)IOO (flnrn^U Slam ^rl|0ol Hibtaty Cornell University Library KF1100.A54 1857 Reports of cases in admiralty, argued an 3 1924 018 924 138 Cornell University Library The original of tliis book is in tlie Cornell University Library. There are no known copyright restrictions in the United States on the use of the text. http://www.archive.org/details/cu31924018924138 REPORTS CASES IN ADMIRALTY, ARGUED AND DETERMINED DISTRICT COURT OP THE UNITED STATES FOQ THE SOUTHERN DISTRICT OF NEW YORK. By ABBOTT BROTHERS. COUKSBLLORS AT LAW. VOLUME I. BOSTON: LITTLE, BROWN AND COMPANY. 1857. Entered according to Act of Congress, in the year 1857, by Abbott Beothees, I the Clerk's Office of the District Court for the Southern District of New Yorlc. EIVEKSIDE, CAMBRIDCE: I'KISXEB BY II. O. HOnOHTON AND COMPANY. PREFACE. The present volume contains a full ^election of the de- cisions in- Admiralty causes rendered in the United States District Court for the Southern District of New York, by the Hon. Samuel R. Betts, from the early part of the year 1847 down to the close of 1850. It may be regarded as a continuation of the series of Admiralty Reports commenced by Blatchford & Howland, and continued by Olcott. The present Editors have spared no pains in the effort to perform the duty which has devolved upon them ; and they have enjoyed every facility which could be desired both from the eminent Judge whose decisions are reported, and from those gentlemen in whose immediate charge are the books and papers of the District Court. In the hope that it may be of service not only to their professional brethren practising in this District, but also to those who may labor in other fields of professional life, the volume is now submitted to the bar. ABBOTT BKOTHEES. 119 Nassau Street, New York. CASES REPORTED IN THIS VOLUME. A Raft of Spars Aberfoyle, The Alexander v. Galloway Alida, The Allen V. Hallet 'Ann D. Richardson, The Atlantic, The B. Barker, The Joshua Baxter v. Leland Bay State, The Bolles, Bradley v. Bradley v. Bolles Bradstreet v. Heron Briard, Lamb u, Bucker v. IClorkgeter Buffalo, The Bullus, Cure v. 291,485 242 261 165, 173 673 499 451 215 348 235 569 569 .209 367 402 483 555 C. Cabot, The 150 Caithneshire, The Remnants of the 163. Carlton, McGinnis v. 570 Caiilkius, Simpson v. 539 Champion, The New 202 Columbus, The 37, 97, 384 Conway, Rowland v. 281 Cornelius C. Vanderbilt, The 361 Cox V. Murray 340 Crocker, Ringold v. 344 Crockett, Gurney o. 490 Cure V. Bullus 555 Curry, Henry v. 433 I D. Page Davis V. Leslie 123 Davis, Jones v. 446 Dodge, Holmes v. 60 Duryee v. Elkins 529 E. Elkins, Duryee v. Ellis, Wicks V. Flash, The Foster, The H. B. G. Gaines v. Travis Galloway, Alexander v. Gardner v. Isaacson Goodrich v. Norris Governor, The Gurney v. Crockett H. H. B. Foster, The Hallet, Allen v. Harbeck, Miner v. Henry v. Curry Heron, Bradstreet v. Hinckley, Love v. Holmes v. Dodge Hoover, Manning v. 529 444 67, 119 222 297, 422 261 141 196 108 490 222 573 546 433 209 436 60 188 VI CASES REPORTED IN THIS VOLUME. Page Hornet, The 57 Howland v. Conwav 281 I. Indiana, The 330 Infanta, The , > 263, 327 Irving, The Washington 336 Isaac Newton, The 11,588 Isaacson, Leak v. 41 Isaacson, Gardner v. 141 Ives, MoCormick u. 418 J. Jones V, Davis 446 Josephine, The 481 Joshua Barker, The 215 E. Kelly, Miller y. 564 Klorkgeter, Backer v. 402 L. Lamb v. Briard ' .367 Laurens, The Bark, and $20,000 in Specie 302, 508 Leak v. Isaacson 41 Leland, Baxter v. 348 Leslie, Davis v. 123 Love V. Hinckley 436 Luoinda Snow, The 305 M. Manchester v. Milne 115, 158 Manning v. Hoover 188 Martin v. Walker 579 The Mary Ann, The 270 The McCormick v. Ives 418 The McGinnis v. Carlton 570 The Merchant, The Sloop 1 The Miller V. Kelly i- 564 in Milije, Manchester v. ' 115, 158 The Miln, Smith v. 373 The Miner v. Harbeck 546 The Moxey, The 73 The Murray, Cox v. 304 The N. Ne.w Champion, The 202 Niles, Eose u. ,411 Norris, Goodrich v. 196 O. One Hundred and Ninety-four , Shawls 317 Poppe, Zerega u. 397 Proceeds of Prizes of War 495 K. Baft of Spars, A 291, 485 Remnants of the Caithneshire,The 163 Rhode Island, The 100 Richardson, The Ann D. 499 Ringold V. Crocker 344 Rose V. Niles « 411 Russell, Scott V. 258 S. Scott V. Russell 258 Shawls, One Hundred and Ninety-four 317 Simpson v. Caulkins 539 Smith V. Miln 373 Snow, The Lucinda 305 Sprague v. West 548 Aberfoyle 242 Alida 165 i Ann D. Richardson 499 Atlantic 451 Bark Laurens and $20,000 Specie 302, 508 Bay State 235 ; Buffalo 483 Cabot 160 , Columbus 37, 97, 384- Cornelius C. Vanderbilt 361 CASES REPORTED IN THIS VOLUME. Vll Page Page The Flash 67,, 119 V. The Governor 108 The H. B. Poster 222 Vanderbilt, The Cornelius C. 361 The Hornet 57 . The Indiana 330 , The Infanta 263, 327 w. The Isaac Newton 11, 588 The Josephine 481 Walker, Martin v. 579 The Joshua Barker 215 Washington Irving, The W^e'st, Sprawue v. 336 The Lucinda Snow 305 548 The Mary Ann 270 Wicks V. Ellis 444 The Moxey 73 The New Champion 202 The Rhode Island 100 T. The Remnants of the Caithneshire 163 Young, Truesdale v. 391 The Sloop Merchant 1 The Washington Irving 336 The Zenobia 48,80 Z. Tingle v. Tucker 519 Travis, Gaines v. 297, 422 Zenobia, The 48,80 Truesdale v. Young 391 Zerega v. Poppe 397 Tucker, Tingle v. 519 (iA^SES IN ADMIRALTY. The Sloop Merchant. •A claim for seamen's wages and a claim for moneys advanced to the use of the ship may be united in one action against the ship. A seaman who claims to recover both for wages and for moneys advanced to the ship's use, may join in a libel in rem with a co-libellant claiming wages only. Where the vessel is liable to two libellants for wages, for which, under the prac- tice of the Court in respect to the consolidation of suits, they may be compelled to sue in common, they may join in one action m rem, not only in suing for the common demands, but also in respect to other claims which are peculiar to each. The history of the distinction between proceedings in rem and in personam., re- viewed. Where both the vessel and the master or owner are conjointly liable, the personal remedy, and the remedy against the vessel, may be sought in one and the same action. Eule 13 of the Supreme Court interdicts the blending of an action against the owner personally, with one against the vessel, for the recovery of wages. A claim for wages, and for moneys advanced to the use of a vessel on the part of one libellant, cannot be joined, in an action in personam, with a separate claim for wages alone, on the part of another. This was a joint libel filed by William Johnson and Ben- jamin Griffiths against the sloop Merchant, in rem, and also in personam, against her master, John Kenan, and her owner, Joshua Jones, to recover wages and for moneys paid to the use of the vessel. The libellant Griffiths, averred in the libel that he was em- VOL. I. 1 CASES IN ADMIRALTY. The Sloop Merchant. ployed on board the sloop, running between New York and Newburg, upon a contract for wages, at $30 per month ; and that he served ten days, for which he claimed $10. The libeUant Johnson, alleged that he was likewise employed on board the sloop at the same time ; that no specific agreemeijt was made with him for wages ; that he served for twenty-one days, and that his services were worth $2.25 per da^and he accordingly claimed for thera $47.25. He also showed that he had made advances of cash fo4khe use and service of the vessel, amounting to $83.75, for which he claimed to recover. The libel prayed a decree against the vessel, and also against the master and against the owner. The owner filed the following exceptions to the libel : — 1. That a demand for wages and a demand for moneys advanced to the use of the vessel, could not be joined in one libel ; and that at least they could not be prosecuted in rem and in personam, in one action. * 2. That a suit for wages could not be maintained against ■ the vessel, master, and owner conjointly. 3. That the demands of the two libellants could not be joined in one action in personam against the respondents. The cause now came before the Court upon these excep- tions. Edwin Burr, in support of the exceptions. Alcmsoy, Nash, opposed. Bbtts, J. The strict rules of the common law in respect to the unity of the cause of action, or the community of inter- est or of responsibility of parties to actions, are not observed in the maritime courts. The practice in those courts is at least as liberal and comprehensive as that pursued in equity. In Admiralty, the libel or petition is employed to present the case of the prosecutor upon which he desires the interposition of the Court in his behalf. Such a case may be composed of wrongs to the person of the prosecutor or to his property, or MAY, 1847. The Sloop Merchant. of a breach of contract, or of omission to do what he is right- fully and equitably entitled to have performed. The libellant Johnson, can accordingly properly bring his single action in this Court, for wages earned, and materials and supplies furnished the vessel, provided he establishes a case falling within the jurisdiction of the Court ; and in that respect his remedy would be the saifle whether he prosecuted the vessel in rem or the parties liable to him in personam. The Admiralty adopts the rule of the civil law, respecting the cumulation of actions, (1 Browne's Civ. ^ Adm. L. 446,) to avoid multiplicity of suits. Griffiths has not a right concurrent with Johnson in the whole subject-matter in suit, but their demands are of the same kind, so far as wages are concerned, the libellants having both served at the sam.e time on board this vessel, although not for equal periods. From this view of the subject, it follows that had these libellants commenced separate actions against the vessel for their wages, the Court, at the instance of the respondents, would have compelled a consolidation, as contemplated by the act of July 20, 1790, (1 U. S. Stats. 133, c. 29, § 6,) which prescribes that in this class of cases, " aU the seamen or mari- ners (having cause of complaint of the like kind against the same ship or vessel,) shall be joined as complainants;" or, would have prohibited the recovery of costs in more than one suit ; and as in such case the contestation of the claims of each libellant is separate, as much so as if those claims were prosecuted in distinct actions, there would be neither incon- gruity nor inconvenience in permitting the libellants to con- nect with their several claims of wages such other demands as each party might be allowed to charge upon the vessel ; and accordingly, the actions being united for one purpose, there would be no just ground of exception that in other respects each embraced particulars which could not be of themselves the subjects of a joint suit. CASES IN ADMIRALTY. The Sloop Merchant. Assuming that Johnson has a lien on the vessel for wages and money advanced for her necessities, and Griffiths a lien in common with him for wages only, I think no exception lies to the joinder of both demands in one libel. For the ves- sel being deemed liable to both for the wages, which must be sued for in common, each party may fitly pursue against her in the same action suchr other demands as are peculiar to himself. It is not to be supposed that Congress intended by that enactment to save vessels and owners from multiplicity of actions for ifrages, by interfering with and inhibiting the right of each seaman, as it exists at law, to cormect other de- mands with his individual suit for wages. A greater difficulty is presented by the other aspect of the first exception ; whether these diiferent demands can be pros- ecuted in personam against the respondents by joint action. The Admiralty had an established jurisdiction in personam over matters falling within its cognizance, long before a remedy was afforded in rem, other than upon express hypoth- ecations. Browne supposes that suits were originally in rem on the instance side of the Court. 2 Browne's Oiv. ^ Adm. L. 396, note. The remedy in rem is undoubtedly the more useful and desirable one, but there are no traces of its exercise in the English Admiralty until long after actions in personam had been of common use. Godolphin, in his Treatise on the Jurisdiction of the Admi- ralty, published in 1661, points out the method in which the jurisdiction was exercised, as derived from the Consolato del Mare. He says the proceedings were summary, by warrant of arrest, and caution for the appearance of the party arrested. Godol. 41. So, also, it manifestly appears in the stipulation between the law judges and judge in Admiralty, of May 15, 1575, (Zouch's Adm. Jwr. 120,) that the arrangement of jurisdiction had relation to its exercise in the arrest of the party alone. MAY, 1847. The Sloop Merchant. Throughout the first thirty chapters of the Consolato del Mare, which have relation to the enforcement of maritime contracts, the proceedings of the consular courts and courts of appeal are by personal summons or citation of the parties sought to be charged, and by decrees against them person- ally; which, like our judgments at law, could be executed upon the property of the debtor, ' (2 Cons, del Mare pa/r Boucher, 9, 33 ;) and in the subsequent chapters, in which provision is made for the sale of vessels to satisfy what are novP regarded as maritime liens, it is at "best equivocal whether the sales were not made by force of executions on judgments or decrees first obtained in personal suits, and not by the direct condemnation of the vessels or merchandise. So Clarke, in his Admiralty Practice, does not, as Browne intimates, merely treat first of proceedings in personam, but he views the process against vessels and property by war- rant of arrest or sequestration, as auxiliary only to the suit in personarff, and employed to constrain the appearance of the real party to be charged, (tit. 28, and Oughtoris Notes,) and this was clearly so by the civil law. Wood^s Oiv. L., b. 4, c. 3, §2. The method of initiating suits in the English Admiralty by arrest of the vessel, is declared to be of ancient use ; (The Dundee, 1 Hagg: Mm. iJ. 124 ; 2 Chitty, Pr. 536 ;) but at what point of antiquity it became a remedy of the Court, is not traceable from the published decisions or rules. Evidently it must have been posterior to the compilation of Clarke's Praxis in the reign of Elizabeth, and which was first pub- lished in 1679, (Brevoor v. The Fair American, 1 Pet. Adm. B. 94,) because that form of action is not treated of by Clarke. Title 28 of his work has reference to proceedings against property to compel the Appearance in personam of the respon- dent. There is certainly no clear authority showing that actions in rem preceded those in personam, as the general means of CASES IN ADMIRALTY. The Sloop Merchant. exercising the jurisdiction of the Court ; far less is there any to prove that the latter class of actions derived their qual- ities from the processes or rules of pleading employed in the former. Each form of action is distinct and independent of the other in respect to the methods of proceduie employed, and (with a few exceptions) in respect to jurisdiction over the subject-matter upon which they may act. Suits in rem and in persor^am are by no means convertible, and if in some instances they are concurrent, there are numer- ous cases in which one must be employed to the exclusi and said wheels have proved inadequate and insufficient in strength for the suc- cessful operation and running of said boat. 6. It is further found by the Court, that the claimants had not, by themselves or agents, at the time this suit was com- menced, accepted and received the said engine and boilers, with their appurtenances, or any part thereof, from the libel- lants, as a true performance and fulfilment on the part of the libellants of the contract aforesaid ; nor had the said engine and boilers been constructed, put up, and completed under the directions and with the assent and approval of the claim- ants, as to the particulars in this decree before specified, in such manner as to discharge or relieve the libellants from a true performance of the said contract, according to the terms and obligations thereof. 7. It is accordingly considered by the Court, that the claim- ants are entitled to compensation in this suit, by way of abatement or subtraction from any balance remaining due the libellants upon the said contract, because of the defective and insufficient performance thereof by the libellants. 8. It is further found by the Court, that by superintending the said work during its wjjole progress, and urging its com- pletion, up to the time of its delivery, and long after the period fixed in the contract for such completion, and by then permitting the same to be delivered by the libellants as under and in fulfilment of the contract, without notice to them after the time for performance had arrived that damages would be claimed because of the delay, and without notice or inti- JULY, 1847. 35 The Isaac Newton. mation when the work was delivered that it would not be accepted under the contract for that cause, the claimants have waived the right to set up the non-execution. of the con- " tract by the libellants within the time therein stipulated, as an absolute failure to perform the same, or as thereby being exonerated or discharged from their obligation to make the payments in said contract engaged to be made on their part. But it is considered by the Court, that the claimants are enti- tled to be reimbursed and satisfied for all charges, expenses, and disbursements actually and necessarily incurred by them during the period of such delay, and in consequence thereof ; not, however, including therein any estimated value of said boat for that period, if finished, nor any supposed profits to be derived firom her employment or hiring therefor. 9. It is further found by the Court, that the libellants were not bound by the said contract to fasten the gallows-frame of said boat with iron work, nor to supply and put up the upper pipes, substituted, at request of the claimants, for the one first prepared to lead the steam from the boilers to the steam- chest, nor to put up and fasten the suspension-frame for the blower engines ; and are entitled to a reasonable compensa- tion therefor, over and above the payments stipulated in said contracts. 10. It is further found by the Court, that the libellants are not entitled to extra compensation for any work, arrange- ments, or conveniences, applied to the boilers themselves, it appearing to the Court that none have been supplied beyond the modern improvements used in approved boilers on the Hudson River at the time said contract was madte. But as to the other particulars claimed in the bill of the libellants attached to their Hbel as extra and not embraced in the said contract, their allowance or disallowance will be deferred to the coming in of the report on the reference ordered in the cause. Wherefore it is ordered and decreed by the Court, that the 36 CASES IN ADMIRALTY. The Isaac Newton. libellants recover in this action the arrears and balance of moneys due them, upon the aforesaid contract for building the said engine, boilers and appurtenances thereto, and secur- ing the same in the said steamboat Isaac Newton ; and alsd compensation for the particulars above specified, extra and beyond the amount stipulated to be paid by said contract; and to be ascertained and adjusted as hereinafter directed ; subject, however, to an allowance and credit to the claimants, to be ascertained as hereinafter directed, because of the de- fective ancJ imperfect performance of the said contract in the particulars before specified, and because of their expenses and disbursements in consequence of the delay of the Hbel- lants to perform their contract within the time therein stipu- lated. It is accordingly ordered and decreed by the Court, that it be referred to assessors or commissioners, to be designated as hereinafter directed, to inquire and ascertain the fair and rea- sonable value and worth of the labor and materials charged by the libeUants as extra, beyond the SEiid contract in the account attached to their said libel, and also to inquire and ascertain whether the iron pans to hold cement, the sheet iron flooring laid in the fire-rooms, or any and every other item of said account, are properly and fairly appurtenances to the engine or boilers, as modern improverhents to approved boil- ers and engines, known and used on the Hudson River in the year 1845 ; and also to inquire and ascertain whether the charges for tools, beUs, and fixtures included in said account, embrace any, and what, which are necessary tools, fixtures, and bells for this engine. And it is further ordered and directed, that the said asses- sors or commissioners inquire and ascertain what would be the reasonable cost and expense of so altering and improving the said boilers, " as that they shall supply the said engine at least forty pounds of pressure of steam to the square inch of the piston of said engine, with the throttle wide open, and JULY, 1847. 37 The Columbus. also so as to reduce the consumption of fuel proportioned to that consumed by boilers of approved construction, with the modern improvements, employed on the Hudson River, ante- rior to November 1, 1845 ; " and also to inquire and ascertain the expense or value of braces or rims to the water wheels, sufficient to render the same secure when the said engine is worked with the power aforesaid ; and also to inquire and ascertain the amount of payments and disbursements actually and necessarily made by the claimants between ^|e 15th day of May and the 8th day of October, 1846, for wharfage for said steamboat, for insurance on her, and for keeper's wages on board her ; and report to the Court upon the particulars aforesaid, with all convenient speed. And it is ordered, that each of the parties aforesaid nomi- nate to the Court in writing, within ten days, three competent and disinterested persons, as assessors or commissioners in this behalf, from whom the Court may designate and appoint the assessors or commissioners to whom the matters aforesaid are referred.^ The Columbus. An objection to the regularity of a commissioner's report cannot be brought for- ward by exception to the report ; but should be raised by motion founded upon the irregularity. An exception to a commissioner's report draws in question only the reasons upon which the report is founded. A cargo of goods, being in part damaged and in part sound, was sold at auction by the consignees, without separation of the sound from the unsound.. Held, that it was the duty of the master not of the consignees to make such sepa- 1 The cause came before the Court again, December 27, 1350, on excep- tions to the report of the commissioners appointed by the above decree. The decree upon the merits was affirmed by the Circuit Court, October 2,. 1852. VOL. I. 4 38 CASES IN ADMIRALTY. The Columbus. ration, if requisite to obtain a favorable sale ; and that the want of it did not prevent the consignees from relying upon the auction price as showing the value of the goods as damaged. How far sales at auction are sanctioned in such cases. This was a libel in rem by Gustavus Loenig and Charles Schneider against the bark Columbus, to recover damages for injuries received by goods shipped on board the bark to the libellants as consignees. A large^uantity of corks, amounting to nearly ten thou- sand gross, were shipped at Bordeaux, on board the Colum- bus, consigned to the libellants, at the port of New York. The usual bill of lading was signed by the master. As is usual with such goods, the corks were packed by the con- signees in small packages, called pockets, containing about fifty gross of corks each, and these pockets were again packed in bales, in a stouter covering. For convenience of stowage, the master of the vessel cut open the bales, and, taking out the pockets, stowed them in the hold. In consequence of this, a large portion of the corks were found, upon unlading, to be much damaged by wetting, &c. They were taken into the libellants' warehouse ; and, after some negotiation with the master of the vessel respecting the liability of the vessel for the loss, they were sent by the libellants, with the assent of the master, to auction, and sold as damaged. The libellants then instituted this action to recover for the injury. The cause having been referred to a commissioner, to report the amount of libellants' damages, he made his report, dated April 5, 1847, estimating those damages at $232. The cause now came before the Court upon exceptions taken to the report by both libellants and claimants. The grounds of these exceptions sufficiently appear, in the opinion. Francis B. Cutting, for libellants. E. C. Benedict, for claimants. JULY, 1847. 39 The Columbus. Bbtts, J. The claimants take two exceptions to the report of the commissioner in this case, dated April 5, 1847, and they have set the cause down for hearing upon those excep- tions. The libeUants also except to the report upon the ground that the commissioner had already on March 29, 1847, made and filed his report in the cause, a copy of which duly certi- fied by the clerk, had been delivered to them. ; and that the subsequent report made April 5, was unauthorized and void. They have set this exception down for hearing. In respect to the latter exception, it is clear that the regu- larity or irregularity of the report of April 5 cannot be deter- mined in this manner. An exception to a commissioner's report goes to the merits of his decision, and reaches no fur- ther than to bring before the Court for consideration, the ade- quacy of the grounds in law or fact, upon which the report is founded. For the purposes of such investigation, the report must be assumed to have been made within the scope of the order of reference. An exceptive allegation to a proceeding in a cause has, in the civil law, the character of a plea, ( WoocPs Civ. L. b. 4, c. 3 ; 2 Browne's Oiv:Sf Mm. L. 361, 362 ; Betts's Adm. Pr. 48,) and cannot properly be employed in the Admiralty practice to determine the regularity of the acts of an officer of the Court, not incorporated in and constituting a substan- tive part of the proceeding excepted to. Betts's Adm. Pr. 38. The objection raised by the libellants, being extraneous to the merits of the case, should have been brought forward by motion founded upon the alleged irregularity. Upon such motion the facts upon both sides would be brought out, and the Court would be enabled to determine whether the fact was as the exception charged, or was unjustifiable or inju- rious. The exception taken by the libellants must be overruled, 40 CASES IN ADMIRALTY. The Columbus. because it does not, as I understand it, touch the matter Reported upon by the commissioner. The first exception taken by the claimants is to the allow- ance of $232 by the commissioner as the amount of damages sustained by the libellants. It is urged that the .proofs do not warrant an allowance for the injury the corks received on shipboard, or during their transportation, exceeding one cent and a half the gross ; at which rate the amount would be less than $150. A witness, experienced in the trade, gave it as his opinion that the corks could have been picked over by hand, before thfe sale, and the damaged ones separated from the sound, at an expense of about one cent per gross. If this course had been pursued, the corks would doubtless have sold to better advantage, and the loss sustained have been considerably reduced. It appears, on the evidence, that this would have been a tedious and troublesome process, and I do not think it devolved Upon the libellants to assume the hazard or cost of the undertaking. It was the duty of the master if of any one, to separate the sound from the unsound, and deliver to the libellants that portion of the cargo which was sound, and compensate them for that which was deficient or deteriorated. In default of his so doing, the vessel must make good the damages ascertained by the testimony of competent wit- nesses, or determined by an actual sale of the merchandise. Sale by auction is in the great marts of commerce so commonly resorted to by merchants to ascertain the value of deteriorafid merchandise, that it may almost amount to an usage of trade. It furnishes, cheaply and promptly, all the accuracy which can be expected in any known measure of damages, and it is peculiarly fitting, in cases of this charac- ter, that the Court should sanction and sustain it as the method best adapted to protect the interests of all parties concerned. The present case, however, does not afford an occasion JULY, 1847. 41 Leak v. Isaacson. rendering it necessary to pronounce upon the sufficiency in law of the public sale to determine the value of these goods after the injury was received, because the witnesses who appraised the corks in their damaged condition, testified that they considered the prices brought at the auction sale to have been fully equal to their value. That value would show not only that the deficiency or damage was equal to $232, hut, as I understand the evidence, that it may probably have con- siderably exceeded that sum. The first exception of the claimants is accordingly over- ruled.^ The second of the claimants' exceptions relates to the form of the report, and does not appear to have any practical bear- ing or effect, or to be entitled to weight. The exceptions upon both sides are accordingly disallowed, without costs to either party. Leak v. Isaacson. A receipt in full of all demands given by a seaman to the master or owners, is • open, in a Court of Admiralty, to explanation by proof that at the giving of the receipt there existed a demand in favor Of the seaman which was not in fact satis- fied by the payment made. When so explained, the receipt does not bar the seaman from recovering upon such outstanding demand. To free a demand from the operation of a receipt in full of all demands, in a Court of Admiralty, it is necessary, that the evidence that there was a valid demand existing when the receipt was given, and that it was in fact not satisfied by the payment made, should be clear and convincing. This was a libel in personam, by George Leak against 1 The case came before the Court again in January, 1848, upon exceptions to a further report of the commissioner, whell the effect of the sale by auction, in fixing the value of the goods in their damaged state, was further discussed. See the report of the case, post, in its order. 4* 42 CASES IN ADMIEALTY. Leak^ v, Isaacson. Michael Isaaqson, owner of the steamboat Proprietor, to re- cover a balance of wages earned as engineer. The facts were substantially as follows : — The libellant was hired by the respondent in New York to go to Charles- ton, and there to go on board the Proprietor as engineer. No wages were agreed upon ; but the value of the services for the time for which the libellant was attached to the boat was shown to be $70, The libellant went to Charleston at his own expense, — a service shown by the testimony to' be worth $25, exclusive of travelling expenses. He also boarded for some days in Charleston. On the termination of libel- lant's service on the boat, the crew were paid off by Martin, the master, the libellant receiving the sura of $70. Upon that occasion, he, in common with the rest of'the crew, signed a receipt in the following terms : — " This is to certify, that the undersigned have this day re- ceived, &om Mr. Michael Isaacson, the fuU amount of oui and each of our claims or demands, of every nature, against the steamboat Proprietor or her owner. ^ « Dated New York, May 31, 1847." Prior to this time, the libellant had received at Charleston the sum of $19 ; but it did not appear whether this was for services or travelling expenses. The ^respondent now relied upon the receipt as being conclusive against the claim. The libellant offered evidence in explanation of the receipt as follows : — Three witnesses, who were present when the receipt was signed, testified that Leak then claimed a balance due him, over and above the $70 earned upon the boat. A fourth witness testified that the respondent had told him, that he, the respondent, had agreed to pay the libellant $25 for his journey to Charleston, and that Captain Martin was to pay the rest. The principal question was as to the conclusiveness of the receipt. Alanson Nash, for the libeUant. J, Townsend, for the respondent. JULY, 1847. 43 Leak v. Isaacson. Betts, J, A receipt in full may form an exception to the familiar principal of law which permits receipts to be ex- plained by parol evidence. The receipt of a sum in full of a debt is something more than simple evidence of the payment of the sum specified. Such a receipt betokens a controversy between the parties as to the amount due, a difference of opinion upon that point, and a mutual compromise and adjustment of a disputed indebtedness at the precise sum mentioned in the instrument. The receipt in full may well be regarded as embodying a compromise ; and although fraud or serious mistake wiU sometimes authorize it to be disre- garded, yet, under the municipal law as it prevails throughout all our States, such an instrument can only be avoided by clear evidence of a deceit, or gross mistake as to the rights concluded by it. The fact that the sum received is inade- quate compensation for the claim, does not constitute a case which authorizes the disregard or opening of a formal and final receipt in writing ; it is necessary, further, that the party should show that he acted under ignorance or misapprehen- sion as to the nature or extent of his rights involved therein. Lawrence v. The Schuykill Navigation Company, 4 Wash. C. C. R. 562. Thus, if the rights in claim are questionable, and honestly resisted, -and time is given the creditor to con- sider the proposed payment, his receipt, given for less than his true demand, will not be set aside. It will be regarded as meaning deliberately to accept a lesser sum in payment in full of all demands ; and cannot be easily opened to admit proof that unspecified particulars were intended to be exr cepted.^ 1 The case of Cash v. Freeman (35 Me. JR. 483,) illustrates this principle. That -was an action upon a note for $12, due July, 1851. The defence relied on a receipt givln May, 1851, for $1.60, in full of all demands. Although the note was not surrendered at the time of giving the receipt, it was held to be within its operation. See, also, Cunningham v. Batchelder, (32 Me. E. 44 CASES IN ADMIRALTY. Leak v. Isaacson. In the view of Admiralty, however, there is reason for im- posing a more restricted rule in respect to receipts passed by seamen to masters, owners, or shipping agents. The parties in these settlements do not usually deal with each other upon equal terms. The seaman stands in a position which exposes him to be coerced or deluded into giving a receipt of this character, upon the temptation of a little ready money in hand, when no bondfde settlement has been made ; and upon the ground of this inequality, and as a measure of protection to parties who are seldom qualified to protect themselves, Admiralty will admit evidence in explanation of a receipt, no matter how clear, explicit, and conclusive its terms and solem- nities may be. The doctrine of the maritime law on this subject is fully stated in the case of the David Pratt, Wa/re, 495. In that case, in answer to a demand for wages, the de- fendant set up a receipt, under seal, signed by the libellant and others of the crew, of specified sums, " in full for our ser- vices in wages on board said vessel ; and in consideration whereof, and of one cent to each of us paid, we have released. 316,) where the principle that promissory notes, although left in the hands of the payee, are wjthin the legitimate operation of a receipt in full, is also laid down. In confirmation of the general doctrine laid down in the text respecting the operation of the receipt in full, in the courts of law, see Paige v. Perno, 10 Fi!. iJ. 491; Reid v. Eeid, 2 Dev. Law iJ. 247 ; Ennie v. Gilbert, Wright, 764 ; Bailey v. Day, 26 Me. R. 88 ; Palmerston v. Huxton, 4 Den. 166 ; Thompson v. Fanssat, Pel. C. C. iJ. 182; Bristow v. Eastman, 1 Esp. 173; Alner v. George, 1 Campb. 392 ; Eve v. Mosely, 2 Strobh. 203 ; Holbrook v. Blodget, 5 Vt. R. 620; McDowell v. Lenaitre, 2 McCord, 820. To learn %hat grounds have been held sufficient to authorize the opening of a rece!i)t in fuU by evidence of fraud or mistake, consult Thomas v. Austin, 4 Barb. Sup. Ct. R. 265 ; Patterson v. Ackerson, 1 Edw. Ch. 101 ; S. C. 2 76. 427 ; Derrickson v. Morris, 2 Hairing. 292 ; Dibdin v. Morris, 2 Carr. §• P. 44 ;* Trisler v. Williamson, 4 Harr. §• McH. 219 ; Lessions v. Grilbert, Brayt. 75 ; Benson v. Bennet, 1 Campb. 394, note ; Snyder v. Finley, Coxe, 48 ; Ho^ V. Brown, 2 Brev. 223 ; Middleditoh v. Sharland, 6 Ves. 87. JULY, 1847. 45 Leak v. Isaacson. and do hereby release and discharge forever, the master, offi- cers, and owners of said vessel, and each of them, of and from all suits, claims, and demands, for assaults and battery and imprisonment, and every other matter and thing, of whatever name or nature, against said schooner David Pratt, the mas- ter, owners, and officers, to the day of this date." It was conceded by the Court that this instrument was prima facie evidence of payment, and sufficient, until falsified by positive proof, or strong presumption ; and this is undoubt- edly correct. But the notion that such an instrument, formal and solemn though it was, must be accepted as in itself con- clusive against the claim, was justly repudiated as contrary to the free and equitable spirit of Admiralty jurisprudence, however consonant it might be with the more rigorous doc- trines of the common law. » A very analogous decision was made in the Supreme Court of New York, in the case of Thomas v. McDaniel, 14 Johns. 185. The decision in that case reste^ upon the indicia of fraud observable in the facts shown, rather than upon any general principle of protection to seamen ; although the latter consideration is distinctly adverted to in the opinion of the Court. The action there was by a seaman against the mas- ter for an assault and battery, committed during the voyage. The defendant offered a receipt, signed by the plaintiff, acknowledging to have received $60.50, "in full of all de- mands against the ship Independence, her officers and owners, for wages ; also, $1.00, as. a full compensation for every thing else." A witness testified, that upon the settlement he explained the receipt to McDaniel, by stating that the one dollar was intended as a full compensation for all other claims except wages ; and that the plaintiff at first refused to sign the paper, and waited three or four days. The master then put the money and the receipt upon the table, and told the seaman that he might sign or not, as he pleased. The plaintiff read 46 CASES IN ADMIRALTY. Leak v. Isaacson. over the paper and signed it, and received the money, nothing being said about assault and battery. The judgment in the Court below was for the plaintiff, and was affirmed on appeal. " There is strong ground to infer," say the Court, " that the receipt was unfairly obtained. It was coupled with a receipt for the wages of the seaman, and the evidence shows that his wages, after being liquidated at $60.50, were withheld by the captain during three or four days, because the plaintiff refused to sign the double receipt. To a person in the situation of a seaman just arrived in port, after a long voyage, and probably without a cent of money, this was a fraudulent constraint on the part of the captain, from which the law will protect the seaman. It cannot be doubted, that if the wages had been unconditionally paid, the plaintiff would peremptorily have refused to sign the receipt for one dollar for every thing else." The receipt in this case is, therefore, not to be regarded as absolutely concluding the libellant, while it is primd facie evidence of payment ^n fuU. It is open in this Court to ex- planation, not only by evidence .of fraud or of ignorance of the outstanding claim, but also by clear and distinct proof, that at the time of the settlement there was a valid outstand- ing claim which was not in fact embraced in the payment actually made. This would not be sufficient at common law, unless it were also shown that the rights of the paity in respect to such outstanding claim were in some respect un- known or misunderstood by him, and this through no fault or neglect of his. In Admiralty, however, it is enough that a valid outstanding claim be shown, if the proofs are such as to put its existence and validity beyond question. I have, there- fore, received and considered the evidence offered by the libel- lant upon this point. The evidence does not appear to me of that clear and ex- plicit character which will justify the Court in disregarding the receipt. It is denied by the answer, and is at least equiv- ocal upon the proofs, that the libellant was entitled to any JULY, 1847. 47 Leak v. Isaacson. wages antecedent to the time when he joined the boat at Charleston. The libellant claims to regard the payment made to him in Charleston as having been made only upon account of his demand both for wages and expenses accrued during the journey ; but I think it may be fairly regarded, under the proofs as they stand; as intended for a satisfaction of all claims preferred by him upon the score of his employment prior to his joining the steamboat ; particularly as.it is equiv- ocal whether he was entitled to demand any thing beyond the reimbursement of his expenses. In that view of the case, the receipt of the 31st of May, in my opinion, closed the whole transaction, and the respondent is accordingly entitled to a decree dismissing the libel.^ Decree accordingly. 