40 Mass. 492 | Mass. | 1839
delivered the opinion of the Court. This is an action brought by the plaintiff to recover the wages or earnings of his minor son, for services on board of a whale ship. It was found by the jury, that the son deserted in the course of the voyage, without any excuse or justification on the ground of cruel treatment. By the shipping-articles, such a desertion is declared to be a cause of forfeiture, and if the son were acting suo jure under and by force of the contract, it is alleged, that h;s share would be forfeited, and that the father is bound by the same forfeiture ; or, by the general rule of the maritime law, which declares that all claim: for wages are forfeited by desertion.
We are then brought to the question, who, upon equitable principles, is liable to the plaintiff, as having received the services and earnings of the son, on the whaling voyage in question.
It has often been held that, upon these whaling voyages, carried on under a shipping-paper and form of contract, like that exhibited in the present case, although the officers and seamen, respectively, are to receive a share of the proceeds of the oil and other acquisitions of the ship, as their only compensation, yet they are not partners or part owners of the oil tvith the owners of the ship, but on the contrary the oil, before
The master has no benefit from the services of the seamen ; he takes nothing but his own share, according to the terms of his engagement, for his own services. The supposed analogy between the case of such a master, and the master of a merchant vessel, fails. In the latter service, the maxim is, that freight is the mother of wages ; and as the master is supposed to employ the vessel, and is entitled to collect and receive the freight, he holds the fund from which wages are to be paid. For this reason, as well as the practice in the merchant’s service, for the master to make an express contract with the mariners to pay their wages, they have a right of action against him
Whether in the whaling service, the master would be liable for the seaman’s share, in the nature of wages, if he were in a condition to sue on the express contract, we give no opinion. This decision goes on the ground, that the father disaffirms the express contract, and sues on an implied promise to pay what he is equitably entitled to have, and that as the owners held the proceeds of the son’s earnings, they, and not the master, must be responsible, on an implied promise to the father.