1788.
FARREL verʃus M‘CLEA.
T
HIS was an action brought by the Plaintiff to recover his wages as mate of a veffel,of which the Defendant was mafter, and one Sadlier was the owner. On the trial, it appeared, that the Defendant, having cited the Plaintiff to fhew his caufe of action acknowledged before the Judge at his chambers, that he was captain of the veffel during the time for which the wages were claimed ; but then he infifted, that he had never engaged the Plaintiff, who, as he faid, was fhipped on a contract with the owner. To prove the time of fervice, the following certificate, fubfcribed by the Defendant was read: –“ Philadelphia, 12th January, 1787. Thefe are“ to certify to whom it may concern, that Joʃhua Ferrel was mate
“ on board the from the 16th June to the 16th Auguʃt, “ 1786, making two months. Given under my hand, Robert
“ M‘Clea.−NB. At the wages of twenty dollars per month, as
“ per Mr. Sadlier's agreement.”
Levy, for the Defendant, infifted, that the cafe, depending entirely on the confeffion of the party, the whole of it muft be taken together; Newman v. Bradley. ant. 240. that then it would appear, as well from the certificate, as from the acknowledgment before the Judge, that the Plaintiff had been employed by the owner of the veffel, and not by the captain ; and, confequently, that the owner and not the captain was liable for the wages. He admitted, that where a captain fhipped a failor, or ordered repairs, he was refponfible ; out he contended, that there muft be a fhipment by the captain to charge him on the general principle ; Doug. 99. 100. and that where the captain, or the owner, undertakes by an aʃʃumpʃit, either exprefs or implied, the other is difcharged. 2Stra.816. He endeavoured alfo to eftablifh a diftinction between a mte and the common mariners, the mate being, he obferved, a midle character between the feamen and the captain; and thence, he argued, that, like the captain, he was not entitled to the advantages which the maritime law provides for the feamen. 12Mod. 440.
Moylan, for the Plaintiff, ftated, that mariners had a threefold fecurity for their wages:− 1ft, They may proceed againft the owners ; 2dly, They may libel the veffel ; or, 3dly, They may fue the captain. He faid, that the captain was not bound to receive any failors fhipped by the owners; becuaufe he was not only liable to the owners, but to ftrangers, for any wrong that they might do when fhipped ; but, he contend, that, it the captain did receive them, he made himfelf liable for their wages; 12 Mod. 434. and he anfwered the authorities cited for the Defendant, by fhewing , that they were cafes of repairs, where workmen were employed by the owners, and could not be rejected or difmiffed by the captain ; nor was he anfwerable for their conduct.− That the contract was, in fact, made by the owner, he obferved, refted entirely on the teftimony of the Defendant ; and he urged the neceffity of great caution in admitting the allegations of a man in his own favour. Doug. 751. 753. Receiving them, however, in their fulleſt extent on this occaſion, they only proved that the owner had the aſſiſted is procuring the mate to embark, and this could never defeat the triple right with which the law had armed.
Shippen, Preſident, in delivering the charge of the Court, adverted to the nature of the evidence on which the cafe was eſtabliſhed, and inſtructed the Jury to take the whole together, unleſs they ſhould think, that there were circumſtances in the Defendant’s confeſſion, which rendered the part in his own favor inconſiſtent or improbable.
But, even admitting the fact, that the Plaintiff had been ſhipped by the owner, his Honor ſtated, that the captain was liable; for, the law gave the Plaintiff a threefold remedy to recover this wages; and, unleſs by ſome poſitive act, or word, he had releaſed (as he might do) one of thoſe remedies, a mere compliance with the ſolicitation of the owner of the owner to embark, cannot defeat them. He ſaid there was no diſtinction, in this reſpect, between the mate and a common mariner; they were alike ſubject to the orders of the captain, who could equally refuſe to receive either, or, when received, was equally empowered to diſmiſs them; for, his appointment as captain gave him the ſole, undoubted, and excluſive right of chooſing every ſeaman under him, whatever curteſy he might be inclined to ſhew to the recommendation of thoſe by whom he was himſelf employed.
With regard to the cafe of repairs, the President obſerved, that it was not ſtrictly analogous to that of ſeamen’s wages, but ſtood on this footing:–If a veſſel is in port, where the owners reſide, and they, without the interpoſition of the captain, employ carpenters, &c. to repair her, the captain is not liable; not merely becauſe he does not employ them, but, becauſe he is not anſwerable for their conduct when employed. But if a veſſel is repaired in a foreign port, then, indeed, a ſimilitude ariſes between the caſes, and the captain is as liable for thoſe repairs, as for the wages of his ſailors, becauſe the workmen, as well as the ſailors, are, in the latter inſtance, employed by him, and equally ſubject to his controul and diſmiſſion.
The opinion of the Court was, concluſively, that, if the mate had ſerved on board the veſſel, the captain’s having admitted him to do ſo, rendered him liable for the payment of the wages.
And the Jury, accordingly, found a verdict for the Plaintiff.