1 A rehearing of the cause was had before a commissioner in August, 1847, for the purpose of taking additional proof. The commissioner reported Ithat $25 was due to the libellant. The cause came again before the Court in January, 1848, upon exceptions to the report, when the following decision was made : — Betts, J. The additional evidence adduced before the commissioner in explanation of the receipt relied upon by the respondent in this case, con- sists in the testimony of a witness, who states that the usual charge for a pas- senger on board the steamer Southerner to Charleston was $25. He also states that mariners employed for other ships were not taken gratuitously on bo4rd that vessel. Upon this the commissioner reports $25 to the libellant. I have reviewed all the .pleadings and proofs to see whether any reason- able evidence is furnished tending to show that the libellant was not paid to his satisfaction for all the services and expenditures rendered by him under his engagement with the respondent. I do not think the suppletory testi- mony taken before the commissioner in any respect strengthens the libellant's case. It is not additional to that produced on the hearing, further than that it fixes the usual price of a passage to Charleston. It does not show that the libellant paid that amount, nor that the $19 paid him in Charleston was not advanced to cover that disbursement. If any thing could be presumed to be due, it would not exceed $6, the difierence between $19 and $25, and it is wholly conjectural whether or not the libellant ever disbursed that sum. The claim is a very small one, and does not merit the protracted litigation it has 48 CASES IN ADMIRALTY. The Zenobia. The Zenobia. I Where a libel is filed for a cause of action upon which both vessel and master may be together liable, the Court will not make an, order that the libellant elect between the remedy in rem and that in personam, nor that be submit to hare either the arrest of the respondent or the attachment against the vessel vacated. In respect to the liability of the ship for contracts made with the master for trans- portation for hire in the regular course of the vessel's occupation, the law makes ' no distinction between the transportation of passengers and of merchandise. ' VHiere an agreement is entered into between the master of a vessel and a passen- ' ger, for the transportation of the latter, with his baggage, and passage-money is paid in advance, and the agreement is unpeiformed through the fault of the master, the ship is liable, in specie, to refund the advance passage-money, and to pay.damages for any failure to deliver the goods shipped. There is no abstract incompatibility between proceedings in rem and proceedings in personam, which forbids them to be joined in one action where such joinder is calculated to advance the ends of substantial justice. Where both the vessel and the master or owner are conjointly liable upon a con- tract of affreightment, the personal remedy, and the remedy against the vessel, may be sought in one and the same action. This was a libel filed by Henry J. Carr against the bark Zenobia, in rem, and also in personam against her master, A. R. Cronstadt, to recover damages for the non-performance of a contract of affreightment. The libel stated in substance that the libellant, in Novem- ber, 1847, at Whampoa, China, engaged passage for himself and family, with their personal baggage, and certain merchan- dise or freight, on board the Zenobia, for the United States, and thereupon shipped sundry cases of merchandise, among which was a chest of drawers containing twenty-five hun- generated. The libellant ought to have remained silent after Ms full and solemn receipt in writing, unless he was able to give convincing proof that other demands were due him, and were reserved out of that full settlement. I am not satisfied that this was so, and shall accordingly allow the exception taken to the report, with the costs accruing upon the exceptioi). JULY, 1847. 49 The Zenobia. dred dollars in specie. The agreement was made with k Cponstadt, the master of the bark, to whom libellant paid I $150 in advance, being one half the passage-money stipu- , lated. November 28th was the appointed day of sailing, but the vessel sailed two days previous to that time, unknown to libellant, leaving him and his family behind. The libellant followed the Zenobia to this country, and arrived, as it hap- pened, a few days before "her. On the arrival of the Zenobia he went on board 'and claimed the property shipped by him. The master, however, refused to deliver it, or to recognize the libellant as its owner, and moreover refused to make the proper entries upon the ship's manifest, which were necessary to enable the libellant to obtain the property from the custom- house. For a fuller statement of the facts, reference is made to the case upon the final hearing, December, 1847, which is reported, post, in its order of time. The libel, as amended under the direction of the Court upon this hearing, and the substance of the answer, are there given. Upon this libel, process was issued against the master, upon which he was arrested and held to bail ; and also; against the bark, for which the usual stipulations were given on the part of the owners. The master then moved in the cause, "that the libellant be required to elect whether he \yould proceed in rem against the vessel, or in personam against the master ; and that either the arrest of the master or the attachment against the vessel should be vacated." Bbtts, J. The libel being filed for a double cause of ac- tion on the shipping contract and for its tortious violation by the master, for which the ship and master may be unitedly liable, the case is not one in which the Court will compel the libellant to elect which branch of his remedy he wiU pursue. He may maintain the suit in personam against the master for VOL. I. ' 5 50 CASES IN ADMIRALTY. The Zenobia. wrongfully abandoning the libellant and his family in China, and for abstracting or withholding, in the exercise of Im authority over the ship and her lading, the specie and bag- gage shipped on board, and may therein seek damages against the master beyond the liability of the ship.- Accord- ing to the practice in this district, he may also pursue his claim in a joint action against the ship in rem and the mas- ter personally, upon the contract of affreightment, and for the transportation of himself and family ; (Butts's Adm. Pr. 20 ;) provided he establishes a case within the jurisdiction of the Court The motion to dismiss the suit, because of incongruity or multifariousness in the demands, is therefore denied. The owner of the Zenobia, David Carnigie, intervened and filed exceptions to the libel for insufficiency. The objection raised by the first exception wbs, that the Court had no jurisdiction to enforce such a claim as was pre- ferred in the libel against the vessel and owner. The second and third exceptions raised the objection, that at any rate the claim was not one which could be enforced both against the vessel in rem, and against the master t» per- sonam, in the same libel. The remaining exceptions related only to the form of the libel, as tested by the rules promulgated by the Supreme Court, and raised no questions of importance. These excep- tions, save one only, were allowed, and the libel ordered to be amended in the particulars to which they related. The opinion of the Court relates almost wholly to the questions raised upon the liability of the vessel for the cause of action shown, and upon the propriety of uniting the claim against the vessel and the personal claim against the master in one action. 3-ancis B. Cutting, in support of the exceptions. Abiier Benedict, opposed. JULY, 1847. 51 The Zenobta. Botts, J. ' The allegations of the libel are deficient in per- spicuity and certainty ; but I think a reasonable construction of the pleading as a whole, may regard it in effect to repre- sent the master as having -wilfaQy withheld the property shipped by the libellant on board the vessel, and as having put impediments in the libellant's way on ship-board and at the custom-house, and prevented him from receiving its deliv- ery at this port, and as refusing to repay the passage-money advanced to him, or to recognize the libellant as having any right to or interest in the baggage and other goods shipped by him on the vessel. The first legal point raised against the action is, that the ship is not liable for the undertaking of the master, to bring the libellant and family to this country as passengers. It is unnecesary to consider whether the vessel would be chargeable with a lien upon a naked agreement for the car- riage of libellant, for in this case a part of the passage-money was actually paid in advance. The agreement was plainly within the authority of the master, and the receipt of the money was for the benefit of the ship-owner, and was so much freight paid. In respect to the liability of the ship for contxacts of trans- portation made with the master, the law makes no distinction between passengers and merchandise, each being alike car- ried for hire, and in the regular course of the vessel's occupa- tion in trade and commerce. Wolf v. Summers, 2 Gampb. 631 ; Mulloy v. Barker, 5 East, 316 ; Rowland v. The Lavinia, 1 Pet. Adm. R. 123 ; Griggs v. Austin, 3 Pick. 20. There is no reasonable ground for doubt, that if the libel- lant had paid in advance the freight of his goods, and the master had designedly left them behind in China, the vessel would be answerable to the amount of freight so received. This would be both because the vessel is bound in specie for the fulfilment of the contract of the master made within the scope of his powers, (3 Kent, 218, note ; The Volun- 52 CASES IN ADMIRALTY. The Zenobia. teer, 1 Sumn. 551 ; The Phebe, 1 Ware, 263 ; Owriis on Merck. Seam. 169,) and because the vessel is liable for the repayment of freight not earned by the wilful failure to perform the con- tract of affreightment. Mashiter v. BuUer, 1 Campb. 84 ; Pit- man V. Hooper, 3 Svmn. 50 ; Watson v. Duykinck, 3 Johns. 335 ; Griggs v. Austin, 3 Pick. 20. It is equally cleai;, that the neglect or refusal of the master, without justifiable cause, to deliver the goods at the port of destination, renders the owner, and consequently the ship, responsible upon the contract of af&eightment. Abbott on Shipp. 156, 275 ; Owrtis on Merck. Seam. 198. These principles, so well established in their application to contracts for tlie transportation of merchandise, are applica- ble also to agreements for the carrying of passengers. The ship is therefore liable in specie to refund the passage-money advanced by the libeUant, and to pay damages for the non- delivery of the. goods shipped by him. The libeUant is entitled to the responsibility of the ship, to cover these liabilities of the master, and is not obliged to rely solely upon the personal responsibility of the master or owners. Had application been made to the Court to reduce the amount of bonds exacted from the ship, the Court would . have taken care that the owners were not charged with an unreasonable amount of security, and would have discharged the attachment upon stipulations sufficient to cover the prob- able recovery and costs. But the exception taken by the •claimants to the right of libellant to maintain upon the facts charged an action in rem, cannot be sustained. The next general point made by the exceptions is, that this suit cannot be prosecuted conjointly in rem and in personam. This objection is supported by the language of Judge Story, in The Citizens' Bank v. The Nantucket Steamboat Com- pany, 2 Story, 57. In that case, a libel in rem against a steamboat, and in personam, against her master and owners, was filed to recover the value of bank-bills entrusted to the JULY, 1847. 53 The Zenobia, master for transporfation, and lost on the passage. The Judge remarked, that he knew of no principle or authority in the general jurisprudence of the Courts of Admiralty which would justify such a joinder of proceedings, so very different in their nature and character and decretal effect. " On the contrary," he says, " in this Court, every practice of this sort has been constantly discountenanced as irregular and im- proper." And again he says, "in cases of collision, the injured party may proceed in rem or* in personam, or succes- sively in each way, until he has fuU satisfaction. But I do not understand how the proceedings can be blended in the libel." The objection thus suggested to the joinder of the two remedies was evidently placed upon a supposed incompati- bility between the two modes of proceeding, rendering them improper to be combined in one action. It is not because, in the case before him, there was not both a personal remedy and a remedy against the ship, that the learned Judge dis- approves the practice referred to, but it is upon the ground that the proceeding in personam and the proceeding in rem axe " so very different in their nature and character and decretal effect." It is obvious therefore, that the objection, if sound, applies in all cases, irrespective of the nature of the cause of action. Conceding the view taken by the learned Judge to have been a correct exposition of the practice, as established in ■ October, 1841, the date of the decision above cited, it must be regarded, as untenable since the adoption of the rules of the Supreme Court, framed pursuant to the Act of Congress of August 23, 1842. 5 U. S. Stats. 518, c. 188, § 6. Those rules make specific provision in respect to the mode of pur- suing remedies by libellants in several classes of cases. They authorize libellants in suits for mariners' wages, for pilotage, or for damages by colUs^n, to proceed against the ship, a/tid master, or owner, or against the ship alone, or against the 5* 54 CASES IN ADMIRALTY. The Zenobia. master or owner alone, in personam. Rules 13, 14, 15, In cases of maritime hypothecation by the master, or for sal- vage, the libellant must elect between the remedy in rem and a personal suit. Rules 17, 19. And in suits for assault and battery he is restricted to a suit in personam alone. Clearly, therefore, it can be no longer contended that a joinder of the two remedies in one action is impracticable, or inconsistent with the theory upon which the Court proceeds in awarding relief ; or that there is any incompatibility in principle be- tween the two forms of proceeding, either in their nature, character, or decretal effect, which forbids their union in one action, in those cases in which such joinder is calculated to advance the interests of substantial justice. It is true that the case of a suit for damages for non-fulfil- ment of a contract of affreightment, or one brought to recover back freight paid in advance but not earned, is unprovided for by either of the Supreme Court Rules. Those rules do not contain any specific authority to unite the two remedies in claims of that character. They do not, however, forbid the joinder. The consequence is, that such cases fall within the scope of Rule 46, which prescribes that in all cases not pro- vided for by the foregoing rules, the District and Circuit Courts are to regulate the practice of those courts respectively, in such manner as they shall deem most expedient for the administration of justice. The practice in respect to the question under consideration is therefore left to be regulated; at the discretion of the courts in the various districts. I perceive no principle demanding a distinction in respect to joining in the same action a personal remedy with one against the ship, between an action founded upon a contract of afil'reightment, express or implied, and one brought to re- cover wages or pilotage, or for damages by collision. The considerations of convenience which dictated the permission given by the rules of the Suprei^^ Court, to combine the actions in the last mentioned cases, seem to apply with equal force to the case now before the Court. JULY, 1847. 55 The Zenobia. The practice in this district, on the Instance side of the Court, has, moreover, always been different, it is believed, from that pursued in the Massachusetts district, as stated by Judge Story in the case above cited. The party directly lia- ble upon the claim chargeable upon the vessel may, in this Court, be joined with the ship in one suit, and a decree may be prayed and taken against him in v/no fiaiu with that against the vessel. Or, for want of a prayer to that effect at the initiation of the suit, the libel may be amended by inserting it, even after decree in rem rendered, if that decree proves fruitless to the libeUant, and if the party sought to be per- sonally charged has appeared and contested the suit. The expense and delay of two or three actions requiring to be dis- posed of upon identically the same pleadings and proofs, are thus saved the creditors, and the association of remedies pro- motes, the simplicity and celerity so much sought for and favored in Admiralty procedure. It seems to me, also, that this is the spirit of the English practice, both early and modern, although under that system a somewhat circui*ous method -was originally employed in effecting the object. Instead of directly arresting the party sought to be made personally responsible, it seems, in actions lying purely in rem against vessels, that when the owner enters an appearance, the Court thereupon takes jurisdiction over him individually ; because, appearance in the English Admiralty being by stipulation, the Court thus acquires the power to act against him in personam. 2 Browne's Civ. ^ Adm. L. 398 ; lb. 407-409. And his fide jussors are com- pelled to satisfy the condemnation and costs. Clarke's Praxis, p.i. 4, 5, 12. The practice continues substantially the same in the Eng- lish Admiralty to this day. The St. Johan, 1 Hogg. Adm. R. 334 ; The Tribune, 3 lb. 114. The case of the St. Johan also shows,' that where the remedy is doubtful against the vessel, but is legal and equitable against the owner, the Court. 56 CASES IN ADMIRALTY. The Zenobia. will avail themselves of his appearance to decree the debt and costs against him personally. This personal appearance is also constrained by the course of the Court ; for in suits in, rem, on his failure to intervene, the property is absolutely con- demned to the libellant. 2 Browne's Civ. Sf Adm. L. 400. I am not aware that any confusion or perplexity need arise in respect to the decree to be pronounced in a case thus pros- ecuted. If the action be in rem only, a decree is rendered for the sura which the prevailing party is entitled to recover, and the thing' is condemned, i. e., ordered to be sold to satisfy the. decree. If the suit is in personam, the decree is the same in all essentials, varying only in that it directs execution by fieri facias or by capias ad satisfaciendwn, instead of venditioni exponas. I think that the mode of procedure resorted to in this ease is not only justifiable upon authority, but that it is one that ought to be encouraged, as tending to prevent a multiplicity of actions for the same cause, in cases where all the rights and remedies might be equally well secured in a single suit An action against both the ship and" the master may oftentimes be indispensable. Cases not unfirequently occur in which neither remedy is separately adequate to afford com- plete relief. The Court will, however, be cautious so to guard the practice that exorbitant stipulations shall not be exacted, and that double arrests shall not be made in cases of doubtful right or for trivial amounts. Betts's Adm. Pr. 20, In the present case, the ship and master are separately and conjointly liable for the passage-money advanced by the libel- lant, and also for the safe delivery of the merchandise and baggage shipped by him. The master may also be individ- ually liable for any wilful misconduct in the transaction, com- mitted by him, but out of the scope of his authority as master, by which the libellant has been prejudiced, although the ship and owner may not be conjointly chargeable therefor. The libel is so drawn as to leave it ambiguous, whether damages JULY, 1847. 57 The Hornet. are sought to the amount of the value of the merchandise and baggage and specie charged to have been shipped, as not having been delivered at all, or whether it only seeks com- pensation for the oppressive and tortious conduct of the mas- ter, in baffling the libellant in obtaining his rights and prop- erty from the ship or master. If the latter is the only, object of the action, there certainly can be but slight reason for con- tinuing the suit against both the vessel and the master; and on a proper application, the Court will see that the owners are relieved from all unreasonable burdens in that respect. The first three exceptions, relating to the jurisdiction of the Court, are therefore disallowed. ' The remaining four relate to the formal construction of the libel. As it does not con- form to the requirements of Rule 23 of the Supreme Court, I those exceptions are allowed, save only exception 5, which is disallowed, the libel being sufficient in the particular to which that exception relates. The libellant must take proper meas- ures to reform his pleading before proceeding with the cause. This order is without costs. The Hornet. Under the Act of Congress of March 2, 1799, (1 U. S. Stats. 696, § 90,) the notice of sale in cases of condemnation under the act must be published every day for fifteen days, in the newspapers directed by the act. Under Rules 47 and 48 of the District Court, notice of sale under venditioni expo- nas, (except on condemnation of property on seizure by the United States,) must be published for six days ; and the sale will be set aside if this fall number of publications is not made. This was a libel in rem, by Nathaniel Finney against the schooner Hornet, to recover wages as pilot. A decree was entered in favor of the libellant, by default, and a sale of the vessel upon venditioni exponas was made under the. decree. Thomas T. Sturgess and James S. Stur- 58 CASES IN ADMIRALTY. The Hornet. gess, as attorneys in fact for the owners, who were residents of Maine, now filed a claim and moved to set aside the sale made, on the ground of irregularity in the notice of sale, and to open the decree rendered by default, and to allow the claimants to come in and defend the case. The grounds of the motion appear in the opinion, Betts, J. All the proceedings in Court, on the part of the Kbellant, up to the notices of sale, were regular. The claim- ants failed to show any fraud or collusion on the part of the master, in respect to the attachment of the vessel, or in re- spect to his admissions of the demand set up by the libellant. If, therefore, relief was afforded them against the proceedinga I in Court alone, it could only be upon terms which would fully reimburse the libellant, and save him harmless against defences merely formal in their character. It being, however, the judgment of the Court that the sale of the vessel was irregular, and that it cannot be sustained, the setting it aside vdU place the cause in a condition where the libellant will incur no delay or injury by letting in a full defence, beyond what he would have been subjected to if the claimants had intervened and filed their answer upon the re- turn of process, since it does not appear that any opportunity to try the cause will have been lost by the proceeding. The main question considered by the Court is that raised as to the irregularity of the sale. The venditioni exponas was issued the 20th of July, and the rnarshal made sale of the vessel under it the 27th follow- ing. The advertisement of the notice of sale was first pub- lished the 21st of July, and was published but five times in all, previous to the sale. The rules of this Court direct that notices of sale, &c., shall be six days, and that all such notices shall be published in the manner directed by the Act of Congress, in cases of con- demnation under the revenue laws. Dist. Ct. Rules, 47, 48. AUGUST, 1847. 59 The Hornet. The act referred to {Act of March 2, 1799, c. 22, § 90, 1 U. S. Stats. 696,) prescribes that ships, &c., condemned under the act, shall be sold at auction, giving at least fifteen days notice, in one or more of the public newspapers of the place where such sale shall be ; or if no paper is published in such place, in one or more of the papers published in the nearest place thereto. The terms of the act are very explicit and definite. No less than publication for the required number of days is suf- ficient, and it appears to me that the language admits of no construction or practice which shall fail exacting the entire complement of days in the publication of these notices. It seems intended to exclude the supposition that any other than a continued notice for thp required number of days was allowable. K any number of insertions, less than the whole, will satisfy the statute, then a single one must have all the efiicacy of a notice repeated from day to day, up to the period of sale. There is a difference between the rules of this Court and the Act of Congress, in respect to the number of days' notice required, the one prescribing six only and the other directing fifteen, — ^the statute regulating the proceeding only in cases of seizure by the United States, — but there is no ground for considering a full publication for the entire num- ber of days required as less necessary under the one provision than the other. The rule of this Court adopts the direction of the statute as to the manner of publication, and not the period ; and the reasonable construction of the rule and the act, and the one conducing to the preservation of good faith between suitors, and the rights and interests of all concerned in the ownership of vessels subjected, to sale, requires that the notice of sale shall continue to be published every day, to the completion of the full number. At least six publications of the notice were necessary, and as five only were made, the sale must be set aside. The claimants are also let in to defend the action upon its merits. No costs are awarded to either party against the other. 60 CASES IN ADMIRALTY. Holmes v. Dodge. Holmes i;. Dodge. Where the respondent, in an action for a seaman's wages, relies upon a payment made in advance to the shipping agent by whom the libellant was shipped, the burden of proof is upon the respondent to show affirmatively, not only that the payment was made, but also that the shipping agent was authorized by the libel- lant to receive it. Where, upon reference to a commissioner, there is a conflict of testimony upon a question of fact, the Court will adopt the conclusion of the commissioner, unless there is a palpable preponderance of evidence against it. As a general rule, a reference to a commissioner, in a suit for wages, is a regular and necessary step on the part of the libellant, incidental to the prosecution of the action, and cannot be the subject of an independent charge in a bill of costs. Where, however, the reference is solely for the benefit of the respondent, the Court will modify the order of reference so as to require the extra costs incurred to be defrayed by him. Such modification must be asked for on obtaining the order of reference. Under Rule 3 of the Supreme Court, the principal and his surety on the bond or stipulation given upon an arrest in personam, stand upon the same footing.^ The award which grants execution upon a final decree, authorizes it against all parties embraced in the decree ; and there is no necessity of special notice to the surety of respondent of an application for an execution against him. This was a libel in personam, by Allen Holmes against ^ A. P. Dodge, master of the brig Magdala, to recover wages earned on board the brig. The libel claimed wages for one month and twenty-eight days' services, at $18 per month. The claim was admitted by the answer, which set up as a defence the following items of payment : — Cash advanced to libellant or order, . $18 00 Advances before sailing, in clothing, &c., . 10 20 Hospital money, 65 Cash paid to libellant's proctor, . . . 5 95 |34 80 1 Compare, also, the case of Gaines v. Travis, decided in this Court in Jan- uary, 1849, and reported, post, in its order of date. AUGUST, 1847. 61 Holmes v. Dodge. On the hearing, no evidence was offered to show the first, third, or fourth payments. Evidence of articles of clothing furnished, without showing prices, was given. The Court decreed in favor of the libellant upon his claim, and referred it to a commissioner to report the amount due. On the hearing before the commissioner, the following facts appeared. One Anderson, keeper of a sailors' boarding- house, had previously shipped a man ton board the Magdala, who deserted before the ship sailed. This man was indebted to Anderson. Upon his desertion, Anderson caused the libel- lant. Holmes, to be arrested and ^aken on board the vessel, and he was there inducted to sign the shipping articles. The sum of eighteen dollars was paid to Anderson, which consti- tuted the first item of payment above stated ; but there was a conflict in the testimony of the two witnesses examined upon the question, whether this payment was made with libellant's consent or without it. The commissioner adjusted the libellant's claim at $34.80 ; and upon other evidence before him, allowed the first, third, and fourth items of payment claimed, amounting to $16.80.. But he rejected the item of $18 paid to Anderson under the circumstances already mentioned, and reported that that sum was still due to the libellant. The respondent filed exceptions to this report. E. C. Benedict, in support of the exceptions. I. The payment of one month's wages in advance is to be- presumed, it being the uniform custom to make such pay- ment. II. The shipping articles recite a payment of the ad- vance. III. The witness Pike testifies that he saw the money paid, to Anderson, and that it was so paid by the express direction of libellant. This testimony is, upon the whole, confirmed by that of Morris. Alanson Nash, in opposition, contended that there was no VOL. I. 6 62 CASES IN ADMIRALTY. Holmes v. Dodge. sufiident evidence to show that Andetson was authorized by Holmes to receive the payment of his wages. Bbtts, J. I think the decision of this case depends upon the comparative credit to be given to the witnesses Pike and Morris. Pike states that he saw the advance of $18 paid to Ander- son, and that the libellant told witness that Anderson was to receive it for him. Morris says that he was present, and that no money was paid to Holmes, or directly for him ; and that the money collected by Anderson was the advance to be made to the seaman in whose place libellant shipped. The story, as told, raises a strong presumption that the landlord, Anderson, undertook to make the advance payable to the libellant satisfy a like sum which he, Anderson, ex* pected to have received of the other man he had shipped, but who deserted, probably in his debt to that amount. He fails, however, to prove that Holmes directed such application of the money, or that he consented that the previous advance of that sum, if made to Anderson on account of the deserter, should be charged to him and be regarded as his advance. It is highly probable, upon the confused statement ^ven of the transactions, that Holmes stood in Anderson's debt, and if his advance passed, with his consent, into Anderson's hands, that it would all have remained there. But the accounts between these two men are not to be settled in this action, nor are the facts sufficiently stated to enable the Court to say, with confidence, where the probable equity is. It is, however, clear, that the law casts upon the respondent the burden of showing the payment of the advance to libellant, or to his authorized agent ; and that if a payment to a third person on behalf of the libellant is relied upon, the authraity of such third person to receive the payment in the name of the libellant must be affirmatively shown. And as at best, the testimony is balanced on this point, the respondent must ■fail in this defence. AUGUST, 1847. 63 Holmes v. Dodge. Independently of that consideration, it is not usual to re- verse the judgment passed upon matters of fact by a tribunal or officer, having had opportunity for a personal examination of witnesses in each other's presence. A Court, reviewing the evidence as reproduced upon paper, possesses but imper- fectly the means of determining the relative credit of wit- nesses who stand in conflict as to facts ; and it is always safer, when the preponderance is not palpable, to rely upon the dis- crimination and conclusions made by those who have seen and heard the witnesses, face to face, than to attempt to set- tle that point by weighing the written report of the testimony. Upon both of these considerations, I shaU adopt the decis- ion of the commilsioner as to the advance due to the libellant, and shall hold that the exceptions are not sustained. The decree wiU therefore be as foUows : — Exceptions to the report of the commissioner having been ^^en in this cause on the part of the respondent, and it ap- pearing to the Court that the testimony before the commis- sioner, on the point in controversy, was in direct conflict, and that on a personal examination and hearing of the witnesses, he gave credit to one witness and discredited the opposing witness, and it not appearing that the collateral facts or cir- cumstances afford just and satisfactory cause for changing the decision of fact made by the commissioner : It is ordered by the Court, that the exceptions taken to the report filed in this cause be disallowed and overruled, with costs to be taxed. The cause came up again soon after, upon an appeal taken by the respondent from the taxation of costs by the clerk, un- der the above decree. The libeUant had charged and pro- cured to be taxed a bill of $17.25, for costs of reference, inde- pendent of the $12 allowed the libeUant in summary causes by the standing rule of Court. Dist. Ct. Rules, 165, 176. The respondent appealed from that taxation. 64 CASES IN ADMIRALTY. Holmes v. Dodge. Betts, J. As a general principle of pracstice, a reference to a commissioner in suits for wages is a regular and necessary step on the part of the libellant in the prosecution of the action. The Court rarely takes the account between the sea- man and the ship to determine the amount due, but as an ordinary incident to the suit, the computation is made by a commissioner, and if a reference were not moved for by the libellant, it would usually be directed by the Court as an essential proceeding in the cause. It is undoubtedly true that instances may occur in which the reference is solely on the motion of the respondent and for his benefit, the claim of the libellant being definitely ascer- tained in amount by his proofs upon the hearing. In such cases the Court will, upon request, modify the order of refer- ence, making it one granted in behalf of the respondent, and perhaps adding, also, in summary cases, a provision, that the extra costs incurred shaU be defrayed by him. This is withit the spirit of Rule 171 of this Court in respect to costs in summary actions, which imposes on the party obtaining a privilege the special costs created thereby. The present case was one in which such a qualification of the usual order would have been proper, had it been asked for at the time the order was granted. Upon the minutes, how- ever, the order now appears to have been moved for and taken in the usual mode ; and under such circumstances, in my judgment, the libellant is only entitled to a single bill of costs, and such bill, in summary actions, is limited to $12, exclu- sive of disbursements. Dist. Ct. Rules, 176. The reference, like an assessment by the clerk or jury of inquiry in common- law procedures, becomes an incident to the cause, to be charged for as ail item in the general bill of costs. There is nothing before me in these proceedings which will justify treating this case as an exception to the general rule, and the objection taken to the allowance of the expenses of the refer- ence, independent of the costs of the cause, must accordingly prevail. AUGUST, X847. 65 Holmes v. Dodge. The cause came before the Court for the third time, a few days later, upon a motion for execution against the stipulator, based upon an affidavit of one of the proctors, that execution on the final decree had issued against the respondent, and had been returned unsatisiied. Alanson Nash, for the motion. W. R. Beebe, in opposition, contended that an order to show cause should have been obtained and served upon the stipulator, and that for want of such notice, this proceeding was irregular. Betts, J. The practice of the District Court, in such cases, has been well understood and settled, under the stand- ing rules of the Court. Betts's Adm. Pr. 27. After final decree against the principal, an order may be taken, as of course, requiring the stipulator to fulfil his stipulation, or show cause in four days why execution should not issue against him. This order is to be served upon the proctor of the principal party, and if no cause be shown, pursuant to its direction, a summary decree is rendered, and execution awarded thereon against the stipulator. Dist. Ct. Rules, 145. The rules of the Supreme Court place the principal and his surety upon bond or stipulation, given on an arrest in personam, upon the same footing. The engagement of the stipulator is, that the principal party shall appear in the suit and abide by all the orders of the Court made in the cause, whether interlocutory or final, and that he shall pay into Court the money awarded by the final decree. And upon such bond or stipulation, summary process of execution may and shall be issued against the principal and sureties, to enforce the final decree so rendered. Sup. Ct. Rules, 3. These stipulations may be taken by the marshal, or before a judge or a commissioner. Sup. Ct. Rules, 3, 5. In the present case, the surety executed a bond to the mar- 6* 66 CASES IN ADMIRALTY. Holmes v. Dodge. shal, pursuant to the terms of Rule 3 of the Supreme Court. The effect of the bond, and the remedy upon it, must accord- ingly be determined by the true import of that rule. It seems to me manifest that the Court designed by the rule to place the surety precisely in the situation of the principal, regard- ing his engagement a legal assumption of the responsibility of the respondent. The final decree is to be enforced against both, by summary process of execution, and accordingly, the method by which the process against the principal is ob- tained, is the proper one to be pursued in procuring it against the surety also. As an order to show cause is not required in the District Court in respect to the principal, but execution is awarded by,an order as of course, the distinction of procedure which before obtained in that Court in respect to the surety, is abro- gated by this rule of the Supreme Court, and one order is all that is necessary. The same award which grants execution on the decree, grants it as respects all parties bound by it ; and as that order may be summary, it of course may be founded upon the decree itself, without any intermediate steps or notice. The term summary proceeding, imports a step taken by the direct action of the Court, and unless reg- ulated by some condition or qualification of law, it will be free from delay or formalities. As summary arrests and summary judgments or decrees are, in contemplation of law, independent of the checks and formalities attendant upon ordinary proceedings of like character ; so, also, a summary execution must be considered as the immediate award of that process after final decree rendered, and as subject to no other condition than that it be directed by the Court. The rule of the Supreme Court is not limited to the grant- ing a power to give summary execution as a favor ; it is im- perative upon all the courts. They are required to issue the process against principal and sureties to enforce the final decree. . DECEMBER, 1847. 67 The Flash. The libellant is accordingly now entitled to that process upon this motion. He ought, however, to have taken the order for it together with that obtained against the principal, and the order now made must be without costs. The Flash. The master of a New York vessel contracted, at the port of New York, to trans- port a cargo across the East Biver to Brooklyn, — a voyage less than a mile In length, but across tide waters. He took a part of the cargo on board, but after- wards refnsed to take on the residue, or to deliver that already laden. Edd, That an action in rem would lie both for the refusal to receive on board and the refusal to deliver ; notwithstanding that the contract was made in the home port, and for a voyage of so local a character, and notwithstanding that only a portion of the goods were received on board. By the general law maritime, the vessel is bound to the shipper for the perform- ance of a contract of affreightment made with the master, whether by charter- party, by bill of ladingj or by parol. This was a libel in rem, by WiUiam ChnrchiU against the schooner Flash, to recover damages for the non-fulfilment of a contract of affieightment. . The libel alleged that an agreement was made by the mas- ter of the schooner with the libellant, to take on board the vessel, at her wharf in this city, a cargo of bricks, thirty-five thousand in number, and to transport them over tide waters, — namely, across the East River tb the city of Brooklyn, — ^for a stipulated freight ; that the vessel received on board eight thousand of the bricks ; that the master had refused to deliver such part to the libellant, pursuant to the shipping contract ; and that he left on the wharf in the city of New York the residue of said cargo, which had been delivered there by the libellant, ready to be taken on board, and had refused tb receive and transport them according to the contract of afl&eightment. 68 CASES IN ADMIRALTY. The Flash. The claimant, who was the owner of the vessel, demurred to the libel upon two grounds : — 1. That the Court had not jurisdiction to enforce, in rem, an agreement to take and carry freight. 2. That the master of a domestic vessel had no authority to bind her while' in her home port, upon a contract like the one here set up. The cause now came before the Court on the demurrer. T. B. Scales for claimant. I. The ship is tacitly hypothecated for the obligations con- tracted by the master, only " when acting in the quality of master, and within the scope of his authority as such." The jurisdiction of the Admiralty to proceed against the ship in specie, on the ground that she is security for the merchant who lades goods on board, is altogether denied in England. Abbott on Shipp. 