The opinion of the Court was drawn up by
Shepley J.—The sickness may be considered as occasioned by the climate without the fault of the seaman or of the officers oí (he vessel. And in such a case, by the maritime law, the expenses of the cure are a charge upon the vessel. The act of Congress, c. 29, 4 8, requires, that ships or vessels of a certain description should bo provided with a chest of medicines, accompanied by proper professional directions for administering the same ; and in default thereof that the master shall pay for all advice, medicine, or attendance of physicians. *406By an additional act, c. 88, the provisions of the former act were extended so as to embrace a class of vessels including the one in- which the plaintiff sailed. In the case of Walton v. The Ship Neptune, 1 Peters’ Ad. Dec. 152, it was admitted, that the weight of authority required the construction then given to the first act of Congress; that, “ the ship, by the act of Congress, is bound to furnish medicines or pay the physician’s bill; but the sailor, when the ship is so furnished, must pay for chirurgical or medical advice and assistance.”
And although learned judges have expressed their doubts, whether the act ought to have received such a construction, their reasons have never been deemed sufficient to authorize a change ; and this has been admitted to be the general and well established construction, subject to certain exceptions. And if such were not the original intention, there has been ample time for legislative interposition to effect a change and correct the error. The fact, that there has been no such interference in this commercial country for so long a course of years, tends strongly to establish the accuracy of the construction made by the judicial tribunals. The case of Harden v. Gordon, 2 Mason, 541, decided, that the vessel is liable, although provided with a chest of medicines, “ for board, lodging and nursing, while the sick seaman is on shore.” In the case of the Brig George, 1 Sum, 151, where the mate being sick went on shore for his own relief, for the safety of the crew, and for the interest of all concerned, it was decided, that all the expenses of the cure, including medical advice and attendance, were a charge upon the vessel, although she was provided with a chest of medicines as the act requires. In the case of the Brig Forest, Ware’s R. 420, it was considered, that the act could exempt the owners from the charge for medical advice and attendance only, “ when the seaman can have the benefit of the medicine administered under the printed directions for its use by the master or some person fit to be entrusted with so delicate a duty.” And it was accordingly decided in that case, when the master, mate and four seamen were sick and unable to administer the medicines, that the *407vessel was chargeable for medical advice and attendance upon the seamen on board, although properly provided with a chest of medicines. In the case of Holmes v. Hutchinson, Gilpin’s R. 447, it is said, “it must now be taken to be the law of the United States under our act of Congress, that in the case of an ordinary sickness, not infectious or dangerous to the crew, so as to render a removal from the ship prudent or necessary, and when no such removal is made, and the ship is provided with a medicine chest according to the act of Congress, the medical advice of the sick seaman is not chargeable to the ship.” It is not perceived that this doctrine, as has been supposed, is at all at variance w'ith that asserted in the case of the Brig Forest. The general rule only is here asserted, which was admitted in the case of the Brig Forest; while very properly it was not allowed to operate in that case, because the seaman without his own fault was deprived of the very benefit, which it was the design of the act to afford him, when it exempted the owners.
There is nothing in this case to exclude it from the operation of the general rule, unless it can be found in the nature of the disease, the yellow fever; <jr in the sickness and absence of the master; or in the desire of the seaman to be removed from the vessel. Judge Peters, in a note, 1 Peters’ Ad. Dec. 258, says; “'where one of a crew is seized with an infectious disease, he should be removed from the rest and sent on shore at the ship’s expense for the safety of the whole and the advantage of the owner, who must count on extra disbursements, if he will trade to ports and places liable to such casualties.” This remark formed no part of an opinion in a decided case; nor can it be considered as a statement of any principle of law. It is but an expression of his opinion respecting the duty of the master under the circumstances stated. And the reason given by him for requiring it, is not the cure of the sick seaman, but the preservation of the health of the rest of the crew, and the advantage of the owners. It will hardly do for judicial tribunals to take upon themselves to establish one invariable rule for the treatment of a sick seaman *408sinking under an infectious or other disease, instead of leaving it to be determined according to the circumstances attending each case, by those to whom the law has entrusted that duty. There may be ports and places, in which it would be most inhuman to pursue the course pointed out in that remark. Judge Hopkinson, in the case cited from Gilpin’s R. seems to afford it some countenance, while he is not satisfied with the reasoning. He says, “ This is well, when the sick man is taken from the ship for the safety of the crew and the advantage of the owner, but I do not feel the force of any claim on the part of the seaman, because the vessel is trading to a port or place liable to dangerous diseases. This he knew when he made his contract; and if it exposed him to extra expenses, as well as risk, it may be presumed, that he took them into the calculation in fixing the price of his services, the amount of his wages.’5 There is nothing in the act of Congress authorizing any distinction respecting the liability of the owners or master, on account of sickness by different diseases, infectious or otherwise, or on account of the danger of the sickness. Nor is there any thing stated in this case, which shews, that the yellow fever might not be expected to be cured as certainly by the medical advice and attention to the sick man on board, as by a removal on shore, with,such accommodations and comforts as a common sailor might obtain in that port. It is not to be i presumed, that the officers of the vessel did not conduct with humanity and prudence, and for the best interest of the sick and all concerned. And it is not the duty of the Court in the absence of all testimony on these points, to determine, that the expenses of sickness occasioned by a certain disease are to be borne by the owners, when they are exempted in like circumstances, if it be occasioned by other diseases. There would be found as little reason as law for the promulgation of such a general rule, that would be irrespective of the circumstances of each particular case.
The desire of the seaman to be removed on shore cannot change the rights or relations of the parties. His judgment in such cases must necessarily be subjected to that of those *409who are by law entrusted with the prudential concerns of the vessel and crew for the common benefit of all.
Nor can the sickness and absence of the master, on shore, make a difference in the case. The law devolves his duties, in such case, upon the mate, who, it presumes, is able to perform them properly. And there is no evidence in this case, that he did not. It is objected, that the services were not performed at the request of the plaintiff, and that payment cannot therefore be exacted of him. It appears to have been a proper case for medical advice, and the physician appears to have been called, because the danger was such, that the law's of the place, as well as the feelings of humanity, required, that he should be. And under such circumstances, the law will imply a promise from him, who has received the benefit of the services, to pay for them. In the case of Holmes v. Hutchinson, the physician was called by the master, and the seaman was considered as liable to pay for his services.
There is nothing therefore in this case, which exempts it from the operation of the general rule of law, which, as modified by the act of Congress, reliev.es the owners, and charges such expenses to the seaman.
It is agreed, that by the law's of the place the physicians’ bills must be paid by the vessel, before she can leave the port. The amount therefore must be considered as paid for him from the vessel during the voyage, and therefore liable to bo deducted from his wages. The vessel is regarded by the maritime law as his debtor, and the account is to be adjusted between him and her accordingly, by considering what she has paid for his use, to be paid in extinguishment, of his claims.
Judgment for the defendant.