2 U.S. 170 (1792)

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MARSHALL v. MONTGOMERY, 2 U.S. 170 (1792)

2 U.S. 170 (Dall.)

Marshall v. Montgomery, et al.

Supreme Court of Pennsylvania April Term, 1792

This was an action for Seamen's wages. The Plaintiff shipped himself on board the defendant's ship on a voyage from Philadelphia to Havanna, from thence to Cadiz, and from Cadiz back to Philadelphia. On the ship's arrival at Havanna, an embargo was laid, and the ship detained a considerable time. A plan being formed for the reduction of New Providence, a proposal was made to the American captains, and among the rest to the defendant, to accompany the Spanish troops; for which service they were to receive ten dollars and a half per ton, per month, and to be freed from the embargo. A gratuity was also to be given to the captains. The defendant, with the rest of the American captains, agreed to go, and Providence was taken; but no provisions being to be had, the ship sailed afterwards for Philadelphia, and on her way was captured by the enemy. The wages of the seamen had been paid at the Havanna, until the ship was ready to sail for Cadiz, and the embargo laid. The tonnage was paid, but lost on the capture of the ship.

Rawle contended, that it was clear, that seamen's wages must be paid during an embargo, and cited Parke's Insur. 142. 1 Magens. 68. Wesket. 590. 1 Term. Rep. 132, in notis. That the voyage to New Providence is to be considered as a new voyage, as it was not the voyage contracted for. Tho' a voyage be altered, wages are still due. Freight, it is true, is the mother of wages. Esp. 112. 3. but freight means nothing but the earning of the vessel.

Lewis & Tilghman urged, that as the vessel was not entitled to freight, no wages were due: That the voyage was not a distinct one, and that the loss of the vessel put an end to the claims of the seamen.

By the Court: Here is a new voyage commenced with the assent of the sailors. The question is, was this a new voyage to Philadelphia with leave to touch at Providence, or was it one voyage to Providence, and another to Philadelphia. The Spanish intendant agreed to pay 10 1-2 dollars per ton, and they received it. The intendant calls it freight: It is certainly a compensation for the use of the vessel; it is an earning by the owners, and the whole object of this voyage was completed at New Providence. This may be considered, in the spirit of the law, as a port of delivery. With the loss, which happened afterwards, the sailors have no concern. We consider this as a

Page 2 U.S. 170, 171

distinct contract for a voyage to the Island of Providence, and that being completed, we are of opinion, that the plaintiff is entitled to his wages till that time.

Verdict for the Plaintiff.

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