#### * Samuel Moore *versus*Thomas K. Jones and Others.

A master of a vessel is entitled to his wages, in case the vessel is captured, up to the time of the capture.

Assumpsit by the master against the owners of a vessel, for his wages and port pay during a voyage from the *United States*to the *Cape of Good Hope,*and elsewhere. The agreement between the plaintiff and defendants, touching his compensation and emoluments is contained in the following extract from their orders to him : “ For your pay and trouble we will allow you sixty dollars per month, and one dollar a day in foreign ports where you have no commissions.”

The vessel, in this case, after making sundry passages, arrived at *St. Salvador,*in *South America,*on the 5th of July, 1812, with a cargo, which was discharged by order of the supercargo, and preparations were made for loading the vessel with a return cargo ; but the supercargo, having been advised of the existence of war between the *United States*and *Great Britain,*resolved to suspend all proceedings respecting the return cargo; and this resolution was communicated to the plaintiff about two months after his arrival at *St Salvador,*and the plaintiff remained on board the vessel at that port between seven and eight months. On her passage for the *United States,*she was captured and conducted to *Halifax,*where she arrived the 16th of July, 1813. The plaintiff received no commissions, nor does he claim any.

The allowance of port pay is made to the master of a vessel, as an indemnity against those contingent expenses to which he is necessarily liable, in foreign ports, in attending to the business of his vessel. In some ports the master may keep a fire, and live, on noard his vessel; while in others the regulations of the police oblige him to live on shore. If, in ports of the latter description, his expenses exceed his allowance, he is expected to defray them himself; *379and if, on the contrary, in other places he can save any part of his port pay, the benefit of it accrues to himself.

Two questions were submitted to the Court, *viz.:*1. Whether the plaintiff was entitled to wages for a longer period than half the time the vessel lay at *St. Salvador;** and if he was, whether he was entitled to them up to the day of the capture, or only for the six months during which he was detained by the orders of the supercargo. 2. Whether he was entitled to recover any, and how much port pay, for the time the vessel lay at *St. Salvador.*

*Welsh,*for the defendants,

contended that the rule established respecting the wages of mariners liad equal application in the case of the master. The vessel, in this case, having been captured and condemned, and of course no freight earned, the mariners were entitled to their wages for half the time the vessel lay in the last port of lading, and to no more; and there is no ground for a distinction between them and the master, in this respect. (1)

As to the claim of port pay, none arises in this case, since the plaintiff was not employed on shore, and was wholly supported on hoard the vessel, at the charge of the defendants. This allowance was fixed and agreed on, in a time of peace; but the great detention at *St. Salvador*arose from a war, which was not in the contemplation of the parties at the time of the agreement.

*Curtis,*for the plaintiff.

The contract as to the port pay is express and not to be controlled. The plaintiff, too, is equitably entitled to this remuneration, inasmuch as he was at many ports, during this voyage, where his expenses exceeded the allowance. The happening of a war has no effect on such a contract.

As to the wages, the master stands on a very different footing from the mariners. By the authorities, he is entitled to wages up to the time of the capture. (2)

(1)

 4 *East,*43, *Pratt*vs. *Cuff.*—2 *Gallison's R.*164, 180, 181.

(2)

 12 *Mass. Rev.*173, *Arfridson*vs. *Ladd —Abbot on Shippings*part 4, c. 2, 3.

Parker, C. J.,

delivered the opinion of the Court. By his contract with the owners of the vessel, the plaintiff, who was the master, was entitled to sixty dollars per month during all the time he should remain in their service. He is entitled, therefore, to his wages, until the voyage ceased, or until some event happened which vacated the contract; unless the principle of the marine law, applicable to seamen, is also applicable to him as master; in which case, as there * was a capture upon the homeward voyage, he would be entitled to his wages only up to half the time the vessel was in the last port before capture. He *380does not claim any wages after the capture; because it is well settled that capture puts an end to the contract, as to any future claim under it for posterior services.

No authority has been cited, to show that he is not entitled to his wages to the time of the capture; but it is, suggested that he ought to be put on the same footing with the seamen.

Were this reasonable, it would not be for us to restrict him, if the law does not. But we do not find that the principle contended for has ever been adopted with respect to masters of vessels. They' rely only on their personal contract with the owners, having no lien upon the vessel. The mariners have two other securities for their wages, *viz.,*the vessel and the master; and in this respect are in a better condition than he is.

Further, the little comparative interest which seamen would have in the successful termination of the voyage, if they were, at all events, to receive their wages, was probably the cause of introducing the principle from the marine law, that their wages should depend upon freight earned; so that, when freight terminates, their wages cease ; and half the time at the last port of safety, in case of capture or shipwreck, has been settled, as furnishing the most just and equal rule.

As this principle is admitted, from necessity or general policy, to regulate, and in some measure to contradict, the terms of the shipping paper, which is the evidence of the contract made by the seamen, it will not follow that it shall also operate upon the contract of the master, whose situation is different, and to whom the rule seems never to have been applied. In the cases in which the wages of the master have been considered, the time of capture only has been considered as stopping his claim ; and there is no authority or dictum to the contrary. That * the seamen may go into the Admiralty for their wages, while the master cannot, may furnish some reason why the former are subject to the marine law, with respect to their wages, while the contract of the latter is to be governed only by the principles of the common law.

As to the other question, the contract is express, that the plaintiff shall have one dollar per day, in addition to his wages, while in port; and no evidence could be admitted to show that this was not intended, unless such a usage were proved as would be satisfactory evidence that the contracting parties intended something different from the plain meaning of the words.

The plaintiff is, therefore, entitled to his wages, at sixty dollars per month, to the day of the capture ; and to one dollar per day while in *St. Salvador.*