ten days are to be computed from the expiration of that time.1

The statute does not prevent the filing of a libel in the Court of Admiralty, previous to the expiration of the ten days, but the issuing of process against the vessel; so that the question, when raised, depends on the date and issuing of the warrant of arrest, and not of the filing of the libel. There is also an express exception, by which immediate process may be issued against the vessel, wherever she may be found, in case she shall have left the port of delivery where the voyage ended, before payment of the wages, or in case she shall be about to proceed to sea before the end of the ten days next after the delivery of her cargo, or ballast.

4

By the general maritime law, wages are earned at every port of delivery during the voyage; but it has been the policy of most nations to restrict the payment of the full wages, until the ship returns home, unless she be lost, or detained, in order to prevent desertions. By our law, one third only of the wages earned can be demanded by the mariner at any port of delivery, during the voyage, unless it has been otherwise expressly stipulated in the contract.5 If the ship be lost, or captured, whatever wages were

1 Holmes v. Bradshaw, per Davis J. cited in Story's Notes to Abbot, p. 456. Edwards v. The Susan, 1 Peters's Adm. R. 165. Thompson v. The Philadelphia, Ibid. 210. Hastings v. The Happy Return, 2 Ibid. 253.

2 The Mary, Ware's R. 454.

3 The Juliana, 2 Dods. Adm. R. 504; and the port of destination is for this purpose a port of delivery, where the ship goes in ballast for a cargo. Giles v. The Cynthia, 1 Peters' Adm. R. 207. The Two Catharines, 2 Mason's R. 319. Blanchard v. Bucknam, 3 Greenl. R. 1.

4

* Laws of Oleron, art. 19. Pothier, Louages Mar. n. 211, 212, 213. Abbot on Ship. p. 453, part 4, ch. 2.

5 Act U. S. 20 July, 1790, ch. 29, sec. 6.

earned up to the last port of delivery are recoverable by the mariner on his return home; and the clause in the act "unless the contrary be expressly stipulated in the contract," is intended to provide only for a stipulation in the contract as to the time and place of payment, and not to put at hazard, by any stipulation, the wages actually earned at a port of delivery, by making the payment contingent upon the arrival of the ship at the home port.2 The entire clause in the act applies, also, to cases where the voyage is continued. If the ship is sold abroad, or the seamen are discharged by their own consent, the whole wages due at the time may be demanded, and three months' wages in addition are to be paid by the master, to the consul, two thirds to be paid by him to the seamen, and one third retained to the use of the United States.3

We have now to inquire, how long, after wages become due, they may be sued for, by a mariner. In the courts of common law, the rules of the common law apply to the contracts of seamen, as to all other contracts, and wages are not recoverable, if they have been due more than six years, unless the party entitled to sue were under the disability provided for in the statute of limitations, by which the court is governed. And in England, the statute of limitations of 4 Anne, ch. 16, sec. 17, applies to suits in the Admiralty. But in our Admiralty Courts, there are no other limitations than

Johnson v. The Wal

1 Giles v. The Cynthia, 1 Peters's Adm. R. 209. terstorf, Ibid. 215. Blanchard v. Bucknam, 3 Greenl. R. 1.

2 Johnson v. The Walterstorf, 1 Peters's Adm. R. 215.

3 Act U. S. 28 Feb. 1803, ch. 62, sec. 3.-As to the right of seamen to sue in foreign courts, see post.

those which Courts of Equity prescribe to themselves in the maintenance of suits. This question was examined with much care by Mr. Justice Story, many years ago, and it was held by him that neither the statute of 21 Jac. 1, ch. 16, nor the Massachusetts statute of limitations, which is substantially a copy of the former, applied to suits in the Admiralty, and that the act of 4 Anne included only the High Court of Admiralty in England, and was never adopted in any of the colonies; though if it had been, it could not now govern the Admiralty Courts of the United States, which possess general admiralty and maritime jurisdiction, under the constitution. The act of the United States regulating suits for mariners' wages contains no limitations as to the time within which such suits shall be brought. In the exercise of their jurisdiction, therefore, our Courts of Admiralty are governed by the general principles of such tribunals.' Those principles are to refuse aid in favor of stale and dormant claims, where the party has not been vigilant in asserting them; to follow the analogy of the rules prescribed to courts of common law, unless under special circumstances, constituting a just exception, which free the case from the imputation of staleness.2

It would indeed be unfortunate, if the Admiralty jurisdiction were ever to be trammeled with any limitations to the claims of seamen, other than those which Courts of Equity prescribe to themselves.

Wages are dependent on the earning of freight, and the payment is

1 Brown v. Jones, 2 Gallison's R. 481. Willard v. Dorr, 3 Mason's R. 91, 161.

2 Ibid. The Sarah Ann, 2 Sumner's R. 206. Pitman v. Hooper, 3 Ibid. 286. See also The Mentor, 1 Rob. Adm. R. 180. The Rebecca, 5 Ibid. 102.

sometimes suspended, to await an indemnity from a foreign government; and at other times, in cases of insolvency, the only reliance for the mariner is upon the ship which may have passed into other hands, and may remain beyond his reach, long after a particular term of time has closed upon his just demand.

CHAPTER II.

OF WAGES AS AFFECTED BY VARIOUS INTERRUPTIONS OF THE VOYAGE.

THE Voyage being ended, the title of the mariner to the fruits of his toil becomes complete. But there is a maxim, which has had great currency in English and American jurisprudence, that "Freight is the mother of wages;" a formula that should be carefully scrutinized in its application. It is true in the inclusive, though not in the exclusive sense; for although it is true, that where freight is made wages are due, yet it does not always follow that if there be actually no freight, there can be no wages. In the application of this rule, a distinction is to be made between those accidents by which the voyage is interrupted and the freight lost, without the fault of the owner, or master, and other causes arising

Thus it is said, that if a vessel be sent out on a seeking voyage, and obtains nothing, the mariner is yet entitled to his wages, if she arrives home in safety, for by his contract he has a lien on the vessel. The Lady Durham, 3 Hagg. Adm. R. 202. So too, where the loss of freight is occasioned by a seizure for illegal trading, of which the crew are innocent, the wages are not only not forfeited with the vessel, but the mariners are not barred of their action against the owners. The Malta, 2 Hagg. Adm. R. 158. These and the like cases show the necessity of dealing cautiously with such a maxim as that quoted in the text.