Porter v. Andrews , 9 Johns. 350 ( 1812 )

Per Curiam.

There was contradictory evidence as to the seaworthiness of the ship, after the owners had repaired her, and the court below concluded that she was not seaworthy, and allowed the seamen their ratable wages. It does not appear, but that the ship was seaworthy when she sailed from New-York; and as she lay several months in North Carolina, and no leakage appeared, on the voyage there, the presumption is that the injury by worms arose while she lay in the river at North Carolina. The question, then, is, whether wages are recoverable in this case, when no freight was earned; and when, in the opinion of the master carpenter, employed to repair the ship, she was sufficiently repaired for the voyage. The act of congress (Laws of U. S. vol. 1. 135.) had provided a competent tribunal to settle such questions, by enabling the mate and a majority of the crew to cause application to be made to the district judge, who would have directed an examination to be had, and have eventually determined upon the duty of the seamen. There is no case to be found, which allows wages when no freight is earned, and when the loss of the voyage is not to be imputed to the default of the master or owner. In this case, the crew neglected to apply, under the act of congress, for the requisite repairs, but submitted to have them made under the direction of the owners, who conformed to the judgment of the master shipcarpenter; and that must be deemed sufficient (even admitting a want of seaworthiness to justify a demand for wages) to excuse the owner from the payment of wages, if the crew, afterwards, refused to abide by the judgment of the master ship-carpenter, and to perform the voyage. They cannot be permitted, in a case free from any suspicion of fraud, to set up the opinion of journeymen workmen,' not only to excuse their breach of contract, but to justify .their demand for wages. Such a practice, if tolerated, would be extremely prejudicial to the merchants’ service.

Judgment reversed.