1830- David Hoffman's experience before the U.S. Supreme Court was varied and, like many of his contemporaries, not well recorded. While a popular figure like Daniel Webster might draw substantial attention from court followers, most attorneys toiled in relative obscurity in the basement chambers that the Supreme Court then occupied. In this particular case the names William Wirt and Roger B. Taney might have attracted some interest but the winners in the case, Hoffman and his partner Charles F. Mayer, would not have generated much public interest.
Hoffman, in typical style, presented a well researched argument that practically bulged with citations, almost 200 British and American cases. His adversaries that day also presented a strong case but one that relied on considerably fewer cases, citing only about 40.
As Hoffman would later lament to Justice Joseph Story, winning this case was no guarantee that he, or his clients, would collect.
Page One of the 1830 Minute Books of the U.S. Supreme Court. Originals from the National Archives of the United States.
The case was argued by Mr Mayer and Mr Hoffman for the appellants:
and for the appellees by Mr Taney and Mr Wirt.
Mr Hoffman and Mr Mayer, for the appellants:
1. The doctrine that 'freight is the mother of wages' is neither absolutely and universally, nor even generally true. Vessels may, by the plan of the particular enterprize, sail in ballast for the whole or the greater part of a voyage; so in some cases a single package of merchandize might be taken on freight; and it would be strange to say, that that should be the exclusive pledge of the sailor's right: and it sometimes happens, that the earning of freight is prevented by a blockade, or by the misconduct of the master or owners; and yet, in such cases, wages have been allowed without regard to the fact of freight earned. If the doctrine of the maxim were true, seamen could not be allowed wages out of savings of wreck; and it is now settled, that they are allowed as wages, and not es salvage. The 'safety of the ship,' another branch of the maxim, is not essential to the claim of wages; because they are awarded even where the ship has been condemned, if the cargo be restored. The true principle of the seamen's right to wages must be, that they contract to serve to insure the safety of the ship; to bring the res safe into the hands of her owners: for which the owners are to pay, if no vis major shall occur to take the vessel out of their hands, or break up the voyage; the wages-claim being incident to the ship and the voyage, and not to the freight. Where freight is earned, the seamen, the law decides, ought to have their wages: but the converse of the rule is not true, as is observed by Lord Stowell in the Neptune, 1 Hag. Adm. Rep. 232. These views are sustained by the following cases: 2 Peters's Adm. Rep. 426. 2 Mason, 319. 3 Mass. 563. 3 Kent's Com. 145. Anthon's N. P. 32.
2. The owners are liable for wages, where they or the master or their agents are in fault; either negligently or wilfully, in reference to the ship or the voyage: as where they have deviated from the voyage specified in the seamen's contract; or have been guilty of contraband trade, not in the view of both the parties by the contract, and the vessel is captured and lost; where the seamen are separated by cruelty, or without cause, from the ship; and in all such instances, the seamen earn their wages without regard to the fact of the ship's safety. Hoyt vs. Wildfire, 3 Johns. Rep. 518. 2 Peters's Adm. Rep. 261, 266, 403, 420, 437. 9 Johns. Rep. 138, 227. 1 Peters's Adm. Rep. 51. 1 Mason, 51, 151. 1 Peters's C. C. Rep. 142. 3 Kent. Com. 144. 2 Peters's Adm. Rep. 415. Abbot, 442, 443, 444, 478, 434, 435, 436. 11 Johns. Rep. 56. Bee, 395, 402. The Countess of Harcourt, 1 Hag. 250. 1 Hag. 347. 2 Rob. 216. 2 Gall. 477. 11 Mass. Rep. 545. 3 Mass. Rep. 472. Anthon's N. P. C. 32. And so where a vessel is unseaworthy, at the commencement; and the owners are only constructively in fault. Abbot, 447, 450, 457. 2 Peters's Adm. Rep. 266.
And in all these instances, as in the case of sickness and expenses attending it, the seamen receive damages in the shape of wages; and the claim is treated precisely as a claim for wages. 1 Mason, 51. 2 Mason, 541. 1 Dod. 37. 2 Gall. 164. Abbot, 443, 444. The rule is the same where a voyage is broken up or abandoned before being begun; and damages are recovered as wages. Abbot, 449, 450 (notis). 2 Peters's Adm. Rep. 266. Pothier's Mar. Con. 120, 125.
The ship owners are implicated in the supercargo's conduct, even where they do not own the cargo: because the freighter is answerable over to the owners for the supercargo's acts. Pothier's Mar. Con. 122, sect. 201. Abbot, 280. 3 Mass. Rep. 472. Bee, 369.
