The MADONNA April 30th, 1811. money expended for their maintenance ought to be defrayed out of the proceeds of the fhip in the first inftance; and if that should prove infufficient, then out of the freight which was in the hands of Mr. Hansen. On the other fide it was fubmitted, that the proceeds of the fhip ought to be applied in payment of the bottomry bonds, in preference to all other demands, the wages having already been paid, JUDGMENT. Sir W. Scott. This is one of those cases which are almost unavoidably involved in confiderable mystery, and attended with great confufion and embarraffment upon the question of law arifing on the facts, taking them to be ascertained; for it is a queftion of Greck navigation, which must depend in a great degree upon the customs and regulations of a foreign country, the exact state of which it is extremely difficult to afcertain, I may add, likewife, that it is a cafe in which the Court finds it by no means an easy task to obtain a correct and fatisfactory statement of facts. It appears that the fhip failed from Smyrna, at which place the master had taken up money on a bottomry, bond; that in the course of her voyage she had put into Malta, where the mafter again procured money by means of another bond; and that fhe had fince arrived in the port of London. What may be the original ground of difpute between the mafter and the crew non conftat. No reafon has been affigned for the quarrel, fo that I am totally at a lofs to discover what has led to it. The Court cannot find out which of the parties is the wrong-doer; whether there is caufe of forfeiture of wages on the part of the mariners, or whether whether the misconduct of the master should entail any inconvenience on his owners. It appears, that after the arrival of the ship in this country, Mr. Hanfen, of this town, with perfect propriety, took out a warrant to arreft this ship, in order to obtain payment upon the bottomry bonds; and that a quarrel arose between the master and crew, which led to the probability that the ship might be left here in a state of diftrefs. The fhip has fince been fold, under the directions of this Court, and the proceeds of the fale have been brought into the registry. In the mean time the failors applied and proceeded for their wages in the courts of common law, in twenty-five feparate actions; I do not fay in an oppreffive manner, for it was the only way in which they could there proceed: it is only in this Court that the mariners can combine their actions. The crew afterwards intervene in the fuit carried on by Mr. Hansen in the Court of Admiralty, not exactly in the regular manner; but the Court does not expect it of fuch men, who are in an eminent degree inopes confilii. The court would to such fuitors give every relief in its power, by departing from forms, as far as is confiftent with the juftice due to others, efpecially where the Crown has intervened for the protection of the parties. Mr. Hanfen has, by his act in paying the wages schedulate, waved all objection to the informality of the proceedings; and the question now is, whether the money remaining in his hands fhall be anfwerable for the fubfiftence of these mariners, or whether the crown fhall be left loaded with the fupport of them. Mr. Hansen has in his poffeffion, and will retain, a larger fum than will be fufficient to fatisfy any demands of his own: he will, at all events, fuffer no derogation The MADONNA D'IDRA. April 30th, 1811. The MADONNA D'IDRA. April 30th, 1811. of his own rights, and is concerned only on behalf of his employers, the holders of these bottomry bonds. The question is, whether he, as the agent of the bondholders, has a right to retain this money as against these mariners, or against the Crown, which stands in their place. Now, it must be taken as the universal law of this Court, that mariners' wages take precedence of bottomry bonds. These are facred liens, and, as long as a plank remains, the failor is entitled, against all other perfons, to the proceeds as a fecurity for his wages. This is a principle univerfally admitted; and whoever enters into a contract, or advances money upon bottomry, must be presumed to do it with a full knowledge of the law upon this point. But, then, is the fubfiftence of thefe men to be confidered as part of their wages? I think it is fo to be confidered; it is wages paid in another form, it is part of the compenfation for their labour; and, according to the law of the country to which these men belong, fubfiftence in the intermediate time must be presumed to form part of the contract for the payment of wages. The parties must be fubfifted till the return to their own country, unless some special reason is fhown to the contrary, such as desertion, or any kind of misconduct, which would work a forfeiture of wages. There is, indeed, no proof of any special agreement upon this point in the prefent cafe; but it is very material that such a covenant fhould be prefumed to fubfift between the parties, especially in a cafe, like the prefent, of Greek navigation. The number of Greek veffels which arrive in this country is very fmall; and the mariners, from the peculiarity of their language and habits, if dif charged in England, could not, without extreme dif ficulty, find an opportunity of returning to their own country. country. But the Court is not left folely to its own conjectures, as to what may be the established ufage with respect to the fubfiftence or the difmiffal of mariners employed in the navigation of Greek veffels. It is fworn by a perfon, who ftates himfelf to have been for twenty years captain of an Ottoman veffel, and at prefent the conful-general of the Sublime Porte refident in Great Britain, that "the captain is bound by the cuftomary regulations of Turkey to take his men "back again in his veffel, or to find them conveyance "in other veffels; and that in cafe of fale of the veffel "in this country, the proceeds thereof are liable for "the fupport of the crew, and to procure them the "means of conveyance to their own country." This, I think, effectually diftinguishes the present cafe from the American cafes which were lately before the Court. The American feamen did not there attempt to establifh their right, as due to them by the univerfal ufage and cuftom of their country, or as forming part of the contract under which they failed, but upon the ground of a statute lately introduced. As the demand was made upon a mere legislative act of that country, the Court declined to interfere, but it held there, that if the subject matter in difpute between the parties had formed part of the contract, it would have upheld the demand. I fhall, therefore, confider the proceeds as anfwerable for the fubfiftence as well as the wages of these mariners; but I fhall not meddle with the freight which is in Mr. Hanfen's hands. The MADONNA D'IDRA. 1811. May 14th, 1811. In a general engagement the whole fleet is entitled to head money, though the formal fur render be made to one ship unly -Circumstances ance neceffary captor to fhare in head-money. THIS EL RAYO. HIS was the cafe of a claim fet up on the part of His Majefty's fhip Leviathan, to share in the fum allotted for head-money upon the capture of this Spanish fhip of war. The El Rayo being a ship of one hundred guns, and having eight hundred and twelve inen on board, had been engaged on the 21st of October 1805, in the memorable action off Trafalgar, between the British and the combined French and Spanish fleets, but had returned into Cadiz on the evening of that day. On the 23d of October the again came out, for the purpose of affifting fome of the fhips of the combined fleet which were dismasted and otherwise in diftress; in the execution of which duty she was captured, on the following day, by His Majesty's fhip the Donegal. The Donegal had originally formed part of the fleet under the command of Lord Nelfon, but had been detached upon other service before the engagement commenced; and on the evening of the 22d, being the day after the battle, fhe again joined the British fleet, then under the command of Admiral Collingwood. On the morning of the 24th fhe captured and took poffeffion of the El Rayo, which made no refiftance; and, confequently, no aid was required to effect the capture, nor was any given. Several ships belonging to the British fleet, particularly the Leviathan, were in fight at the time of the capture, but they were all employed in taking care of the difabled ships and prizes, and the attention of the Leviathan was principally directed to the Spanish fhip the Monarca. The Leviathan fired a fhot as a fignal to the |