41 F. 222 | U.S. Circuit Court for the District of South Carolina | 1890
The libelant shipped before the mast on the schooner Harriet C. Kerlin, at Philadelphia, on 21st Novembef last. The shipping articles provided for a voyage from Philadelphia to Charleston and
Respondent insists that the essential condition of the contract of shipping as seaman was that libelant was able-bodied; that his illness, occurring so soon after his arrival on board, shows that this condition was not fulfilled; and that the sum of five dollars paid by the master to libel-ant was given and received as full compensation. From the little evidence given at the hearing, it would seem that libelant had recovered from his sickness, and was able to go to work; that his failure to perform his duties did not arise from debility from disease, but was the consequence of an acute attack of a different disease from that which .attacked him before. If he had made false representations, or had used any effort to mislead the master, it might be different. Nothing of this appears. I am constrained by the authorities to give him his full wages, notwithstanding he did not earn them. Judge Story in Emerson v. Howland, 1 Mason, 52, deciding this point, says that by the rule of the civil law if a party be prevented, without his default, from performing full services, he is still entitled to the stipulated hire for the whole period for which he contracted to serve. He shows that this rule is followed in the maritime codes of foreign countries. This is certainly the case in the Laws of Oleron, art. 7, 1 Pet. Adm. XVI., and in the Laws of Wisbuy, 1 Pet. Adm. LXXIV., and in the Laws of the Hanse Towns, art. 45,1 Pet. Adm. CVI. See, also, Hart, v. The Littlejohn, 1 Pet. Adm. 116. In this case the same judge discusses this rule in full. He shows that in every case in which a seaman, through no fault of his own, is disabled, he