Smith v. Gilbert , 4 Day 105 ( 1809 )

By the Court.

It is a settled principle, that the wages of the master and mariners, as such, are forfeited, or lost, with the destruction or loss of the ship and cargo. Yet, upon the capture of a ship, though the duties of the master, as such, cease, the property being taken forcibly from him, a new duty is devolved upon him as agent for the owners; a duty which, with sound discretion, he is bound to perform, so long as there is a reasonable prospect of success.

This agency is not in the nature of a voluntary courtesy. It is a duty the law imposes on him, in the absence of the owners; and the policy which makes wages depend on the earnings of the ship to secure the exertions of the mariners for her safety, does not extend to such agency after capture. It is for the interest of owners that such agents should be faithful. To make them so, sound policy dictates a reward for their services ; and though precedents of adjudged cases in point are not found, we are of opinion, that a master acting faithfully in such new capacity of agent, is entitled to a reasonable compensation for such services ; and that the superior court, in accepting the report of auditors in this case, professedly made ¡on the principle that no compensation could by law be allowed for such services, erred and mistook the law; and that the judgment ought to be reversed.

Judgment reversed.