delivered the opinion of the court.
The plaintiff below, as mate of the American brig Criterion, signed the usual shipping articles for a voyage from New-York to a port in France, and back again to the United States. On the voyage, the brig was captured by a •British ship of war, and the plaintiff and the rest of the crew were taken from on board, and never afterwards rejoined the brig. About two days after the capture, the brig was recaptured by an American vessel, and restored, on payment of salvage, and performed her voyage, and earned freight. The plaintiff claimed, and has recovered, in the court below, his full wages for the voyage, deducting his proportion of the salvage, and the advance of one month’s wages. The question now submitted to this court is, whether this recovery can be supported?
There is little satisfaction to be derived from the examination of adjudged cases on this subject; for we find much confusion, and great diversity of opinion, among very able and learned judges on the quesiion. From an attentive examination, however, both of the English and American decisions, I am satisfied, that the weight of authority and principle is in favour of allowing full wages. It is a contract of a peculiar kind, .owing to the nature of the service, and is regulated by-principles of policy which are calculated to secure the faithful service of seamen. The governing rule is, that wages are payable out of, and depend upon, the fund created by the earning of freight, and not upon the performance of service. Hence, it has become a maxim, that freight is the mother of wages. The event of earning freight seems to be the contingency upon which the right to wages is to depend. It may seem, at first view, unjust, that ship owners should be compelled to pay wages when no service has been performed; but it would be, at least, equally hard upon seamen, to deny to them their wages, when the non-performance of the service was net occasioned by their own fault or misconduct, but by.. *334a vis major,- over which they could have no control,. ■ The great principle upon which the counsel -for the plaintiffs in error seem to have rested the cause is, that the capture dissolves the contract, and that the seaman’s right to wages, afterwards, depends upon the perfomance. of. services. This proposition appears to me too broad-to'be supported. If the contract-be dissolved, and entirely at an end, it would be optional with the ship owner, upon recapture* whether or not to employ the same seamen. But this never could be- admitted. No case'will be found to warrant such a principle. If the seamen are ready and willing to perform the service, agreeably to the terms of "the shipping articles, there can be no doubt but that the master would be bo(und to receive them. The effect of the capture is to dissolve the contract, if no' restoration takes. place, because it cannot be executed; but if, 'by any subsequent event, it can be carried into, execution, the rights of the parties are restored; and the performance of the contract is deemed only to have been suspended. ■ , • -
In the case of the Friends, (4 Rob. Ad. Rep. 116.) which has principally been relied upon by the plaintiffs in error, Sir WilHam Scott seems to admit, that the recapture revives, the. contract, as to the seamen on board at the time of the' recapture, It is not, however, to be denied, but that the point decided in that Case .is directly against the right' to reco ver wages in cases like the one before us¿ -In opposition to this, however, may be put the case of Bergstrom v. Mills, (3 Esp. Rep. 36.) where Lori Eldon says, there is no doubt, that if a ship does not perform her voyage, the sailors have no title to wages. Bat it is equally certain, that if the voyage is performed, a temporary interruption shall not defeat the'claims of the seamen. The temporary interruption here alluded to, was á capture," and détention of the vessel until recaptured.
. In the case of Curling v. Long, (1 B. & Pul. 637.) Lord Cli. j. Eyre, considers capturé as putting an end .to the cohtract , of freight; and that repapture and services performed, would raise a' consideration that would support an - action of assumpsit, not on the foot pf the old contract,, but on a new contract which springs out of it. Lord Aioanly* however, in Beale v. Thompson, (3 B. & Pul. 430.) denies this doctrine. He says, “ I admit that capture puts an end to the contract; but I do not admit, -nor do the cases establish, that capture one clay, and recapture the next, will put am end to the contract ; *335and with great deference to the dictum of Lord Ch. J. Eyre, in the case of Curling v. Long, I think that capture and recapture do not put an end to the voyage. That capture, followed by a total loss does, but capture followed by recapture does not; and God forbid it should; for when a ship is taken infra prmsidia hostis, and becomes the prize of the enemy, if capture puts an end to the voyage, the sailors are not interested to retake the vessel, for although the crew should rise on the enemy, and recapture and bring back the ship, they are to be told, she has been Captured, which puts an end to the contract for wages.”
The view here taken of the effect of capture and recapture upon the voyage, and the contracts in relation to it, appear to me to be founded in good sense and sound policy. It would be useless for me to travel over all the cases, and notice the various opinions which have been thrown out on this point; they are certainly not reconcileable with each other. And it strikes me, that the one maintained by Lord Eldon and Lord Alvanly, is the most fit and proper to be adopted. To these might be added that of Lord Ellenborough. (4 East, 558.) Malloy also lays down generally, that if a ship be taken, and after-wards retaken, and restored, and proceeds on her voyage, the contract is not dissolved.