161. It is recognized here under certain restrictions, but conceded to be " entirely due to modem in- vention." The Rebecca, Ware, 200. But all the cases upon this subject are for injuries done to the cargo during the voy- age. Cleirac, c. 58, 63, 259. See the cases collected in Ab- bott on Shipp. ed. 1846, 161, note. No lien exists for a refvr sal to take the merchandise on board the ship, nor for a refusal to perform the voyage after the merchandise has been taken on board. II. Conceding that the vessel could be bound for damages arising from a refusal to perform a contract to convey goods, this libel does not show a contract binding upon the owners ; and it is only a contract binding upon the owners which cre- ates a lien upon the vessel. The Waldo, 4 Law Rep. 382 ; The Casco, lb. 471. 1, The libel alleges a contratfb to transport a quantity of bricks, made with the master, in the home port of the owner, which " is not incident to his general authority as master, nor can it be presumed, under such circumstances, as an ordinary superadded agency." The Schooner Tribune, 3 Sumn. 150. DECEMBER, 1847. 69 The Flash. 2. There is, moreover, no allegation in this libel that the contract was made with the knowledge or consent of the owners, nor are any circumstances shown firom which the inference can be drawn that it was with their approbation, or that he had any authority to make it, or that they subse- quently assented to it. On the contrary, the libel expressly avers that the owners dissented, and refused to affirm or per- form the contract alleged to have been made with the master ; this is the very gravamen of the complaint. William Jay Haskett, for libellant, contended that the vessel was bound in rem, both by the failure to deliver the portion of cargo taken on board, and for the failure to perform the contract as to that which was not taken on board. Abbott on Shipp. 161, and notes ; The Rebecca, Ware, 189, 193 ; The Phebe, lb. 263 ; The Paragon, lb. 322 ; The Volunteer, 1 Sumn. 551 ; The Reeside, lb. 567. Betts, J. By the maritime law, an affireightment of goods on board a vessel operated reciprocally as a tacit pledge or mortgage of the vessel to the shipper for the conveyance and delivery of the goods according to the contract, and of the goods themselves to the ship to secure payment of the freight earned. Abbott on Shipp. 160 ; 3 Kent, 162. The lien to the shipper arises alike, whether the contract of affreightment be by charter-party, by bill of lading, or by parol. This prin- ciple is fully discussed in the case of the Rebecca, Wa^e, 88. That case shows very satisfactorily that the obscurity which is to be found in the English system of Admiralty law upon this subject is attributable, not to any doubt of the existence of a lien upon the vessel for the performance of the contract of affreightment, but to the fact that the courts of common law in that country have assiduously interposed to restrain the Court of Admiralty from taking cognizance of the con- tract. And by a full examination of the continental author- ities, both ancient and modern, it is shown to be an estab- 70 CASES IN ADMIRALTY. The Flash. lished principle of the general law maritime, that the vessel is liable in rem for the performance of the contract of affreight- ment entered into by the master. See, also, The Phebe, Ware, 263 ; The Paragon, lb. 322. These views are fully supported, so far as relates to foreign voyages upon the high seas, by other authorities, which clearly show that the hiring of the vessel, or of any portion of her for a voyage, or an agreement for transportation of goods by her upon the high seas, binds her to the fulfilment of the contract, and this, whether it be evidenced by charter-party, by bill of lading, or by verbal agreement only. The Volunteer, 1 Smmm*. 551 ; The Reeside, 2 lb. 567 ; The Tribune, 3 lb. 144 ; The Wal- do, 4 Law Rep. 382 ; The Casco, lb. 471. This principle does not require, as was contended by the counsel upon the argument, that the goods should actually be on board the vessel, to raise the lien. There are, indeed, many classes of liens which rest upon possession, actual or constructive, as their basis. If the basis of a lien claimed upon such contract rested in a figurative possession of the vessel, imparted to the shipper by lading his goods on board, there would be force in the argument, that no lien was acquired until the actual lading of the goods was accom- plished. But such is not the principle from which the liabil- ity of the vessel is deduced. It is grounded upon the anthorily of the master to contract for the employment of the vessel, and upon the general doctrine of the maritime law, that the vessel is bodily answerable for such contracts of the master made for her benefit. Had the undertaking, then, in this case, been for affreight- ment to the "West Indies or to New Orleans, the case would have come within the doctrine of the maritime law, clearly established by the decisions and elementary writers — ^the con- tract being a positive contract of affreightment, and not a mere agreement leading to such contract. It is contended, however, that the present case does not DECEMBER, 1847. 71 The Flash. come within the scope of the doctrine above laid down, for the reason that the contract was entered into by the rnaster on behalf of the vessel, at her home port, where, it is urged he has no power to bind the vessel by any such agreement. The authority of the master, at her home port, to make engagements for a vessel in the course of her ordinary em- ployment, is always implied. To relieve the vessel from responsibility upon such engagements, the dissent of the owner must be shown. Curtis's Merch. Seam. 168 ; Abbott on Shipp. 156, 159, and note; The General Interest Insur- ance Company v. Ruggles, 12 Wheat. 400. It is true that this presumed authority^as been said not to extend so far as to authorize the mast^to make a charter of the vessel at her home port. The Tribune, 3 &umn. 144. But if this distinc- tion is sound, it does not affect the application of the princi- ple to the present case, which is a contract to receive and carry cargo under the charge of her master, and not a letting of her out of his possession. If, therefore, this had been a sea'going vessel, and the contract had related to a foreign voyage, the authorities would, in my opinion, leave no ground on which the claimant could contest the liability of the ves- sel, as well for the refusal to take on board the portion of cargo left behind as for the failure to deliver that which she carried out. The controversy upon this point is no doubt induced by the peculiar character of the undertaking of the master and of the employment of the vessel. She was, it seems, engaged in the carriage of cargoes from the city of New York to land- ing places at the city of Brooklyn, running merely across the river or bay, and probably making no trips exceeding a mile in distance. The pleadings, however, present the facts that this was a contract for a maritime service, to be performed by a vessel upon tide waters, and that the master having taken on board a part of the cargo, refused to receive the rest, and 72 CASE^ IN ADMIRALTY. The Flash. also detains on board and refuses to deliver, according to the contract of affreightment, the portion taken on board. The distance of transportation or the danger of navigation is nowhere declared an element essential to the liability of the vessel upon a contract of affreightment. An undertaking to -carry a cargo to ports or places up the Sound, or to Staten Island or Rockaway, would be subject to the same objection. Neither of these trips would be a foreign voyage. The decisions upon this subject rest upon principles which render them applicable as well to that spe- cies of carriage as to any other kind of coastwise navigation. In this Court it has been repeatedly ^^cided, that vessels engaged in navigating the Sound, or tne tide waters of the harbor, or of the North River, have become subject to the rules of maritime laws, applicable to those engaged in voy- ages to other States or upon the high seas. This may be regarded as in effect determined, in the recent decision of the Supreme Court of the United States. Waring ?;. Clarke, 5 How. 441. And it is understood, that in so far as the juris- diction in rem of the Admiralty courts is concerned, that Court also held, in the case of The New Jersey Steam Navigation Company v. The Merchants' Bank of Boston,^ (argued at the same term^but ordered to i?e-argument upon the question of jurisdiction in personam,) that Admiralty jurisdiction, in cases of contract, is not determined in this country as in England, by the mere matter of locality, but obtains wherever the sub- ject-matter of the contract is of a maritime character. Upon these grounds I think that the libel, upon its face, shows an adequate cause of action in rem. The demurrer is accordingly overruled, with costs.* 1 Since reported, 6 How. 344. 2 The cause came again before the Court, for final hearing, in January, 1848, and the proceedings then had are reported, post, under that date. DECEMBER, 1847. 73 The Moxey. ^ The Moxey. An injury received by a vessel at her moorings, in consequence of being violently rubbed or pressed against by a second vessel lying alongside of her, in conse- quence of a collision against such second vessel by a third one under way, may be compensated for under the general head of collision, as vrell as an injury which is the direct result of a blow properly so called. But to entitle the injured vessel to recover against her stationary neighbor, under such circumstances, instead of against her who was the original cause of the accident, such stationary vessel must be proved to have been in fault. The rule of mutual contribution is not applied to cases of accidental collision from physical causes for which neither vessel is to blame ; but each vessel in such case must bear her own loss. This was a libel in rem, by Abner and John H. Davis, owners of the barge New London, against the brig Moxey and the schooner Avenger, to recover damages for a collision between those vessels and the New London. The libel stated, that on November 19, 1846, the barge New London, owned by libellants, was lying in one of the slips in the port of New York, engaged in delivering her cargo, and that she was well secured to the wharf, well manned, &c. That on the same day, the schooner Avenger lay at the end of the pier to which the New London was secured ; and the brig Moxey lay within the slip, alongside of the New Lon- don, and quartering on her bow, and was fastened to the pier by one line from the bow, another line from the stern, which latter line passed across the New London, and by a third line fastened to the New London. That during the night a storm arose, and the Avenger, being carelessly and negligently fas- tened to the pier, broke loose from her moorings and floated around into the slip and alongside of the Moxey. That the Moxey, being negligently and carelessly fastened to the wharf, and, in particular, not having a line carried to the pier on the opposite side of the slip, as in such weather she ought to have had, was, by the collision of the Avenger, VOL. I. 7 74 CASES IN ADMIEALTY. The Moxey. driven against the New London, whereby, and by being thrown up and down between the brig and the wharf, b^Bie surging of the water, she received much damage; The answer denied all the charges of carelessness or negli- gence; and avened that the Moxey was well manned and well and properly secured ; and that she had taken the posi- tion occupied by her at thfe request of those in charge of the New London, to accommodate them in delivering her cargo ; and that every means was taken at the time of the collision by those in charge of her, to avoid injuring the New London. The answer also charged, that the New London was old and decayed, and that any injury which she suffered was ascrib- able, not to any neglect or want of care of skill on the part of the master and crew of the Moxey, but to her own decayed and unsound condition. The libel was ori^naUy filed against both the Moxey and the Avenger ; but upon exceptions taken to the iib^ it was held by the Court, that inasmuch as it was not charged in the libel that the collision complained of was the joint act of the two vessels, or that it was made by them at the same time, or that they were under charge of the same crew or per- sons, or that the injury inflicted was upon the same part of the vessel of libellants, the libellants were not ehtitled to pro- ceed against the two vessels conjointly ia one action, but must elect to sue either the Moxey or the Avengeiv In pw- suanee of this demsion, the suit was discontinued as a^uiost the Avenger, and the libellants proceeded against the Moxey alone. The cause now came before the Court upon the proofs taken against her. So far as the decision of the case turned upon matters of fact, the opinion of the Court shows how fajr the respective allegations of the parties were regarded as sustained by th^ proofs. S. P. Nask, for libellants. I. By the general principles of maritime l%w, the vessi^ DECEMBER, 1847. The Mox«y. having the greatest facilities of movement is regarded as guilty of negligence if she does not employ those facilities for the protection of other vessels. Story on Bailm. §§ 611 and 611 b ; Abbott on Shipp, 234. Here the Moxey lay out- side and was moved by sails. The barge v\ras a tow-vessel, having no self-moving power ; and she moreover lay inside, where she could not be moved out of danger. She was also the weakest vessel. Under such circumstances, the burden of proof is thrown upon the Moxey, to free herself from the presumption of negligence ; and it does not devolve upon the New London to prove her gtulty of it. IL The fact that the New London was unsound could have no bearing on her right to an indemnity.; it could only affect the amount of damages. A vessel has a right to be protected in her lawful position, whether she is sound or un- sound. Edwin Bvirr, for the claimants. I. This is not a case of collision. That term always im- plies a movement of one vessel through the water, a^d a striking against another, causing injury to her. 2 Condy^s Marsh. Ins. 431. The barge, in this case, was moved up and down by the surging of the water, and was thus injured. The damage in no way resulted from any fault or negligence in navigating the Moxey. li. Primd facie, the injury is from the act of God, and the libellant must show a strong case of fault in the claimants, to rid himself of this conclusion and render the brig liable. III. In ordinary cases of collision, the libellant must be held to strict proof that the injury was caused by a breach of some nautical rule or usage on the part of the crew of the brig, or some want of ordinary nautical skill, without such breach or neglect on the part of the libeUants. Siory on Bailm. § 611. In all cases of collision, the libellant must prove that the injuries complained of resulted from the fault of the defendant, there being no want of ordinary care on his own part. Abbott on Shijrp. 238. 76 CASES IN ADMIRALTY. The Moxey. IV. It is the Avenger which is chargeable with responsi- bility for the collision. Betts, J. This clearly is not a case of collision within the nautical acceptation of that term, which imports the imping-- ing of vessels together, whilst in the act of being navigated; Common usage, however, applies the term equally to cases where a vessel is run foul of when entirely stationary, or is brought in contact with another by swinging at her anchor. Jacob. Sea' L. 326, note ; 1 Ckmdy's Marsh. Ins. c. 13, § 3 ; Abbott on Shipp. 238. ' A loss under the circumstances of the present case is, more- over, a loss from the peril of the sea, (1 Phill. Ins. 249,) and it falls also within the class of losses adjusted, under many maritime codes, by mutual contribution of the vessels injur- ing and receiving injury. Thus Weskett says : " When two or more ships are lying at cmchor, and another, in what man- ner soever it may happen, is in danger of coming too near, the master who lies foremost shall, if he can, meike way, and be obliged, at the other's call, to weigh anchor and remove ; in failure whereof, he shall be answerable for whatever dam- ages may ensue, especially if happening in a harbor where the water may ebb away and the ship be aground ; — ^in case he who in this manner endeavors at the other's call to make way, shaU receive any damage in ship or goods, he shall be indemnified by the other according to arbitration ; but if in making way he shall happen to do any damage to the other ship or goods, he shall not be answerable for it. Weskett on Ins. tit. Running Foul. I do not think that the term collision, as used in the mari- time law, is to be construed with the absolute strictness con- tended for by the claimant's counsel. An injury received by a vessel from being violently rubbed by another, or pressed by her with force against a pier or wharf, as in this case, may, I am inclined to think, be recovered for in Admiralty DECEMBER, 1847. 77 The Moxey. under the general charge of collision, as well as where the in- jury is derived directly from the head^v^ay of a vessel under navigation, or drifted against her. But conceding that this description of injury, whether tech- nically a case of collision or not, is still one for which the Hbellants could sustain an action im, rem, I do not think the particulars essential to the support of such action have been established by the proofs., The brig was placed alongside the barge at the request of those who had her in charge, and in such a way as to accom- modate them in unlading cargo from their own barge into her. She was adequately secured in the mode usual in this harbor, and was manned and managed in her berth conform- ably to the usage of the port. The injury inflicted occurred during a violent gale of wind arising suddenly in the night. Whether that injury was occasioned by the swell of the waves rubbing the two vessels together as they were lifted up and down, or whether the causa coMsans was the drifting of an- other vessel, which had broken loose in the gale, against the brig, neither circumstance affords ground for imposing the loss upon the brig. No fault is proved against her in taking the place she occupied, or in any thing done on board of her conducing to the injury of the barge. , It is asserted that there was blameable negligence on the part of the brig, in not placing fenders between herself and the barge, and also in omitting to carry a line across the slip to the opposite pier, so as to ease off the pressure against the As to the first particular, it is to be remarked, that the duty of using fenders between the two vessels was mutual and reciprocal, the brig being by law equally entitled with the barge to the berth she occupied, and not bound to do more than the other vessel for their common protection. But there is proof that the brig had a competent supply of fenders, and Used them on each side of her till they were broken up by the 7* 78 CASES IN ADMIRALTY. The Moxey. jamming of the two vessels in the severity of the storm. In- deed, the evidence reftders it quite probable, that the efforts to protect the barge in this way led to her injury, as it would seem she was principally damaged at the points where fen- ders had been placed .against her. In regard to the second point, wherein it is asserted that the brig was culpably negligent in omitting to carry a line to the opposite pier, the city ordinances prohibit running lines in this manner across the opening of slips ; ( Ord. of N. Y. City, 1839,) but if it had been lawful to use one in the emer- gency of the case, it was as much the duty of the libellants as of the claimants to take tha-t precaution. This was not a common culpable act, conducing to the collision, but a mu- tual omission to do an act on shore which might have pre- vented or lessened the injury, and neither party can make the other responsible to him for such an omission. Two circumstances are to be regarded : — 1. The brig was entitled by the law of the port, to the berth she occupied ; she had entered it without injuring the barge, and was secured there by the usual and competent fastenings. When, therefore, the peril of this storm came upon them, the barge had no right to require the brig to leave the slip, or to change her position, unless it be clearly shown that the change could have been made at the time and under the cir- cumstances, without hazard to her. 2. The Avenger, another vessel, was driven firom her fas- tening and into this slip against the brig by the gale ; and as the wind crowded her directly upon the brig, afld thereby increased the pressure of that vessel against the barge, the damage incurred by the latter would be attributable to the Avenger, her action being the direct cause of the injury. In legal contemplation, she was in fault in taking a berth in an insecure place, or in not using fastenings sufficient to hold her there, and adequate to protect he from being driven off by the storm. DECEMBER, 1847. 79 The Moxey. The brig has no connection with thal^ault ; and in so far as she participated in the injury inflicted upon the barge, the collision was by vis major, without negligence or blame on her side, and the loss must be borne where it falls. 3 Kent, 231. Although the rule of mutual contribution may be adopted by our courts in cases of loss by collision at sea or in port, occurring by accident or through the mutual fault of both vessels, there would be no reason for applying it where there was no common fault, and where the management of the two vessels in taking their positions in relation to each other was by mutual agreement. On the contrary, where damage is incurred without fault on the part of either vessel, and by some irresistible force constituting a case of vis major or in- evitable accident, the loss must be borne by the party upon whom it happens to fall, the other not being responsible to him in any degree. By the maritime law of both England and the United States, where a collision happens by inevit- able accident and without fault of either vessel, each must bear the damage received by her, whatever it may be, and has no claim upon the other for contribution.^ The Wood- rop Sims, 2 Dods. 85 ; The Catherine of Dover, 2 Hagg. 154 ; The Shannon and Placidia, 7 Jur. 380 ; The Ebenezer, 7 Jwr. 1118 ; S. C. 2 W. Rob. 206 ; Reeves v. The Constitution, Gilp. 579 ; The Eliza and Abby, 1 Blatchf. Sf H. 435 ; Abbott on Shipp. 238 ; Story on Bailm. § 608 and note 2 ; 3 Kenfs Comm. 231. In my opinion the action cannot be sustained, and the libel must be dismissed with costs to be taxed. 1 This rule has since been laid down by the Supreme Court of the United States, in Stainback v. Rae, 14 How. 532. The same principle appears to be recognized in Scotland. Tunes v. Class, 4 Murr. 167. By the law of other maritime States, however, the aggregate damage to both vessels incurred through a collision for which neither was to blame, is apportioned equally between them. 80 CASES IN ADMIRALTY. The Zenobia. The Zenobia^ Where there is no provision in the contract of affreightment varying the liability of the common carrier, he can only relieve himself from liability for mjarj to goods intrnsted to him, by proving that it was the result of some natural and inevitable necessity superior to all human agency or control, or of a force exerted by a public enemy. A delay of the master to present to the custom-house officers at tie port of con- signment a proper manifest, by which delay the owner of goods shipped on board is unable to pass them throngh the coetom-honse, is a neglect of his duty as a master, for which the vessel is responsible. Where libellant contracted with the master in a foreign port for a passage to this bonntry, and paid a part of bis passage-money in advance, but the master failed to fulfil his contract, and libellant was obliged in consequence to take passage ia another vessel, — Seld, that the vessel was responsible for the fulfilment of the agreement ; and that the libellant was entitled to recover from her the passage- money paid in advance, the expenses incui-red by him in awaiting the sailing of another ship, and the sum paid by bim to such second vessel for his passage in hei. This was a libel filed by Henry J, Carr against the bark Zenobia in rem, and also m personam against her master, A. R. Cronstadt. The case was brought before the Court in July, 1847, upon a motion by the master to require the libellant to elect be- tween the two remedies sought by him, and upon exceptions filed by the owner, as claimant, to the jurisdiction of the Court, and to the form of the libel. The decision of the Court upon the questions then raised, is reported ante, 48. The cause now came up for final hearing upon the proofs^ As the case was peculiar in its character, and as the libel was required to be reformed in its construction, and when reformed was prosecuted to judgment without further objection to its structure, the libel is now inserted in full. The libel of Henry J. Carr, of the city of New York, against the Swedish bark Zenobia, her owners, and Auguste R. Cron- stadt, master thereof, in a cause civil and maritime of con- DECEMBER, 1847. 81 The Zenobia. tract as against said vessel and owners, and of tort or damage against said master, respectfully shows : — That for the last six years previous to the month of Decem- ber last, your libellant has been a resident merchant in Hong Kong, China. That in the month of November last your libel- lant having determined to return with his family to the United States to reside, your libellant chartered, at Hong Kong, a "lorchar," or small schooner, at an expense of $40, being the usual means and rate of travelling in China, and came down to Whampoa, a distance of some ninety miles, to secure a passage for your libellant and his family, consisting of a wife and infant child, to the port and city of New York That on arriving at Whampoa your libellant found the Swedish bark Zenobia, whereof Auguste R. Cronstadt was master, the first vessel up for the port of New York from Whampoa ; and thereupon, on the 14th day of November, 1846, your libellant shipped on board of said bark Zenobia eight cases of mer- chandise, seven marked L. E. C, Nos. 1, 2, 3, 4, 5, 6, 7, and one case marked F., No. 8, for which shipment the mate of said bark, H. Brandt, gave your libellant his receipt ; also, three other cases of baggage and a chest of drawers, which contained the sum of $2,500, for which cases said mate gave your libellant his receipt in the Swedish language. That after putting on board of said bark the wearing apparel of your libellant and his family, your libellant also paid, on the said November 14, 1846, to the said A. R. Cronstadt, master of said bark, the sum of $150, as one half of the passage- money for your libellant and his familyj from Canton to New York, and took from said master his receipt therefor. That the said master thereupon informed j^ur libeUant that said bark would not sail from Whampoa- before the 1st of Decem- ber following, and that he would advise your libellant, h,y letter, of the time of his sailing. That your libellant there- upon returned to Hong Kong for his family ; and on the 21st day of November last your libellant received a letter from the m CASES IN ACMIRALTY. The Zenobift. gaid A. R. Cronstadt, dated the 18th of November, stating that he should sail with said bark from Whampoas on the 28th of November ; and on the next day, the 22d of Novem- ber, your libellant received another letter from said A. R, Cronstadt, dated the 19th, stating that he had written a letter on the 18th, but lest it might not have been forwarded prop- erly, he repeated its cjontents, namely, that he should so sail from Whampoa on the 28th of November. That thereupon your libellant got himself and family in readiness, and on the 24th day of November, left Hong Kong in a lorchar hired for the purpose, at the rate of $60, for Whampoa, and arrived there early on the morning of the 27th of November. That not seeing said bark in the river and your libellant being informed she had sailed the day pre- vious, namely, the 26th of November, yotu: libeUant leavii^ his family on board of the boat which brought them from Hong Kong, immediately hired a small boat, and proceeded to Canton to see Messrs. McLean, Deane & Co., the agents of the owners of said bark, and consignees in Canton. That upon arriving at Canton, your libellant learned from the said house of McLean, Deane & Co., that said bark bad sailed from Whampoa, on her voyage to the port of New York, on the 26th day of November, two days previous to the time said master had informed your libellant he should sail. That, as your libellant was informed by said firm, said master, after the 14th of November, informed them there were no passengers to go out in said baxk. That at the request of your libellant, the agents and consignees of the owners of said bark, Messrs. McLean, Deane & Co., wrote a letter to the said master by ^^ur libellant, directed to him in New York, dated November 30, 1846, in which they say, among other things :— " We have perused your letters to Mr. Carr, at Hong Kong, wherein you informed him that you would not sail from Whampoa for New York until the 28th inst ; and as Mr. Carr kept his time, and was at Whampoa on PECBMBER, 1847. 83 The Zenobia. the day you named, we consider that he has not in any way forfeited his right "to a passage for himself and family to New York, as agreed between you and him, as per your re- oeipt." That in addition thereto, your libellant was also informed at Canton, by Mr. John N. Griswold, thjt said bark sailed on the 26th of November from Whampoa, and that on the 14th of November the said captain, A. R. Cronstadt was informed that he would be required to sail on the 25th of November. And your libellant further shows, that on his return to •SVhampoa, the only vessel then lying in the river of Wham- poa, bound for the port of New York, was the ship Rainbow, which was to leave about the 3d of December following. That said bark Zenobia having on board all the property, money and effects of your libellant, together with the wearing ftpparel of your libellant and his family, your libellant was left at Whampoa wholly destitute, and was obliged to negotiate bills of exchange at an enormous rate of exchange, in order to raise funds to provide your libellant and his family with proper outfit at that season of the year for a voyage to the United Stateg, which cost your libellant $423, and to pay for his passage on board of said Rainbow, which was, under the circumstances in which your libellant was placed, fixed at $400. That your libellant was therefore obliged to borrow 1^1,000, at the rate of 50 per cent, upon the bills of exchange of your libellant, at three and four months, payable in the city of New York. That your libeUant was obliged to incur lan expense of $16 in going to and firom Canton to Wham- poa, to arrange for the passage of himself and family in the Rainbow ; and during which time the detention of the lorchar in the river at Whampoa, on board of which was the fam- ily of your libellant, from the said 27th day of November to the 3d day of December, on which day your libellant went on board of said Rainbow, cost your libellant the furtiier sum of 84 CASES IN ADMIRALTY. The Zenobia. there being no hotel or house of entertainment at Wham- poa, and he consequently being obliged to remain in the boat in the river, until they could go on board ship. That your libellant arrived in the port of New York, in the ship Rainbow, on the 1st day of March last, with his family, and finding that s^d bark Zenobia had not yet arrived, and your libellant being a stranger in the city, and destitute of the means of immediate support, in order to borrow a small sum to supply the current wants of your libellant and his family, your libellant was obliged to effect insurance on his property in said bark Zenobia, at an expense of $61, and to assign the policy to the party loaning your libellant the sun^ so required. And your libellant further shows, that said beirk Zenobia arrived in the port of New York on or about the 9th day of May instant ; and on or about the 10th instant your Ubellant saw said A. R. Cronstadt, who appeared surprised, and said to your libellant, " I thought you were in China yet." That your libellant thereupon requested the said master of said vessel to return to your libellant the money he had so ad- vanced, and to repay your libellant the money and expenses he was put to in Whampoa by the detention of libellant, in consequence of the violation of said contract and undertaking of said master in relation to the transportation of your libel- lant and his family to the United States. That said master set your libellant at defiance, and told your libellant to get redress as he best could. And-your libellant further shows unto your honor, that said master, following up the great injury and damage so as afore- said done to your libellant, on the arrival of said bark Zeno- bia in the port of New York, has refused to make the proper entry of the merchandise and effects shipped by your libellant on board of said bark at Whampoa, on the manifest or proper exhibit of the cargo of said bark at the custom-house in the city of New York, thereby preventing your libellant or his DECEMBER, 1847. 85 ♦ The Zenobia. consignee from obtaining the property and effects of your libellant from said bark, or the public store, should they' Tie left there ; the only entry on said manifest or exhibit in relation thereto, being as follows : " 1 — 8 to order,?' meaning packages No. I to 8 to order, said master refusing to enter the name of your libellant as shipper ; — it being customary and requisite to enter on said manifest or exhibit the num- bers and marks of the several packages, the name of the per- son shipping them, and the name of the consignee, if con- signed, as was the case with the whol# of the cargo of said bark Zenobia on her said voyage; except the property and effects of your libellant ; the entry of which, as above stated, was without marks and without the name of any person as shipper or consignee. That said master utterly refused to make an.y other entry, although informed by the Collector of the port of New York, or his agent, that he is liable to a pen- alty of $500 for not so doing, — ^the said master, A. R. Cron- stadt, at one time pretending that he does not know your libellant and never saw him before,^at another time, as your libellant is informed, alleging that your libellant came to him at Whampoa destitute, and tried to beg a passage for himself and family to the United States^ all of which said master knows to be totally untrue. That when the several cases of merchandise were shipped' on board said vessel, they were marked as herein stated, and the receipt of the first officer of said bark taken therefor. That at the same time, on the 14th of November, your libel- lant took blank bills of lading to said master, and requested him to fill them out; he being unwell, your libellant left them on his table, said master saying he would have them made out and hand them to your libellant when he came on board the vessel — the receipts of said first officer of said bark being the only evidence of such shipment left with your libellant. That the value of said merchandise, wearing apparel, and money so shipped, was at least five thousand dollars. VOL. I. 8 86 CASES IN ADMIRALTY. The Zenobia. * And your libellant further shp>vs, that your libellant offered to produce and exhibit to said master in the custom-house, on his pretending he did not know your libellant, his letter to your libellant, written at Whampoa to your libellant at Hong Kong, with the Chinese postmark thereon ; also the original receipts of his first officer of said bark, for the cases of mer- chandise and luggage so shipped, but the said master refused to see them, or pay any attention thereto. AH of which act- ings and doings of said master have been and are oppressive and unjust towards your libeUant. That said vessel is a for- eign vessel, and is now lying within the jurisdiction of this Court, and as your libellant is informed and believes, carried freights on her said voyage which have not yet been paid over to the owners or their agents, to something like eight, thousand dollars. And thereupon your libellant alleges and articulately pro- pounds as follows : First. — That on or about November 14, 1846, your Hbel- lant shipped on board the said bark Zenobia, then lying at Whampoa, (China,) for transportation to the port and city of New York, eight cases of merchandise, duly marked and num- bered, and also three other cases of luggage, with a chest of drawers, which contained the sum of $2,500 ; taking the re- ceipt of the mate of said bark for said last mentioned cases. Second. — That on the same day your libellant contracted with the master of said vessel to convey your libellant and his family to the city of New York, and paid the master of said bark $150, as one half of the passage-money therefor. Third. — That in coming down from Hong Kong to Wham- poa with said merchandise, to ship the same to the United States, your libellant incurred the expense of $40. Fowth. — That after shipping said merchandise on board of said bark, and after the payment of said sum of $150 to said master, on account of the passage of your libellant and his family to New York, your libellant returned to Hong Kong DECEMBER, 1847. 87 The Zenobia. for his family, under the assurance of the master of said bark that she would not sail before the first of December ; and that he would advise your libeUant in time of the day of sailing of said bark from Whampoa. Fifth. — That on or about the 22d day of November last, your libellant received a letter from the master of said bark, dated the 19th of said month, stating that he had written a letter on the 18th to your libellant, but lest it might miscarry, he repeated its contents, viz. : that he should sail from Wham- poa on the 28th of November. Sixth. — That on the 24th of November your libellant and his family left Hong Kong, and arrived at Whampoa on the morning of the 27th of November last, and found said bark had sailed from Whampoa the day previous, to wit, the 26th of November. Seventh. — That the expense incurred by your libellant in coming down from Hong Kong to Whampoa with his family to go on board of said bark was $60 ; and the necessary and additional expense by reason of his detention until the sailing of the next vessel to the United States, the further sum of $64, besides the sum of $16 paid by your libellant in going to Canton to see the agents of said bark. Eighth. — That the master of said bark was, on the day of the shipment of said merchandise on board of said bark by your libellant, to wit, the 14th of November last, and some days previous to the date of his letter to your libeUant of the 19th of November, duly notified that said bark would sail on the 25th of November ; and said master well knew that said bark would sail before the 28th of November last. Ninth. — That by the misconduct of said master, yom- libel- lant and his family were, on the 26th day of November last, after the shipment of all thp merchandise, money, and wear- ing apparel of your libellant on board of said bark, and the payment of one half their passage-money to the United States, thereby left in Whampoa wholly destitute. CASES IN ADMIRALTY. The Zenobia. Tenth- — That your iibellant was obliged to raise $1,000, by drawing bills at an enormous rate of exchange, to wit, fifty per cent, premium. Eleventh. — That your libellant was, in consequence of be- ing so left destitute as to wearing apparel for himself and family, obliged to expend the sum of $432 for a new outfit. Twelfth. — That your libellant, in securing a passage for himself and family by the first vessel from Whampoa to the United States, was obliged to pay $400 therefor. Thirteenth. — That upon the arrival of your libellant in the United States in March last, before the arrival of said bark with the effects of your Ebellant, your libellant was obhged to effect an insurance upon his property at an expense of $61, in order to bonrdw a small sum for the immediate wants of his family. Fourteenth. — That said bark Zenobia arrived in the port of New York on the 9th day of May last ; and said masta, upon being called by your Mbellant to refund the passage- money so paid him in Whampoa, with the money and ex- penses incurred by your libellant in consequence of bei^g left in China, said master wholly refused, and set your libellant at defiance. Fifteenth. — That said master, A, E. Cronstadt, after his furival in New York with said bark, interposed every obstacle in his power, and endeavored to defeat your libellant from obtaining his merchandise and effects so shipped by said ves- sel, by refusing to enter the same on the manifest of the cargo of said bark with their marks and numbers ; and also by re- fusing to enter the name of your libellant therein as the ship- per of said merchandise and effects, to the great damage and injury of your libeUant. ^xteenth. — That the value of said merchandise, wearing apparel, and money, shipped on board of said bark by youi libellant, was at least five thousand dollars. And your libellaijt therefore charges, that said breaches of DECEMBER, 1847. 