3. Where seamen suffer in the service of the vessel, whether separated or not from her; their wages continue, though their actual labour be suspended, and though the vessel in the mean time incur heavy loss from the cause which separates the seamen from the vessel, or occasions their suffering. 1 Peters's Adm. R. 115, 123, 128. 2 Peters's Adm. Rep. 384. 3 Kent's Com. 144, 145. Bee, 135. Beale vs. Thompson, 4 East, 546. 1 Dow's Parl. Ca. S. C. 299. 2 Mass. R. 39, 44. 12 Johns. Rep. 324.
The admiralty closely scans the actions of seamen; and even protects them from the consequences of such as are inadvertently made. 3 Kent's Com. 136, 141, 150, 154. 1 Hag. 355, 357. Abbott, 435, 449. 1 Peters's Cond. Rep. 135, 136, 187.
4. The seamen's claim is not in law connected with the contract of affreightment. It suffers no diminution from any delays, or actual loss of profits of the voyage to the ship owners, in freight, or otherwise. 1 Dow, 299. 4 East, 546. 11 Mass. Rep. 545. 14 Mass. Rep. 74. And so little are the seamen in their right to wages, identified with the enterprize, that they do not contribute to general average. 2 Gall. 182. But as their right is connected with the ship, they contribute to the expense of her ransom; and, perhaps, might be bound to contribution, on the same principle, in case of recapture.
The cases of seamen earning wages, where there has been a capture and recapture, or a capture, condemnation, and ultimate restoration of the ship, all show that the seaman is legally interested for his wages in no concern of the voyage, except the ship's safety. And, further, it is in these cases settled: 1st. That it is the duty of the seamen to remain with the vessel until the first adjudication, and until the hope of recovery shall thus appear to be gone; and when the vessel is sold and restored, they are paid their wages out of the proceeds, up to the time they so adhere to the vessel. 2d. That where the vessel is condemned, and that sentence reversed, and freight is decreed, or damages in lieu of freight, wages are payable for the time of the actual service of the seamen. 12 Johns. Rep. 324. 2 Gall. 164. Bee, 135. 2 Mason, 161. 1 Mason, 45. 1 Peters's Adm. Rep. 128. 14 Mass. Rep. 72. Abbott, 459 to 463. 2 Brown's Pennsylvania Rep. 335. 3 Kent's Com. 149, 150. 4 East, 546. 1 Dow's Parl. Ca. 299. Further, to show that the seamen's contract is in no wise dependent on the freight, adventure, or interest; the cases may be cited, where their wages have been awarded, though the vessel went in ballast, or in quest of freight, and was disappointed: and where it has been settled that the port of destination is in legal effect the port of delivery, if no cargo be in fact taken thither. 1 Hagg. 233. Abbott, 447, 300. 1 Peters's Adm. Rep. 187, in note. 2 Gall. 175. 2 Mason, 319. 7 Taunt. Rep. 319. And so where vessel and cargo belong to the same persons, no freight actually and literally is earned, and yet wages are due. 3 Kent's Com. 149.
5. The positions stated being sustained, the appellants claim to be paid the full amount of wages from the commencement of the voyage throughout the whole term of imprisonment, and of absence from the United States. It is contended, that this amount ought to be paid out of the fund now represented in court, without regard to the pretensions of the holders of it, as respects their assignors; or to the fact of all the holders of the means derived from the treaty, not being before the court in this case. The claim pervades the whole, and every part of the fund recovered; and those before the court may recover the proper contributory portion from such as are not parties; as in cases of judgment, binding several pieces of land, and executed entirely upon one: or where, as in Pothier's Mar. Con. 122, sec. 201, the merchant occasions a loss, and the ship owner has to pay the seamen's wages, because of his claim over against the merchant. Abbott, 245. 1 Stark. 490. 2 Serg. and Lowb. 480.
6. The resources of the seamen for the payment of their wages are numerous.
The thing assigned was a mere chose in action, and a claim for that in which the sailor had a clear interest as a cestui qui trust: and the object of the assignment was to satisfy antecedent debts not contracted on the faith of the assignment, and for which no release, as a consideration for the assignment, was given.
The owners of the property could assign only an interest commensurate with their right; and only so far as the sailors' lien gave the subject free to the owners, had they any right. The lien of the seaman on the thing is fixed and intrinsic; and announced by the law on the very face of the thing to exist: and thus carrying notice of it to all who claim any benefit out of the specific object; as much so as the law regards all assignees of a chose in action as owner of the equities between the original parties to it, and implicated in them. Norton vs. Rose, 2 Wash. R. 233.
