1803. BEALE V. well as the mariners, there being a detention of the vessel for six months, during which time she had been useless to the owners, who might have used her for other beneficial purposes. THOMPSON. They have been losing the interest of the money on the capital they have employed in the adventure, and they have lost the profits and benefits they would have received but for this restraint. That is the hardship on their part. On the other hand, the mariners have lost nothing except their time for six or seven months, and they have endured their imprisonment; which is a circumstance of hardship incident to their situation. But if it were to be contended that in all such cases as this the owners should be obliged to maintain them, and to pay them wages for any length of time in the case of a hostile capture against the subjects and property of this country, I do not know where the mischief would end, and it would be a very great discouragement to mercantile adventure. But without reflecting on the hardships of this case, putting it on the ground of capture, I think the owners are not liable to wages, and I think the seamen must be understood to have contracted to endure the hardships of such capture. I am of opinion, therefore, that there ought to be judgment for the Defendant. ROOKE J. Since I have heard the argument in the case of Leatham v. Terry (a), I am more aware than I was before of the extent of the question now before the Court, viz. What construction our courts of law shall put upon the late detention of our ships by the Russian Government? I wished to have taken more time to consider the point: but it has been thought expedient that this Court should deliver a judgment during the present term, that the parties may not be delayed as to their writ of error. I freely own my mind is not at present so settled as to enable me to give a decided opinion: but I will shortly state the inclination of my judgment, and the grounds on which it is formed. I incline to think it should be considered as an embargo only; and that if it is not in the strictest sense an embargo, yet still it bears a nearer analogy to an embargo than to a capture. My reasons are these: first, The Emperor of Russia calls it an embargo; he commands that an embargo be laid; he resolves not to take off the embargo till the agreement respect (a) A question arising out of the Russian embargo between underwriters upon ship and underwriters upon freight, the former claiming the freight earned by the ship after her release by the Russian Go vernment as an incident to the ship which had been abandoned to them during the embargo. No judgment was at this time pronounced by the Court. ing other ing Malta is carried into execution, and in the subsequent proclamation he engages to make satisfaction to the British subjects who have suffered losses during the troubles which have interrupted (altéré) the good undestanding between his empire and Great Britain, and that the effects (mis en sequestre) put under sequestration shall be restored. Now a sequestration does not import a change of property; but on the contrary, that the property continues to be the right of the true owner, and is held as a trust by the sequestrator. Our own proclamation states that our vessels are detained in the ports of Russia, and lays an embargo on the Russian ships and effects, but directs that no violence be offered to the crews, nor any injury done to the effects. The language therefore of the Russian court is embargo, the retaliation of our court is called an embargo: both are detentions quousque; but in the one case the crews and the effects are treated with more rigour and violence than in the other. I cannot persuade myself that this difference of treatment will change the nature of the act itself, and turn that into an hostile capture which the Russian Government declares to be a temporary detention: nor do I think now, when the property is restored and satisfaction made, that I have a right in my judicial capacity to call this act of the Russian Government by any .name, or to consider it in any other light than that in which it seems to have been considered both by the Russian Government and our own. The principal grounds of argument on the other side have been, 1. that the crews were taken out of the ships, and treated as prisoners; 2. that while prisoners the relation of master and mariner ceased between the sailors and their captains; 3. that if they were entitled to wages, there is no saying to what extent of time the owners might be liable to pay them. First, I do not think that the treatment of the crew as prisoners, and marching them up the country, varies the nature of the detention: it is still an embargo, or detention quousque. Suppose, instead of taking all the sailors out, they had taken half out and confined them; would those men, so confined, have been entitled to their wages? I think they would; yet during their confinement they could have rendered no actual service to the owner. Secondly, as to the relation ceasing. It may be suspended as to all the purposes of actual service; but so it is in the case of common embargo. If twenty men are necessary to navigate the ship, two or three may be sufficient to take care of her in port, and the rest are as useless to the master and owners as if they were in prison. The master indeed may have a controul 1803. BEALE v. THOMPSON. 1803. BEALE V. THOMPSON. troul over them; but this is in many cases productive only of trouble to him; he would have less trouble with them if they were to be taken from him and confined, and restored to him when the embargo was taken off. Thirdly, as to the length of time during which the owners may continue liable to wages being uncertain, it is not more uncertain than in the case of a common embargo. They are liable till it is taken off; it will not be taken off sooner or later because of the imprisonment of the crew. The owners are not more injured by taking the crew out than if they had been suffered to remain on board: perhaps less so; because the ship's provisions are thereby saved. These are the reasons which incline me to think that this seizure ought not to be considered in a court of law as differing in its legal consequences from a common embargo. And I am the less disposed to differ it, because I am not prepared to say that there is any middle state between an embargo and a capture; and if this is not embargo, but is to be considered as capture, it may follow that all contracts respecting the ship are at an end, that the charter-parties are annulled, the freight lost, and of course the wages lost