89 The Zenobla. the undertaking and contract of said bark Zenobla and her master, to and with your libellant, are properly cognizable and rellevable in this Court of maritime jurisdiction. And your libellant therefore prays the aid of this honorable Court, that process maritime may issue against said bark, her tackle and apparel, as well as against her owners and all per- sons interested therein, pursuant to the practice of Courts of Admiralty and maritime jurisdiction ; and that an attachment in personam may issue against said master, A. R. Cronstadt, and that said bark, her owners, &c., may be by this honorable Court decreed to pay to your libellant the money paid to said master on account of said voyage, for the passage of your libellant and his family, together with the damages sustained by your libellant, and the money and expenses necessarily and properly incurred by your libellant in China, by reason of said breach of the contract and undertaking of said master and bark with your libellant, and of all loss and damages sustained by your libellant therefrom, as well also by reason of the refusal of said master to deliver or make the proper entries of the merchandise and effects of your libellant in the custom-house of the port of New York, thereby preventing your libellant from receiving the same ; and for such aid and redress against said bark, her owners, or the said A. R. Cron- stadt, the master, as the Court is competent to give in the premises. And that said bark, tackle and apparel, owners, and all interested in her, may be decreed also to pay to your libellant the costs of this suit. And your libellant will ever pray. Verification. To the libel, as amended, A. R. Cronstadt, the master, and David Carnigie, owner and claimant, interposed separate answers. The answer of Cronstadt, the respondent, denied nearly aU of the allegations of the libel, which charged any misconduct 8* 90 CASES IN ADMIRALTY. The Zenobia. upon him. The narrative of the facts given by him was sub- stantially as follows >— On November 14, 1846, the libeUant came on board the Zenobia, then making ready to sail for New York, and applied to respondent for a passage for him- self and family. He stated that he was poor and unable to pay full price, and desired to work his passage in part. He said that he was a Dane, and conversed with respondent, who was also a Dane, in the Danish language, and thus interested the sympathies of respondent in his behalf, as a fellow coun- tryman. The respondent was thus persuaded to agree to give him passage at the reduced price of $300, payable in advance. When, however, the time of payment came, the libeUant represented that he had only money enough to pay one-half, and the respondent was then persuaded to accept half the money in cash, and the balance in libellant's note. The libeUant thereupon sent on board several cases of mer- chandise, amongst which was a chest of drawers, as stated in the libel, but respondent had no knowledge of their contents. No biUs of lading for this property were given, and the only receipt obtained by libeUant was one which he took from the second mate, and was merely for a hat, a compass, and a tea-caddy, which were speciaUy entrusted to the mate. In respect to the time of saiUng, the respondent told libeUant at the time of his taking passage, that he could not tell when he should sail, but did not expect to sail before the latter part of November, but he recommended libeUant to get his family down and on board as soon as possible. The libeUant then left to go for his famUy, but he having been gone a long time, respondent wrote to him, urging him to return with- out delay, and saying that as near as he knew, the vessel would saU on or about the 28th. The vessel did not actu- aUy leave Whampoa tiU the 27th. The answer also denied having done any thing to delay or thwart the UbeUant in pro- curing his property to be passed through the custom-house. The answer insisted that the claim of the libeUant that DECEMBER, 1847. 91 The Zenobia. he had $2,500 in specie in his chest of drawers, showed that the contract of affireightment was procured through false and fraudulent pretences of poverty, and for this reason respon- dent contended that libellant was entitled to no remedy upon the contract. He also insisted that the contract was a per- sonal one, and not within the jurisdiction of the Court. The answer of the claimant, David Carnigie, set up sub- stantially the same matters of defence with that of Cronstadt. The details of the testimony given at the hearing are omit- ted, — the interest of the case lying in the points of law ruled by the Court. Abner Benedict, for the libellant. Frcmcis B. Cutting, for the claimant and respondent. Betts, J. The libellant seeks to recover, in this action, for several distinct items of damage connected with a breach of a contract of affireightment, entered into between himself and the master of the Zenobia, and which, as he charges, was wil- fuUy violated by the latter. The allegations of damage are, many of them, distinct in their nature, and require to be sepa- rately considered. The libellant shipped on board of the Zenobia, then lying ■ at Whampoa, China, for transportation to this port, sundry cases of merchandise. On the arrival of the vessel here, it was found that the articles contained in a trunk belonging to libellant had become injured by being wet. The other cases passed into the custom-house, and by the neglect of the mas- ter to make the proper entries upon the ship's manifest, the libellant was greatly delayed in obtfiining their delivery to him. The vessel is undoubtedly responsible to the libellant for the safe carriage and delivery of the goods laden by him on board her, and he is entitled to recover damages for a breach of duty in this respect. As regards the injury to the articles contained in the trunk, the defence is, that the damage was occasioned by the perils 92 CASES IN ADMIRALTY. The Zenobia. of the sea. But there being no biU of lading in the case, exempting the vessel from liability for losses arising from perils of the sea, it becomes necessary for the the claimants to prove that the injury arose from supernatural causes. In other words, the liability of the ship, as a common carrier, can only be discharged by showing that the loss was incurred from perils embraced within the meaning of the phrase, "the act of God." The cases are very numerous in which the attempt has been made to exempt the common carrier from this strict liabilil^ for losses occasioned by casualties not absolutely unavoidable ; but the rule is uniform, and is sanc- tioned by authority too strong to be questioned, that to bring a disaster within the scope of the phrase, " the act of God," for the purpose of relieving the common carrier from respon- sibility, it is necessary to show that it occurred independent of human action or neglect. It is only a natural and inevit- able necessity, and one arising wholly above the control of human agencies, which constitutes the peril or disaster con- templated by that phrase. 2 Kent, 597. In the absence of an exemption to be gathered from the contract of affreight- ment, the carrier cannot excuse a loss, resulting in any degree from the influence of human means, excepting only a loss from the force exerted by a public enemy. Numerous cases upon this subject are collected and discussed in Mc Arthur v. Sears, 21 Wend. 190. See, also. The Reeside, 2 Sumn. 571 ; 1 Conn. 487 ; Story on Bailm. §§ 512, 531 ; Whitesides v. Rus- sel, 8 jSerg. 8f W. 44. Any act of omission, neglect, or care- lessness on the part of the master or crew, contributing to the loss, takes away the protection of the defence here relied upon. It is in proof, on the part of the libellant, that the trunk was stored in the long-boat, and that such storage was not proper for freight of that description. The vessel must there- fore be held responsible for the injury received by the con- tents of the trunk. DECEMBER, 1847. 93 The 2enobia. There is also a demand for damages because of the mis- conduct of the master in the preparation of his manifest, and in thwarting the libellant in his efforts to obtain the delivery of his goods in this port. How far these particulars if proved with aU the aggravations charged in the Jibel, might afford substantive ground of action, I do not now examine or de- cide. The testimony does not present a case requiring such decision. But the .delay of the master in presenting a proper juanifest, so that the libellant could pass his property through the custom-house, is a negleet of his duty as master ; and damages natm-aUy incident to any failure of duty towards the shipment on the part of the master, fall properly within the responsibility of the vessel. She is bound for the safe carriage and due delivery of the cargo ; and acts of miscon- duct by the master, which are injurious in either respect to the -shipper, will subject her to make adequate recompense to ■sthe freighter. The liability of the vessel upon this score is, however, limited to damages for the act or neglect of the master in his capacity as such. For any tortious endeavor on his part to prevent the libellant from recovering possession of his goods, she is not responsible ; nor would such acts of the master, committed at this port, and in command of the ship, faU within the jurisdiction of the Court, in an action against him personally. It will be difficult to fix upon a measure of damages in that irespect which will meet the particular merits of the case yet rest on principles of general application. The actual damage to the owner of goods may be very great, yet when the dam- age to a considerable degree is merely consequential, it can- not be charged in its entirety upon the vessel as the immedi- ate and proximate cause of it. If the goods were subject to freight, I should be incHned to regard a loss from the miscon- duct of the master in withholding their delivery, a proper counter-claim against the freight ; but these goods being the personal baggage of libellant and family, and not chargeable 94 CASES IN ADMIRALTY. The Zenobia. with freight, I think some compensation awarded by way of demurrage as it were, will be the appropriate mode of satis- faction. The master made oath before the deputy collector to the manifest, on May 8th, the libellant being then here, seek- ing the delivery of his property ; and did not make the proper baggage entry thereon, so that the goods could be obtained by the libellant untU June 15th. This act, although import- ing wilful misconduct on the part of the master, was yet within the scope of his authority, and accordingly the vessel stands chargeable with its consequences. Abbott on Shipp. 152, 158. I regard the delay to the owner in obtaining his goods, and his necessary expense in procuring them from the custom-house, as imposing on hira a loss or damage amount- ing to $2 per day ; and without a more satisfactory measure of compensation, I shall adopt that as a reasonable remunera- tion, and allow him the sum of $74, because of the wrong- ful non-delivery of his property pursuant to the shipping contract. The libellant charges that a chest of drawers which was shipped by him amongst the cases of merchandise above refer- red to, contained the sum of twenty-five hundred dollars in specie, and that this money was missing from the chest when delivered to him in this port. There is no evidence, however, to support either of these averments ; and the claimant proves, by the testimony of one of the mates of the vessel, that the libellant himself had access to the chest of drawers while it was yet on board the vessel ; that he took a bundle from the furniture previous to its being landed, and that no complaint was then made by him of the loss of any money. He estab- lishes no right to recovery on this part of his claim. The libel avers that the libellant contracted with the mas- ter of the Zenobia to convey him and his family from Wham- poa to this port ; that he paid the master of the bark in ad- vance f 150, being one half of the passage money, and that the vessel sailed without him, previous to the time appointed DECEMBER, 1847. 95 The Zenobia. and without his knowledge. I think the libellant has estab- lished this charge, and is entitled to recover against the bark his damages for this breach of contract by the master, to transport him and his family as passengers. This contract was one which it was competent for the master to make in the employment of the ship, and became binding on the ves- sel. Abbott on Shipp. 160 ; 3 Kent, 162. The vessel is liable on this contract for the $150 paid the master in advance in China, upon the grounds stated in the former decision of the Court in this cause, in July last.^ The libellant came down from his residence at Hong Kong to Whampoa, in season to embark on the Zenobia on Novem- ber 28th, which was her appointed day of sailing, but found she had already left. His expenses incurred in coming down to Whampoa are stated at' $60, and his further expenses Incurred through his detention at Whampoa, at |64, besides $16 paid in going to Canton to confer with the agents of the bark respecting her departure. There is no ground upon which the libellant can claim to recover the cost of his pas- sage from Hong Kong to Whampoa, as he must necessarily have made that voyage, whether he came home in the Zeno- bia or the Rainbow. But the vessel is chargeable with the expenses of the libellant incurred in waiting at Whampoa, after the Zenobia had left, for the sailing of a vessel in which he might take passage to the United States. The evidence shows that $64 is a moderate allowance for those expenses, and that sum should accordingly be allowed. It is not necessary to discuss the question of the liability of the vessel or master to the libellant for the disbursements said to have been made at Canton in a premium for the loan alleged in the.libel to have been paid, or for the new supply of clothing for himself and family there purchased. No proof * Reported ante, 48. 96 CASES IN ADMIRALTY. The Zenobia. is given that the libellant made any such disbursements, and the Court cannot presume them &om any supposed necessity^ arising from the circumstances of the case. I consider the bark equitably liable because of the \iola€oa of the contract to transport the libellant and his family to this port, in damages equal to the cost of his passage to this coun- try in the Rainbow, upon the general grounds ijpon which I have already placed his right to recover back the advance passage-money. That disbursement is fairly chargeable upon the ship as a portion of the damages recoverable by libellant for the breach of the passage contract. The sum of $400 paid by him is proved to be below the usual' and customary rate of charge for such passages, and that siim he is entitled to recover. A reference must necessarily be had to a commissioner, to ascertain the amount of injury to the clothes contained in the trunk, by wetting, unless the parties can agree to the amount of such damage. It is proper to remark, in respect to the deposition of Cap" tain Cronstadt, the respondent, which was offered in the cause, that even if it were legally admissible, it would not in my estimation, displace the other evidence in the cause, nor vin- dicate his conduct. But he stands a party to the suit, being prosecuted in personam, and subject to a decree against him- self for all the liabilities of the vessel in this behalf; and the case of Bridges v. Armour, (5 How. 91,) seems to settle the point that he is an incompetent witness in the cause. The decree will accordingly be for the libellant, as above, and for full costs of suit. JANUARY, 1848. 97 The Columbus. The Columbus. Where goods were damaged during transportation on board ship, and were re- ceived by consignees upon an understanding that the depreciation was to be made good to them, and they were sold by auction by the consignees, but with the assent of the master, — Hdd, that for the purpose of making adjustment of the amount due from the vessel for the injury, the sum realized at the sale should be regarded as the value of the goods in their damaged state. This was a libel in rem by Gustavus Loenig and Charles Schneider against the bark Columbus, to recover damages for injuries received by goods shipped on board the bark to the libellants, as consignees. The facts of the case are stated in the report of the pro- ceedings had upon exceptions heretofore taken to a commis- sioner's report, {ante, 37.) After the decision disallowing those exceptions, an order was entered in July, 1847, referring the cause back to the commissioner to reexamine and state the account between the parties. He reported a balance due to the Ubeilants of $267.51. The cause again came up upon exceptions to this further report of the commissioner. There was an exception upon the ground that the commis- sioner's estimate of the original value of the corks, which were the subject of the action, at their port of shipment, was higher than was supported by the evidence ; and this excep- tion was sustained by the Court, the valuation adopted by the commissioner being reduced from $696.08 to $677.87. There was another exception taken on behalf of the claim- ants, upon the ground that the commissioner had improperly received evidence of the sum realized by the sale of the dam- aged corks at auction, as fixing their value in their damaged condition. It is to the question raised by this exception that the opinion of the Court principally relates. VOL. I. 9 98 CASES IN ADMIRALTY. The Colnmbns. E. C. Benedict, for the libellants. Francis B. Gutting, for the claimants. Bbtts, J. The quantity of corks, for the injury to which the libellants seek to recover in this action, is differently stated by the libellants and by their witnesses. By the account of sales and estimate of damage rendered to the claimants by the libellants, June 23, 1846, they charge for 192 bags, con- taining 50 gross in each bag, valued at 7| cents per gross, which gives the product $696. But the auctioneer's account of sales, returns only 187 bags sold, which, on a like compu- tation, .would amount to $677.87. The variation is of no great moment, yet the owner is entitled to every legal allow- ance. Taking the latter sum as the proved original value of the goods, and rectifying the computation of the commis- sioner accordingly, the balance reported due to the libellants should be $249.38, instead of $267.51, The libellants clearly proved by the testimony of their car- man and clerks, that the corks were in a damaged condition when landed here ; and the fafr purport of all the^testimony before the Court and commissioner may well be taken to be, that the libeUants never accepted the corks as their property, except upon the understood condition that the damage should be made good to them. It appears that an arbitration was at first agreed upon between the libeUants and the master to ascertain the injury or depreciation, but the master being ad- vised that by so adjusting the matter, he might be embar- rassed in his remedy abroad, he declined to do so, and the libeUants then gave him notice that they should send the goods to auction. On the first hearing, I thought the proofs not very distinct that the captain assented to the auction sale ; but a review of the evidence then taken, in connection with the proofs since put in before the commissioner, satisfies me that the sale was fully approved by him. He did more than merely acquiesce in it. He sent men from his vessel to put JANUARY, 184^. 99 The Colambns. up the corks, and arrange them fof an advantageous sale in that manner. The exception by the claimants rests upon the positions that the consignees, after receiving the goods, had no rightful authority to send them to auction at the risk of the vessel ; and second, that at any rate they could not sell them, sound and unsound together, as a means to ascertain their value. And it is contended, that it was at least their duty to select the sound and retain them at the invoice value, and to allow the damaged ones only to be sold at auction. The latter branch of the argument was sufficiently adverted to in the opinion pronounced upon the original hearing, and the views of the Court upon that point will not be again stated. It does not appear to me that the case comes up in a man- ner which requires an opinion upon the general question, whether the owner or consignee of goods accepted from a carrier in a damaged condition, may, of his own authority, make auction sale of them, and charge the carrier with the diflFerence between their sound value and the prices obtained for them at public sale. The libellants did not undertake to act upon their own authority, but a sale at auction was pro- posed by them to the master, as a means of determining what damage or deterioration the goods had sustained, and the sale made was made with the sanction and acquiescence of the master. To all reasonable intents, this method of fixing the amount of injury or loss is just as obligatory on him and the vessel, as a submission to arbitration, or an adjustment by mutual agreement between th& parties. It does not appear that any witness, knowing the condition of the goods, con- sidered the sale-prices at all below their marketable value. The sale at auction, under such circumstances, was properly admissible as evidence of the value of the goods when landed ; and fortified as it is by the estimate and judgment of witnesses, it becomes a reasonably satisfactory measure of the loss sustained. In my opinion, therefore, the commis- 100 CAS'EJS IN ADMIRALTY. The Rhode Island. sioner properly received proof of the auction sale as evidence to determine the measure of damages, and I also think that, independent of that particular, the weight of evidence is that the corks were not worth more than the amount reported by the commissioner. The exceptions are disallowed without costs, and a decree is to be entered for the libellants for $249.38, with interest at six per cent, from June 11, 1846, the time of filing the libel herein, together with the costs to be taxed. The Rhode Island. The legality or propriety of an order of reference cannot be impeached upon ex- ception to the report. The general rnle of damages applicable to collisions which are not wilfal is, that the owner of the injured vessel is to receive a remnneration which will place him in the situation in which he would have been but for the collision. The owner of a vessel, showing himself entitled to damages for collision, is enti- i;led to compensation for the loss of the use of his vessel during the time con- sumed in making repairs. In the absence of direct evidence of the amount of this item of loss, interest upon the value of the vessel for the time occupied in making repairs may be awarded as a fair compensation in this respect. This was a libel in rem by the Naugatuck Transportation Company, a corporation created under the laws of Connecti- cut, and owners of the steam propeller Naugatuck, against the steamboat Rhode Island, to recover damages for a colli- sion between the Naugatuck and the Rhode Island. The cause was before the Court on the merits of the action in July, 1847, and the proceedings then had are reported, OU cott, 505, where the facts of the case are fully stated. The Court then adjudged in favor of the libellants upon their claim, and ordered it to be referred to a commissioner to as- JANUARY, 1848. 101 The Bhode Island. certain and report the damages sustained by them, including the loss of the time of their propeller while necessarily delayed in receiving repairs. The cause again came before the Court upon exceptions to the commissioner's report. The nature of the objections ujged appear in the opinion. Francis B. Cutting and E. H. Owen, for the libellants. A. Hamilton and W. Q. Morton, for the claimants. Betts, J. This case comes before the Court on exceptions taken by both parties to the report of the commissioner. Many of the objections relate to particular items of allow- ance or disallowance, which I do not propose to discuss minutely. I shall limit myself to adverting to the general principle to be applied on these points. The main subject of controversy relates to the estimate of the sum chargeable for the loss of the time of the injured ves- sel whUe necessarily delayed in receiving repairs. The order of reference embraced a direction to ascertain and report that item of injury, and no application was made on the part of the claimants to rescind or modify the order in that respect ; it therefore went before the commissioner as a rule obligatory upon him, and now so far concludes the claim- ants that they cannot, on exception to the report, impeach the legality or propriety of the order. The subject was not de- bated on the original hearing ; and whether this direction was inserted unadvisedly or deliberatply by the Court, cannot now be ascertained, nor is it properly open for inquiry.^ Had the point been raised, the Court would have been called upon to declare definitely whethei; it sanctioned an allowance to the owners of a vessel injured by collision, for the loss of her services during the period she is necessarily 1 Compare The Columbus, ante, 37. 9* 102 CASES IN ADMIRALTY. The Bhode- Island. detained to receive repaii:;^, and to fix the rule by which that loss was to be valued. The general principle applicable where the collision is not wilful is, that the owner of the injured vessel is to be recom- pensed to the amount of his actual loss ; that is, he shall receive a remuneration which places him in the situation he would have been but for the collision. Abbott on Shipp. 307; 2 W. K 279 ; Story on Bailm. § 608. Although there may be difficulty in defining precisely the particulars composing such actual loss, it clearly includes more than the mere dam- age to the vessel herself. Every necessary incident directly connected with "such damage, becomes also part of the actual loss. The reimbursement of the owner's charges for remov- ing passengers or cargo from the vessel injured, and transport- ing them to the place of their destination ; for salvage services generally, or for any destruction or deterioration of cargo chargeable upon the carrier ; and for reloading the cargo for the purpose of being saved or forwarded, would all come within the rule of indemnity and compensation to the injured vessel. The Narragamsett, MSS. 1846.^ Then, again, as to the measure of the direct injury, the party demanding dama- ges may ascertain them by the judgment and valuation of witnesses, and recover on such valuation without waiting to repair, or attempting to repair his vessel ; or he may await the completion of proper repairs, and then cleiim the expen- ditures reasonably laid out in her reparation. The latter 'is the course taken in this case. To these rules neither party raises any specific objection. The point of controversy is, whether the owner is also entitled to a recompense for being deprived of the use of his vessel for the time she is necessarily detained in receiving repairs. The commissioner reports an allowance on this head of $20 per 1 Since reported, Olcott, 888. JANUARY, 1848. 103 The Rhode Island. day, for a period of forty-two days, that is, $840. The libel- lants insist that they are entitled to $30 per day for sixty days, amounting to $1,800 ; and the claimants contend that the allowance should not exceed the w^ges of the officers and I crew for the time, actually paid. According to the evidence this would amount to $8 per day for thirty days, or $240 in the aggregate, independent of the claim of compensation to the master for his employment, continued after the discharge of the crew, and until the repairs of the boat were completed. The commissioner was bound, under the order, to inquire into the amount of the loss from demurrage of the vessel whilst undergoing repairs. As already intimated, the claim- ants cannot, by exception to his report, attack the justness or propriety of the order of reference itself. The question, what is the rule of damages in such case, and whether an estimate of probable profits lost, is a rightful method of determining the amount of such demurrage, is, however, still open, so far as the former adjudication of the Court in the cause is concerned. The case of Sidney v. Condry, (1 How. 28,) gives the law to this Court on that subject. The U. S. Supreme Court there say that the rule of demurrage in collision cases is the same as in cases of insurance, and that a party cannot recover for the loss oi. probable profits. The rule was discussed fully and laid down with clearness in the Supreme Court of this State, to the same effect. Blanchard v. Ely, 21 Wend. 349. The order in this case conformed to the usage of the Eng- lish Admiralty, (The Gazelle, 2 W. Rob. 279,) and under it, according to the doctrine declared by the United States Supreme Court, the libellants are restricted to demands which would be allowed for demurrage against underwriters. "It is true that Dr. Lushington denies that the common-law doctrine in respect to insurance applies to collision cases which are cases of tort. 2 W. Rob. 283. But in an earlier case, the United States Supreme Court decided that demur- 104 CASES IN ADMIRALTY. The Rhode Island. rage (that is, the rate of compensation in actions ex contractu) might be adopted as a measure of compensation in cases ex delicto. The Apollo, 9 Wheat. 362. It is an allowance or compensation for the detention of the vessel. 9 Wheat. 373. At common law, the allowance is not always governed by the demurrage stipulated by the parties ; regard may be had also to the expense and loss incurred by .the owner, and the jury must settle the amount. Abbott on Shipp. 383 ; Morri- son V. Bell, 2 Campb. 616. The Supreme Court declare, with marked emphasis, that an allowance by way of demurrage is the true measure of damages in all cases of mere detention ; for that allowance has relation to the ship's expenses, wear and tear, and com- mon employment. The Apollo, 9 Wheat. 378. Forty dollars per day was allowed in that case for the detention of the vessel, on the judgment of witnesses as to what would be a reasonable compensation for being kept out of employment Dr. Lushington makes up the compensation for demurrage by deducting from the gross freight so much as would, in ordinary cases, be disbursed in the earning of freight. The Gazelle, 2 W. Rob. 284. There does not appear to be any charge presented in this case for actual loss of freight. The damages are claimed upon the footing of the assumed earnings or profits which the vessel might realize during the period of her detention. This ground is declared inadmissible by both cases in the Supreme Court. The Apollo, 9 Wheat. 378 ; Smith v. Con- dry, 1 How. 35. As it is fitting in Admiralty courts that some rule of gene- ral application should be observed in awarding discretionary damages, I am induced to think, in the absence of direct evi- dence of loss, that the value of the vessel should be regarded, and that a reasonable percentage upon that value may be properly taken as a fair measure of loss. The maintenance and wages of the crew being provided JANUARY, 1848. 105 The Rhode Island. fori and no wear or tear that is appreciable being shown, it seems to me that the positive damage sustained by the party consists in being kept out of the use of his capital, the value of the vessel, during her repairs ; and a proper percentage on that capital would afford an admissible mode of compensa- tion. In this case I adopt six per cent., the usual rate of inter- est awarded by this Court, and the legal rate in Connecticut, where the vessel is owned, as a reasonable allowance in that respect. On a review of the evidence, I am satisfied with the conclusion adopted by the commissioner, that forty-two days was a reasonable time to allow for making the repairs. The actual' time occupied cannot be shown very satisfac- torily, as much other work was mixed with them, and the boat was wholly overhauMd, and put in a condition for her next season's service, leading to a large amount of outlay of time, labor, and materials not necessary to the reparation of this particular injury. But the exception to the report on this head must prevail', and the report be set aside, because of the measure of damages adopted by the commissioner, the amount of the supposed earnings of the vessel for the period of her detention not being a legal criterion by which to deter- mine the damages occasioned by the detention. The testi- mony does not enable me to fix the sum, according to the principles now declared, as the expense of the maintenance of the master and crew are not proved, nor the value of the boat. The case must accordyigly go back to the commissioner to ascertain and report those particulars upon the principles indicated. / Injuries from torts must be compensated, in aUnost all instances, more or less with a view to facts peculiar to each particular case. In adopting, in this instance, interest or a percentage on the value of the boat for the time she was kept out of the libeUant's use by means of the collision, I do not assume to lay that down as a particular always to be admit- 106 CASES IN ADMIRALTY. The Rhode Island. ted in determining the damages occasioned by a wrongful collision. I regard it, in the present instance, as a reasonable mode of compensating the party for what is a positive loss to him, and as one which avoids the vague and objectionable valuation of the probable earnings of the boat, had she not been so prevented following her usual employment.^ Merely 1 The case was appealed to the Circuit Court, and the propriety of the measure of damages tbus laid down was the chief question discussed. The decree below was affirmed, the following reasons being given : — Nblson, J., after stating the facts. I do not understand this direction given by the District Court, in respect to the rule of damages, as intended to be laid down as a general rule to govern cases of this kind, but as an approx- imation to an indemnity, in this particular*case, and under its peculiar cir- cumstances. It was an allowance for a supposed or apparent loss, incident to the damage done by the collision, for which no settled rule could be found, and in respect to which, opinions, whether any thing should be allowed or not, and if any thing, by what rule the allowance should be determined, are ' conflicting and unsettled. The difficulty is intrinsic, arising out of the nature and description of the loss, as the precise amount, or even a reasonable ap- proximation to it, cannot be ascertained by the application of any known or fixed rule. On this ground, the application was denied altogether, in an analogous case, in the Supreme Court of New York. Blanchard u. Ely, 21 Wend. 842. That some Ibss enters into the general damage to the vessel, on account of the time necessarily consumed in making the repairs, is obvious enough, and results directly from the injury ; but the difficulty lies in finding any rule by which to ascertain the amount with the certainty required by law ; that is contingent and speculative and depends upon the profits of the business in which the vessel is engaged. If the owners had hired another vessel of the kind to supply the place of the disabled one while she was under- going repairs, for a reasonable compensation, there might have been some- thing tangible, — the amount actually paid for the' purpose of continuing the business. I do not say this would be free from difficulty, or that it could be brought within any fixed rule of law, — all I mean to say is, that there would be less embarrassment in the allowance than in the case before us, where the party did not see fit to assume the risk and responsibility of a sub- stitute. The character and profits of the business are grounds, doubtless, upon which to determine whether it would be expedient for him to go to the expense and trouble of procuring another vessel, — a risk, perhaps, which he JANUARY, 1848. 107 The Bhode Island. to repay the libellants the money expended by them in repair- ing their vessel, would most palpably fall short of a restitutio in integrum, which is the right of an injured party against a wrong done. I think, also, the employment of the master as a superin- tendant of the boat and her repairs, was, under the circum- stances, proper, and that the libellants are entitled to reim- bursement for the sum paid him per day for forty-two days. A careful consideration of the testimony satisfies me that the commissioner, in all other particulars, had arrived at sub- stantially correct conclusions, and I shall not disturb his find- ing, except as above stated. In many particulars of valuation reported by the commissioner, there is room for diversity of opinion ; yet any corrections I might attenlpt to make upon my appreciation of the evidence set forth on paper, would stand equally liable to be varied in the courts of appeal. The usage in the Admiralty courts — and the same principle, in substance, prevails in equity — is to adopt the decision of facts made by the tribunal which had the witnesses and parties on hearing face to face before it, unless some error or mistake is had a right to assume, — and as the expense of it was occasioned by the col- lision, there would seem to be some propriety in the allowance as an item of damages. But these considerations do not enter into the case, when no sub- stitute has been procured. How far the Court would feel itself justified in the allowance where a vessel has been actually employed, is a question I do not intend to determine. As before said, there are difficulties attending it which should lead to caution and hesitation in the adoption of that sum as the measure of compensation. It might involve the question, whether it was practicable to procure another vessel ; for if it was not, after a fair endeavor, the allowance would seem to be as reasonable as if one had been in fact ob- tained. Upon the wholej I am inclined not to interfere with the allowance as made, not because I think it founded upon any fixed or established principle, but because it is just enough in itself, and I have not been able to find any principle that would justify the adoption of a higher measure of damages in the given case. 108 CASES IN ADMIRALTY. The Governor. plainly manifest' The Apollo, 9 Wheat. 378. I find none in this case, and on a careful review of the proofs and com- parison of them with the report, by aid of the acute and criti- cal argument of the counsel on both sides, I am convinced that the decision of the commissioner is substantially correct on the facts, and ought not to be disturbed. The exceptions on both sides are accordingly overruled, except as above allowed, and without costs to either party. Order accordingly. The Governor. Where two vessels are running in the same direction, the one astern of the other, there rests upon the rear vessel an obligation to exercise precaution against col- lision, which is not chargeable to the same extent upon the other. A vessel of superior speed, running in the same direction with a slower one, has a right to pass her if she can do so with safety to both ; but the burden of proof is upon her, in case of collision, to show the prudence of her own conduct, and also to prove negligence or misconduct on the part of her rival. A vessel in advance is not bound to give way, or to give facilities to enable a ves- sel in her rear to pass her, though she is bound to refrain from any manoeuvres calculated to embarrass the latter in an attempt to pass. In collision cases, the Court will attach a greater weight to the testimony of wit- nesses to facts which occurred within their own knowledge, on board their own vessel, than to any opinions or judgments formed by those upon one vessel respecting the management pf the other. This was a libel in rem by John Van Pelt, owner of the steamboat Worcester, against the steamboat Governor, to recover damages for a collision. The collision complained of occurred under the following circumstances : The steamboats Worcester and Governor were passenger vessels, which sailed tri-weekly from New York, on the same day and at the same hours. They left 1 See, also, Holmes ». Dodge, ante, 60. JANUARY, 1848. 109 The Governor. New York on the afternoon of March 2, 1847, about simul- taneously, bound on the same course up the Sound for Bos- ton. The Worcester belonged to the Norwich line of steam- boats, the Governor*to the Stonington line. As they passed through the East River and through HeU Gate, the Worces- ter was somewhat ahead, the Governor being most of the time in her wake, and occasionally lapped upon one quarter. The Governor was slightly the superior in speed, and was seeking, from time to time, between New York and Sands' Point, to avail herself of a favorable opportunity to pass her rival. The boats ran in company in this manner, from one to two lengths apart, untU, when they reached the Stepping- stones, three or four mUes from Sands' Point, the Governor took a course parallel with that of the Worcester, and con- tinued a length or two distant from her, each boat steering for Sands' Point buoy, and in such manner as to give it in passing the usual safe berth. They came in collision at that place — the larboard bow of the Governor striking the star- board quarter of the Worcester, near the gangway and just aft the boiler, and causing some little damage, the expense of repairing which amounted to $63. The cause now came before the Court upon the pleadings and proofs. There was some conflict of testimony upon the question which of the boats was responsible' for the collision. Several witnesses, who were on board the Governor at the time, testified that that boat held her course steadily, edging as close to the shore as could be done with safety, and in such manner that she brought the buoy at Sands' Point against her starboard guards and under them ; and that the Worcester, as it appeared to the witnesses, deviated from her true course, bearing towards the Governor, until, when within a quarter of a mile from the buoy, she sheered directly across the bows of the latter boat, thus causing the collision. The two pilots on board the Worcester, on the contrary, both swore that that boat was running by the compass N. E. | E., VOL. I. 10 110 CASES IN ADMIRALTY. The Governor. from the time of passing the Stepping- Stones up to the mo- ment of collision ; that she was not sheered from that course towards the Governor ; that the course of the Worcester was the course usually taken by steamboats on the Sound to pass Sands' Point, being calculated to secure a safe berth from the buoy ; and that the usage of navigation was to run near Sands' Point in going into the Sound. In these general statements as to the course of navigation, aU of the witnesses on both sides, who were acquainted with the subject, con- curred. Luther R. Marsh, for libeUants. John Sherwood and S. Sherwood, for respondents. Betts, J. If the Worcester and the Governor had been running in opposite directions, the collision might, probably, have been deemed to be so far the result of mere casualty and misadventure as to leave each vessel to bear for herself the consequences of the accident falling upon her.^ But the fact that they were running in the same direction, the one astern of the other, imposed upon the rear boat an obligation to pre- caution and care which is not chargeable to the same extent upon the other. In the light of this principle, the circum- stances of the present case manifestly cast the burden of proof upon the Governor. She was astern, and was seeking to run past the Worcester. She bkd a right to the advantage of her superior speed, and under such circumstances it would have been tortious and blameable conduct on the part of the Worcester designedly to intercept the Governor, to crowd her off, or to baffle her in that effort.