and so may the master of an apprentice.1

But if the slave escapes during the voyage, no responsibility for indemnity rests on master, owner, or crew, unless they assisted his flight and escape.2

As to the question how far and when seamen may be witnesses for each other, the prevailing, and we think the reasonable, rule is, in admiralty as at common law, that seamen may be witnesses for each other in suits for wages, although they may have a common interest in sustaining each other's claims, and defeating the defences made against them. It is always in the power of courts of admiralty at least to determine what weight shall be given to their testimony, and to make due allowance for all the circumstances which weaken its value. But the master has been held (on what seems to us questionable reasons) to be incompetent as a witness for the owner, in a suit against him or the ship for wages, because of his own direct responsibility and interest.4 However this may be, it would seem clear that where

1 Eades v. Vandeput, 5 East, 39, note.

2 Carey v. Schooner Kitty, Bee, 255. In Emerson v. Howland, 1 Mason, 45, it was held that if a slave was illegally discharged abroad, his master might recover wages up to the time when he might have returned to the United States. The slave did not return, but no claim was made for his value.

8 As the contract of seamen is several and not joint, they may be witnesses for each other where they are interested in the same question, if they are not directly interested in the event of the suit. Spurr v. Pearson, 1 Mason, 104; Hoyt v. Wildfire, 3 Johns. 518; Powell v. The Betsey, U. S. D. C., Penn., 2 Browne, 335, 350; The Cypress, Blatchf. & H. Adm. 83. Such evidence is, however, received with great caution and scrutiny. The Steamboat Swallow, Olcott, Adm. 4; Graham v. Hoskins, id. 224. It is said in a case in Pennsylvania that where the question is the loss of the ship, embezzlement, equally affecting the whole crew, negligence, misfeasance or malfeasance to which all must contribute in damages, one seaman cannot be a witness for another. Thompson v. Ship Philadelphia, 1 Pet. Adm. 210. In a simple case of embezzlement, however, where the seamen, not in fault, are not bound to contribute, this rule does not apply. Spurr v. Pearson, 1 Mason, 104. The general rule is the same both at còmmon law and in admiralty, respecting the competency of witnesses. The Schooner Boston, 1 Sumner, 328, 343.

4 Mr. Justice Peters constantly refused to admit the captain to testify in suits for seamen's wages. Malone v. The Mary, 1 Pet. Adm. 139, 141; Jones v. The Brig Phoenix, id. 201; Atkyns v. Burrows, id. 244. The reason he gave was his interest in the result of the suit, he being responsible for the mariner's wages. This appears to have been the practice in Massachusetts, Dunlap's Adm. Practice, 245. But if the mariners have obtained their wages, even by the help of his testimony, from either the owners or the ship, that extinguishes their claim; and neither the ship nor the owners can have any claim against him, for he is not liable for seamen's wages except to seamen, and if they have got them from some one else, they cannot get them from him.

he is a party to the suit, or where he has intervened, put in a claim, and filed an answer to the libel, he is incompetent.1 So he cannot testify to any matter of defence which originates in his own acts, for which he is himself responsible. The master is, however, a competent witness on behalf of the seamen. And charges made against seamen on the shipping papers require to be verified by the oath of the master.1

The subject of forfeiture of wages by desertion or other gross misconduct, has been considered in the first volume, to which we refer, and we shall consider hereafter the mode of recovering wages in admiralty.

And if it be said that he has an interest in preventing their recovering against the owners, because, if their judgment is unsatisfied they may turn on him, this seems to us too remote an interest to disqualify the master. This seems to be the view taken of it in The Lady Ann, Edw. 235, where Sir Wm. Scott says: "The mariner has his election whether he will proceed against the owners, the master, or the ship; and in this case, the proceedings being instituted against the owners, the master has no immediate interest in the suit, and therefore is not an incompetent witness by any rule with which I am acquainted." In New York the master is admitted as a witness on behalf of the owners. The Steamboat Swallow, Olcott, Adm. 4; The Steamboat Hudson, id. 396. In Galloway v. Morris, 3 Yeates, 445, the point was only raised in the argument. It was not decided. But a release from the owners was required. A release was procured from one, which the court ruled to be sufficient, declaring the point open to further discussion. In Arnold v. Anderson, 2 Yeates, 93, which was a suit for damages for the unskilful stowage of the cargo, the captain was admitted, on a relcase being given; the mate and mariners were admitted without any release.

1 The Exchange, Blatchf. & H. Adm. 366.

case that a master The master under discharge of a sea

2 The William Harris, Ware, 367, 371. It was also held in this is not a proper person to prove the sufficiency of a medicine chest. the general rule stated in the text is not competent to prove that a man was justifiable. Robinett v. The Ship Exeter, 2 Rob. Adm. 261; Atkyns v. Burrows, 1 Pet. Adm. 244. In The Hope, 2 Gallis. 48, it was held that the master is not a competent witness in case of an information in rem for a forfeiture occasioned by his alleged misconduct.

3 The Trial, Blatchf. & H. Adm. 94.

The David Pratt, Ware, 495.

5 See ante, Vol. I. 468, 469, 473, n. 1.

CHAPTER VII

OF SALVAGE.

SECTION I.

OF THE GENERAL PRINCIPLES OF SALVAGE.

SALVAGE is eminently a subject for admiralty jurisdiction, and we may state, that it has been decided that no action will lie at common law, unless the salvor can prove a contract with the owner of the property saved or with his agent.1

The word salvage is used in two senses; it sometimes means the property which is saved from a wrecked vessel, and frequently has this meaning among insurers and in insurance. But in admiralty, and, generally, in the law-merchant, it means the compensation which is earned by persons who voluntarily assist in saving a ship or her cargo from peril; and we use the word in this last sense in this chapter.