A bona fide purchaser, without notice, takes the thing clear of all latent equities. 2 Johns. C. R. 443. Redfern vs. Ferrier, 1 Dow. Parl. Ca. 40. But a seaman's lien is not a latent equity.
To show that a lien which is intrinsic, is a legal right, and not a mere transient and accidental equity, and is not to be extinguished by assignment, the following cases were cited: 3 Meriv. 85, 99, 104, 106. Mann vs. Shifner, 2 East. R. 523. United States vs. Sturges, 1 Paine's C. C. R. 535; and also, Abbott, 245 (in notes). Cited also, The Flora, 1 Hagg. 298; The St Jago de Cuba, 9 Wheat. 409.
No actual notice to the assignees then was necessary; the notification of the seamen's lien being furnished by the subject itself. The claim assigned being the effective proceeds of that to which the lien adhered, notice was imparted from the very source of the assignees' title; and it was by law, and so, necessarily known to them, because published by the law as a legal right to the whole world, that the claim could not be prosecuted for the exclusive use of the owners of the ship.
There was, however, notice here to the assignees in fact, by the history of the claim, which is connected with its title: and it was like the case, where the tracing of the title may carry the party to the view of a particular right or circumstance; of which the law then imputes notice to him. There was, at least, enough in the events on which the claim arose to put the party on inquiry, and so to affect him with notice. 1 Johns. C. R. 302. 8 Johns. C. R. 345. 5 Johns. C. R. 427. 7 Cranch, 507, 509. There was too a lis pendens, to give notice of the seamen's pretensions; the suit of the seamen against the owners at the period of the assignments. 1 Johns. C. R. 566. 3 Mason, 187. 2 Rand. R. 93. Cited also, 3 Kent's Com. 175. Abbott, 244, 245. Campbell vs. Thompson, 1 Stark. Rep. 590. Roccus, note xci. 1 Dod. 31. 2 Dod. 13. 2 Gall. 360. 4 Cranch, 332. 2 Brown's L. 143.
Having thus identified the assignees with the owners, it is to be seen whether there is any thing in the nature of the seamen's present claim, or of the fund in question, which prevents a lien arising, or has intercepted that lien. It may be premised, that the means from which satisfaction is sought, if referred to the royal act, may be regarded as flowing rather from an act of state, than a judicial decision. The legal nature of the fund is not varied by this circumstance, as concerns the sailors' rights. Beale vs. Thompson, 4 East, 561.
8. It cannot be said, that looking to the fund in question, the appellants are endeavouring to get the benefit of a matter ofdamages to which the lien of the seamen cannot attach, or a mere matter of indemnification collateral entirely to the res.
Whenever the specific thing is not restored, the satisfaction, technically speaking, is regarded as damages; but there is no reason why the moneys which afford that satisfaction may not be regarded as the effective substitute of the thing. Manro vs. Almeida, 10 Wheat. 473. In case of reversal of condemnation of property, and an intermediate sale, the restitution of the proceeds of sale is virtually only a satisfaction in damages, and is so considered; damages being contradistinguished from the specific thing. Willard vs. Dorr, 3 Mason, 164. So it is said in 1 Peters, 130, that wages shall be allowed in the case there put, 'if freight be awarded, or damages in lieu of it.
There is nothing, therefore, in the mere term of damages, so vague and transitory, that they can be identified in law to nothing specific. Beside, if there be but damages in question, they are fixed and liquidated by the royal order of Spain, in 1815, before the assignment; and in that award we held a vested interest, although it be even admitted that only a claim was by it established. The commissioners under the treaty with Spain, merely executed the royal order: affording only the satisfaction which under that order the officers of Spain should have afforded. There was a sufficient grievance for the redress of the commissioners, in the fact that Spain had by the royal order directed the satisfaction, and that the authorities had not obeyed the direction. The merits of the case, antecedent to the royal order, need not have been presented to the commissioners. The order, and the commissioners in their award, speak too only of a restitution of 'proceeds;' so that the appellants have the benefit of that phrase for the moneys we claim, if there be any force in it. The commissioners awarded what the King of Spain had directed to be done, and because it had been so directed. Our interest in the case, therefore, relates back to the date of the royal order; overreaching the assignments.