* But it devolves upon the 1 See The Moxey, ante, 73, where the authorities upon this point are mentioned. 2 Compare the case of The Rhode Island, Olcott, 505, where the relative rights and duties of two steamboats, bound in the same direction, the one in advance of the other, are discussed. JANUARY, 1848. Ill The Governor.- Governor to show the prudence of her own conduct, as well as to prove negligence or misconduct on the part of the Wor- cester. It was not the duty of the latter boat to veer from her course so as to* open a passage for the Governor, or to lend her any facility in aid of her purpose to pass. We may censure any rigid adherence to strict right by which one com- peting boat interposes embarrassments in the way of her competitor, and may regret the want of a magnanimous and liberal course of conduct which might relieve a vessel of supe- rior speed and endeavoring to get ahead, from delay or diffi- culty in accomplishing that object. But the Court is only empowered to adjudicate the legal rights of the one and the responsibility of the other. It was therefore clearly the duty of the Governor to select a place for passing the Worcester, and a mode of effecting it, which would not expose the latter to injury. The rear boat, in such case, must stop her way, or back off and await the opening of a sufficient passage, if the leading boat is so placed that safe room is not left to pass without coming within a hazardous proximity to her. The general law of navigation secures to vessels under way the track they are rightfully pur- suing, and makes it cause of damage for others to molest or crowd upon them in it. Jacob. Sea L. 338. This subject is often regulated by municipal laws in respect to vessels within the jurisdiction of the particular government; and if such laws are not of positive obligation in maritime courts, they are frequently adopted as rules of decision in respect to col- lisions on the waters of the State, or by vessels owned within it.' The defence has accordingly been placed upon the 1 A statute of the State of New York prescribes that "Whenever any steamboat shall be going in the same direction with another steamboat ahead of it, it shall not be lawful to navigate the first mentioned boat so as to ap- proach or pass the other boat so being ahead, within the distance of twenty- yards ; and it shall not be lawful so to navigate the steamboat so being ahead, 112 CASES IN ADMIRALTY. The Governor. ground that the Governor was on a course which afforded ample room for both boats to pass the buoy and Sands' Point without interfering, and that the Worcester, by design or through carelessness, veered ifrom her proper tracks and bore across that of the Governor. This fact is the turning point in the case, and vital to the defence. Several witnesses, who were on board the Governor at the time of the collision, give their opinion in decided terms that such Was the fact. The niaster of the Governor, her pilot, and several passeijgers on board, concur in stating that the Worcester suddenly bore off her course to the starboard, when the Governor was a quarter of a mile in her rear, and that she crowded in upon Sands' Point so much that the Gover- nor, if she continued moving, must either strike her or go upon the rock. It appears to me this evidehoe fails to establish a justLfioa* tion of her conduct, for two reasons :— First. — It is not shown that the engine of the Governor was stopped, or slowed, as soon as there appeared to be danger that the two boats might come together, nor that the full means in her power were employed in due season to avoid Coming Upon the Worcester ; for the master of the Govranor, in his testimony, admits he could have avoided striking the Worcester, if, at the time when he first noticed that she was altering her course, he had supposed that she would crowd in so closely upon his track. Second. — The evidence charging the fault upon the Wcw* cester is essentially matter of opinion, and not statements of facts. The witnesses say that the Worcester appeared to them to bear down upon and to cross the Governor's line of approach. These witnesses were upon the Governor, and as unnecessarily to bring it Within twenty yarda of the steamboat foUowing it." 1 Rev. Stat. 682, § 7. Penality, $250. Ih 683, § 8. JANUARY 1848. 113 The Governor. their judgment as to the direction of the other vessel was guided by nothing more than the apparent approximation of the two, and the impression that the converging was caused by a wrong movement of the Worcester. Their position was most unfavorable to an exact and accurate judgment on that point. No range was taken to any fixed object, nor was the course or bearing of either boat observed by the compass. They were themselves advancing with great speed, and were looking at an object several hundred yards distant, moving from them with velocity. Very slight reliance can be placed in the opinions of witnesses so circumstanced, as to the actual bearing and course the Worcester was purstiing at the time. These impressions and opinions of the witnesses must be weighed as part of the evidence in the case, particularly so far as they may avail in corroboration of facts proved, or to countervail testimony of like character from the other party ; but alone they would scarcely justify a judgment in conform- ity to them. They are, however, met by the testimony of the two pilots on board the Worcester, both of whom, deny that there was any deviation or alteration in her course, such as wasistated to have taken place by the witnesses on the Gov- ernor, and who say that her course was the one usually taken by steamboats on the Sound in passing the Point. . In collision cases, the Court always discriminates carefiilly between the testimony of witnesses to faqts which they assert to have occurred upon their own vessel and within their own knowledge, and the opinions and beliefs expressed by them in respect to what occurred upon the adverse vessel. Where the witnesses are credible, their direct testimony to what was done or omitted by themselves or by others under their imme- diate and direct observation, is far more satisfactory and de- cisive than any opinions or inferences formed in respect to matters lying without their positive knowledge, especially where those matters relate to the management of another ves- sel. However intelligent and upright the witnesses may be, 10* 114 CASES IN ADMIRALTY. The GoTemor. there must always be great diificulty in judging accurately in respect to the maiine* in which a distant vessel is navigated j and the natural difficulties in the way of forming a sound judgment in respect to the management of such vessel are greatly efthanced in the case of collision, by the excitements of the occasion, and by the many circumstances which go to give a bias or prejudice to the mind. Thus it is observed' that persons on board each vessel almost invariably attribute the collision and fault of the occurrence to the opposite one. The testimony of witnesses to their knowledge of what occur- red upon their own ship accordingly justly outweighs that of superior numbers, who speak only from a judgment or opifl' ion, formed from distant observation.^ In this view of the case, I regard it as proved, by a prepon- derance of testimony, that the Worcester held her regular and proper course without deviation. That course, having an inclination towards the buoy, brought her nearer to it, and with greater rapidity than was anticipated or supposed by those on board the Governor. The latter boat was accord- ingly kept on a line of direction as if under the persuasion that the Worcester must continue at about the same distance from the buoy in running out her course as she was from the Governor. The master of the Governot, howevei', was evi- dently aware that the boats were approximating each other, and enough was brought to his notice to have put him upon his guard and to Gall for the exercise of great caution. He says that he could have avoided the Worcester when he first saw her alter her course near the place of collision, but he had no idea that she Would " jam in so close." As soon as he became aware of it, he shut off steam and stopped his boat It was then too late, however, as the boats were already ' See, also,, remarks of the Court upon this subject, in The Steamboat Nar- aganset, Olcott, 246 ; The Sloop Argus, lb. 304 ; The Bhode Island, lb. 505. JANUARY, 1848. 115 Manchester v. Milne. almost in the act of striking. Upon these facts, the Governor is chargeable with blame, and must be liable for the conse- quences. The damages were fortunately very slight. The bill of repairs presented, the payment of which only is claimed, amounted to no more than $53, The payment of that sum would have avoided this controversy ; and, as the Worcester demanded no more than her actual disbursements,' to which she was clearly entitled, the claimant must be charged with the costs arising from the contestation of that claim. Decree for the libellant for $53, with interest at six per cent, from March 10, 1847, together with costs to be taxed. Manchester v. Milne. A deed of assignment executed in another State, and attested by tw6 Subscribing witnesses, was offered in evidence, accompanied by proof of tlie signatures of one of the witnesses, and of both thcassignors. Held, — 1. That the witnesses were presumed to reside at the place of execution and to be without the jurisdiction of the Court. 2. That the proof of the assignors' signatures wa^ admissible a^ secondary evidence of the execution. A variance between the amount of a cargo of coal as stated in the bill of lading, and the amount of such cargo as ascertained on delivery at the port of consign- ment, may be explained by showing that the mode of ascertaining the quantity is such that similar variations are necessarily of frequent occurrence.^ This Was a libel in personam, by Cyrus B. Manchester againsf George Milne, to recover for freight and primage on a cargo of coal, shipped from Liverpool to New York, on board the ship American. On the hearing, the libellant proved the shipment 6i the 1 Compare Manning o. Hoover, decided in February, 1848, and reported ^ost in its order of date. 116 CASES IN ADMIRALTY. Manchester v. Milne. coal, September 30, 1846, at which time the vessel was owned by the Messrs. Arnold. He put in evidence the bill of lading, which was for 200 tons of Orrell coal, at the rate of six shil- lings sterling per ton freight, and five per cent, primage. To show his right to maintain the action, he also put in evidence an assignment of the vessel and her freight, made November 21, 1846, by the then owners of the ship, to the libeUant. The assignment was under seal, and executed in Providence, R. L, having been also acknowledged and there recorded. It was attested by two subscribing witnesses. The libeUant proved the signature of one of these witnesses, and that such witness resided in Providence, and also proved the signatures of the assignors ; but the residence of the other subscribing witness was not shown, nor his absence accounted for. The respondent objected that the proof of the execution of the assignment was insufficient, the absent witness not being shown to be dead, or to be out of the jurisdiction of the Court. The libeUant contended that the acknowledgment of the instrument in the place where it was executed, being by the local law competent proof of its due execution, was also sufiicient evidence here. The Court ruled this point against him, but decided that the proof given established the due ex- ecution of the instrument, and that the libeUant was entitled upon it to maintain the action. The respondent then gave evidence in defence, tending to show that the vessel made short deUvery of the cargo ; that out of the two hundred tons mentioned in the biU of. lading, less than one hundred and eighty-five were deUvered at the port of consignment. The character of the evidence on both sides, in relation to this point, appears from the opinion. Betts, J. Where an instrument under seal, attested by a subscribing witness, is to be proved, and the production of the witness himself is excused, the technical rule of evidence JANUARY, 1848. 117 Manchester v. Milne. requires proof of his signature, even though the execution by the principal party be proved by his most solemn admission out of Court. 1 Greenl Bd. | 569 ; 1 Phill. Ev. 473, This rule is arbitrary and formal, as it dispenses with direct proof of the identity of the principal party, the essential particular in the question whether the deed is actually his, and admits proof of the handwriting of an absent subscribing witness to the deed to establish that fact ; and countenances the further itnplication that the witness was present and saw the sig- nature, the sealing, and delivery of the deed which he attested^ ' Where none of the subscribing witnesses to an instrument are capable of being examined, it is only necessary to prove the handwriting of one of them. 1 Oreenl. Ev. § 575 ; 1 Phill. Ev, 473. Where a deed, executed in a foreign State, is offered in evidence, it is to be presumed that the attesting witnesses resided at the place, of execution, and secondary proof is ad- missible. 3 Phill. Ev. Cow. 8f H. 1297. Proof of the hand- writing of the assignor is at least equivalent, in the identifi» cation of the assignor or grantor, to the secondary evidence of the handwriting of a subscribing witness, if it be not com- petent as primary and direct. The objection to the admissi- bility of the assignmentj Upon the proof given, was therefore correctly overruled. The contest upon the merits of the case relates to the ques- tion whether there was a short delivery of cargo. The proof of the quantity delivered is not Very precise or satisfactory. The estimate of the quantity was arrived at by weighing five separate tubs of the coal, and ascertaining the average w^ht per tub, and the number of tubs which make up by measure a chaldron, and thus from a computation of chaldrons deter- mining the quantity of coal delivered. This method of ascer- taining quantities of Liverpool coal is proved to be the established usage of the trade in this port. That species of coal is purchased and shipped abroad by weight, and is un- 118 CASES IN ADMIRALTY. Manchester v, Milne. laden and sold in this market by the chaldron. There is also clear evidence to show that the computed weight so ascer- tained is almost invariably short of that stated in the invoices and bills of lading. This variance being so common, is no doubt provided for in the original purchases ; but as a means of determining with certainty whether the weight shipped holds out on delivery, this method of measurement cannot be made the basis of any positive or sure determination. It affords an approximation which ordinarily will be found, it would seem, on the proofs, to come within two or three per cent, of uniformity. The state of the weather, whether dry or wet, when the coal is weighed and laden on board, and the quality of the coal, whether coarse or fine, are particulars essentially varying the result, when the cargo comes to be unladen by measure, often reducing the invoice weight from four to nine per cent. In the present case, the difference was nearly eight per cent There is evidence that a small quantity was used by the ship dtiring the voyage, but this was done with the knowledge and assent of the agent of the respondent, and was but to a very inconsiderable amoixnt, by no means sufficient to account for the disparity between the bill of lading and the weighmaster's return here. I think the evidence in respect to the waste is not sufficient to subject the vessel to any charge or respon- sibility for such use ; and I am further of opinion that the decided weight of evidence, direct and presumptive, is, that the delivery made acquW^ted the ship of her liability under the bill of lading. jEhe decree must accordingly be in favor of the libellant, it being referred to a commissioner to compute the amount of freight due. JANUARY, 1848. 119 The Flash. TijE Flash. The master of a vessel having contracted for the transportation of a cargo, the per- formance of the contract was interrupted while the lading of the cargo on board was going on, by the death of the master, and by the freezing up of the vessel. The owner repudiated the contract, and refused either to take on board the resi- due of the cargo or to deliver up that already laden. EM, — 1. That the contract was binding upon the vessel and owner. 2. That the owner was, under the circumstances, entitled to indulgence for a reasonable time, both to procure a new master and to await the relief of his vessel. 3. That upon the owner's refusal to be bound by the contract, the libellant was entitled to proceed against the vessel for his damages. 4. That the libellant could recover damages for the value of the brick laden on board and withheld ; — for the cost of transporting the residue from his store-house to the dock j^— for any injuries received by them while they lay there afraiting the owner's acceptance ; — and for the diiferenee in his disfavor, if any, between the contract price of transportation and his actual expenses incurred in obtaining another mode of conveyance. 5. That the libellant could not recover against the vessel for injuries received by the property after notice of the owner's refusal to complete the contract, but that the vessel was chargeable with the cost of transporting the portion of cargo left behind, to its place of destination. This was a libel in rem, by William Churchill, against the schooner Flash, to lecover damages for the non-fuliilment of a contract of affreightment. The cause was before the Court in December, 1847, upon demurrer, and the proceedings thereupon are reported ante, 67, where the substance of the libel is stated. It alleged that the master of the Flash, which was a New York vessel, contracted with the libellant, at New York, to carry a cargo of bricks in the schooner^ from New York to Brooklyn ; that the master took a portion of the cargo on board, but after- wards refused either to deliver up that portion or to take on the residue. The cause now came up for hearing upon the pleadings and proofs. The facts relied upon as a defence appear in the opinion. William Jay Haskett, for libellant. 120 CASJIS IN ADMIRALTY. The Flash. J. M, Cooper, for claimant, contended that the contract set up by libellant was one only binding upon the master person- ally, but not upon the owner, and, therefore, did not bind the vessel ; (The David, X Rob. 301 ; Abbott on Shipp. 161 ;) and that no breach of contract had been shown, the performance having been interrupted by " the act of God." Betts, J, The Court has already decided upon the de- murrer in this cause, that the contract set up in the Ubel was one for the non-performance of which the libellant is entitled to a remedy in this Court against the vessel herself. It appears to me that the testimony adduced by the libel- lant upon the hearing substantiates the- material allegations of the libel. The only important ground of defence upon the facts is, that there was no breach of the contract, but only a delay in its fulfilment, arising from " the act of God." The facts shown in support of this defence are, that while the vessel was engaged in taking on board the cargo of brick, the master was injured by a fall, in consequence of which he died a few days afterwards. During the time he survived and remained on board the vessel, the physicians forbade the loading to go on, because of the injury likely to result from it to him in his enfeebled condition. He was cairied round in the vessel, from the place she lay, to the foot of Hammond Street, in this city, and there landed. Had the vessel returned to her previous station immediately after landing the master, she might, as the evidence shows, have completed her load- ing, and have conveyed the entire cargo to Brooklyn, its place of destination, without impediment from the weather; but she delayed several hours needlessly at Hammond Street, and was in consequence frozen in at that dock, and thus pre- vented going on with the execution of the contract until after this suit was commenced. The libellant sent an agent to confer with the owner in respect to the completion of the contract, and on the first interview the owner manifested a JANUARY, 1848. 121 The Flash. disposition to continue and fulfil the undertaking entered into by the master ; but upon the second application to him he positively refused to do so. I do not think the short delay at Hammond Street, although followed by the freeziug in of the vessel, could have operated as a breach of the contract ; and if the owner had proffered a fulfilment on his part, to be made as soon as the vessel could be extricated from the ice, (Bowman v. Teal, 14 Wend. 215 ; Parsons v. Hardy, 23 lb. 306,) I should have regarded him free from liability as for a wilful neglect to perform it. Un- der the circumstances of the case, he would be entitled to a fair indulgence for time, both to replace the master and also to await the relief of the vessel from her confinement in the ice, had reasonable exertions been used by the owner to com- plete the undertaking for the vessel. Story on Bailm. § 545 a. But instead of thus offering to complete the agreement as soon as performance should be within his power, the owner repudiated his obligation, and positively refused to fulfil it at any time. This refusal is the gist of the owner's defalcation, and properly subjects the vessel to the consequences of not performing the engagement made by the master. There was no vis major or inevitable accident which released the vessel from proceeding in a reasonable time to complete the under- taking. The owner having taken the ground that he would not perform that engagement at all, the libeUant became enti- tled to proceed against the vessel, and to recover the damages incurred by reason of the violation of the contract already entered upon, and in part executed. In respect to that portion of the cargo which was taken to the vessel and not received on board, the libeUant may right- fully claim the reimbursement of the expenses of transporting it from his storehouse to the ship at the dock firom which it was to be laden on board, as well as compensation for any injuries received by the cargo while it lay there awaiting the convenience of the vessel to receive it on board. It must VOL. I. 11 laa CASES IN ADMIRALTY. The Flash. from that time be considered as delivered alongside the ves- sel, and the shipment, so far as libellant was concerned, must be taken to have been then completed. But it not having been received on the vessel, there may1)e a question whether the ship is responsible for its value, or for the subsequent ex- penses incurred in removing or securing it ashore — ^the libel- lant having been expressly notified by the owner of the vessel that he repudiated the contract of the maste* for its transpor- tation. If the libellant elected to leave his property exposed after that notice, the loss consequent upon that exposure must be recovered for against the owner personally, and not by action against the vessel in damages for the violation of his contract of carriage. The damages in that respect, for which the vessel is liable as consequent to the neglect to transport the whole cargo ofiered the vessel, would be the expense in- curred by the libellant in procuring the delivery at the place of its destination of that portion which was left behind, as being incidental to the placing it under the control of the ves- sel ; but not the consequential damages flowing from taking (charge of it on land after it was abandoned. The value of the brick laden on board the vessel, and not conveyed and delivered according to contract at the time the suit was instituted, is a lien upon the vessel, and must be satisfied by her. 3 Kent^ 162, 218. I find it stated, upon the brief of the claimant's advocate, that that part of the cargo has since been delivered according to the agreeUeni This, however, does not appear upon the proofs, and accordingly the value of that part of the cargo must be inquired into upon a reference, and the libellant must receive compensation for the amount in the final decree. ^RefeYeiice ordered. JANUARY, 1848. 123 Davis V. Leslie. Davis v. Leslie. In Admiralty no decree can be rendered upon proofs merely, when the subject-matter of those proofs is not embraced within the pleadings. The decree must conform to the allegatimis of the parties. The maritime courts of this country and of England are not without jurisdiction over actions, whether in rem or in personam, between foreigners. But as a general rnle, both the American and the English courts will decline to entertain such actions, excepting where it is manifestly necessary that they should do so, to prevent a failure of justice. The Act of 7 & 8 Vict. c. 112, ^ 17 — authorizing the recovery of seamen's wages notwithstanding the loss of the ship before earning freight, provided the seaman shall produce a certificate to the fact that he exerted himself to save the ship, cargo, &c., — does not operate to create a new right of action formerly unknown, but only by way of removing a disability which the rules of maritime courts previously imposed. Pence the action, in such cases, is not upon the statute, nor upon any right created thereby, but upon the contract to pay wages. In an action for wages brought since the Act of 7 & 8 Vict. c. 112, the production of the certificate mentioned in the act is not required as an absolute condition precedent to a right of recovery by seamen, but is directed as a mode of proof which shall he sufficient, other legal means of evidence to show the fidelity of the seamen, and their title to wages, not being excluded. After a full hearing, and the decision of the Court that the action is not sus- tained by the proofs, as the pleadings stand, it is competent to the Court to permit parties to amend their pleadings, so as to embrace the merits of the case. This was a libel in personam, by Thomas Davis against John Leslie, master of the ship Virginius, to recover seaman's wages, and the value of wearing apparel lost in the wreck of the ship. There were six other suits arising out of the same facts, and involving the same questions. Five of the seven suits were brought against the master, and two against the owner of the Virginius, The facts of the case sufficiently appear in the opinion of the Court. 124 CASES IN ADMIRALTY. Davis V. Leslie. Alanson Nash, for libellant. * I. This is the case of a British vessel, commanded by a British master, manned by British seamen, and sailing under the British flag, and lost in British seas. The men are en- titled to the benefit of British laws, and in particular to the privileges given by section 17 of the 7 & 8 Victoria, c. 112, which provides that in case a vessel is wrecked or lost at sea, the men may recover their wages up to the time of the loss. II. The law of a place where a contract is made or to be performed is to govern as to the natv/re, validity, and effect of such contract ; that being valid in such place, it is to be con- sidered equally valid and to be enforced everywhere, with the exception of cases in which the contract is immoral, unjust, or where the enforcing of it would be injurious to the rights of our own citizens. Lodge v. Phelps, 1 Johns. Cas. 139 ; Smith V. Smith, 2 Johns. 235 ; Ruggles v. Keeler, 3 lb. 263 ; Thompson v. Ketcham, 4 lb. 285 ; Sherrill v. Hopkins, 1 Cow. 103, and cases cited, lb. 105-109 ; Van Schaick v. Edwards, 2 Johns. Cas. 385 ; Masson v. Lake, 4 How. 262 ; The Alex- andria Canal Company v. Swan, 5 How. 87. Thus a con- tract of marriage, though invalid by our laws, will be held valid here if valid by the law of the place where made, and if not contrary to the laws of God. Decouche v. Savetier, 3 Johns. Ch. R. 190. So, if one lawfully sell goods in a foreign country, in a manner or on grounds not lawful here, our Courts wUl uphold the sale. Grant v. McLachlin, 4 Johns. 34. So the rate of interest is governed by law of place. Fan- ning V. Consequa, 17 Johns. 511. So of the liability of a party to negotiable paper. Hicks v. Brown, 12 Johns. 142 ; see, further, Masson v. Lake, 4 How. 262 ; The Alexandria Canal Company v. Swan, 5 How. 87. The general rule upon this subject is, that the law of the place where the contract is made, is to control its construction, unless it appear on the face of it that it was to be performed at some other place, or was made with reference to the laws of some other place ; JANUARY, 1848. 125 Davis V. Leslie. and the reason of the rule is the supposed reference which every contract has to the laws of the State or country where it is made, or where it is to be executed, whether the parties are citizens of that State or country, or not. SherriU v, Hop- Jdns, I Cow. 108. The libeUant asks the Court to decide these two sets of causes according to the British law, and not according to the decisions of causes in the United States Courts ; — ^they ask the benefit of the lex loci contractus. III. The British statute being thus shown to be applicable, ought to receive an equitable construction. By equitable construction a statute may be applied to a case not within its letter, but within its meaning, on the ground that the case is within the mischief for which it was intended to provide a remedy. Piatt v. The Sheriff of London, Plowd. 36 ; Eyston V. Studd, lb. 467. A remedial statute may be applied by equitable construction whenever it was manifestly the inten- tion of the law-givers to embrace within the operation of the statute such a case as that in question. Remedial statutes should be construed liberally. 3 Coke's Inst. 381 ; Vanhook V. Whitloek, 2 Edw. 304; St. Peter's of York v. Middle- borough, 2 Yov/n^e Sf J. 196. IV. The mischief sought to be remedied by the British statute was two fold. 1. Although the seamen noight per- form their duty faithfully, yet when^ the vessel was lost on the voyage, the whole of their wages were lost. This led to carelessness and indifference on the part of seamen, and often to total loss of the vessel and cEirgo. To remedy this evU, and give the mariner what he had honestly worked for, and of which he should not be deprived, except for his own act, this statute was passed. It stUl requires him to exert himself to the utmost, and in such exertion he risks his life momentarily ; but it gives him, while thus working, the knowledge that if he is pot able, though willing to save his employer's property, he will not be deprived of the fruit of his honest labor and 11* 126 CASES IN ADMIRALTY. Davis V, Leslie. peril, unless for his own conduct. In the present case the men did every thing that could be done ; they were placed, by the negligence of the owners, under a captain who, as the testimony shows, 'was at least careless in preparing for sea, and who, on the appearance of danger, left his crew at the first opportunity, to struggle through the danger as best they might. 2. Seamen cannot insure their wages, but an owner may his ship and freight, (out of which the men are paid,) thus making it for his advantage that the vessel should be lost. This statute certainly removes this temptiation, and diminishes the temptation to destroy the ship for the insur- ance upon her, and in that view is certainly for the benefit of all concerned ; it leaves the risk of the voyage with the party who may insure it, and relieves the generally penniless sailor of the risk, that after working and perilling his life for six months or longer, his money may go into the owner's pocket, in the shape of insurance, without the opportunity of mak- ing such owner respond for the services and risks he has un- dergone. V. The seamen ought not to lose the remedy given them by the act, by reason of their inability to procure the certifi- cate of the master to their faithful service, as prescribed, even if the production of such certificate is to be regarded as a con- dition precedent to the right to the relief granted. A party is not to be deprived of a right, by failure to perform a condi- tion, where such performance is out of his power, especially where, as here, the condition is substantially though not lite- rally performed ; the deposition of the master to the faithful service of the crew being as reliable evidence as his certificate could be. Thus the act of God will excuse the performance of a condition. Hughes v. Edwards, 9 Wheat. 345 ; Merrill v. Emory, 9 lb. 489 ; 8 Cow. 299 ; 10 Pick. 507 ; Roue's Abr.^Q. So he who prevents the performance of a condition cannot take advantage of its non-performance. "Williams v. The Bank of the United States, 2 Pet. 102 ; 1 Bibb. 380 ; 2 lb. 437. JANUARY, 1848. 127 Davis V. Leslie. VI. Independently of the British act cited, the libellant might recover under the general maritime law. Abbott on Shipp. 750; Col Laws of Mass. 1668; Laws of Oleron; Laws of Wisbwy ; Laws of the Hanse Towns. W. Mulock, for respondent. I. A total loss of the vessel being established, this Coiirt has decided that, by the law maritime, the claim for wages ^is is gone by a misfortune common to all concerned. II. The statute of Victoria, relied on, is a matter of fact of which no proof is given, and of which this Court, without consent or evidence, cannot take cognizance. A commis- sion or evidence might show that it was repealed or inop- erative. III. All navigation laws are enacted for the benefit of com- merce. This case of a total, hopeless loss, when the vessel was " water-logged " in the ocean, " off the banks of New- foundland," and " loaded with timber," no hope of saving any thing from the wreck being proved, the defendant having even " lost his clothes," cannot come within the policy or scope of the statute. IV. But at all events, no force of construction can apply this statute in a personal action against the master. He is liable under his contract only, and the statute is silent as to him. There is a certificate required, which is not pro- duced ; and the statute requisition shows it applies to own- ers only. Betts, J. This is one of seven s.uits in personam, prose- cuted by the crew of the British ship Virginius — ^two against the reputed owner of the ship, and five against her master — to recover the wages of the men and the value of their wear- ing apparel taken on board and lost with the ship. The parties have stipulated that the seven suits shall stand as if consolidated. In respect to the two suits against the alleged owner, it is 128 CASES IN ADMIRALTY. Davis !). Leslie. sufficient to say that the allegations of his ownership were wholly disproved upon the hearing, and the libels against him must be dismissed for that reason. In the remaining five suits there are several questions which require consideration. It appears that the ship sailed from Quebec for Liverpool about September 13, 1847, and encountered a gale early in October ; and after riding it out for three days, became water- logged, and on or about October 9, was abandoned by the officers and crew when on the point of foundering. The offi- cers and crew were received on board two other vessels then in sight, lying to for them, the Virginius having hoisted a signal of distress. The libellants demanded wages for the fuU period of service on board, at the rate of thirteen pounds ster- ling each man per month, and also payment for their clothes, &c., lost in the wreck. The libels charge that the ship was unseaworthy when she sailed, and was lost in consequence thereof. There is no allegation, either in the libel or answer, which has any rela- tion to the fact of services having been rendered to the ship as a wreck, such as — under the operation of the act of 7 & 8 Victoria, by the aid of which it was sought upon the argu- ment to sustain the action — ^would save the seamen their antecedent wages. The whole case is put by the libel upon the ground that the ship was unseaworthy when the voyage commenced, and the answer avoids all averments or allega- tions whatever in regard to the services or conduct of the sea- men on the voyage, or at the time of the wreck. Upon this point I am clear that no cause of action has been made out by the libellants. The charge of unseaworthiness is wholly unsustained. The ship was in a sound and safe condition and fitment for the voyage ; and if any color of fault is shown, it respects only the prudent and correct management of the master after she left port. The evidence to that point is exceedingly feeble and unsatisfactory, and is far short of JANUARY, 1848. 129 Davis V. Leslie. establishing any act of gross negKgence, or the want of com- petent skill in- navigating or keeping her seaworthy on the voyage. It is a cardinal rule in Admiralty proceedings, that no de- cree can be rendered upon proofs alone, when the subject- matter of those proofs is not essentially alleged in the plead- ings.i The decree of the Court upon the case, in its present aspect, must therefore be againsi the claim preferred by the libellants to recover upon the ground of unseaworthiness, wages for the whole duration of the employment contem- plated by their shipping contract. But the impressive equity of the UbeUants' case to the protection of the act of Parlia- ment, and to the relief provided under it, being manifest, and the questions having been fully argued upon both sides in respect to the character and operation of the remedy given by the statute, I deem it proper to state my opinion respecting the application of the provisions of the act to the state of facts disclosed by the proofs now before me, with a view either to terminate the litigation here, or to place the libel- lants in a condition to have the advantage of the statute in support of their rights. The general rule of maritime law is, that seamen lose their wages in toto in case of the wreck of the ship upon her voy- age ; and this rule prevailed equally in the American and English courts, (The Sophia, Gilp. 11 ; The Neptune, 1 Hogg. Adm. R. 239 ; Abbott on Shipp. 790 ; 3 Kent, 187,) until modi- fied in England by the statute of 7 & 8 Victoria, c. 112, § 17. By this act it is provided that in all cases of the wreck or loss of the ship, every surviving seaman shall be entitled to his wages up to the period of the wreck or loss of the ship, whether such ship shall or shall not have previously earned 1 The decree of the Court must be secundum allegata et probata. See The Steamboat Ehode Island, Olcott, 505, and authorities there cited. 130 CASES IN ADMIRALTY. Davis V. Leslie. freight, provided the seaman shall produce a certificate from the master or chief surviving offieer of the ship, to the effect that he had exerted himpelf to the utmost to save the ship, cargo, and stores. This is a most wise and salutary substitute for that old figment of law which has in many cases been most oppress sively enforced against seamen, that " freight is the mother of wages ; " so that, where no freight is earned, no wages can be recovered. See Dunnett v, Tomhagen, 3 Johns. 154 ; The Elizabeth and Jane, Ware, 41 ; Abbott on Shipp. 760. And the Virginius being a British vessel, the crew British subjects, and the contract one entered into in the British dominions, with a view to execution therein also, the law of Great Britain must prescribe the rule by which the operation of the contract^ with the benefits and disadvantages accompanying it, are to be determined. Masson v. Lake, 4 How. 278, and cases cited; Story on Confl. L. § 279. The libellants bring themselves clearly within the spirit and equity of the act of Parliament referred to. < The vessel was lost by vis major in a violent storm, at sea, and during her perilj and up to the moment of her foundering, the crew rendered every exertion in their power to save her. The mas- ter and mates left the ship in the ship's boat after her condi-. tion was hopeless. The crew were subsequently taken off by other vessels lying to for their rescue, and the ship went down immediately afterwards. The peril was so imminent, that when a chance of escape was presented, no attempt was made to save more than the lives of the ship's company. It is also shown that the mates received their pay in full or in part, after their arrival in this port, and by drafts of the master on the owners in Ireland. If, then, the seamen presented the certificate of the master, pursuant to the proviso of the act, there could be no doubt that the proper tribunal would award them wages, notwith- standing the wreck and total loss of the ship at the com- JANUARY, 1848. 131 Davis V. Leslie. mencement of the voyage and before any fre^ht had been earned. - * Two objections are, however, presented to the recovery of those wages iii this action : — Ik That the Court will not take jurisdiction of an action for wages earned in a foreign vessel, and prosecuted whoUy between aliens, and based upon a statute of their own coun- try, granting them a right of action in a ca^se in which it would not exist according to. general principles of law com- mon to all courts of maritime jurisdiction. 