1782.
But it is said, on the dismission of the libellants, their proportion of the risk and labour fell on the residue of the crew; and, therefore, they ought to have an additional compensation beyond the articles of agreement.
Whatever compensation, they may, in justice, be entitled to, they cannot dispense with, nor derive it from the articles of agreement. The articles make no provision for such events, and no man, on board, can claim beyond the extent of the articles. On this ground it is, that although a Mariner, who is once shipt onboard, and is dismissed by the Captain, without fault, before the voyage is ended, is entitled to his stipulated wages, for the whole voyage; yet the residue of the Crew can only claim to the extent of their contract; although, by the dismission of such Mariner, the risk and labour becomes proportionally greater.
But, it is said, that after the dismission of the libellants, new articles were executed by the Captain, and residue of the Crew; by which their shares of prizes were augmented, in proportion to the lessening of the crew, by the libellants’ dismission; and, that the libellants’ claim affects their right, under the subsequent articles.
The Captain and the residue of the Crew could not cancel the original articles of agreement. When a contract is made, it can only bc dissolved by the consent of all parties. The after articles, therefore, cannot affect the original articles, nor authorise a departure from them.
These articles, instead of militating against the libellants’ claim, tend to establish it on another ground: For, they shew that the residue of the Crew approved of the dismission, and therefore ought to be considered as participes criminis, and equally responsible with the Captain.
But, it is said, “that the libellants did not, by any personal service, contribute to the capture in the present case; that the prize was taken by the ship, the Captain and Officers, and residue of the Crew; and, that although the libellants had a right under the commission to make captures, yet the right was not exercised in the capture of the prize in question.”
The ship, Captain, Officers and Crew, were joint-tenants of the right to capture and make prizes conceded by the commission. Whatever was acquired in consequence of this joint right and interest must be considered as common stock, and like the case of a joint partnership, not subject to survivorship. Where the right and interest is a joint concern, the question never can be material, which of the parties have been most active and alert: The only question that can arise must be; whether the joint concern and interest is fairly subsisting?
Upon the whole, we are of opinion, that the decree below be affirmed, with costs to the libellants.
