondly, by the Merchant Shipping Act, put him in the same position as any seaman. If a foreign master can now sue in this Court, he is entitled to proceed against the freight like other seamen. How, then, stood the case as to foreign seamen previously to the statute? In the Golubchick the question was fully foreign seamen considered, and I there laid down a rule that notice should be given chant Shipping to the consul of the state to which the vessel belonged-not bind- Act. ing myself, however, to act in accordance with the views the consul might entertain, but I was anxious that the Court might Position of before Mer. |