2. That the libeUants do not produce the evidence pre- scribed by the statute, as that which will alone justify an award of damages to them. I do not think the first objection, that the Court is without jurisdiction of a suit for wages between foreigners, so far as it rests upon the idea that foreigners are without a standing in Court, can be taaintained. There has been, on the part lof maritime courts, both of England and America, a very general disinclination to entertain such suits, and they have in several cases declined to take jurisdiction, in language which, almost amounts to a denial of the power to take it. But I understand the weight of authority in both countries to be> that upon the one hand the Courts are not without ample power to hear and determine such suits, when the circum- ■ stances of the case before them seem to render it fit that they should do so ; while, upon the other hand, they are not bound t(f do this, but will, in general, from motives of international comity, of delicacy, and of convenience, decline the suit. In other words, the foreign libellant is regarded as not entitled to invoke the powers of the Court) as matter of absolute right ; yet where the Court is satisfied that justice requires its interposition in his favor, those powers may be, and will be, exercised in his behalf. That there is vested in the Court at least a latent jurisdic- tion over these actions, which may be exercised under the 132 CASES IN ADMIRALTY. Davis V. Leslie. guidance of a sound discretion, seems to be clearly shown by reference to thftse cases in which, both in England and Amer- ica, suits between foreigners have been entertained in Admi- ralty, on the ground of a special necessity. The Courtney, Edw. Adm. R. 239 ; The Wilhelm Frederick, 1 Hagg. Mm. R. 138 ; Ellison v. The Bellona, Bee's Adm. R. 112 ; Wil- lendson v. The Forsoket, 1 Pet. Adm. R. 196 ; Moran v. Bau- den, 2 lb. 415 ; Weibery v. The OlofF, lb. 428. The very question has, moreover, been brought under thor- ough discussion in England, as recently as 1840, in the case of The Golubchick, 1 W. Rob. 143. This case was a Hbel in rem for wages. The master appeared under protest to the jurisdiction, grounded on the fact that the suit was between foreigners. In delivering his opinion against the protest, Dr. Lushington reviews the previous English cases on the sub- ject, and thus expresses the views taken by himself: — " Upon general principles,, I am inclined to hold that this Court does possess a competent jurisdiction to adjudge in these cases ; — at the same time the exercise of this jurisdiction is discretionary with the Court ; and if the consent of the representative of the government to which the vessel belongs is withheld, upon reasonable grounds being shown, the Court must decline to exercise its authority. Indeed, circumstances might occur upon the face of the case itself in which this difficulty might arise, that the matter in dispute was so con- nected with the municipal law of a foreign country, that this Court would be incompetent to render impartial justice ; in such cases, undoubtedly, the Court would decline to adjudi- cate." The cases in this country, upon the whole, sustain the same doctrine. In The Jerusalem, 2 Gall. 191, the libellant sought to re- cover upon a bottomry bond upon a foreign ship. The par- ties were both subjects of the Sublime Porte, and the claim- ant appeared under protest to the jurisdiction. Mr. Justice JANUARY, 1848. 133 DaTie v. Iieslie. Story held that a proceeding in rem might be maintained in our courts against property within our jurisdiction, although the parties were foreigners. And although he -viraives any decision of the question as to jurisdiction in personal actions, he intimates a decided opinion, that even in respect to the personal action for wages, the jurisdiction of the Court is clear, while the policy of its exercise in particular cases may be matter of question. This view is approved by Dr. Lush- ington, in a supplementary opinion in the case of The Golub- chick, already cited. ' In the case of Thompson v. The Ship Nanny, Bee's Adm. R. 217, the Court declined to entertain the cause, but rested the decision entirely upon the equities of the case, and held, that while there should be great caution in the exercise of jurisdiction as to foreigners, unless under peculiar circum- stances, yet such jurisdiction ought not to' be relinquished where it may appear proper or necessary to prevent a failure of justice. So in the case of Johnson v. Dalton, 1 Cow. 543, which was an action by a seaman against a master, both foreigners, for assault and battery, committed on shipboard, the Supreme Court of New York^ sustained the jurisdiction. They say : " Our courts may take cognizance of torts committed on the* high seas on board a foreign vessel; but on principles of comity, as well as to prevent the frequent and serious injuries that would result, they have exercised a sound discretion in entertaining jurisdiction or not, according to circumstances." These cases sufficiently sustain the view which this Court has already taken in one or two cases ^ formerly before it, and which certainly rests upon sound principle, that this Court is not without power to adjudicate upon a controversy between foreigners, although such suit is in personam; while at the same time, as this class of actions tend to embarrass and in- 1 See The Napoleon, Olcott, 208. VOL. I. 12 134 CASES IN ADMIRALTY. Daris v. Leslie. terrupt the navigation and business of foreign vessels visiting our ports, I fully recognize the right and duty of the Court, upon general grounds of propriety and expediency, to decline such jurisdiction, where not induced to its exercise by a clear necessity. It seems, indeed, to be the settled understanding and course of courts of Admiralty, as already intimated, not to permit their jurisdiction to be invoked as matter of right, to sustain suits brought by foreign seamen against masters or owners being also foreigners, or against foreign vessels. In England, indeed, the assent of the representative of the gov- ernment to which the seamen belong is required before the courts will p.roceed to entertain jurisdiction. The "WUhelm Frederick, 1 Hagg. Adm. R. 138 ; Edw. Adm. Jw. 128. But in the courts of the United States this precautionary con- dition is not required ; and jurisdiction will ordinarily be exer- cised if the voyage has been terminated by full completion or abandonment, or if the contract of hiring is dissolved by the wrongful act of the owner or master. Where, on the con- trary, the vessel to which the seaman belongs is still in the prosecution of the voyage, and the shipping contract remains in full force, the Court will in general decline taking cogni- zance of the case, and wiU remit the parties to the tribunals •of their own country, unless the commercial representative of that nation asks the aid of the Court in the seamen's behalf. Two_ decisions of a contrary import, in the District Court of Pennsylvania, (Moran v. Baudin, 2 Pet. Adm. R. 415; lb. 495,) are of questionable authority, unless placed upon the ground that the seamen were not proved to have been duly bound to the vessel. The present case appears to me to come fully within the principles recognized by this Court, as authorizing it to take cognizance of a suit for wages between foreigners — the voy- age being broken up and the seamen left unprovided for in this country. But the objection urged to the jurisdiction in this case was JANUARY, 1848. 135 Davis V. Leslie. rested in part upon the idea that there were peculiar reasons for declining the jurisdiction of an action between foreigners, where it was based upon a statute peculiar to their own country, giving them a right of action unknown to the gen- eral maritime law of the world. It is a sufficient answer to the objection, in this aspect, that the present is not such an action. The claim of the libellants, in the present case, arises out of the general maritime law, and not out of the municipal law of Great Britain. The action is not upon the statute, or upon any right created by the statute, but upon the contract to pay wages for the services upon which the libellants were emjjjoyed. The act of Parliament does not operate to create a new right of action, but only by way of removing a dis- ability which the rules of maritime courts previously imposed on seamen, in respect to wages already earned under their contract, in cases where, by the misadventures of the voyage, the ship was wrecked and totally lost. They were disabled under the former rule in such cases from proceeding against the master or owner for the recovery of earnings, which they would clearly be entitled to by the terms of their hiring. That this was a disability imposed upon mariners by an arbitrary rule of law, and was not a condition adopted by them so as to enter into their contract of hiring, and that the wages were deemed actually earned in cases of wreck, is abundantly man- ifest, from the reason uniformly assigned for the rule, namely, that public policy, required that the law should create in the sailor the highest possible interest in the salvation of the ves- sel and cargo ; and also from the doctrine that every thing belonging to the owner, saved from the wreck, both remnants and freight, was chargeable with the payment of these wages. This qualification of the rule in some degree assuaged its severity, and it furthermore establishes the principle that wages were regarded as earned, and justly due, wreck or no wreck, and that the calamity did not operate to extinguish the meritoriousness of the sailor's service, or to abrogate the 136 CASES IN ADMIRALTY. Davis V. Leslie. right vested in him, or to defeat a condition upon which that right depended ; but that it merely sheltered the shipnowner against being compelled to pay wages according to his prom- ise, in case he had the misfortune to lose his sMp. The act of Parliament then operates to relieve British seamen from this partial rule of the former law. The right to wages not- withstanding a wreck, stands upon the same footing as be- fore, — on the fidelity of the seamen, and their prompt and efficient aid to the ship and cargo, to the utmost of their ability. The Sidney Cove, 2 Bods. 13 ; The Neptune, 1 Mig'g. Adm. R. 227 ; The Lady Durham, 3 lb. 96 ; Abbott on Shijip. 229. Nor do I apprehend that any evils are likely to arise from this change of the law } for so far as the old rule was founded upon a supposed necessity to stimulate the fidelity of seamen by appeals to their interest, that object is sufficiently attained by leaving it still most important to mariners to save the ship and cargo, in order to secure a cer- tain remedy for their wages. The facts in evidence having brought the libellants clearly within the equity and spirit of the enacting clause of this act of Parliament, the further question was raised at the hearing, whether the libellants could have the advantage of that stat- utory provision, without producing the specific proof desig- nated by the proviso ; — viz., the certificate of the master oi chief surviving officer of the sMp^ to the effect that the libel- lants exerted themselves to the utmost to save the ship, cargo, and stores. The proviso is evidently a wise precaution and safeguard, both in respect to the maintenance of the author- ity of the officers of a vessel over the crew, in cases of wreck, and also as a check upon groundless suits which sailors might institute against owners, after the loss of the ship and cargo. Whether, in that class of actions, the proviso is to be un- derstood literally, and enforced in its strict sense, is a question which is not now raised. The present is an action against the master, and the question is as to the proper construe- JANUARY, 1848. 137 Dayia v. Leslie. tion of the proviso in its application to that class of suits only. The elementary principle governing the construction of stat- utes is, that the will of the legislature, as manifested in the plain sense of the enactment, is to be carried into effect ; and so as, if possible, to secure operation to every part of the stat- ute. The Courts will avoid, if possible, placing upon any one clause or part of an act such a construction as will neces- sarily abrogate another part ; and especially a qualification or limitation will not be extended by force of construction so as to supersede or annul a substantive enactment. 19 Vin. Abr. 519, tit. Statutes, E. 6, 81-93. It is said that a proviso directly repugnaiit to the enacting clause of a statute, repeals it, because, if in absolute contradiction, the last expression of the legislative wiU is the one which must prevail. 19 Vln. 522, tit. Statutes, E. 6, 105. Although it is also laid down as the rule, that a saving in an act of Parliament, which is repug- nant to the body of the act, is void. Case of Alton Woods, 1 Coke's R. 47, and cases cited ; 1 Blackst. Com. 89. And there is very high and satisfactory authority for considering an exception and a saving attached to an enacting clause as being, in effect, one and the same thing, except, perhaps, as to manner of pleading. The proviso under consideration, if taken in its absolute sense, would render the enacting clause of the statute nuga- tory in many cases clearly within the contemplation of the legislature, and in which, it is to be supposed, the act was specially designed to have effect. Thus, where, in cases of shipwreck involving meritorious efforts on the part of the crew to save the ship and cargo with the lives of the ship's company, the lives of aU the officers are lost, the survivors of the crew must be deprived of the benefits of the act, if the strict and exact observance of the proviso is to be required, because of the impossibihty of supplying the written certifi- cate demanded by its terms. So the case of the fraudulent 12* 138 CASES IN ADMIRALTY. Davis V. Leslie. stranding or destruction of the vesael by the officers ; or of the obstinate or wrongful refusal of the proper officers to give the certificate, although incontrovertibly merited by the sea- man ; or of the removal of such officer from the reach or knowledge of the seaman, are some instances of cases which must be of common occurrence, in which a compliance witb the exact terms of the proviso- would be impracticable, wbate- ever might be the efforts or merit of the mariner. The pres- ent case also supplies a forcible illustration of the injurious effect of giving the proviso such a construction as leaves the seaman remediless, except upon production of the specific species of proof contemplated. The master admits the two mates to be within the protection of the statute,^ and pays their wages. They testified that the sailors perframed like services with themselves on board the ship, for days and nights in a gale of wind, and after the vessel was water- logged, and to all intents a toial loss. The captain refuses or neglects to pay their wages, and when sued, defends himself by setting up his own omission or refusal to give the certifi- cate which would insure their recovery. To hold that the production of the certificate was absolutely essential to authorize the Coiort to award the recovery which the act per- mits, would practically nullify the benevolent purpose of the law, and render its professed liberality a mockery, inasmuch as the statute, under such an interpretation, would secure the seaman little broader right than that which he has always enjoyed — the right to receive wages, if paid to him volunta- rily by the master or owner. Upon these grounds, and in the light of the views pre- viously expressed respectfng the principle upori which the act in question is to be regarded as based, I am &f opinion that the construction of the proviso contended for cannot be main- tained. I do not think it imposes an absolute condition pre- cedent to the right of recovery. It introduces no new require- ment of duty to be performed by the seamen. The law mar- JANUARY, 1848. 139 Davis V. Leslie. itime exacts of them the same diligence and fidelity of service throughout the whole period of their employment. Although the voyag^may be uninterruptedly prosperous and safe, yet the mariner who, upon any occasion, from its inception to its close, shall refuse to exert himself to his utmost in the dis- oharge of his duties on board, wiU either entirely forfeit his wages for the voyage, or become subject to damages or mulct in diminutioa of* them. The provio designates a mode of proof, which is the primary and highest evidence of the fact to be established, but secondary evidence is not excluded ex- pressly, and the equitable and salutary purposes of a remedial and eminently beneficial statute vi?ill not be defeated by a construction which is strictly technical. The People v. The Utica Insurance Company, 15 Johns. 358 ; Wilkinson v. Le- land, 2 Pet. 662. The construction should be liberal, in order to give effect to the remedy. "Whitney v. Emmett, 1 Kent, 465 ; 1 Baldw. C. C. E. 316 ; Dwarris on Stats. 707-736. The mode of proof designated is one over which those to be benefited by the provision have no control, nor is there any process furnished them to enforce the giving the certificate. It is the sole act of the_ master, and I think there is cogent reason for holding that, by the true import of the section, this important act of justice to mariners is not to be left to the master's discretion or to his interest or caprice ; that it is his duty, in a case coming within the statute, to furnish the cer- tificate, or to show satisfactory reasons for not doing so, oth- erwise the Courts will accept other evidence as a legal sub- stitute for the certificate, regarding the proviso as alike direc- tory to the master and to the men. This is in consonance with the principle applied in analogous cases. As the cases now come up they must be decided against the libellants ; but 1 shall allow them the privilege of amend- ing their libels, and of taldng new proofs under allegations appropriate to give them a remedy und'er the provisions of the act of Parliament, reserving any definite opinion upon their 140 CASES IN ADMIRALTY. Davis V. Leslie. rights and remedy upon the facts as they may ultimately be proved, until the full case is heard. The amendment, how- ever, must be at the expense of paying the resppndent his taxed costs, because, in the only matter litigated, his defence is perfect against the right of action. The following decree must, therefore, be entered in each of the five causes against the master. It appearing to the Court that the libellants have not, by the proofs in this case, shown that the ship Virginias was unseaworthy, when she sailed on the voyage in the pleadings mentioned ; and it further appearing unto the Court, that the said ship was vsrrecked and totally lost at sea, by perils of the sea, on her voyage, and without earning any freight on said voyage :— It is considered by the Court that the libeUants have estab- lished no right of recovery against the respondents upon the pleadings in this case. But it further appearing to this Court that the libellants remained with the said ship after she was water-logged and wrecked, exerting their utmost efforts in saving the said ship and cargo, and the lives of the ship's company ; and it further appearing to the Court that the parties to this action are British subjects, and the said ship is a British vessel, and that by the provisions of an act of Parliament, British sea- men, serving on board of British vessels, under circumstances therein specified, may be entitled to their wages, notwith- standing the wreck and loss of the vessel, or her failing to earn freight ; and it further appearing to the Court that the libellants have not so framed their Ubel and allegations in this case as to have advantage of such provisions of said act, if they can prove themselves entitled thereto : — It is ordered and decreed by this Court that the libellants have leave to amend their libel in this behalf, on payment of the taxed costs of the respondent, for his answer filed in this cause, for his proofs taken therein, and also upon the final hearing. JANUARY, 1848. 141 Gardner v. Isaacson. But it is further ordered, that each party be at liberty, at his election, to use on the amended pleadings the proofs already taken by depositions, so far as the same may be applicable ; and if the respondent elects so to use the testi- mony taken in his behalf, then the expense of the same is not to be allowed him in the taxation of costs hereby awarded. Gardner v. Isaacson. The practice of the EngKsh Admiralty and the former practice of the District Court, in respect to the security required to be given by a respondent arrested upon bailable warrant, in order to authorize his discharge from the arrest, — stated. The standing Rules of the District Court relating to bail stipulations to be given on the execution of a warrant in personam, and to the method of enforcing them, are superseded by the Supreme Court Rules of 1845, upon the same subject; and stipulations must now be exacted conformably to the Supreme Court Rules. A respondent, arrested in an Admiralty suit, is not entitled, upon the return day of the warrant, to be discharged from arrest, on giving a stipulation for costi, pursuant to the Rule of the District Court, but he must remain in custody until he gives bond or stipulation to satisfy the decree made against him. The non-imprisonment act of the State of New York (1 Rev. Stats. S07, § 1) is made to be within this State the law of the United States also, by force of the acts of Congress of 1839 and 1841 ; (5 V. S. Stats. 321, 410 ;) but it does not em- brace arrests upon process issuing out of a maritime conrt.i It is limited to civil process issuing out of courts of law, and executions issuing out of courts of equity. Three actions in personam were brought, by Joseph Gard- ner, Samuel Lockwood, and Mordecai T. Bunyan, respec- tively, against Michael Isaacson. The respondent was arrested on three warrants issued in the three causes, and was held in custody by the marshal. A motion was now made in each of the causes that the respondent be discharged ' See, also, the case of Gaines v. Travis, decided in this Court in January, 1849, and reported, post, in its order of date, where this question is further considered. 142 CASES IN ADMIRALTY. Gardner v. Isaacson. from custody. The grounds upon which the motion was made appear sufficiently in the opinion of the Court. Griffin and Larocque, for the motion. W. Q. Morton and D. McMahon, opposed. Bbtts, .T. The respondent having been arrested on bail- able warrants in personam, issued out of this Court, in these three causes, and having given no bail to the marshal, was held in custody under the arrest. On the return day of the warrant, the respondent entered into stipulations, conformably to the terms of Rule 38 of this Court, adopted in 1838 ; and a motion is now made in his behalf, that he be forthwith discharged. The libellants insist that the marshal is bound to retain the respondent in custody until bail-bonds or stipulations are executed pursuant to the Supreme Court Rules of 1845. The question raised by the motion is, whether the respon- dent is entitled to his release, on giving stipulations, with sureties, that he wiU appear and pay all costs decreed against him, and wiU himself perform and abide aU orders and de- crees of the Court in the cause, or deliver himself personally for commitment in execution thereof, — such being the course of practice in this Court ; or whether the rules adopted by the Supreme Court of the United States, in 1845, have estab- lished a different practice in this respect, which the respon- dent is bound to comply with. By the practice of the English Court, as laid down by Clarke, and recognized by Browne^ the respondent, on his , arrest, is compelled to give bail to the marshal in a sum suffi- cient to cover the matter in demand, conditional for his appearance on return of the process. This stipulation was pronounced forfeited if he iailed to enter his appearance on the day, and he was adjudged in contempt, and subjected to commitment or other process in satisfaction of the demand. This bail stipulation, it would seem, was originally regarded JANUARY, 1848. 143 Gardner v. Isaffijson. as a penalty, and its forfeiture was by way of mulct, and accrued to the Admiral, and was not allotted to the satisfac- tion of the libellant. The appearcmce, according to the condition of that bond, was effected by entering into stipulation apud acta, with approved sureties, judicatum solvi ; that is, to satisfy the final and all interlocutory decrees of the Court in the cause. These are the fundamental properties and effects of an appea/rance in the English Admiralty. Cla/rke^s Praxis, tit. 3, 4, 5, 9, and 12 ; Browne's Oiv. ^ Adm. L. 432. This was substantially so in the earlier maritime codes ; ( Consulato del Ma/re, c. 40 ;) and the regulations coincide with the course of the civil law in the same classes of procedure. Wood's Civ. L. 245. The doctrine has also been embodied a long time in the rules of American courts. Dtml. Adm. Pr. 144 ; Greenl. Ov. Cas., App. This Court, in its code of rules adopted in 1838, studiously varied the responsibility imposed on sureties by the antecedent practice. The appearance of the respondent was perfected by his becoming personally bound by stipula- tion to perform the judgment or decree rendered against him ; but his sureties were placed on the same footing as those of the actor or libellant as to the amount they were to pay abso- lutely ; in effect subjecting Jidei jussores in Admiralty in the position of bail to the action at common law. They could not be charged beyond the costs accruing in the litigation, if the defendant surrendered himself for commitment under the final decree. Betts's Adm. Pr. 40 ; Duml. Adm. Pr. 147 ; Dist. Cowrt Rules, 21, 38, 39. . The act of Congress of May 8, 1792, § 2, (1 K S. Stats. 276,) designated the forms of process, and the forms and modes of proceeding in suits at common law, in equity and Admiralty, with authority to the courts to vary them at discretion, " sub- ject to such regulations as the Supreme Court of the United States shall think proper, from time to time, by rule to pre- scribe to any circuit or district court concerning the same." 144 CASES IN ADMIRALTY. Garaner v. leaacson. The act of August 23, 1842, § 6, (5 ZZ S. Stats. 518,) if it confers no more ample powers on the Supreme Court to regulate the practice of the district and circuit courts of the United States, yet manifestly implies a mandate on the Court to perform that duty. In January Term, 1845, the Supreme Court •exercised that power in relation to the practice of all the federal courts in causes of Admiralty and maritime jurisdiction on the instance side of the courts. 3 How. Introd. And accordingly those directions,, in respect to practice, became the supreme law to all inferior courts, in the particulars regulated by them. Rule 2 authorizes, in suits in personam, a warrant of arrest of the person of the defendant, in the nature of a capias, with an attachment clause against his property or credits, in case he cannot be found, or by a simple monition, in the nature of a summons, to appear, and answer the suit. Rule 3 provides, that when the warrant of arrest is exe- cuted, the marshal may take bail, with sufficient sureties from the party arrested, by bond or stipulation, upon condition that he will appear in the suit, and abide by all the orders of ,the Court, interlocutory or final in the cause, and pay the money awarded by the final decree rendered therein in the court to which the process is returnable, or in any appellate court. And upon such bond or stipulation, summary process of exe- cution may and shall be issued against the principal and sureties by the court to which such process is returnable, to enforce the final decree so rendered, or upon appeal by the appellate court. This is the established form of the undertaking of stipula- tors in the English Admiralty. Marr. Form, 272, 316. . The standing rule of this Court was, that on warrants to arrest the person in Admiralty and maritime causes, the mar- shal might take bail in the form of a stipulation, and in the sum endorsed on the warrant, conditioned for the appearance of the party on the return day to answer to the libellant in a JANUARY, 1848. 145 Gardner v. Isaacson. cause civil and maritime, according to the course of the Court. Dist. Ct. Rules, 21, 38. These rules are superseded and displaced by that of the Supreme Court, before cited. The marshal can no longer accept stipulations pursuant to the District Court rule, but must exact them in the more comprehensive terms prescribed byithe Supreme Court. Again : The object of the stipulation directed by the rule of the District Court was to carry into effect the warrant of arrest, and nothing more. It contemplated no remedy beyond bringing the defendant personally before the C^urt, and re- taining him under its authority. When brought into Court, Rule 38 provided the manner in which the respondent should become a party litigant, which would perfect his appearance in the action. The subject- matter acted upon by Rules 21 arid 38 of this Court is the same which is specifically regulated by Rule 3 of the Supreme Court: the latter determines the course of proceeding on the arrest, and before return of the process, and also the method by which the appearance of the defendant is to be entered and perfected. The bond or stipulation to the marshal effects both, and after that is given, no further step is to be taken in Court in order to subject the respondent to its authority, or to secure the fulfilment of judgments or decrees, and this necessarily rescinds or dispenses with all other procedures to those ends. The counsel for the respondent contends, that as he re- mained in custody of the marshal till the return day of the process, and then gave stipulations for his appearance, pur- suant to the rules of the District Court, he is entitled to be discharged from arrest, and is not bound to execute the bond or stipulation prescribed by the Supreme Court rule, for three reasons : — 1. That the bond demanded is in the nature of bail to the sheriff on an arrest at common law, and cannot be exacted VOL. I. 13 146 CASES IN ADMIRALTY. Gardner v. Isaacson. after the return day of the writ, as the party is then in Court, and the exigency of the writ is thus satisfied, and qannot act further in coercion of the defendant. 2. That Rule 46 of the Supreme Court saves in full force the application and effect of the District Court rules to an arrest so circumstanced, because the method of appearing is not fixed or regulated by any rule of the Supreme Court. • 3. That Rule 25 refers cases situated as these are, to the discretion of the Court, to compel stipulations to be given for costs only. The anaWy of the common-law practice is not a very close one ; but, so far as it goes, the argument from it rather tends to oppose than support the conclusion sought to be estab- lished by the respondent. The bail to the sheriff is similar in character to the civil law stipulation injudicio sisti. It only aims to secure the presence of the person in Court But the sheriff is not exonerated merely by producing the body. He must hold the party in custody until another and more stringent undertaking is entered into by him, consum- mating his appearance according to the course of the Court, which is to abide there and perform the final order or judg- ment in the cause. So here, merely having the respondeiii under his authority on the return day of the process, or pro- ducing him in facie cv/ricB, in no way satisfies the mandate of arrest or exonerates the marshal. The process continues in life and acting upon the defendant, until it fulfils the purpose of the arrest, which manifestly is to compel him to furnish a stipulation in the terms given by the rule, and to that end his custody must necessarily continue until the appropriate stipu- lation is produced, because the mandate of arrest is executed and made complete in that manner alone. In the view I take of the subject, the matter is specifically provided for by Rule 3 of the Supreme Court, and there is accordingly nothing in these arrests outside the provisions of JANTJARY, 1848. 147 Gardner v. Isaacson. that rule, coming -within the policy of Rule 46, and still re- maining under the authority of this Court. But it is insisted, for the respondent, that if this, construc- tion of the rules is adopted, that then Rule 25 of the Supreme Court supplies the law of these cases, and relieves the party and his' sureties from liability other than for costs ; and whether that obligation shall be exacted, is left to the discre- tion of this Court. The terms of Rule 25 are, that in all cases of libel in perso- nam, the Court may, in its discretion, upon the appearance of the defendant, where no bail has been taken and no attach- ment of property has been made, to answer the exigency of the suit, require the defendant to give a stipulation, with sure- ties, in such sums as the Court shall direct, to pay all costs and expenses which shall be awarded against him in the suit, upon the final adjudication thereof, or by any interlocutory order in the process of the suit. This rule evidently has relation to the different modes of bringing a defendant before the Court designated by the second rule. If he is proceeded against by citation or sum- mons only, there is no compulsory authority acting upon him, and the libeUant has no security, either against his person or his estate, for the demand in prosecution. All that is imposed upon the defendant by the rules in such cases is, that he shall indemnify the libellant against the costs to be created by his interposing a defence and contestation to the action. But in the coercive method of procedure by arrest of the body or attachment of property, the warrant being executed. Rule 25 can, in no just interpretation, be understood as intend- ing to deprive the libellant of the security thereby acquired, and set the defendant or his property free from the attach- ment on a mere stipulation for costs. Acting under the rule thus construed, the Court could not interpolate a condition that the defendant should also surren- der himself for commitment ; and if it is interpreted conform- 148 CASES IN ADMIRALTY. Gardner v. Isaacson. ably to the claim of the respondent, a defendant need only, when arrested, refuse to give bail before the return day of the warrant, aja.d then he will be entitled to a free discharge on intervening and giving a stipulation for costs, and thus all the privileges and securities provided by the rules of the Supreme Court, as consequent to his arrest, will be abro^ted or evaded. I am satisfied such construction of the rules cannot be sus- tained. It was obviously the purpose of the Supreme Court to place the Admiralty practice, in each of the United States Courts, substantially on the same footing of the English practice. That practice, under the first process act, in 1789, was adopted by Congress. 1 U. S. Stats. 93. It had remained essentially the rule of practice since that period, in the various District Courts, but some deviations from it existed. 10 Wheat. 486. The Supreme Court designed, by Rules 2 and 3, to abolish such diversities of practice, and render the remedies and rights of parties uniform in causes of Admiralty and maritime juris- diction, in all the courts of the Union. The letter and spirit of the regulations of the Supreme Court, in my judgment, require that a defendant in custody, under a warrant of arrest in an Admiralty case, shall so remain until he makes his appearance by giving bond or stipulation to satisfy the decree that may be rendered against him. It is urged that the acts of Congress abolishing imprison- ment for debt govern this procedure, and that the federal courts have now no authority to hold parties under arrest on mere civil process. The acts of 1839 and 1841, (5 U. S. Stats. 321 and 410,) abolish imprisonment for debt, on process issuing out of any Court of the United States, in all cases whatever where, by the laws of the State in which the said Court shall be held, imprisonment for debt has been or shall hereafter be abol- ished. JANUARY, 1848. 149 Gardner v. Isaacson. The act to abolish imprisonment for debt was passed in this State, April 26, 1831, and it enacts that no person shall be arrested or imprisoned on any civU process issuing out of any cou/rt of law, or on any execution issuing but of any cowt of equity, in any suit for the recovery of money, &c. 1 Bev. Stats. 807, § 1. This statute is made the law of the United States, also, by force of the acts of Congress above referred to, and had the proceeding in these causes been on the law side of the District or Circuit Court, the defendant would have been exempt from liability to arrest, and to give surety to perform the decree of the Court. The principle of the act would seem to include arrests by maritime courts, (on matters of contract,) and for the recovery of money, no less than when made by courts of law. But the words of the statute do not embrace both. They are limited to civil process issuing- out of a court of law, and the legisla- ture found it necessary to provide expressly for executions ' issuing out of Chancery, as not embraced within the previous description of process from a, court of law ; much Jess can a maritime court be regarded as falling within the designation. The acts of Congress of 1789, 1792, and 1793, demonstrate that laws relating to the practice of courts of law, do not include that of Admiralty and maritime jurisdiction. Non-imprisonment acts, of the tenor of that passed in this State, had been very common, indeed almost universal throughout the United States, previous to the promulgation of the code of rules by the Supreme Court in 1845. That Court, in framing these rules, necessarily construed those laws as not applying to proceedings in maritime courts, and accord- ingly the antecedent scope and effect of that description of process was left in force. It is unnecessary, and might be unbecoming, after the action of the Supreme Court upon the subject, to intimate what order this Court might feel itself authorized or required to make, if the question as to the effect of those statutes upon 13* 150 CASES IN ADMIRALTY. The Cabot. its process had been brought to its consideration prior to the promulgation of the rules of the Supreme Court. That code must be regarded an authoritative exposition of the non- imprisonment acts in relation to Admiralty process. The duty of the inferior court is limited to receiving and execu- ting the law given by its superior. The highest tribunal of the land having, since the enactment of those acts, established the process employed in this case, I shall forbear any further general reasoning upon the subject, and hold these warrants of arrest valid, and on all the points raised, deny the motion of the respondent for his discharge. Order accordingly. The Cabot. A bottomry creditor may, by payment of the seamen's wages, entitle himself to a novation in their place for recovery of their demands against the vessel. But he has no right to exact of them a formal assignment of their wages, nor the payment of his proctor's fees ; nor, on an offer to satisfy their wages, can he re- quire them to defer the prosecution of their demands until he chooses to institute a suit on the bottomry. On the discharge of a seaman, his wages become immediately payable ; and the act of Congress of July 20, 1790, does not compel seamen discharged from their ship to wait until the expiration of ten days after the discharge of the cargo be- fore bringing a suit. It is inequitable for a seaman, knowing that the papers are ready for the immediate commencement of a suit by his shipmates for the recovery of wages earned on the same voyage, — or by a bottomry holder, — who sues also for a portion of the wages of the voyage, previously paid by him, to endeavor to supplant such ac- tion, by urging out, in his individual name, process in advance of it, so as to subject the ship or her proceeds to needless expenses. Costs will not be allowed the seaman in such case, nor to others who unite in the proceeding instead of joining in the prior suit in progress. When payment of wages is made to an American seaman at a foreign port, in for- eign coin, on the sale of the ship, the breaking up of the voyage or the discharge of the seaman by the master, such coin is to be valued at its rkte in the home port, under the laws of the United States ; but foreign coin is to be estimated at its value at the phce of payment, if the payment is a voluntary advance on the part of the master, made with the assent of the seaman. FEBRUARY, 1848. 151 The Cabot. This was a libel in rem, filed originally by Charles H. San- born, against the ship Cabot, to recover wages. The libellant was one of the crew of the ship Cabot, and had earned wages in the course of his employment on board her. The ship arrived at the port of New York from a cir- cuitous voyage to ports in Europe and back, on December 28, 1847. No owner, nor any agent of an owner, appeared to take charge of the ship, or to pay her custom-house charges or other bills, and the master had no funds to meet them, or to pay the wages of the crew. The crew were discharged from the ship upon her arrival on the 28th. On January 4, 1848, the crew were notified to appear on board the ship, in order to settle their accounts, and assign them to the holders of a bottomry bond on the ship. Nearly the whole crew attended at that time, and the parties con- cerned in this action were present among them. The accounts of the crew were made out and presented to them, and they agreed, to the correctness of such accounts, and, — except one of the libellants in this suit, who admitted the correctness of the account, but refused to sign any papers, — they signed their names to the estimate of wages as then made up and stated on, board. The crew were then directed to appeeir the next morning at the office of Mr. Sturtevant, the proctor of the bottomry creditor, they being informed that a libel would be prepared at that time and place, to be filed in their names against the ship for the indemnity of the bottomry creditor, and that on verifying the libel and assigning their claims of wages to the bottomry creditor, their wages would be paid in full. To this all the crew present assented. On the same afternoon, the proctor of the bottomry creditor paid off the wages of three of the crew, and on the next day, pursuant to the arrangement, he paid off in full the wages of those who assigned their demands as agreed. The libeUant Sanborn, called that day (the 5th of January) to see the paper he had signed, and asked for payment of his 152 CASES IN ADMIRALTY. The Cabot. wages. The proctor refused to pay him unless he assigned his claim for wages to the bottomry creditor, as agreed upon ; and, as Sanborn alleged, unless he also paid to him (the proc- tor) $10 for his fees in the transaction. This was denied by the testimony of the proctor, and the evidence was strongly, conflicting between the parties, on the hearing, whether the proctor exacted a $10 fee from each seaman as a condition of paying their wages. The libeLlant Sanborn, refused to assign his claim or to pay the fee claimed ; and on the same day he employed another proctor to prosecute his demand. A summons was obtained from a commissioner in his behalf, and was duly served on board the ship on the same day ; and no one appearing on its return to show cause against its prayer, a certificate was given by the commissioner that there was sufficient cause of complaint whereon to found Admi- ralty process against the ship, and thereupon, on the 6th, a libel was filed in the name of Sanborn, and an attachment issued against the ship, upon which she was arreste4. Be- fore the attachment was issued, the proctor of the bottomry creditor, being apprised of the proceedings on foot, by the libellant, offered to pay him his wages in full if he would withdraw his suit' This offer the libellant refused to accept,' unless his costs were also paid. The proctor refused to pay those costs, and no arrangement was effiected between them. On January 6th, four other members of the crew, Cham- |)ers, Thompson, Smith, and McVickar, filed each his separate libel in personam against the master of the vessel, for their respective wages earned on the voyage, and procured war- rants of arrest to be issued thereon, returnable on the 11th of January. On the 7th, the warrants were filed, with the mar- shal's return indorsed, " that the respondent was not found," and on the same day those libeUants filed their joint petitions, and obtained an ex parte order of the Court, making them co-libellants with Sanborn in this action. On the same day another libel was filed against the ship in the names of others FEBRUARY, 1848. 