It may be said, that this is an attempt to follow a matter of damages, as would be the case of a seaman claiming wages out of a recovery upon an insurance of a vessel, when she has been totally lost; or out of a recovery of damages for a collision, when by that circumstance a vessel has been lost. In both such cases it is admitted as a general rule, that the seaman would be entitled to no satisfaction. 2 Peters's Adm. R. 276. 11 Johns. R. 279. Abbott, 257, 457. 18 Johns. R. 257.
The difficulty in the way of the seaman, in either of the supposed analogous cases is not that the fund recovered cannot be considered as the substitute of the res; but only that the seaman has no claim against the owner, for which either the res, or the fund, can be a collateral resource: for in every case of a total loss of the res, if the equivalent res be made liable, it is only under a charge or lien that must be incidental to a personal right; a claim against the owner. Supposing, therefore, the perfect innocence of the owner respecting the loss of the vessel in the two cases; it would appear that the very event which puts an end to the seamen's claim, gives rise to a collateral demand of the owners. Could the success of the owners in that demand revive the already extinct claim of the seamen? Can a lien exist, unless to support and effectuate a claim? Is not in the cases supposed the right or complaint of the owner founded on the reason that he has been prevented from attaining that benefit, which, after deduction of expenses, including of course seamen's wages, would have resulted to him from the voyage? The claim of the seamen being gone, by the fact of the disaster; the recovery can have no respect to it as an incumbent burden on the owners. What then is the portion of the recovery that answers to the seamen's wages?
In the case of the insurance recovery, it was further observedthat, to make the seamen's wages good out of the fund recovered, would (where the claim of the seamen is supposed to be gone) be allowing the seamen in effect to insure their wages;--which is notpermitted.
In 3 Mass. R. 443, a satisfaction of a claim, as that here in question, under a treaty is regarded as salvage. Courts of admiralty are courts of equity, in reference to all rule of interpretation, and as regards all constructions. They decide ex aequo et bono; and require but certainty to guide them, and substance to rest upon. Abbott, 435. 3 Mason, 16, 17, 263. Abbott, 435. And all these elements are here found, to connect the fund in question with the original res.
9. It may be said that viewing the fund here as proceeds, it has lost the legal qualities of the specific thing; that it is turned into mere currency; and not specifically liable any more than would be the general means of the owners.
It is a well established rule of common law and equity, that the proceeds or pecuniary result of the thing is regarded as the representative of the thing; as the thing itself: and that money may be specifically appropriated, and bound, if it can be traced, and, as a fund, identified. And such is the principle too of admiralty. 1 Johns. C. R. 119. 2 Johns. C. R. 444. 4 Johns. C. R. 136. 7 Johns. C. R. 52. 6 Johns. C. R. 360. 2 East, 523. D'Wolf vs. Harris, 4 Mason, 515. Smart vs. Wolf, 3 Term Rep. 323. Park, 23. Jacobson's Sea Laws, 276. Hunter vs. Prinsep, 10 East, 378. 1 Day, 193. 4 Rob. Ad. Rep. 302, 314, 347. 2 Rob. Ad. R. 343. Cowp. Rep. 251, 271. 15 Mass. 408. 1 Barr. R. 489. 6 Price's Ex. Rep. 309. Camp. N. P. C. 251. 3 Bos. and Pull. 449. 5 Barn. and Ald. 27. 1 P. W. 737. 1 Atk. 94, 102, 232. 2 Vern. 566. Co. Bank. Law, 556. 1 T. R. 26, 747. 3 Mason, 238. 1 Mason, 99. United States vs. Peters, 5 Cranch, 115, 2 Peter's Cond. Rep. 202.
Assuming that, in point of law, the assignees stand identified with the owners, in reference to the fund, which the appellants heretofore endeavoured to establish; it is clear that the fund is affected by the lien of our demand, as the res, from which it springs, would be.
10. It may be said, however, that whatever may be the principle as to the lien on the proceeds, yet that the admiralty cannot carry its jurisdiction to the proceeds which have been produced on land, and by distinct operations there; and that the lien or specific claim can only be effectuated in a court of equity. It is difficult to see what greater advantages that court could afford to any of the parties, especially since an admiralty court, as has been shown, acts as a court of equity; and where a court of admiralty has possession of a marine subject, as a marine claim or the res involved in it, it will, by its incidental jurisdiction, go on as a court of equity to distribute a fund among claimants; over whose commonds it could pretend to no original jurisdiction. The Packet, 3 Mason, 263. 4 Mason, 386, 387. 1 Hagg. 356, 357. The assignees are here amenable to this jurisdiction, as the possessors of the fund, as which they are liable equally with the fund itself. 1 Gall. 75. 1 Show. 177. 3 T. R. 332. 10 Wheat. 407. 1 Mason, 99. 7 Ves. Jun. 10 Wheat. 473. The fund, as the result of the thing, is like the thing, subject to the admiralty jurisdiction. This grows out of the powers of incidental judicature, belonging to a court of admiralty. This incidental power necessarily attaches to all jurisdictions. As regards the admiralty, it is not confined to prize jurisdiction. 2 Peters's Cond. Rep. 2 (note). 2 Wheat. App. 2. 2 Brown's Ad. 101. 8 Cranch, 138.