also, and though in some of the cases the freight has been actually received, and therefore some wages may be claimed, yet when that is not the case, if we put such a construction upon the acts of the Russian Government as the Defendant insists upon, those poor sailors, who have navigated the ships out and home, will be indebted to the generosity of the owners alone for their wages out, and be entitled only on a quantum meruit for a renumeration of their services in bringing the ship home. If this be in legal effect not different from a common embargo, then, as I understand, it necessarily follows that all the contracts continue, unless dissolved by consent of the parties. And in the present case, there having been no actual dissolution, the contract continued during the time of the detention, and the sailor is entitled to his wages. It has been argued, that by separating the crew from the master, he could not discharge them; I say he could not discharge them in the case of a common embargo without their consent, unless in case of misbehaviour. And as in the case of a common embargo it is not probable that he would consent to discharge his crew, though they might desire it, if he expected his vessel to be soon released, so in the case of such an embargo as this in question it is not probable that the sailors would consent to be discharged, if they were to remain in prison, and would be thereby disabled from earning wages elsewhere. These are the reasons which incline my my mind to think the Plaintiff is entitled to recover: and they apply to the cases both of foreign and British seamen. But as I am not so satisfied with them as to have entirely settled my opinion, I shall so far defer to the authority of my two Brethren as not to divide the Court, and thereby stop any judgment; but shall consent that judgment be given for the Defendant. HEATH J. These are two actions brought, the one by a British subject, the other by a foreigner, and their declarations severally state that in consideration that they served on board their respective ships, the Defendants severally agreed to pay them their stipulated wages by the month. There is an averment that the Plaintiffs served aboard their respective ships. The hiring of mariners for a voyage is an executory contract, the service must be performed before the wages become due. There are many things that will dispense with the actual service, such as sickness and any accidental infirmity that happens after the mariner has entered on his services; but then the mariner is usually in the ship, and the ship is earning freight, so that there is a fund out of which the wages may be paid. It has been decided that an embargo of a temporary nature does not interrupt the contract. The matter that comes to be discussed is, whether this be an embargo or an act of hostility? For if this be an act of hostility it discharges the party to a marine contract from performance. An embargo is merely temporary, and has no feature of hostility, inasmuch as it may be, and in experience often is, laid on ships belonging to the subjects of the power which imposes it: and sometimes it is imposed by friendly powers to prevent intelligence from being given to their enemies with whom they are at war, or for other urgent occasions to be justified only on a principle of necessity and selfpreservation. In all these cases the mariner is serving aboard his ship, and in the actual employ of the master. The latter has a control over his crew, and in some sort over his cargo. For he may land his cargo and dismiss his mariners. Here was a complete interruption of the service, and consequently of the contract. The master and crew were separated from their respective vessels and cargoes. It is found that the crew were made prisoners. The notice of the Emperor of Russia declares that the embargo shall not be taken off until the agreement of the convention concluded in 1798 shall have been completely carried into execution. This is a general reprisal, and falls 1803. BEALE 1. THOMPSON. 1803. BEALE บ. THOMPSON. within the definition, given by Vattel, b. 2. c. 18. s. 342, 3. For he says, If there be any matter in dispute between two nations, and one call upon the other to come to a fair discussion of the matter, and the state so called upon refuse, the other state may issue general reprisals. Every general reprisal is an hostile aggression. The English vessels detained at Narra were burnt. This was an act beyond reprisals, for the making of reprisals is merely to coerce the party against whom it is taken to do justice. Every taking by virtue of a general reprisal is a sequestration and detention quousque. We are at present in the same situation with regard to France. Our present reprisals against that country, though founded, I hope, in better reason and more consonant to justice, proceed upon the same principle. It has been urged on behalf of the Plaintiff, that the seizure of the ships will not make a war, unless other hostilities follow, and the event must decide the question. To this it may be answered, that hostilities accompanied and followed the seizure. The battle of Copenhagen and the forcing of the Sound were hostilities; and it is found in the special verdict that the Danes were the allies of Russia. Suppose open war had followed between Great Britain and Russia, and then the Emperor Paul had died, and the ships had been restored within the same compass of time as at present; according to the argument the Plaintiffs could not have recovered. I cannot see how the difference arises. All hostilities between the two nations subsequent to the first seizure would have been extrinsic to the contract and the performance of it. From hence it appears that no service was either actually or virtually performed by the crews of these vessels during their imprisonment. There is a point of view which in my apprehension will set this matter in a clear light: The contract between owner and mariner being reciprocal, an action will lie for the owner against the mariner for not performing his part of the contract and serving him on board his ship. Suppose that in the present instance the Defendant had sued the Plaintiff, and had alleged a breach of the contract in absenting himself from the ship during his confinement. It must be admitted that his involuntary absence, occasioned by the violence of the Russian Government, would afford a clear defence to the mariner, and would be a dispensation for the non-performance of his contract. The owner then has as good a defence against the claim of the mariner for not serving him, as the mariner has against the owner |