If, then, the contract has not been dissolved, upon what principle can the seamen be denied their wages ? The voyage has been performed, and freight earned, and no voluntary act done by them to forfeit their wages. That the right to wages does not depend upon the actual performance of service is settled by the case of Chandler v. Greaves, (2 H. Black. 606. note.) In that case, the seaman was taken sick, and left on the voyage; and Lord Loughborough, at the trial, thought he was not entitled to wages: but the court, upon a motion for a new trial, said that the marine law ought to be followed in the construction of the contract, and directed an inquiry to be made as to the usage in the court of admiralty in such cases; and' it was ascertained to be the established rule, that a disabled seaman was entitled to his wages for the whole voyage, although he had not performed the whole. The same rule is laid down by Abbot, (354.) who observes, that as a seaman is exposed to the hazard of losing the reward of his faithful services during a considerable period, in certain cases, so, on the other hand, the law gives him his whole wages, even when he has been unable *336ío. fsnd'er-Ms services, if- his inability has proceeded from any hurt received in. the performance of his duty, or from natural sickness happening, to him in the coürse of the voyage. And such is also' the rule of the laws of Oleron, (art. 6. and 7.) the great, leading principles of which are received and adopted by most of the commercial nations of Europe" as a part of their maritime code. If such be the established rule with respect to sick and disabled seamen, it. must apply, with equal, if not greater force, to seamen forcibly taken- from a vessel. • There is- the same loss of service in the one case as in the other; and the same expense incurred by the owner to supply their places.
On an examination of the decisions of the courts in this country, so, far as they have fallen under rily observation, it appears to have been Uniformly considered, that seamen; in case§ like the present, were entitled to full- wages; This precise question has frequently come ■ under the consideration of Judge Peters, in the district court of Pennsylúañia, where he has held, that a seaman is entitled-, of not, to wages, according to the fate of the freight, which? is' a particular' fund upon which his right 1$. to depend. . If this fund is lost, the seaman suffers with the ship owner, and reaps not the reward of his dangers and his toils. But he is entitled to- wages ■ in all cases where the defect of service is not imputable to himself. If he has-been prevented from performing the voyage by force, he is to be paid-full, wages, deducting what-he may have earned in other service. ' It is highly fit and proper that a seaman should lose his wages where the non-performance of his contract is imputable to his own fault, negligence, or misconduct; but he ought not to suffer, or have his risk or responsibflity increased by circumstances he could not control, where the fund to. which he Ivas to look, though temporarily in danger, is -ultimately safe. (1 Peters’ Adm. Dec. 115, 123.)
The, principles upon which these decisions are, bottomed, have been sanctioned and affirmed by Judge Washington, in the circuit court of the United States. (2 Peters’ Ad. Dec. 184.) Cases like this, have been considered, in principle, as standing on the same' footing with those where the- non-performance of service has been occasioned by sickness; in which -cáse, although death'-ensues before,the termination-of the voyage,, full wages have been decreed by Judge Peters, and sanctioned by Judge- Washington. (1 Peters' Ad. 142. 157. and 157. note.) *337And this is, indeed, conformable to the principle adopted in Chandler v. Greaves, already referred to. Judge Bee, m the case pi Carey v. Schooner Kitty, (1 Bees’ Rep. 255.) held a different doctrine, and limited the recovery of wages to the death of the seaman; although he admitted that, according to the laws of Oleron, Wisbuy, and the Hanse Towns, wages for the whole voyage were recoverable; but he thought proper to follow the French ordinances, which, he said, were otherwise^ The case of Brook and Dorr, decided by the unanimous opinion of the supreme court of Massachusetts, (2 Mass. Rep. 39.) is directly in point on this question, and is entitled to very respectful attention. The late chief justice of that state, who was counsel for the defendant, did not pretend but that the plaintiff was entitled to his full wages, but argued that they were to fall upon the underwriters, and not upon the ship owners, they having abandoned. He admitted, that it was a general rule, that if a seaman has done nothing by which he has incurred a forfeiture of his wages, he is entitled to them, until the completion of the voyage; and said there was no case Avhere Avages had been recovered for part of a voyage, unless Avhere the mariner had died during the voyage. ■
Upon the Avhole, therefore, I think that the weight of judicial opinions on this subject is decidedly in favour of allowing to the plaintiff below his full Avages; and that this is in conformity .to the principles and policy which ought to govern the construction of contracts for seamen’s wages. The judgment of the court below must, accordingly, be affirmed.
Judgment affirmed.