It once being admitted that the fund is in law liable for the claim, it is clear from the authorities, that the admiralty must have jurisdiction to apply those means; since it is established, that if the original claim be within the admiralty cognizance, all that is necessary to enforce or satisfy that claim, whether as respects persons or property, is within the jurisdiction; and that without regard locality. 3 T. R. 333, 344. 1 Peters's Adm. Rep. 126, 232. 2 Peters's Adm. Rep. 309, 324. Abbott, 483. 4 Cranch, 431. 2 Gall. 435, 436, 446, 462. 1 Vent. 173, 308. Hardr. 473. 1 Lord Ray. 22, 271. 2 Lord Ray. 1044, 1285. 12 Mod. 16. 2 Lev. 25. Cro. Elizab. 685. Rolle's Abr. 533. 12 Co. 97. 1 Lev. 243. 3 T. R. 207. Bee, 99, 370, 404. Carth. 499. 2 Mason, 541. 3 Mason, 255. 4 Mason, 380. 1 Mason, 99. 1 Hagg. 298. 9 Wheat. R. 409. 2 Price's Ex. R. 125. 10 Wheat. 497. 7 Ves. Jun. 593. 2 Str. 761. 3 Mass. R. 161.
11. It may be objected, however, that the royal act in the case is a judicial declaration of the innocence of the owners, and cannot be averred against by these libellants; but is conclusive against their present claim, which is founded on the idea of the breach of contract by the owners; a conclusion directly the reverse of the royal decision: and, secondly that the libellants cannot contradict that decision, because they seek the benefit of a fund which flows from it, and of a retribution which could have been awarded only to owners free of the deliquency charged in the libel.
On these objections it may be observed, that the act of the king of Spain, according to its purport, may fairly be deemed only a bounty prescribed for prudential reasons, and prompted by motives of state, under the funcied power of reprisals threatened; as the royal missive says, to be exercised by the senate of Maryland. It professes not to be an examination of the facts of the case, nor to know any thing of the confiscation that had taken place in Chili; and declares, in effect, that the proceeding in the cause was, at the time of the royal award, before the council of the Indies, in the regular order of judicial investigation.
It is contended, on the other side, that the royal decree is a judicial decree, and in rem, and like a prize court decree, and in its conclusive scope embracing all the world. Admitting that it is a judicial decree, and that the king sat as prizejudge in pronouncing it; it will still be inoperative as against us, when all the principles are taken into view which regulate the effect of such decrees. It is a general principle, that judgments are binding only on those who are parties to them: and it is said by justice Washington in 4 Cranch, 434, that the conclusiveness of foreign sentences was not to be enforced as a departure from that general principle; but that that, as understood and applied, was only a sequel of that very principle. The sailors were not parties to this supposed decree of Spain, actually; and they were not so constructively; if the views presented by us be correct, as to the distinctness of the claim involved in the Spanish cause, and that now in question. In prize sentences, and in exchequer decrees, all are supposed to be parties who have a legal interest in the questions directly in the cause; and all such are allowed to intervene, and are therefore regarded as actually parties; whether they avail themselves of their privileges, or forbear to do so. Hardr. 194. 2 W. Black. 977. 5 T. R. 255. 13 John. 561. 3 Wheat. 246, 315. The Apollon, 9 Wheat. 362. 2 Evans's Pothier, 350 to 354. Hence the conclusiveness of these judicial acts; and such is the standard and limit of their operation; extensive as it is, but not unbounded. This is the position, in effect, of chief justice Marshall, in 9 Cranch, 126. No one is bound by a judgment who was not actually a party to it, or might have made himself so, is the principle of common law, as to judgments generally; and, we see, is not deviated from in the case of the sentences and decrees now in question. 2 Stark. 191. So at common law, no judgment is conclusive beyond the point decided. 2 Bac. Abr. 630. 1 Paine's C. C. R. 552. So a prize sentence or a decree of an ecclesiastical court, in conclusive against all legally concerned in the point of the decree, only as to the fact concluded, on which the decree is founded; and only as regards the direct operation of the decree or sentence. 2 Evans's Pothier, 355, 356. 8 T. R. 192.