153 The Cabot. of the crew, and process of attachment was taken out atid served upon her. The last two actions were instituted by the same proctor who commenced that of Sanborn. On the night of January 4th, a libel was prepared by Mr. Sturtevant, the proctor of the bottomry creditor, in the names of all the crew, against the ship for the recovery of their wages. This libel, pursuant to the arrangement made on that day with the crew, was the next day signed by nine of them, and the names of the parties prosecuting in this suit, and the allegations appli- cable to their demands were stricken out of it. On the 6th, a summons was taken out in favor of those nine libeUants, founded upon the allegations of the libel so altered, and a certificate was given on the 7th by a commissioner, for process against the ship, and she was arrested thereon on the same day. The matter was brought to hearing before the Court on the pleadings and proofs in these various actions. The claim- ant, in his defence to this action, relied upon the circum- stances under which the action had been instituted by San- born as above stated ; — ^and he also claimed to charge various libeUants with payments made them in foreign ports during the voyage, on account of their wages ; which payments were made in French five-franc pieces, at the rate of one dollar each, and also with payments of hospital money made on their account. The action of the bottomry creditor had been carried to a final decree on the 8th of February ; a venditioni exponas was issued thereon, upon which the ship was sold, and her pro- ceeds, $4,300, were paid into Court on the 11th of February, subject to the rights of all the litigant parties. The final decree in this cause, the one brought by Sanborn and others, was rendered on the 11th of February, three days subsequently to that in the bottomry suit, and the demand of the seamen who had filed their separate libel against the ship, were satisfied out of the proceeds in Court on the 14th of February. 154 CASES IN ADMIRALTY. The Cabot. William Jay Haskett, for libellant. Luther R. Ma/rsh, for claimant. Betts, J. The bottomry creditor had no authority in law to exact from the seamen a formal assignment of their claims for wages as a condition to the payment thereof. K he satis- fied those claims in good faith, for the protection of his de- mand on the interest of the ship-owner, the Court might recognize in his behalf a novation pro tanto to those claims, and, upon th^ final decree, secure to him a reimbursement of such advance, as equitably united or compounded with his lien debt. But he had no right to compel the seamen to put themselves or their demands under his control, or to coerce from them the payment of his proctor's fees, or to require them to defer the prosecution of their demands until he chose to institute a suit upon his bottomry security. His extreme privilege would be to pay off the wages, and prevent the fund being diminished by costs to the seamen, for the recov- ery of wages alone, and in that manner to become permitted to tack their lien on the ship to his own, and sue for both in his own name and right, and burdened with but a single bill of costs. This was the legal relation of the bottomry holder to the crew. The objection that the suit by the seamen was prematurely commenced, cannot be sustained. The action is under sec- tion 6 of the act of July 20, 1790, (1 U. S. Stats. 131,) which prescribes that if the wages of any seaman are not paid within ten days after the discharge of the cargo at the last port of delivery, the master may be summoned to show cause why a process in rem should not issue ; and if cause is not shown, process in rem shall issue accordingly in the manner prescribed by the act. It is true that ten days had not expired after the termination of the voyage when the proceedings of the libel- lants were taken. But the crew were all discharged by the master of the ship on her arrival here on the 28th of Decern- FEBRUARY, 1848. 155 The Cabot. ber, and their wages thus became due and payable imme- diately. In such case the statute does not compel seamen to wait ten days before bringing suit for their wages. Such discharge from the ship terminates all connection of the sea- men with the voyage, or with the unlading of the ship, and they are thereby remitted to their right of action by the law maritime. See The Cypress,^ MSS. 1829. But section 6 of the act of 1790 requires that dn all suits under the act by seamen against a vessel for wages, " all the seamen or mariners having cause of complaint of the like kind against the same ship or vessel, shall be joined as com- plainants ; " and, therefore, after proceedings are on foot in behalf of a part of the crew for the recovery of wages on the common voyage, it is not competent for others of the same crew to institute separate actions on their individual demands therefor. The ship is to be burdened with no more thaii the expenses of one prosecution, and those of the crew not named in the proceeding must cause themselves to be connected with the first action instituted, and the Court will regulate and distribute the costs between co-complainants in such proceed* ings, as may be equitable. It was irregular and against the equity of the statute, for the Hbellant Sanborn, after he was aware that a suit for wages for the voyage was in preparation to be immediately commenced by others of the crew, to attempt to supplant their action, a«id to place the business in the hands of his proctor alone, by getting his process on foot a few hours in advance of theirs ; and as such proceeding was unnecessary and in his own wrong, it must be ^at his individual expense. He was also apprised that a fund was ready for the satisfaction of his wages ; and after such notice, the commencement of a suit against the vessel by him singly must be deemed needless and vindictive, unless clear proof is Since reported, 1 Blatehf. §• £f._83. 156 CASES IN ADMIRALTY. The Cabot. given that it was indispensable to the protection of his inter- ests, or that he had given previous notice that he would not await the proceedings of his shipmates. These steps might have given him color of claim to costs ; but then he would acquire it only in case of unreasonable delay on the part of the others to prosecute their action. The co-libellants of Sanborn, made such upon their own petition, after both suits were commenced against the ship, have no equity to costs. Not only were they equally bound with Sanborn to unite in the suit instituted and then in prog- ress, in the name of others of the crew, or at least to have made a demand of payment out of the funds in the hands of Mr. Sturtevant, but their proceeding was manifestly vin- dictive, and with intent to create costs and to oppress the master and owners. They employed the same proctor to commence individual actions in personam against the master, and filed their several libels, and sued out process therein, and before the return day irregularly caused returns to be made by the marshal that the defendant could not be found, and thereupon procured themselves to be associated with Sanborn in the action against the vessel. As the decree to be made in the cause will provide for pay- ment of the balance of wages actually due to the libellants in this cause, though without costs, it is necessary to advert to the counter-claim or charges against those wages set up by the claimant. The libellants received payments on account of their wages, while the ship was in foreign ports. Which were made to them in five-franc pieces, each being reckoned as a dollar ; and they insist that they should be charged with these pieces only at the valuation of ninety-three cents each, that being their value in the United States, by the act of June 25, 1834. i U. S. Stats. 681. The libellants had a right to receive theur wages in American coin or its equivalent, whether paid them abroad or at home, if the master was bound by contract or act of FEBRUARY, 1848. 157 The Cabot. Congress to make the payment at the time, — ^the shipping contract being in that currency. It was stipulated by the articles that the crew should not be entitled to their wages,, or to any part thereof, until the arrival of the vessel at her last port of discharge, and the delivery of her cargo. That was to be in an American port. Payments made to the libellants during the voyage would therefore be chargeable to them at the value of United States currency there, the mutual act of the parties being tantamount to an assent to make and re- ceive payment abroad. The five-franc pieces paid the libellants abroad, are accord- ingly to be credited to the ship, in making up their accounts, at the relative value of that coin to the American silver dollar, at the time and place where it was received by the seamen. That is, the crew were entitled to so much local currency as would procure at the place the American currency due them. In respect to the claim for hospital moneys paid by the ship, whatever the sum may be, nothing can be charged the libel- lants therefor, beyond the amount fixed by law at the time of the payment. This is a compulsory tax charged upon them by positive law. Any sums paid by the master or owners exceeding that amount, must be his or their loss. The decree will be that the libel be dismissed, but without costs. For the claimant not having made tender of wages to the libellants or paid them into Court, and having unneces- sarily defended the action by answer and claim, when the interposition of the Court to stay the suit of the libellants, and to compel them to await the decree in that ahready in, course of prosecution in behalf of .their shipmates, could have been had on motion or petition, no costs can be awarded in. their favor. The action brought by the libellants will be regarded as tantamount to a petition upon the fund brought into Courfo VOL. I. 14 158 CASES IN ADMIRALTY. Manchester v. Milne. by the other two actions pending concurrently^ with this against the ship. A reference to a commissioner is ordered to ascertain the balance of wages due to the libellants respectively, upon the principles before declared, with interest thereon from Decem- ber 28, 1847 ; (unless the amount can be settled by agree- ment ;) and on the coming in and confirmation of the report, a decree may be entered for the payment of the amounts reported due, out of the proceeds of the vessel in Court. Manchester v. Milne. Since the adoption of the Circuit Court Rules of 1845, Rule 96 of the District Court of 1838, refusing to a proctor in a suit fees as advocate, is abrogated, in respect to all fees other than those specifically introduced and appointed by the District Court ; and fees for services as proctor and as advocate are taxable to the same person. In what cases costs may he taxed for motions to postpone the hearing of a cause called in its order on the calendar. Costs are not taxable for the preparation of viritten arguments, except upon a stip- ulation in writing, to that effect. In what cases costs may be taxed upon motions to enlarge time to answer, upon motions for final decree, motions for costs, for a reference, &c. This was a libel in personam, by Cyrus B. Manchester against George Milne, to recover freight upon a cargo of coal. The cause was before the Court upon the merits in 1848, when a decree was rendered in favor of the libellant. The proceedings upon that hearing are reported, ante, 115. The cause now came up upon appeal from a taxation of costs. The grounds of the appeal appear in the opinion. Betts, J. Both parties appeal from the taxation of costs made by the deputy clerk in this case ; but the principal ex- ceptions, in number and amount, are taken by the respondent. FEBRUARY, 1848, 159 Manchester v. Milne. Two legal points of general- application are raised, which • are of sufficient importance to demand a formal consideration, and the reasons assigned for this decision will have relation chiefly to those propositions. The bill rendered and taxed embraces separate charges for advocate's and proctor's fees, the pleadings being signed by Messrs. Burr and Benedict as proctors, and by Mr. Beebe as advocate. The respondent has put in his affidavit, stating that those three* gentlemen are copartners in the practice of law in this city, and that, as is generally understood^ they practice in co- partnership in all the State and United States courts ; and he objects to the charge of advocate's fees at all, contending that aU the partners in effect act as proctors in the cause. Mr. Beebe, by affidavit, states that the connection between himself and Messrs. Burr and Benedict, in the Admiralty business conducted in their office, is not a copartnership ; that he acts as advocate solely, and takes to himself the taxable fees as advocate for his compensation, and has no share of or interest in the fees of the proctors, which belong exclusively to the other two geptlemen. I do not, however, consider this fact, whichever way it may be, as varying essentially the question ; because, in my opinion, the rule of allowance is definitely fixed by law in respect to the greater part of the items in contestation. The rules of the Circuit Court, adopted June 28, 1845, which also govern the practice and costs of this Court, change Rule 96 of this Court, and regulate the costs of parties, their attor- neys, solicitors, and counsel, in private actions, conformably to the grant by the act of Congress of May 18, 1842, of costs top^the United States attorneys within this State ; and when sgpvices are rendered pursuant to the course of practice of this Court, for which no fees are specifically appointed under the act, the usages of this Court and the United States Supreme Court are to determine the rate of allowance. 160 CASES IN ADMIRALTY. Manchester ». Milne. The provision in the act of Congress limits the fees receiv- able by the United States attorneys to the fees and compen- sation allowed by the laws of the State of New York, for like services, according to the nature of the proceedings. These rules accordingly render the statute law of New York in relation to costs, in force May 18, 1842, the rule of taxation in this Court, when no ^ecific fee is appointed by Congress. The State act of May 14, 1840, (§ 4,) provides, that when a fee is allowed to an attorney or counsellor, it shall be taxed only for one counsel or attorney, and the same person may be allowed fees both as attorney and counsel in the same cause. It would accordingly make no difference if the advocate and proctors in this cause were in full partnership' in every branch of their business, sharing in common all costs taxable in the cause ; for it is plain that a fee appointed to a proctor for a service, and another to an advocate for the same service, would, under those provisions, be both taxable to the same person. The act of Congress comprehends all classes of costs tax- able in favor of district attorneys and clerks in this State, within whatever jurisdiction their services are rendered, and the rules of the Circuit Court have force in respect to private suitors, coextensively with the provisions of the statute rela- ting to those official fees. In my opinion the provisions of the State law so adopted by Congress, must be held to super- sede all regulations previously in force under the rules or practice of this Court or of the Circuit Court conflicting with the State law ; and that the restriction in the tariff of costs, established by this Court in 1838, which denies to a proctor t|ie allowance of the same fee taxed to him as advocateap • abrogated. I accordingly hold that the objection to the taxation of ad- vocate fees in the cause must be overruled. The next objection of a general bearing is that taken to the FEBRUARY, 1848. 161 Manchester v. Milne. charges for attendance, for briefs and opposing motions, and for temporary delays asked for and allowed in term, in respect to the trial of the cause. It seems that when the cause was called in its place on the calendar, excuses were offered on the part of the respondent, and a request was made that the hearing might be postponed to an after day, which was objected to at the time on the part of the libeUant. No notice of motion was given, and no proofs were introduced which were the subject of discussion. I think the party has no right to the fees charged for that proceeding. A formal motion or affidavit to put off a cause for the term stands on a different footing, and the party against whom it is made may rightfully ask to have its hear- ing deferred until he is prepared to meet it, and if he waives that right, and consents to debate or meet the motion instcm- ter, there would be a reasonable color for allowing him the usual costs attached to the resistance of special motions made on notice given. It is otherwise in incidental, and, as it were, colloquial applications, where from some casualty a party asks that his case may be deferred to a particular day, or be temporarily passed on the calendar. AH the costs which would naturally appertain to such arrangement of the busi- ness would be the expense of witnesses for the day, and per- haps, on a liberal construction of the fee-bill, the attendance fee of the advocate and proctor in Court for the time, I shall allow charges for opposing motions made on notices given to put the cause off for the term, and disallow them in aU cases where the application was without notice, and only to defer the hearing to another day in the same session. No appointment of a fee in the State law, or under the practice of the United States courts, is shown for written arguments. They are furnished by mutual consent, and for the purpose of expediting the decision of a cause not likely to be heard orally. Neither party can therefore cast upon the other the expense of that mode of proceeding. If the counsel 14* 162 CASES IN ADMIRALTY. Manchester v. Milne. will not waive their right to taxable fees for arguing a cause, they must mutually stipulate in writing, that a written argu- ment shall be regarded, in the taxation of costs, the same as an oral one in Court. It is stated in the bill of costs, that the Judge ordered the cause to be submitted in writing. This is undoubtedly a mis- apprehension. Such direction is never given in our practice. If one party insists on an immediate hearing, and to avoid the delay asked by the other, offers to submit the case on written argument, the Court may refuse the delay asked ex- cept on condition of furnishing a written argument. This is only to preserve to the diligent and prepared party aU his rights and the advantage of a prompt disposition of the case. But that in no way rests on the authority to prescribe to par- ties this particular method of debating the case. Those charges in this bill must be rejected. Various items of charge are claimed for attending Court, and on motions made in writing, merely formal as for time, to the defendant to answer it, &c. This is mere chamber business. In some of the instances specified, the extension .of time was assented to by the libellant, and no special attendance was necessary or required on his part. Where the continuance was allowed on return day of process, the libellant must, according to the due order of practice, be in attendance to receive that return, and is allowed a fee there- for, and he cannot duplicate that fee, because of another step then taken, entirely incidental to the return. So, also, it was needless for him to attend in Court at the day allowed the defendant to answer. He was entitled on return of process to a default nisi, and if the defendant failed to comply with the terms of his indulgerlbe, the decree on that default would become final. Merely suppositious motions cannot be charged, such as motion for final decree, motion for costs, motion for reference, &c., when the object of the supposed motions are embraced FEBRUARY, 1848. 163 The Remnants of the Caitbneshire. in the decretal order of the Court ; though there may be foun- dation for similar charges when they are based upon specific application to the Court for the modification, reversal, or en- largement of the final decree as to any of those particulars. The taxed bill must be rectified according to the directions here given. The Remnants of the Caithneshihe. Where a libel demanded the recovery of $6.75, wages due to each of two libellants, and $75 to each for salvage services, and the claim for wages was allowed, bnt that for salvage service was disallowed, and the decree was generally for the wages due, " with costs,"— ^eW, that plenary costs were taxable in favor of ■ libellants. The discretionary power of the Court over the award of costs cannot be exercised on an appeal from taxation, especially after the expiration of the term in which the decree is rendered. This was a libel filed by James Drain and James Murphy, against the remnants and proceeds of the bark Caitbneshire, in rem, and also in personam, against J. Rankin, her master, to recover for wages and for salvage services. The libel demanded the recovery of $6.75, wages due to each libellant, and also an additional compensation to each of |75, for salvage services on board the vessel after the period to which wages were charged. This last claim was disallowed by the Court on the final hearing. The wages demanded were decreed the libeUants with costs, and the term for which wages were to be computed was held to em- brace the period the libeUants remained with the vessel after she stranded. The claim against the master personally was dismissed with ffosts., The amount recovered was less than $50, but the bill of costs was made up by the Hbellants and taxed by the clerk, after the lapse of the term, as in a plenary suit. 164 CASES IN ADMIRALTY. The Eemnants of the Caithneshire. The claimant appealed from the taxation, insisting that costs of summary actions only could be allowed. W. Muloch, for appellantsi Alcmson Nash, for respondents. Betts, J. By Rule 165 of the District Court, causes wherein the matter in dema/nd does not exceed $50, are made summary, and by Rule 176, the advocate's and proctor's costs on each side are limited in such actions to $12. In these cases, as in those determining the jurisdiction of the Circuit or Supreme Court, the amount put in demand by the claim of the libellant is conclusive upon the point. In this case the respondent and claimant may clearly appeal to the Circuit Court on the merits, because they have been compelled to litigate a demand exceeding $50 ; and for the same reason the libellants may appeal, they having put in suit a claim beyond $50, which this Court has refused to adjudge in their favor. Accordingly, upon the face of those proceedings', the libel- lants, on a general decree for costs, are entitled to have them taxed as in a plenary cause. The same rule applies to the costs awarded the respondent in that branch of the case which seeks to charge him individually. It was competent to the Court, on the hearing or during the term, to have regulated, at its discretion, the allowance of costs. Had the subject been brought to ■ my attention, I am strongly persuaded I should have limited the recovery on each side to summary costs. The final decree was pronounced and enrolled in January term, and it is doubtful whether the Court has any power over the subject after the expiration of that term. 3 Sumn. 495 ; 7 Cranch, 1. TJiere is no authority in the Court to ad- judge costs de novo, on an appeal from taxation ; such order should be one made in the cause on the hearing, and com- posing in part the terms of the final decree. !Z%e appeal from the taxation overruled. FEBRUARY, 1848. 165 The Alida. The Alida, The libellant, a blacksmith, solicited the engineer of a domestic steamboat run- ning daily between New York and Albany, to employ him in making snch re- pairs as sbonld be required daring the season by the boat, in the line of hig trade. The engineer promised this, and the libellant was railed upon to nlake, and did make repairs upon the boat at various distinct times, sending in his bills monthly. Beld — 1. That these facts did not constitute an employment for the season, but that the libellant had a right of action for each distinct job when it was completed. 2. That libellant's lien upon the boat, if any, under the provisions of 2 Re- vised Statutes, 40'5, § 2, for each item of service rendered by him, was discharged on the lapse of twelve days after the departure of the boat from Albany for New Yotk next following the rendering of such service.^ The Court affords a remedy against domestic vessels for labor, supplies, &c., fur- nished, only where the vessel is subject, by the local law to ^ien therefor ; and the privilege is enforced subject to every qualification or lirSlition attached to it by that law. This was a libel in rem, by James O. Haight against the steamboat Alida, to recover for repairs made upon that boat. • The facts out of which this action arose were as follows : During the navigation season of 1847, the steamboat Alida, being then wholly owned in- this State, was employed in run- ning between New York and Albany, making regular passen- ger trips daily, Sundays excepted. The libellant was a black- smith, residing at Albany, and he solicited the engineer of the boat to employ him in doing such jobs of work as should be required in the line of libellant's trade during the season. The engineer promised to do so ; and at various times when the boat was at Albany, from August 4 to September 24, the libellant was called upon to make repairs upon the engine 1 On the subject of lieng upon domestic steamboats, see, also, the decision in another suit against the Alida, reported post, immediately following that above. 166 CASES IN ADMIRALTY. The Alida. and other parts of the boat, and he supplied, during that time, all labor and materials within the scope of his trade which the boat required. These services were rendered by the libel- lant on the 4th, 6th, 13th, 18th, 20th, 22d, and 27th days of August, and on the 1st, 8th, 13th, 15th, 17th, 20th, 22d, and 24th days of September. The Alida changed owners in New York, September 21st ; her down trip from Albany was on the 25th, and no work was performed on her by libellant subsequently. She was attach- ed, on her arrival in New York, on other demands, but after- wards continued her trips as before. The engineer who employed the libellant left the boat on the 27th. There had accrued during the month of August, upon the libellant's account for services, charges amounting to $80.95, and the bill therefor was presented on the 1st of September. 'On the 20th|^ September, $50 was paid the libellant, and was credited on the AugUst account. Early in October, the bill for the September work, including the arrears on the August bill, was presented to the owners in New York. The book-keeper of the libellant testified that it was his course of business to present the libellant's shop bills for payment on the first of each month. The libel was filed on the 7th of October. John Cochrane and S. P. Staples, for libellant. Smith 8f Woodwa/rd, for the claimant. Betts, J. The present action was commenced within twelve days after the libellant ceased working on the boat ; but if each job created a debt by itself due and payable when such job was completed,. all the items, excepting the last one, $13.43, had been due more than twelve days when the vessel Vas arrested, and more than that period would have elapsed after the work was finished, and after a departure of the ves- sel from the port of Albany to the port of New York. To sustain the action upon the facts shown, the libellant FEBRtJARY, 1848. 167 The Alkla. must maintain one of two propositions ; that his employment was for the season, and that accordingly he had no right to arrest the boat until his contract was terminated by the ex- piration of the running season, or by the act of the owner of the boat ; or that, in order to bar his remedy in rem, the boat must have left Albany and have remained absent for more than twelve days continuously, after each particular indebted- ness accrued. In my opinion, the evidence in no way authorizes the assumption that the hiring of the libellant was for the entire season. The nature of the employment clearly indicates that it was merely for piece or job work, and that, in each instance, the libellant had a right to demand payment when the partic- ular job was completed. It was the usage of his shop, indeed, to render bills to customers m.onthly ; but that usage in no way affected the legal right of libellant to withhold the indul- gence and exact ready pay, nor did it put him under obliga- tion to proceed, and supply material and labor on credit throughout the season. Such usage could only tend to raise a presumption in favor of such credit ; but this presumption, if unsupported by other proofs, would be of too slight a char- acter to postpone his right to collect his charges, because it, would be balanced if not indeed countervailed by another im- plication, that each piece of work or article of manufacture furnished by a mechanic, completes his obligation, to his employer as far as that item of employment is concerned, and has no connection with or dependence upon other services, similar in character, rendered between the parties. This is the well-understood relation of employer and employed, in all cases of mechanical services ; and there is no stronger infer- ence in favor of a continuing credit where the employment is for a series of independent repairs to a single steam-engine, than where it is for the original construction of several dif- ferent engines. In the absence of stipulations between the parties, the law assumes that a mechanic is entitled to com- 168 CASES IN ADMIRALTY. The Alida. pensation for his job when finished, ( Story on Bailm, §§ 425, 426,.) and the job must, in ordinary acceptation, be regarded as finished when all the material or labor demanded has been fully supplied. This is as true in relation to small items of mechanical labor and supplies, as it is in respect to those of the greatest magnitude and expense. The job of the block=maker is to all legal intents completed when he has finished the par- ticular tackle ordered, as clearly as is that of the shipwright- when the ship is launched and fully sparred ; and either is then entitled at law to demand compensation for his labor- and materials. If, then, the employment proved in this case were to bfr regarded as a contract for hire and materials, I should think it amounted to nothing more than an engagement by the libellant to answer such calls or orders as should be made upon him in his line of business, leaving his right to recover compensation therefor to stand upon the ordinary legal foot- ing. In my judgment, however, the understanding between the libellant and the engineer constituted no agreement obli- gatory on either party. It was no more than the customary good-wiU solicited by tradesmen and mechanics,- and.promised by those to whom application is made. These friendly assur- ances secure no right to either party which can be enforced against the other, as arising upon an agreement of legal obli- gation. The question then arises, under the second point, whether the lien, if originally existing in favor of the libeUant, was discharged by the departure of the boat from Albany, twelve days or more before the suit was brought. Where services or supplies are rendered to a foreign ship, a lien attaches by the general maritime law ; and the different States of our Federal Union are, in regard to this question, regarded as foreign States to each other. The nature, extent and character of the lien, in such case, are to be determined, not by the local law of the particular State, but by the gen- FEBRUARY, 1848. 169 The Alida. eral principles of the maritime law applicable to the case. Zane v. The Brig President, 4 Wash. C. C. R. 453; The Nestor, 1 Srnnn. 73 ; The Bark Chusan, 2 Story, 455. But against domestic vessels the Court affords a remedy only where they are subject by the local law to a lien for work done, or for articles or materials furnished in building or repairing the vessel, or for provisions or stores furnished within the State, and fit and proper for the use of the vessel when furnished; and accordingly the privilege is enforced, subject to every qualification or limitation attached to it by the State law. The case is governed altogether by the muni- cipal law of the State, and no lien is implied, unless it is recognized by that law. The General Smith, 4 Wheat. 438 ; The Robert Fulton, 1 Paine, 620 ; The Jerusalem, 2 Gall. 345 ; The Hull of a New Brig, 1 Story, 244 ; The Bark Chu- san, 2 Story, 455 ; Peyroux v. Howard, 7 Pet. 324 ; Harper v. The New Brig, Gilp. 536; 14 Com. E. 404; Davis v. The New Brig, Gilp. 428.' The statute of the State of New York, under which this lien must be supported, if at all, contains a provision that " when the ship or vessel shall depart from the port at which she was when the debt was contracted, to some other port within the State, every such debt shall cease to be a. lien, at the expiration of twelve days after the day of such departure ; and in aU cases the lien shall cease immediately after the ves- sel shall have left this State. 2 Rev. Stats. 405, § 2. The act preceding this, (Laws of 1830, c. 320, § 50,) and the antecedent one, (Laws of 1817, c. 60, § 1,) have always been held in this Court to bar the arrest of a vessel after twelve days subsequent to her leaving (provided her departure is not clandestine or fraudulent) the port in which the lien was incurred, and going to another port in this State, without regard to the time during which she might remain away from the port where the debt was contracted. Jenkins v. The Steamboat Congress, MSS. 1841 ; The Steamboat Joseph VOL. I. 15 170 CASES IN ADMIRALTY. The Alida. E. Coffee,! j^fsS. 1846. I am satisfied that the State act demands that exposition, and should now only refer to the former decisions in this Court upon the subject, had it not been earnestly contended in this case that the meaning of the provision was clearly different from that of the former acts upon the same subject, and that it requires, in order to dis- charge the lien, a continuous absence of the vessel for more than twelve' days from the port where the debt was con- tracted, and that she remain for that length of time in some other port or ports within the State. It was urged that any other construction would render the Hen fallacious and worth- less, for the reason that the creditor could never know when it was intercepted or destroyed. Stress was also laid upon the decision of the Supreme Court of the State of New York, in Dennison v. The Schooner Apollonia, (20 Johns. 194,) as determining that the vessel must remain more than twelve days in the port to which she is removed, in order to divest the lien. And in view of this construction of the statute, it was further contended that the boat, having returned to the port of Albany on every day succeeding the one on which she left it, had never departed from that port within the intent of the statute. I think there is but slight call for construction in this case, as the. words of the statute (2 Rev. Stats. 405, § 2,) fix the meaning of the legislation with a clearness not to be strength- ened by explanatory comments. The day of departure is the point from which the limitation commences running, and it becomes final at the expiration of twelve days after that day. The reasons upon which the legislation on this subject rests, also demand this construction of the law, in so far as it applies to cases not constituting maritime liens to be enforced by Admiralty courts under their general jurisdiction. Those 1 Since reported, OleoU, 401. FEBRUARY, 1848. 171 The Alida. courts take no cognizance of such claims against domestic vessels in their home ports, excepting in execution of the local law. It is accordingly the lien of the artisan or furnisher, as recognized at common law, that the legislature had in con- templation and sought to extend. The Marion, 1 Story, 68 ; Moore v. Hitchcock, 4 Wend. 292. See, also, Harper w. The New Brig, 5 Gilp. 536. The common-law lien was depend- ent upon the actual holding in possession of the thing to which it attached, and any surrender, however brief, of such possession,, divested or discharged the Uen. So, when actual possession of the thing was not acquired, the lien never attached. Story on Bailm. §§ 440, 588 ; Exp. Foster, 2 Story, 131 ; Meary v. Head, 1 Mas. 319. This rule of law mani- festly left mechanics, material-men, and others who furnished stores to vessels while anchored in port or moored at the dock, yet remaining in possession of their owners, masters, and crew, without other security for their claims than the per- sonal responsibility of their agents or owners. This mischief is remedied by a statutory liability, having all the virtue of a common law and maritime lien, not only while the vessel is under the hands of her creditors, but for twelve days after she departs from the port where the debts were contracted, to any other port within the State. While there is an impressive equity in affording to credi- tors some means of protection against the sudden removal of vessels from under their hands, thus cutting off their security, it is plain that the legislature meant also to guard the public against prejudice from these tacit and secret claims. They are permitted, accordingly, to continue in existence for a short period after the vessel has gone from their quasi occupancy and possession. It is proper that sufficient time be allowed to enable the creditor to enforce his right ; but no reason de- mands that these hens should be allowed to float with the vessel, going out of the port and coming back with her to it, so long as she may continue to revisit it, without her absence 172 CASES IN ADMIRALTY. The Alida. exceeding twelve days. On the contrary, this would tend to mislead and prejudice subsequent purchasers and creditors, as such prior lien, if sustained, would hold its preference against all subsequent claims, (Rankin v. Scott, 12 Wheat. 177,) and thus would be withdrawn all the protection which the limitation of time prescribed by the statute was designed to secure. The Supreme Court of this State have evidently so under- stood the provisions of this act in Hancocks v. Dunning, 6 Hill, 494. They preserved the lien in that case only because the vessel had not left the port or State within the meaning of the act. She had only gone out on an experimental trip to try her boilers, and it was held that the touching at a New Jersey port, while on such an excursion, did not divert the lien. The language of the Court suggests that the present case would be regarded as coming within the limitation. The Court say : " The reasonable construction is, that the • lien ceases when the vessel departs from the port where the repairs were made, or leaves the State, upon a voyage or trip m the pwrsuit of some kind of trade or business." The boat in this case was running in steady employment as a pas- senger vessel, loading and unloading daily at the port of de- parture and destination, and completing her voyage on her arrival at the latter. The case of Dennison v. The Schooner Apollonia, (20 Johns. 194,) relied upon on the argument, turned upon the language of the State act of 1817. Laws of 1817, 49, c 60, § 1. This provision is not incorporated in the Revised Statutes, and it is exceedingly difficult to comprehend what is intended by it. There is probably a misprint in the proviso ; but as the decision of the Court was upon a point of pleading, the only inquiry was whether the pleading had stated the case provided for by the act, and no attention seems to have been paid to the import and effect of the clause itself upon the rights and remedies of privileged creditors. FEBRUARY, 1848. ' 173 The Allda. The proviso was, " That the said lien shall in no case endure beyond twelve days after such ship or vessel shall- leave the port in which the -same may have been arrested." The plea in bar to the proceedings was, that the vessel left, and for more than twelve days continued absent from the port where the supplies, &c., were furnished before her arrest. The Court held the plea bad, because it did not state the cause which exonerated the vessel jfrom the lien ; — ^that is, her arrest, before her removal, and then her continuing absent more than twelve days after the arrest. No principle iaset- tled by that case which is applicable to this. I am, accordingly, of opinion, that any indebtedness to the libeUant, which was a lien upon the boat, ceased to be so after the expiration of twelve days from her leaving Albany, and subsequent to the time the debt was due. The last charge made against the boat by the libellant, • September 24, being for less than $50, no lien arises in his favor for it, and upon the considerations stated, he cannot maintain the suit for the antecedent credit. Libel dismissed with costs. The Alida. Where a writing, although emhodying an agreement, is manifestly incomplete, and not intended by the parties to exhibit the whole agreement, but only to define some of its terms, the writing is conclusive as far as it goes ; but such parts of the actual contract as are not embraced within its scope, may be established by parol evidence. The owner of a steamboat, and a corporation engaged in the business of supplying coal to steamboats, had for some months been accustomed to deal with each other for the supply of coal required by the boat ; the requisite supply for her wants upon each trip being furnished her on each arrival. Under these circum- stances the owner executed a written memorandum, acknowledging that he had purchased 1 500 tons of coal at a specified price per ton j which was, however, silent as to time and mode of delivery and payment. 