#### Bartlett *against*Wyman.

ALBANY,

August, 1817.

Where a crew has have been reguiariy executed, fixing the rate of wages, ir the onrum'v'oyag^ teTMPbytltbreats cnteftaio'new higher Vate of tides are void, upoa the “mas-contrary to the policy of the *u7s°mi)*od,15 woSufd“ie biduiemeTtVa duty and* ofcon* theyhindtogup8 tbe master Imvíüs ¡Mke'thé’mi being olready bound by the shipping artides original* *ly*entered into. mise i8UíoidPfor raiion,ftheSieai TMJ,”t toaAbandon thTh°eyairitten shipping8*”*artith!a’poaado8 *at*only legal evit dence of the contract; anda mariner can recover nothing caed therein. Where a crew has been IV.t. ti vmr.

IN ERROR, on *certiorari7*to the justice’s court of the city OÍ *J^CW-YovIc**

This was an action oi assumpsit for seaman’s wages. The J ^ ° defendant in error, who was plaintiff in the 'court below, in the montb of *November,*1813, shipped in the port of *New-York,*on board the letter of marque brig Regent, commanded by the plaintiff in error, who was defendant below, and signed shipping articles in common form, for a voyage from iVezo *York*to *Charleston*or *Savannah,*from thence to France, arid back to the *United States,*at 17 dollars per month. Three witnesses on the part of the plaintiff below who were seamen on board of * , J tbe br‘gi tesTMcd, that some time after the brig had been in *vannaK*the defendant below, came forward to the crew, and observed to them, that *if*they would be faithful to the voyage, he would give them 30 dollars per month, or the highest wages out of the port, and that-this was his own offer, and that there had been no difference, or dispute, between him and his crew : that several days after the promise to increase their wages, some of the people, amona: whom was the plaintiff below, met the *1 1*° 5 . fendanf near the gangway, and asked him whether he meant to o ° *J*draw and execute new articles, to which he replied, that they *7*1 • i mu5t content themselves, that he would do what was right. That some time after this, the ship’s company being ashore, the defendant came to them and observed that he had promised to raise their wages, and the highest wages out of port were beyond all reason; but considering that they were bound at 17 dollars, he thought he would be doing well by them, if he increased their wages to 30 dollars, observing, at the same . , , , . ° , . time, that he did not know whether his owners would approve 7 . it, but if thev did not, he would pay it out of his own pocket, r[’he plaintiff’s witnesses further testified, that about the 22d of *December*the defendant below called all hands into the cabin to sign new articles, and observed that he would perform his promise, and give them 30 dollars. That the articles were prepared' and read to the crew *by one Hunter,*and'were the continuance of the voyage to France, as in the first and were dated, as was believed, on the 1st of *December^**261at which TMlfÉwthéir wages were to commence at 30 dollars. That the new anticles were signed by the plaintiff below, and all the rest ofiÜtíÉew, but not by the captain ; and shortly after the brig dropped down to the light-house, to avoid the effect, as the defendant said, of an embargo which he understood was likely to be-laid by congress. On the new articles being produced, there appeared an^JS|Sljgnt upon them, which had been made of the crew, as follows: “ *Georgia, Savcmiak.*The seamen having demanded an increase of wages, and being apprehensive that they might desert, if this was not done, these articles were drawn up as a mere matter of form; it is, however, understood that the articles signed in *New-York*are to bind, and those signed here to be of no avail, 25th *December,*1813. *A. Hunter,*Public Notary.’’ The plaintiff below proceeded with the brig to *France,*and returned to *New-York*in about six months.

On the part of the defendant, it appeared in evidence, that the brig was ready for sea about the 25th or 26th of December, 1813; that in the interval between her arrival, and the making the promise for the increase of wages, there was a rumour at *Savannah*that an embargo was about to be laid by congress, which occasioned a rise in seamen’s wages, and many sailors, in the port of *Savannah,*left their vessels, and went on board of others : that, at this time, the crew came after the captain to demand new articles, and an increase of wages, saying, that they would not go the voyage unless their wages were increased: that the defendant asked them if they thought it just, but ultimately entered into new articles, at an increased rate of wages. The jury found a verdict for the plaintiff below, the defendant in " error, for his wages according to the new articles, deducting money advanced, and his proportion of goods "embezzled on board of the brig.

The return of the *certiorari*was submitted to the court without argument.

Spencer, J.,

delivered the opinion of the court. The court are of the opinion that the judgment of the court below is erroneous, and that the defendant below was not bound by the new articles entered into at Beaufort, for several reasons:

1. As being in contravention of the policy of the act of congress of the 20th of *July,*1790 (Vol. 1.134.) This statute requires, un*262port in the *United*States, to any foreign port,J^fiare he proceeds prentices, or servants, declaring the voyage, and term of time for which the seame.n, or mariner, shall be shipped. In the preintermediate port, to ex: ^ o _ ________ deserting the ship, and to sanction this exaction by holding the contract, thus extorted, binding on the master of the ship, would be, not only against the plain intention of the statute, but would be holding out encouragement to a violation of duty, as well as of contract. The statute protects the mariner, and guards his rights in all essential points ; and to put the master at the mercy of the crew, takes away all reciprocity.(a) on the voyage, to make an agreement in wrffl^or print, with every seaman, or mariner, on board, with the exception of apsent case this was done, a per month, for the whole

2. It is very clear that the owners are not bound by the master’s contract; because he had no power to make it. They were already bound by the shipping articles, and the obligation was mutual. He had no authority to give more than the sum for which they had originally stipulated to perform the voyage. If so, then the exaction of higher wages may be considered as an undue advantage taken of the master’s situation.

3. The promise to give higher wages is void for the want of consideration. The seaman had no right to abandon the ship at *Beaufort;*and a promise to pay them an extra price, for abstaining from doing an illegal act, was a *nudum pactum.*

4. The written agreement, at the port of departure, is the only legitimate evidence of the contract, and a mariner can recover nothing not specified in the shipping articles, where those articles have been entered into. (1 *Comyn*on Contracts, 369. 5 *Esp. Rep.*85. *Peahens Nisi Prius,*72. 2 *Bos.*<§* *Pull.*116.)

5 In the present instance, the master never intended to be bound, for he never executed the new agreement.

On these grounds, the court' cannot hesitate in saying the judgment below must be reversed.

Judgment reversed.

(a)

**Vide *Callagan and others*v. *Hallett and Bowne,*1 *Caines' Rep.*104.