The result of the decision then is, that in fixing the conclusive operation of these sentences regard must be had to the particular right in question; and the sentence is evidence of the fact on which it rests, only so far as the fact bears any relation to that right. Hence, these positions have been determined:
These positions seem to follow from the principles of justice that should regulate judgments; and without them there would, in the efficacy of foreign sentences, be a departure from the fair rule of law that judgments shall bind only parties; and Mr Justice Washington's remark, already referred to, as to the force of these sentences, would not be sustained.
If the act of the king of Spain does not conclude the rights of the appellants, it cannot be pretended that such can be the effect of the award of the commissioners under the Florida treaty. That award, we have endeavoured to show, was nothing more than the execution of the royal order; or rather was founded on the conclusiveness of that royal order, as a testimonial of the right of the owners to redress at the hands of Spain. And the disobedience of the Spanish authorities was, of itself, a grievance, in behalf of which the commissioners would interpose; without looking into the circumstances of the owners' case as that stood when under judgment before the king of Spain. Consequently, the award and the royal order are to every effect identified; and are as much so as the judgment of the appellate tribunal is identified with that of the original. A reference to the report of the commissioners of their proceedings, which was made at the close of the commission, will support these views; as to the light in which they regarded the acts of the government, or of the judicial authorities of Spain in the particular cases.
With regard, however, to the effect of these awards, this court has already determined, that the equities of none shall be precluded by them, whose pretensions have not been actually and directly passed upon by the awards. Comegys vs. Vasse, 1 Peters, 212, 213.
It is said, finally, that any recovery of the libellants in this cause must be limited to the amount of freight of the voyage; and to that amount as adjusted by the award of the commissioners. As regards the effect of that adjustment, having shown that our claim is not under the royal act, or under the award, it can be subject to no limitation by virtue of either. The freight awarded, if it is supposed to have included in its estate the claim of seamens' wages, cannot be understood to have considered the enhanced wages, nor the claim for the long confinement in prison, and the whole period of suspension of our labours; which, though regarded as wages in admiralty, are intrinsically damages. The award, as concerns the freight, cannot be considered, then, as involving an ascertainment of the amount of our claim; and the freight fund is not consequently to be regarded, as our opponents' proposition would view it, a trust fund, of which only a part belongs to us; and that part regulated by the proportion which our wages might bear to the whole expenses of the voyage. On the other hand, there is no principle which would make even the full amount of thefreight the limit of our recovery. If the owners had been perfectly innocent, and our claim were not founded, for almost the whole amount, on their wrong; there might be reason for saying, that our recovery should diminish in proportion to the deficiency of freight awarded to the owners; as might, in such a case, be inferred to be the proper rule, from 3 Mason, 163. But, even in such a case, there would be nothing to exonerate the ship from the charge; which by all is admitted, to be subject to the lien. Freight, as clearly, we think, is subject to this lien; and we hold that at least freight and ship are here chargeable: but that under the decision of judge Ware, and the positive authorities to which he refers, the cargo also is liable to the extent of a reasonable freight. The evidence in this cause shows that the fair freight on such a voyage at the Warren's, would vastly have exceeded the amount granted by the commissioners. If their award be not binding against our rights, as we have endeavoured to show, why should their estimate of the freight supersede all the evidence adduced to show its proper amount? If the owners of the ship had not owned the cargo, and a freight had been actually charged on it; our pretensions could not have transcended the value of the ship and of the freight, as charged: but, ship and cargo belonging to the same persons, the freight is but a speculative item; and the amount is to be determined by evidence such as we have adduced, and on the supposition of the ship owners not owning the cargo. The proceeds of the cargo, it is always to be presumed, will pay all the freight and expenses attending it. Whatever sum, therefore, the commissioners have failed to allow less than the fair charge of freight, is to be considered as part of the proceeds of cargo allowed for. To the extent of that reasonable freight, therefore, we should be permitted to be satisfied out of the freight awarded, and out of the proceeds of cargo allowed.
Unconnected as the mariner's contract has been shown to be with the contract of affreightment, it seems strange that our claim is to be commensurate only with the amount of freight; and that, too, awarded by a tribunal whose act is in no wise conclusive, to any extent, against us, as regards the merits of our claim.