1 U.S. 392 (1788)

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U.S. Supreme Court

FARREL v. MCCLEA, 1 U.S. 392 (1788)

1 U.S. 392 (Dall.)


Court of Common Pleas of Philadelphia County

December Term, 1788

This was an action brought by the Plaintiff to recover his wages as mate of a vessel, of which the Defendant was master, and one Sadlier was the owner. On the trial, it appeared, that the Defendant, having cited the Plaintiff to shew his cause of action, acknowledged before the Judge at his chambers, that he was captain of the vessel during the time for which the wages were claimed; but then he insisted, that he had never engaged the Plaintiff, who, as he said, was shipped on a contract with the owner. To prove the time of service, the following certificate, subscribed by the Defendant was read: 'Philadelphia, 12th January, 1787. These are to certify to whom it may concern, that Joshua Farrel was mate on board the from the 16th June to the 16th August, 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, insisted, that the case, depending entirely on the consession of the party, the whole of it must be taken together; Newman v. Bradley. ant. 240. that then it would appear, [392-Continued.]

eas well from the certificate, as from the acknowledgement before the Judge, that the Plaintiff had been employed by the owner of the vessel, and not by the captain; and, consequently, that the owner and not the captain was liable for the wages. He admitted, that where a captain shipped a sailor, or ordered repairs, he was responsible; but he contended, that there must be a shipment by the captain to charge him on the general principle; Doug. 99. 100. and that where the captain, or the owner, undertakes by an assumpsit, either express or implied, the other is discharged. 2 Stra. 816. He endeavoured also to establish a distinction between a mate and the common mariners, the mate being, he observed, a midle character between the seamen 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 seamen. 12 Mod. 440.

Moylan, for the Plaintiff, stated, that mariners had a threefold security for their wages: 1st, They may proceed against the owners; 2ndly, They may libel the vessel; or, 3rdly, They may sue the captain. He said, that the captain was not bound to receive any sailors shipped by the owners; because he was not only liable to the owners, but to strangers, for any wrong that they might do when shipped; but, he contended, that, if the captain did receive them, he made himself liable for their wages; 12 Mod. 434. and he answered the authorities cited for the Defendant, by shewing, that they were cases of repairs, where workmen were employed by the owners, and could not be rejected or dismissed by the captain; nor was he answerable for their conduct. That the contract was, in fact, made by the owner, he observed, rested entirely on the testimony of the Defendant; and he urged the necessity of great

Page 1 U.S. 392, 393

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 assisted in procuring the mate to embark, and this could never defeat the triple right with which the law had armed him.

Shippen, President.

In delivering the charge of the Court, adverted to the nature of the evidence on which the case 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 his 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 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 show to the recommendation of those by whom he was himself employed.

With regard to the case of repairs, the President observed, that it was not strictly analogous to that of seaman'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, conslusively, 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.

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