1788.
caution in admitting the allegations of a man in his own favour. Doug. 751. 753. Receiving them, however, in their fulleſt extent on this occaſion, they only proved that the owner had the aſſiſted is procuring the mate to embark, and this could never defeat the triple right with which the law had armed.
Shippen, Preſident, in delivering the charge of the Court, adverted to the nature of the evidence on which the cafe was eſtabliſhed, and inſtructed the Jury to take the whole together, unleſs they ſhould think, that there were circumſtances in the Defendant’s confeſſion, which rendered the part in his own favor inconſiſtent or improbable.
But, even admitting the fact, that the Plaintiff had been ſhipped by the owner, his Honor ſtated, that the captain was liable; for, the law gave the Plaintiff a threefold remedy to recover this wages; and, unleſs by ſome poſitive act, or word, he had releaſed (as he might do) one of thoſe remedies, a mere compliance with the ſolicitation of the owner of the owner to embark, cannot defeat them. He ſaid there was no diſtinction, in this reſpect, between the mate and a common mariner; they were alike ſubject to the orders of the captain, who could equally refuſe to receive either, or, when received, was equally empowered to diſmiſs them; for, his appointment as captain gave him the ſole, undoubted, and excluſive right of chooſing every ſeaman under him, whatever curteſy he might be inclined to ſhew to the recommendation of thoſe by whom he was himſelf employed.
With regard to the cafe of repairs, the President obſerved, that it was not ſtrictly analogous to that of ſeamen’s wages, but ſtood on this footing:–If a veſſel is in port, where the owners reſide, and they, without the interpoſition of the captain, employ carpenters, &c. to repair her, the captain is not liable; not merely becauſe he does not employ them, but, becauſe he is not anſwerable for their conduct when employed. But if a veſſel is repaired in a foreign port, then, indeed, a ſimilitude ariſes between the caſes, and the captain is as liable for thoſe repairs, as for the wages of his ſailors, becauſe the workmen, as well as the ſailors, are, in the latter inſtance, employed by him, and equally ſubject to his controul and diſmiſſion.
The opinion of the Court was, concluſively, that, if the mate had ſerved on board the veſſel, the captain’s having admitted him to do ſo, rendered him liable for the payment of the wages.
And the Jury, accordingly, found a verdict for the Plaintiff.
Camp verſus Lockwood.
The Plaintiff and Defendant had both been inhabitants of Connecticut previous to the revolution, when the debt, for which this action is brought, was alledged to be contracted, and continued