The interest of co-salvors, is not joint but several; and payment or satisfaction to any one, is not so to any other. If, therefore, payment is made to the master, although his receipt would bind himself and his owners, and an action would lie against him by the seamen for their shares,2 yet it is also true, that the seamen may bring an action against the property saved,

1 Lipson v. Harrison, Q. B. 1854, 24 Eng. L. & Eq. 208. The sailor in this case, was ordered by his captain to leave his vessel, and go in a boat fourteen miles to the assistance of another vessel which was stranded, and to place himself under the command of the captain of the other vessel. It was held, under these circumstances, that he could not maintain an action against the owner of the ship saved, for his services.

2 The Centurion, Ware, 477.

if the settlement was made with the master without their consent.1

The court should not give different parts or parcels of the ship or cargo to different salvors, or different proportions of specific parts; 2 and this, we believe, is never done in this country; but different proportions of, or sums from, the value of the whole property saved. And sometimes a specific sum is given.3

A salvor in possession, has a qualified property in the thing saved, whether ship or cargo, or both. And it is not necessary, that he should remain in actual possession, in order to maintain his rights or preserve this qualified property. Nor should he do so, to the detriment of the property or the inconvenience of the master and crew.5 Salvors cannot be divested of this legal interest in the property saved, until it is taken from them by adjudication in a court of competent authority. The owner does not lose his right of property by the salvage, but it is qualified by the salvor's right, and the interest of the owners is sufficient to entitle them to oppose the claim of a co-salvor.8

If the amount claimed by salvors is not too great, the master may relieve his property from their lien by paying them at once. If this be done in the honest exercise of a reasonable discretion, he will be justified. If the demand seems to him exorbitant, he cannot turn the salvors off, but should proceed to the nearest and most convenient port where he may have adjudication. And in selecting his port, he must consult their rights and convenience, as well as his own. Otherwise, they may lawfully resist him and determine for themselves the course of the ship. But this power can exist only in an extreme case.10

1 The Britain, 1 W. Rob. 40; The Sarah Jane, 2 W. Rob. 110. But see 9 & 10 Vict. c. 99, s. 26.

2 The Vesta, 2 Hagg. Adm. 189.

8 McGinnis v. The Steamboat Pontiac, 1 Newb. Adm. 130, 5 McLean, C. C. 359.

The Maria, Edw. Adm. 175; The Amethyst, Daveis, 20; The Bee, Ware, 332; The Brig John Gilpin, Olcott, Adm. 77; Eads v. The Steamboat H. D. Bacon, 1 Newb. Adm. 274.

5 See The Eleanora Charlotta, 1 Hagg. Adm. 156.

6 The Blenden Hall, 1 Dods. 414.

7 The Bee, Ware, 332.

8 The Blenden Hall, 1 Dods. 414.

9 See Houseman v. Sch. North Carolina, 15 Pet. 40, 45.

10 See The Houthandel, 1 Spinks, Adm. 25. And after a vessel has been brought

So great is the power of the salvors over a vessel, that it has been held, where a vessel came into collision with another, and all the crew, with the exception of two, escaped on board the other vessel, that a third vessel which fell in with the one thus partly abandoned, was not afterwards obliged to delay her course for the purpose of taking on board again, the crew of that vessel.1

As all salvors may join in one libel, they should so join to save expense; and if different libels are filed unnecessarily, the costs will not be charged to the proceeds of the salvage property.2 But if the parties stand upon adverse rights, as where the salvage has been partly performed by one vessel and completed by another, each may file a libel. But a claim of the ship-owners for freight, or general average, on the property saved, should be made in a separate libel, because this is only a claim on the balance of proceeds after the salvage is paid, and is a claim against the owners of the cargo, with which the salvors may have nothing to do.4

Co-shippers should not interfere by a claim of the proceeds for the benefit of other shippers with whom they have no privity of interest, and from whom they have no authority to represent them.5

into port by salvors, her owners have no right to take her to another port, without the consent of the salvors. The Nicolai Heinrich, 22 Eng. L. & Eq. 615. Due regard is also to be paid by the salvors to the convenience of the owners, in determining to what port the vessel is to be taken, when the salvage service is performed at sea. The Eleanora Charlotta, 1 Hagg. Adm. 156. In the case of L'Esperance, 1 Dods. 46, a vessel bound from Dantzic to London, struck upon the Lemon and Ower Bank, and was abandoned by her crew. Two days afterwards she was discovered in latitude 53° 17′ N., and longitude 2° 24′ E. by an English sloop-of-war bound to Heligoland, to which place the wreck was towed. Her papers were not on board, and there was no means of telling to what port she was going. The owners contended, that she should have been taken into an English port, but the court held, that the salvors were justified in taking her to Helígoland.

1 The Orbona, 1 Spinks, Adm. 161.

2 The Ship Henry Ewbank, 1 Sumner, 400; The Schr. Boston, 1 Sumner, 328. And in Hessian v. The Edward Howard, 1 Newb. Adm. 522, the court said it was the duty of salvors in bringing a suit for salvage, to make all the co-salvors parties, in order in one final decree to do full justice to all concerned.

The Ship Henry Ewbank, 1 Sumner, 400, 408. But if separate libels are filed, the actions may be consolidated by the court for its own convenience. The London Merchant, 3 Hagg. Adm. 394; Rich v. Lambert, 12 How. 347, 353.

The Sybil, 4 Wheat. 98.

5 Stratton v. Jarvis, 8 Pet. 4.