Murray and others against Kellogg.
ALBANY
August, 1812.
A seaman signed articles for a voyage, as he under* stood, and as by'the master, from New York to Archangel, New-York, articles wereMiddletown, Connecticut, to any port or ports in Europe, for three years, and back to the United States. The vessehvent from New-York to Sicily, SardiniatmA Messina, at which places she disposed of her outward cargo, and took in a load of salt at Messina, where she lay 7 months, during most of "which lime the captain was absent. She left Messina for Gottenburgli, and was captured off Minorca by a French privateer, and carried into Tobago, in Africa, and Hiere condemned and sold.
The seaman, onhis return to the United States, brought an action against the owners, to recover his whole wages, and for a breach of the shipping articles, it was held that he was entitled to wages, at Messina, and (luring the stay there, the detention being the act of the captain; lint not from Messina, that being on a new intermediate voyage, and the capture put an end to the. freight as well as -wages for that voyage; and where the wages, were allowed in an inferior court up to the capture, the court refused to reverse the judgment on that account, the excess being-trifling, and no evidence as to the time between the departure from Messina and the capture, anil some evidence of collusion between the master and captors.
IN ERROR, on certiorari, from the justices’ court of the city and county of New-York.
Kelloggs the defendant m error, b,rouget an action oí assumpsit against Murray, Lyman 8r Ogden, the plaintiffs in error, in the court below, for wages due to him as a seaman on board the ship Rolla, owned by the plaintiffs in error, on a voyage from New York to Archangel, in Russia. The plaintiff below also decíared for a breach of the shipping articles.
On the trial of the cause, the shipping articles not being produeed, pursuant to a notice given to the defendants for that purpose, parol evidence was given ot their contents.
*228The plaintiff proved that the defendants were owners of the ship; that he shipped on board, the 2d of May, 1809, and signed the usual shipping articles for a voyage from New-York to Archangel, in Russia, and back again to the port of New-York, at the wages of twenty-two dollars per month. The vessel sailed from New-York, but, without any assigned cause, went to Sicily, thence to Sardinia, and thence to Messina. She disposed of all her cargo at those places, excepting about 20 hogsheads of tobacco, and some sugar, and, at Messina, took in a cargo of salt. The vessel lay near 7 months at Messina, during the greater part of which time the master was absent, having been to Leghorn. The vessel left Messina, bound, as was said, to Gottenburgh, but, when nearly off Leghorn, she was captured by a privateer, and carried into Tobago, in Africa; and, as was to be inferred from the evidence of one of the plaintiff’s witnesses, with the connivance of the master of the Rolla. The vessel and cargo were condemned at Tobago, and sold to the Bey of Tunis. The vessel was captured the 26th April, 1810, and the plaintiff arrived at Boston in April, or May, 1811. The captain told one of the witnesses that the plaintiff had shipped to go to Archangel, and back to New-York, and the witness signed the articles on this representation. He asked to read the articles, but one of the defendants said it was unnecessary, as that was the voyage; and it did not appear that the plaintiff read them.
On the part of the defendants, a witness testified, that he was on board the Rolla, during the voyage, which was described in the articles to be from Middletown, in Connecticut, to any port or ports in Europe, and the seamen shipped for the term of three years, and then back to the United States. The plaintiff signed the articles, and received a month’s wages in advance, and received some money also in Sicily and Sardinia. The vessel was captured by a French privateer off Minorca.
The court below gave judgment for the plaintiff for 190 dollars, being the amount of wages due to the plaintiff up to the time of the capture, after deducting the money he had received.
The cause was submitted to this court, without argument.
Per Curiam.
The wages of the outward voyage were due at Messina, because freight was earned by the delivery of the outward cargo. The return states that the whole of the outward cargo was disposed of, “ excepting about 20 hogsheads of tobacco, and some sugar.”
*229
The only question in this case is, whether the recovery was not for too much, as wages were allowed up to the time of the capture~ The ship lay seven months at Messina. What was the cause of this enormous delay does not appear. It is chargeable to the act of the captain, for he was absent nearly the whole of that time, and the seamen were not to lose their wages in such a case. The ship sailed from Messina, with a cargo of salt, and, as it was said, for Gottenburgh. This was a new intermediate European voyage; and, without imputing fraud to the captain, the capture put an end to the wages, as well as the freight arising upon this voyage. Perhaps it would be rigorous, and unreasonable, to deduce, from the loose testimony upon that point, a collusion between the master and the commander of the privateer; and if not, then wages were not to be allowed after the departure from Messina.
How much time elapsed between the departure and the capture does not appear. It may. not have been three days, and for such a small and trifling excess in the damages, the judgment ought not to be reversed. If the capture was from concert and arrangement, the wages were clearly due up to the time of the capture, if not until the seamen could return to the United States.
Judgment affirmed»