delivered the opinion of the court. The general rule of maritime law is, that if freight be lost, during the course of the voyage, by a disaster or peril, arising from accident, or superior force, the seamen lose their wages ; but if the same be lost by the fraud or other wrongful act of the master, the reason of the nils does not apply. It is just, as Well as agreeable to the maritime law, to distinguish between the cases, in which the services of the seamen have not been rendered, in coll* sequence of the perils of the sea, and in which they have not been rendered, by reason of the act of the master Or owner. If a setuhah'be wrongfully discharged from the service, his Wages Will still continue down to the termination óf the voyage. (Abbott, 354.) So if the voyage be interrupted and lost, by the act of the master or owner, the seamen have a v.alid claim for an adequate compensation. The maritime ordinance of Lewis XIV. (des Loyers des Matelbts, art. 3.) provides for this Case, by Ordaining, that if the voyage be broken Up, after it has commenced, by the act of the owner or master, the seamen hired for the voyage, shall be paid their entire Wages for the Voyage, and those hired by the month, the wages due for the time they had served, and for the time necessary to enable them to return to the port of departure. “ The master,” says Pothier, in his remarks on this article, (Louage des Matelots, n. 203.) “ ought not *521to be discharged, from his engagements, because the break- ' , , ,,, ing up of the voyage was Ins own act, and a debtor cannot, by his own act, discharge himself of his obligation.’ The judgment in the court below was conformable to this rule of the French law ; and the rule on this subject in the English law does not, as I apprehend, differ from the marine law of France, though I have not met with any adjudged case that is in point, and a recent nisi prius decision looks strongly the other way.
In Eaken v. Thorn, (Abbott, 3d. ed. 444. 5 Esp. N.P. 6.) it was ruled by Lord Elknborough, that if a ship he not seaworthy when she sails, and the voyage is lost by that means, the seamen cannot recover their xvages ; for the rule is general, that the ship must perform her voyage to entitle the seamen to xvages, and the neglect of the oxvner in sending out an uns.eaxvorthy ship, might be the object of a special action on the case. Whether the loss of freight, by reason of the xvant of seaworthiness in the vessel, forms one of the exceptions, I am not pre-=pared to say ; but the rule that the voyage must be performed, is certainly not universal, and xvithout exception. A voyage lost by the fraud or misconduct of the master, and that so palpable as not to be denied, is not xvithin the reason of the maxim, that freight is the mother of wages. The policy of the rule xvas xvell and distinctly assigned in a case in 1 Sid. 179. xvhere it was held, that .if the ship perish by tempest, enemies, fire, Sic. the mariners lose their wages “ for if the mariners were to have their wages in those cases, they would not use their endeavours, nor .hazard their lives for the safety of the ship.” The counsel for the plaintiff in -the case of Abernethy v. Landale, (Doug. 539.) stated it .to have -been held, that -.if a ship be seized for debt, or for having contraband goods on board, the sailors had a right to their wages up to the time of the seizure. What decision or authority was alluded to, .does not appear : but this is undoubtedly the settled doctrine -in the treatises on the English marine law. In ■“ the discourse of oxvners and masters of ships and *522mariners,” contained in the “ sea-laws,” p. 457. it is stated as the rule of law, that “ if a ship happens to be seized for debt, or otherwise to become forfeited, the mariners must receive wages, unless in some cases where the wages are forfeited as well as the ship ; as if they have letters of marque, and instead of that they commit piracy, by reason of which there ensues a forfeiture of all. But lading prohibited goods on board a ship, as wool, and the like, though it subjects the vessel to a forfeiture, yet it does not deprive the mariner of his wages ; for the mariners having honestly performed their parts, the ship is tacitly obliged for their wages.”(a) The same doctrine is maintained in Malynes’ Lex Mercatoria, (p. 105.) and in the collection of sea-laws annexed to Malynes.
We may, therefore, consider this as a.rule of the marine law, both in Lrance and England.
The act of the master, in sailing to the Isle of France, with articles contraband of war, under the pretence of a want of water, was a fraudulent act, and from the testimony in the case, there is every reason to conclude, that this was the original destination of the ship, known to the owner, though concealed from the seamen. The contract entered into with the seamen was not kept in good faith, *523and, as the court below observed, a deceit was practised upon the plaintiff. The ship and freight were justly lost, by a wilful violation of neutral duty ; and the plaintiff below had the soundest claim upon the owner, for the equitable compensation which was allowed to him.
A question was made in the court below, whether the other seamen, who had a common interest in the point in contest, were competent witnesses. The fact would, no doubt, work strongly against the credit of their testimony, and they have been held incompetent in a court of admiralty. (1 Peters’ Adm. Dec. 211.) But as they were not directly interested in the event of the suit, they were competent witnesses, by the rules of this court.
We are, therefore, of opinion, that the judgment below must be affirmed.
Judgment affirmed.
These are the words of Malloy, in his treatise de jure Maritimo. (v. 1. p. 354. b. 2. c. 3. sect. 7.)
JRoccus seems to think that the seamen are entitled to their stipulated wages, if tiie voyage is not performed, provided they have been guilty of no fault, by which their wages would be forfeited. Solarium nauta debetur, quando navis magister ante tempus conventionis compleium, licentiam ei dederit, aut eum in terram reliquerit et per eum serviré non steterit• Item debetur nauta salartum convention, cum magistro navis, etiam si magister non naviget ex casu fortuito, et sine culpa ipsius magistri, licet nauta non serviat, dummodo ipse nauta absque licentia magistri navem non dcrelinquat. (De nav. et naulo. no. 43.)
The principle that the seaman is entitled to his full wages, though he does not perform the voyage, when the defect of service is not imputable to his fault; or where the loss of the ship or service is owing-to the fault or misconduct of the owner, is recognised by judge Peters, in several cases which came before him in the district court of Pennsylvania. (Peters’ Adm. Dec. v. 1. p. 118, 122, 193, 276, and note, p. 481.)