15* 174 ■ CASES IN ADMIRALTY. The Alida. Hdd, — 1. That the previous course of dealing between the parties might be shown, to establish their intention in regard to these points. 2. That upon this evidence the contract must be construed as intending a delivery of the coal from time to time as it might be ordered to meet the wants of the boat, and as creating an obligation to pay for each parcel of coal as deliv- ered. A steamboat is subject to a lien under 2 Revised Statutes, 493, for fuel furnished her for the purposes of her navigation. The lien for labor, supplies, &c., furnished to vessels, given by 2 Revised Statutes, 493, takes effect from the time when the benefit is actually conferred, not from the date when it is engaged or contracted for. Tpis was a libel in rem, by the President, Managers, and Company of the Delaware and Hudson Canal Company, against the steamboat Alida, to recover for supplies of coal furnished that boat. The action arose out of the following facts : — The UbellantS' corporation were the owners of the Lackawanna coal beds, and were engaged in supplying coal extensively to steam- boats. Their course of business was, to deliver the coal in carts from the yards of the company as it was required for use, and to render bills therefor regularly about once a month, to those receiving the supplies, and to collect the amounts within a few days afterwards, allowing a reasonable time for the examination of the bills. The Alida was built during the winter and spring of 1847, and was employed during the navigation season of that year, in running between New York and Albany as a passenger boat. She was accustomed to leave New York on Mondays, Wednesdays, and Fridays of each week, returning the alter- nate days ; and she usually, on her arrival down, received coal sufficient to supply her run up the next day. The libel- lants were accustomed to supply her with coal ; and it was proved by the books of the libeUants, which were put in evi- dence by the claimants, that the libellants supplied the boat, in this city, on March 19, 1847, with four tons of lump coal, at $5.50 per ton ; on April 10th, with ten tons at the same price ; and on alternate days during the residue of the same FEBRUARY, 1848. 175 The Alida. month, with 141 tons, generally furnishing a little more than twenty tons per day, at $5 per ton. In like manner the boat received in May, 245 tons in New York ; eight tons at Kings- ton, at |4.50; and at Rondout 349 tons, at $4; the latter quantity being delivered together. In the same manner she received, in New York, during the month of June, 303 tons, at, $4.50 per ton ; and in July, up to and including the 10th, 123 tons, at the same price. The total price of these supplies was |4,557.70. Payments were made on June 23d, of $782, and June 30th, of $2,858.70, leaving a balance which remained due up to July 12th, of $917. On the last-mentioned day, William R. MqCullough, of New York city, then the owner of the boat, made an engagement with the UbeUants' corpora- tion for further supplies of coal. The only direct agreement proved was a memorandum in the following words, written by McCullough, in the books of the Hbellants : — Steamboat Alida. I have purchased this day of the Dela- ware and Hudson Canal Company, five hundred tons of lump coal, to be delivered at Rondout, at $4,622^ per gross ton, less 12^ cents per ton for cash, to August 1st. Also, one thousand tons of lump coaj, to be delivered from yards in New York, at $5 per net ton, to be dehvered by carts. Wm. R. McCullough. New York, July 12, 1847. From this time the delivery of the coal continued in the manner practised theretofore. On each arrival of the boat in New York She received almost uniformly twenty-four toiis at a time ; the smallest quantity being once twenty tons, and the largest twenty-five tons three times. - On August 2d, the suni of $1,363.50 was collected by the libellants, and on August 31st, $2,145. The collecting agent of the libellants was accustomed to present the bills to McCullough, through- out the season, for each month's delivery of coal, and he also 176 CASES IN ADMIRALTY. The Alida. used to call a few days after the presentation of the bills, when he received the payments as credited. When he pre- sented the bill for September, McCullough promised to pay the amount due in a day or two. On Monday, September 20th, McCullough transferred the boat to another person in trust ; but the custom-house officers refusing to register that conveyance, a regular bill of sale to E. Stevenson, was executed on the 21st, and on the 27th, Steverison conveyed her to Orvin Thompson. The failure of Stevenson was publicly known in the city on the 21st of Sep- tember. It was on that day, also, that the vessel was attached on the libel filed in this cause. . The action was now before the Court for hearing on the pleadings and proofs, and was heard at the same time with the action by James O. Haight against the same boat, a re- port of which case immediately precedes this. William H. DeForest and S. P. Staples, for libellants. Smith Sf Woodward and Mr. Crist, for claimants. Betts, J. I am of opinion that the evidence offered of the course of dealing between the parties during the early part of the season is proper and relevant, to show the relation in which the parties stood to each other, and the character of their mutual dealing, and that it affords a safe guide to the intention and meaning of the written memorandum of July 12th. That agreement, as reduced to writing, most mani- festly does not represent the entire bargain and understand- ing between the parties. It is not to be supposed that either of them contemplated an instant sale of fifteen hundred tons of coal, which the libellants could at once deliver and compel payment, or require payment in advance, or which McCtd- lough had a right to demand, in toto, on the signature of the paper, or on any day he might designate. The obvious pur- pose of the parties was to arrange the prices which should be paid for the coal, and to fix the quantity which should be FEBRUARY, 1848. 177 The Alida. supplied at those prices, and accordingly a mere note or memorandum was made of those particulars, leaving the mode of supply, in respect to time, amount, &c., to continue as theretofore. A stipulation between vendor and vendee, circumstanced as these parties were, if intended to contain the whole contract, would naturally, if not necessarily, define with precision the rights and obligations of each under it, specifying the periods and quantities of delivery, and the terms of payment. The parties to this agreement had'been, at its date, engaged in dealing together for more than three months, in the very matter to which the agreement related, and they both perfectly understood the general usage of that branch of trade, and their own respective means and'wants. The libellants knew that McCuUough was running a day boat on the river, which consumed more than twenty tons of coal on each trip ; and McCuUough well knew that they had command of the fuel usually required and obtained for the use ■x)f steamboats, and there was an established usage between them to furnish and receive a daily supply at ttie current market prices, payable on delivery. Both were willing to make an arrangement which should relieve this trade between them from the uncertainty of price to which coal is subject in the general market, and which the proofs show had occurred within the previous three months, to the advantage and dis- advantage of each, compared with the standard, adopted in the agreement. Thus the circumstances under which the agreement was made have a most important beaming in deter- mining the actual intention of the parties, if the Court is not required, in determining that construction, to lay out of view every thing extraneous to the writing itself. It is very clear, upon the authoritiies, that this agreement, being manifestly incomplete and intended to define not the , entire contract but only one or two of its terms, the circum- stances of the case, and especially the previous course of deal- ing between the parties may be resorted to, in order to supply 178 CASES IN ADMIRALTY. The Alida. those parts of the contract which are not within the scope of the memorandum, as well as in determining the sense of un- certain or ambiguous words. Had this writing been a formal obligation under seal, the circumstances in proof might right- fully be noticed in ascertaining the meaning of the parties ; and a mere parol memorandum, not amounting to a complete agreement, can incontestably be construed with reference to extraneous facts which tend to determine the motives and intentions governing its adoption. Thus it is said that the rule which forbids the admission of parol evidence to contra^ diet or vary the terms of a written instrument, is directed only against the admission of any other evidence of the Umgimge employed by the parties making the contract than that which is furnished by the writing itself. But the writing may be read by the light of surrounding circumstances, in order more perfectly to understand the intent and meaning of the parties. 1 Greenl. Ev. §§ 275, 277, 287, 288 ; Chitty on Contr. 24, 25; 7 Mete. 583. The Supreme Court of this State, in 1815, in McMillen v. Vanderlip, (12 Johns. E. 165,) held that the rule governing the construction of contracts ought to be discharged of all subtlety, and that they should be expounded according to the real intention of the parties. So, in South Carolina, it is dis- tinctly held that loose memoranda, not containing a complete agreement, are open to explanation by parol proof. Stone v. Wilson, 3 Brev. 288. So, in Missouri, the Court holds the rule to be that parol evidence is admissible to show the time, place, and manner of performing a written contract which is silent upon those subjects. Benson v. Peebles, 5 Mo. R. 132. So, also, the Supreme Court of New York, in The Farmers' and Manufacturers' Bank, (23 Wend. 419,) admitted parol evi- dence where the agreement was in writing, to show the nature of the transaction, and the object and purpose of the parties. The case of Potter v. Hopkins, (25 Wend. 417,) decided in the New York Supreme Court, in 1841, is a clear authority FEBRUARY, 1848. 179 The Alida. upon this point. In that case, the contract between the par- ties was originaDy in parol, but was in part expressed in a receipt given for the first payment made under the agreement. The receipt being put in evidence on the trial, an objection was taken, that the party could not be allowed to prove the previous parol agreement, because such proof amounted to the contradiction of the writing ; but the Court held that the instrument in question did not purport, on its face, to be a complete arrangement between the parties, but was obviously given as an acknowledgment of part execution of a contract, referring to some of its terms. It was held that the instru- ment was binding as far as it went, but that, as to such parts of the contract as were not embraced within the writing, parol evidence was admissible. There are many other cases which sustain this doctrine. See Hunt v. Adams, 6 Mass. R. 519 ; Barker v. Prentice, lb. 434 ; McCullogh v. Girard, 4 Wash. a a R. 292; Mead v. Stager, 5 Port. 505 ; Commissioners v. McCalmont, 3 Perm. R. 492 ; Sharp v. Lipsey, 2 Bail. 113 ; Knapp V. Harnen, 1 Gale, 47 ; Reay v. Richardson, 2 Crompt. M. 8f R. 427 ; Ingram v. Lee, 2 Campb. 521 ; Hall v. Mott, £rai/t. 81 ; Tisdale v. Harris, 23 Pick. 12. The case of Jeffrey v. Walton, (1 Stark. 167,) is perhaps more analogous to that now before the Court than either of those yet mentioned. That case was assumpsit for damages receivnd by a horse hired by the defendant from the plaintiff. At the time of the hiring the plaintiff told the defendant's agent, who applied for the horse, that if he took him on hire he must be liable for all accidents. The agent engaged the horse on this condition, and the following memorandum of the terms was made in writing : — " Six weeks, at two guineas. " William Walton, Jun." The counsel for the defendant contended on the trial, that 180 CASES IN ADMIRALTY. The Alida. this memorandum was to be considered as the real contract between the parties, having been made according to the evi- dence immediately upon the close of the agreement, and that it was not competent to the plaintifT to engraft upon it a fur- ther term by means of parol evidence. And, consequently, that this was nothing more than an ordinary case of hiring, in which accidents of this nature were to be borne by the person who let the horse. But Lord Ellenborough said : " The writ- ten agreement merely regulates the time of hiring and the rate of payment, and I shall not allow any evidence to be given by the plaintiff in contradiction of these terms ; but I am of opinion that it is competent to the plaintiff to give in evidence suppletory matter as a part of the agreement." In my judgment, therefore, this memorandum, if read in view of the proofs in the case, did not in any way vary the relation of the parties in their dealings in the matter, except- ing in respect to the prices chargeable for the coal. The libellants were bound under it to deliver the coal as before, from time to time when it might be demanded, and only in the quantities required at each time ; and McCullough was bound to pay for each parcel of coal on delivery. Each de- livery created a debt to the value of the coal delivered, and that debt was payable immediately. The acts of the parties after the agreement are, moreover, fully in accordance with this exposition of their meaning, derived from their pfcviona usage. Coal was supplied to the boat at each trip, and only enough to meet her consumption on the run. The bills were rendered as they previously had been, and collections were made upon them as being then due and payable. It is plain that McCuUough so understood the rights of libellants and his own obligations, because he promised their collector, in September, to make immediate payment of the balance in arrear. It appears to me, also, that the words themselves of the memorandum may reasonably be considered to coincide with FEBRUAEY, 1848. 181 The Alida. this interpretation, collected from the course of dealing be- tween the parties, and that they by no means import a con- tract of sale of fifteen hundred tons of coal as an entirety. Five hundred tons are deliverable at Rondout, at $4,625 per ton, less 121 cents per ton for cash, to the 1st of August. This latter provision fairly implies an understanding that a part only of the stipulated quantity might probably be called for before August. It seems to me the meaning to be attached to the clause, construing '^he memorandum by itself alone, is that whatever part of the five hundred tons McCul- lough chose to take from Eondout, between July 12th and August 1st, he should receive at $4.50 per ton, paying cash on delivery, while that taken afterward should be at $4.62^ per ton ; and that, consequently, it was at his option to order the whole or none on the lower terms. There is no indication in the memorandum that it was the duty of the libellants to make immediate delivery, or that they had a right to deliver the whole five hundred tons at their election immediately after the signature of the agreement. The one thousand tons contracted for in New York were to be delivered from the yards and in carts. This manifestly contemplates a delivery in parcels, and at distinct times. If lump coal from yards is an article different from and superior to coal brought to market in barges and in bulk, and the con- tract can only be satisfied by supplying coal of that descrip- tion, there could still be no reason for defining the method for transportation other than this, that the understanding between the parties contemplated the furnishing the coal in small lots when called for, according to the known usage of the trade, and the particular wants of the libellants. I should have no difficulty, accordingly, in holding the agreement, even as evidenced by the memorandum itself, to be .that the libellants should furnish the stipulated quantity of coal as it might be ordered by McCuUough, and that they were entitled to payment upon each order as it was fulfilled. VOL. I. 16 182 CASES IN ADMIRALTY. The Alidi. The cases cited to show that this contract must be con- strued as an entire one, under which the libellants had no right to demand any payment from McCullough, without showing either full performance on their part or a legal excuse for non-performance, do not, in my opinion, exclude the con- struction which I have placed upon the memorandum. In Mc- Millen v. Vanderlip, ab-eady cited, (12 Johns. 165,) the piaintiif had hired for ten and a half months, under an agreement to receive wages upon a certafn mode of computation, based upon the amount of work done by him ; and he left his employer be- fore the completion of the term agreed for. The Court held that the engagement of the plaintiff to work out the whole period was a condition precedent, necessary to be performed before the defendant could be held liable for his wages. The principle of that decision does not, however, reach this case, for here is no agreement to deliver the whole fifteen hundred tons of coal before the price is payable. The analogy would have been a strong one had the stipulation been to deliver the fifteen hundred tons at or within a certain time, and for a specified amount of money, in gross or per ton. The case of Champlin v. Rowley, (18 Wend. 187,) was an analogous case to McMillen v. Vanderlip, and the decision there was only that an agreement to deliver a particular amount of hay, at a given time, must be performed entirely, or that no liability upon it accrued to the vendor against the purchaser. The case of Waddington v. Oliver, (5 Bos. 4- P. 61,) was a case of like description. The agreement there was to deliver a hundred bags of hops before the first of January. A part were delivered in December, and immediate payment for them was demanded, and on refusal to pay, suit was brought for their value forthwith. It was held that the action would not lie for two reasons : first, because the plaintiff had not per- formed the whole of his contract ; and second, because the time in which the contract was to be completed on both sides, had not arrived when the suit was commenced. The Su- FEBRUARY, 1848. 183 The Alida. preme Court of this State held, in McMillen v. Vanderlip, that the first reason is a legal and satisfactory one. It is manifest, however, that the agreement in that case stipulated for a complete execution upon the part of the plaintiff by a given day, and accordingly gave an element of entirety to the contract which is not found in the one now before the Court.^ The contract in the present case is destitute of that ingre- dient. There is no time stipulated at or within which the coal must be delivered, either at the beginning or close of the season, or within one or severa^ seasons. That circumstance, it seems to me, is significant to show that the parties never contemplated a purchase or sale of fifteen hundred tons of coal as an entirety. That would have placed the purchaser who required a daily supply of fuel sufficient for his boat, quite at the discretion of the vendors, who would be in no way bound to furnish it with reference to the wants of the boat, but might follow their own convenience. And, accord- ingly, to uphold and carry into effect the plain meaning of both parties, the memorandum must be regarded as fixing only that term of the contract which was loose and indefinite before, namely, the price to be paid ; and all else must be regarded as intended to be left upon its former footing. If the memorandum imports an entire agreement, then the libellants could rightfully perform the whole at once, (except, perhaps, delivering the five hundred tons at Rondout,y and as no time was fixed for the delivery, they might have elected to make it after the navigation of the river had closed for the season, and indeed without any reference to the wants of the boat during the season. No Court would close its eyes to the manifest purpose of the parties in the agreement, and to all the con- ~w • The cases upon the general subject of the dependence or independence of contracts, may be found examined in the note of Sergeant Williams to Peters v. Opie, (3 Wms. Saund. 352, n. 3,) and in the note of Mr. Wendell to the case of Champlin v. Rowley, (18 Wend. 194.) 184 CASES IN ADMIRALTY. The Alida. eomitant facts tending to establish that purpose, so as to sus* tain a mode of execution which might wholly subvert its object, and the motives of the parties making it. If, then, under the general phraseology of the memorandam, there is to be implied, in behalf of McCullough, a right only to the delivery of coal when ordered, because that construction only is consonant with the relations of the parties and the plain object of the bargain, though not expressed upon its face, the like reason exacts in behalf of the libellants that the implica- tion should be raised to protect them, in parting with so large an amount of property, from being compelled to rely solely on the personal credit of the purchaser — an obligation not assumed by them in the agreement, and which had never attended similar transactions between the parties. These views in relation to the memorandum rest upon the assumption that it is to be regarded a contract on the part of McCullough, and as thus creating, by implication, corres- ponding engagements on the part of the libellants, so as to have the same effect as if it expressed a stipulation by them to deliver to him five hundred tons of coal at Rondont, and one thousand tons at their yards in New York. But the circumstance should not be overlooked, that the memorandum msiy feasonably be understood as no more than an admission on the part of McCuUoxigh, that he had pur- chased such a cfhantity of coal at the prices stipulated ; and as not meant to fix the terms of his contract beyond that, much less to regulate the manner of performance on the part of the vendors. He takes no assurance or engagement from them. There is not the mutuality essential to a contract to render it obligatory to both parties. Ghitty on Contr. 3, 108. -And this admission of purchase by him, not asserting any condition of crecnt or entire fulfilment of the sale by the vend- ors, would place him on the footing of an ordinary purchaser, who is bound to pay for the article bought on its delivery. Com. on Contr. 182. So he understood his own obligation^ FEBRUARY, 1848. 185 The Alida. and both parties having throughout acted upon that, as the true meaning and design of their arrangement, and it being no way inconsistent with what is stated in the memorandum, I hold that the libellants were entitled to demand payment on each delivery of the several lots or quantities of coal ordered by McCuUough. A steamboat is subject to a lien under the State statute for fuel furnished her for the purposes of her navigation. 2 Rev. Stats. 493, § 1. In the case of Johnson v. The Steamboat Sandusky, (5 Wend. 510,) which was decided in the New York Supreme Court, in October, 1830, it was held that a party who had furnished wood to a steamboat, to be used as fuel for the purpose of propelling her, was not entitled to a lien therefor. The supplies contemplated by the act, it was said, " must be such as enter into the construction or equip- ment of the vessel and become part of her, and not such arti- cles as are daily consumed and constantly replaced. They must be such as go towards the building, repairing, fitting, fv/rnishin^ and equipping a vessel." That case was decided under the act of 1817. In the case of Crooke v. Slack, (20 Wend. 177,) the same Court held that the word " stores " introduced into the Revised Statutes on the subject, embraced fuel furnished to a steamboat as a particular now entitled to a lien. This Court, in the case of the Steamboat Fanny, (decided in February Term, 1841,) followed the construction of the statute given by the State Court in the case of the Sandusky, although not satisfied with that exposition. I now readily conform to the later interpretation of the statute by the local Court, without inquiring whether there is any essen- tial difference in the provisions of the two statutes. The lien, however, upon the principles laid down in the case of Haight v. The Alida,i heard at the same term with 1 Reported ante, 165. 16* 186 CASES IN ADMIRALTY. The Alida, this cause, is available to the libellants to the extent of such amount of coal only as was delivered to McCuUougb within twelve days before this suit was brought and after the depart- ure of the boat on her regular trip to New York, This would include the coal delivered from September 9th to the com- mencement of the action, being one hundred and twenty torts',^ at five dollars per ton, amounting to $600. For the residue of the quantity delivered the libellants have lost their remedy against the boat. It is contended for the claimants, that any lien which migbt have existed for the balance of $600 is discharged ; because, by the act, it arises at the time the debt is contracted, and within the purport of the statute the debt was contracted on the 12th of July, after which day the boat continued to de- part from New York for the port of Albany every alternate day, until Sept^m;ber 21st, following, and a period exceeding twelve days after every such departure had elapsed before the institution of thiS' suit. It is manifest that the provision of the statute has relation to subsisting debts due and payable for supplies, materials, dnd labor furnished vessels, and not to initiatory and execu- tory bargains out of which a debt may arise. A different construction of the statute would subvert the whole purpose and policy of the privilege, which is intended to give security for labor and materials actually furnished to vessels, and not to the mere contract or stipulation to supply them. These contracts are, probably, in most instances, entered intc in anticipation of the time when the vessel is to receive the repairs or supplies, and she often continues her businessj leav- ing the port where the contract is made and returning again, until the period atrrives for its fulfilment. The anchors, spars, pigging, cables, sails, &c., which she requires, must often be in course of preparation by the furnishers, under their con- tracts, for considerable periods of time, during which she awaits their completion or pursues her employment. After FEBRUARY, 1848. 187 The Alicia. she has received supplies, under such circumstances, to hold her discharged from liability on the ground that more than ■twelve days had elapsed after her departure from the port since the contract was entered into, tvould render the assur- ance held out by the act to creditors a sheer delusion. I can- not perceive the slightest color for such interpretation of its enactments.^ The cases cited upon the argument in support of that con- struction, (Moss V. Oakley, 2 Hill, 265 ; Moss v. McCuUough, 5 lb. 131,) relate to subjects widely different and distinct in principle from this class of liens or charges, and have very Slight, if any, analogy to the point in controversy here. They apply to the obligation of a stockholder in an incorporated company to pay the debts of the company, contracted whilst he is a corporator, and only touch this case in so far as the inquiry when a coiftract is considered in law to be made and obligatory. The act of incorporation in those cases made every stockholder liable for debts incurred by the corporajp body while he was a stockholder. Those cases were claimed to fall within the purview of the statute ; and in each the Court decided that the debts sued for had been contracted by the corporation within the period the defendants were stock- holders. The first case turned upon a question of pleading, — ^whether it was necessary to aver that suit had been brought whUe the defendant remained a stockholder, and the other upon the effect of a judgment obtained against the company, as evidence to charge an individual stockholder with the debt. The principle involved in that statute, as expounded by the Court was, that the stockholder was surety for all debts of • The same view was taken by the New York Court of Appeals, in Velt- man v. Thompson, (3 Comst. 438.) It was held, on the authority of the de- cision in our text, (which was cited in MSS.,) that "The statute has relation to a subsisting debt for supplies, materials or labor furnished vessels, and not to the initiatory liargain out of whichthe debt may arise." 188 CASES IN ADMIRALTY. Manning v. Hoover. the company, and that of course his liability would attach concurrently with that of the company at the time the debt was contracted. But neither case turns upon the point, or even adverts to it, whether conditional contracts, before fulfil- ment of the condition on the part of the creditor, come within the privilege. That question could hardly become a practical one under that statute. ; It has been already sufficiently shown that no debt sub- sisted against McCullough on his undertaking untU the libel- lants had delivered coal to him ; the liability of the boat is. incident and consequent only to the debt when it has been thus created and perfected. This was so in this case, on September 21, 1847, for the value of the quantity delivered that day. Decree for the libellants for $600, and interest from that day, and costs to be taxed. , • Manning v. Hoover. A shipper of a cargo of grain who takes no bill of lading from the carrier, is bound, in an action brought to recover for short delivery, to prove the amount delivered by him to the carrier to be transported. A variance between the amount of a cargo of grain as stated in the measurer's bill in lading it on board, and the amount of such cargo as ascertained on delivery at the port of consignment, may be explained by showing that the mode of ascer- taining the quantity is such that similar variations are necessarily of frequent occurrence.! This was a libel in personam, by StiU Manning against Norman C. Hoover, owner of the sloop Cornet, to recover damages for non-performance of a contract of affreight ment. Compare the case of Manchester v. Milne, ante, 158. FEBRUARY, 1849. 180 Manning *. Hoovei^. It appeared, in this case, that the libellant was the ownet of 1857 bushels of corn, and 76 bushels of wheat, stored at the city of Brooklyn^ The defendant contracted to carry the grain in his sloop to the city of New York, at a specified price per bushel. He received the corn on board his vessel, and was paid freight for the whole quantity ; but the quantity actually delivered by him at New York, as there measured by weight, was only 1759 bushels, 24 lbs., thas leaving A deficiency of 97 bushels ; to recover for which this action wa& brought. The defence was, that under the circumstances of the case, the loss was to be attributed, not to any default on the part 6f the vessel, but to inaccuracy of measurement, and to waste necessarily incidental to the lading and unlading of such a eargo. The evidence upon this point is fully stated in the opinion. D. McMahon, Jr., for libellant, I. It is unnecessary for the libellant to show negligence oft the part of the carrier. It is suflJcient to show the shipment of a certain quantity, and it is for the carrier to show either a complete delivery or an excuse by vis major. He is liable for all thefts, robberies, and embezzlements by any of the crew, or by any other person, althodgh he may have exer- cised every possible vigilance to prevent the loss ; [Story on Bailm. 528 ;) and the mere fact that the owner or his servants go with the goods, if the other circumstances of the case do not exclude the custody of the carrier, will not of itself exempt him from responsibility. Story on Bailm. 533. II. The master and owners of a ship are responsible for the goods which they have undertaken to Carry, if stolen or em- bezzled by the crew, or any other person, though no fault or negligence may be imputable to them. Schieffelin v. Harvey, 6 Johns. 170. III. The master and owners of vessels who undertake to carry goods for hire are liable as common carriers, whether 190 CASES IN ADMIEALTY. Manning v. Hoover. the transportation be from port to port within the State, or beyond sea, at home or abroad ; and they are answerable as well by the marine law as the common law, for all loss not arising from inevitable accident, or such as could not be fore- seen or prevented. Elliott v. Russell, 10 Johns. 1 ; Kemp v. Coughtry, 11 lb. 107 ; McArthur v. Sears, 21 Wend. 190. IV. Where the goods are embezzled or lost during the voy- age, the master is bound to answer for the value of the goods missing, according to the clear net value of goods of like kind and quantity at the port of delivery. Watkinson v. Laugh- ton, 8 Johns., 213. V. K freight be paid in advance, and the goods be not car- ried by reason of any event not imputable to the shipper, it may be recovered back. Watson v. Duykinck, 3 Johns. 355. VI. In an action for the non-delivery of goods, pursuant to a contract of affreightment, the measure of damages is the value of the goods at the port of destination, but without interest, unless there has been fraud or misconduct on the part of the defendant. Amory v. McGregor, 15 Johns. 24, 38. Betts, J. Assuming the subject-matter of this action to be within the cognizance of this Court, the question upon the merits is whether the respondent is chargeable for the quan- tity of grain represented in the bill of measurement to have been delivered on board his vessel for transportation. The evidence shows that the respondent had no agency in measuring or weighing the grain when put on board, or at its unlading and delivery. The libeUant employed his own agents to transact that business at each end of the voyage. The owners of the store where the grain was on storage would not permit the measurer employed by the libeUant to make the weight or measure of the corn ; their clerk meas- ured it and kept his own tally, and by his certificate or return of weight and measure it appeared that there was put on FEBRUARY, 1848. 191 Manning v. Hoover. board the lightei the quantity in bushels claimed by the libellant. The statute of this State fixes the legal capacity of the bushel by measurement, (1 Rev. .Stats. 2d ed. 621, § 19,) and the weight of corn which shall constitute a bushel at fifty-sbc pounds. lb. § 40. The contract for the carriage of this cargo was by the bushel. No bill of lading appears to have been executed, but the certificate or account rendered by the ware- houseman of the quantity of corn delivered to the vessel was accepted and acted upon as accurate by the parties, in paying and receiving the freight for its transportation. . The method commonly pursued in this port by dealers in grain for ascertaining the quantity, (and \vhich was adopted substantially in this case,) is to measure it in a half-bushel by tale, tallying at each count of five measures, and to weigh one measure out of ten tallies, or one bushel out of every hundred measured, or other assumed proportion. The multiplication of the sum of the tales by fifty-six is assumed to show the quantity of bushels contained in the mass. The warehouse- man refused in this case to permit the corn to be measured and weighed by any person except his own weighers. The libellant employed a measurer of» grain to attend for him at the warehouse where this grain was stored and see to its de- livery. He was present, and overlooked the tallies of the measures and weights as they were taken from the measur- ers and entered by the clerk of the warehouse, during the delivery of four or five hundred bushels, and saw that they were correctly stated by him. The residue of the delivery was made by the warehouseman alone. The cargo was also unladen at New York, from the lighter, under the superintendence of the libellant's agents only. It is fully proved that this compound method of measure- ment never works out a perfect concurrence in the two results. There is invariably a difference between the quantity given by the tales of measurement and the product in weight so X92 CASES IN ADMIRALTY. Manning v. Hoover. obtained, at tiijies amounting to an important per centage, but more usually not exceeding about five per cent. The evidence discloses several cases of that difference. The grain js shovelled into the measure by laborers, and then a ineas» urer strikes or evens the measure. When the grain is thrown in heavily by the shoveller, or is shaken strongly or evened loosely by the measurer in striking, the weight of the fall measure will be augmented, as will the measured dimension of the mass be diminished, and consequently, the tale line of the return will be reduced, as it may be unduly increased by an opposite irregularity in filling the measure, A difference of but one pound weight to a bushel, by either mode of manipulation, would create a variance in the computation of 1800 bushels, charged as delivered, of over thirty bushels in actual quantity, not participated in mutually by vendor and vendee, but operating exclusively to the advantage of one alone. These differences are usually made to harmonize by pound allowances or estimates, and that method may be fair enough where both parties have been present at the weighing and measuring ; but it is governed by no rules or data capable of securing certainty, so as to constitute it a safe law to be enforced against' a stranger to the process. The enumeration of bushels in this case was obtained by compounding the hand-measure in half bushels of the whole bulk, with the \yeight of the several individual measures, and the sum in pounds, so produced, determined the quantity of bushels in the cargo. This method of determining the quan- tity was acted upon by both parties in fixing the amount of freight, but is not conclusive between them on the question whether the lighterman delivered to the shipper the whole quantity of grain received on board the vessel ; for not only the circumstances stated necessarily lead to uncertainty and variations as to quantity in every measurement made, but moreover, a cargo loaded and discharged in the manner adopted in this case is subject to other causes of wastage and diminution. FEBRUARY, 1848. 193 Manning v. Hoover. After being weighed in the loft of the store, it was, on a ,3vindy day, run down to the hold of the sloop in an open pipe or trough exposed to the air. The .evid,ence proves that by tjius fanning o,i;it the chaff and light matter, a considerable diminution of bulk necessarily ensues, and by reason of this, and of the waste in shovelling arid measuring adv;erted to, there would almost unavoidably ,be found on delivery a differ- ence betweep the amount returned as takej^ on board and the one discharged, even when the same mode of ascertaining the quantity is ernployed in both instances, and that differ- ence is augmented if the measure alone is used in one case and weight in the other. Some of the witnesses attempted to make out average computations of loss or gain on these heads ; but it is obvious that estimates so formed can afford no satisfactory exactness in a glveij instance ; it must be purely matter of conjecture whether under or over five per cent, would ,be lost. The respondent proved,- by the two mei;! in charge of his vessel, that one of them remained constantly p,n bo^jd the vessel while the grain was there, and that none of it was removed by them or with their knowledge, except by the libellant's agents ; and they testify tha,t they do not believe it would have been possible for any to have been taken out of the vessel without their knowledge. Conceding to the Hbellant the case in the strongest form in which he places it, that the respondent, as lighter^r, stood in the character and assumed the liability of a common carrier, and was responsible fox the whole quantity of grain .put in his charge, the position must be taken also with the qualifica- tion, that he must prove the quantity placed on board, and that less than that quantity was delivered out to him. Both, the acts of lading and unlading were his own, to the exclu- sion of the regporident, and he must prove, beyond reasonable question; that he did ,iiot receive from the defendawt all the grain dcilivered on board of his vessel. The evidence on his VOL. I. 17 194 CASES IN ADMIRALTY. Manning v. Hoover. part may be primd facie sufficient to lay a foundation for the presumption that such is the fact, and that the deficiency arose either from loss in the transportation of the cargo, or from its embezzlement by those in charge of the vessel, or from its unlawful abstraction by others. For losses of that character the respondent would be liable. The testimony, however, which has been produced by the respondent, removes all the essential grounds for either pre- sumption, and places the case upon the question of the accu- racy of the measurement in lading and unlading the cargo. The case then stands thus : — On the supposed quantity of 1857 bushels of corn, charged lagainst the respondent, the defendant has sustained a loss of about "97 bushels, or over five per cent, of deficiency. The measurer employed by the libeUant supposes that ordinarily in loading grain by weight, and delivering it by measure, the difference in quantity found would be very slight, and if there were any, it would be ordi- narily rather in favor of the carrier. The excess, he thinks, would be about five bushels to the thousand. But he says that shovelling by hand, for the purpose of measurement, will sometimes make a difference against the carrier of about four ounces to the bushel, which a little exceeds five per cent. In this case he found a difference, on delivery, of five bushels, between weight and measure. Another witness, a weigher and measurer by occupation, supposes that 1800 or 1900 bushels of corn, shipped by weight, would usually deliver a less amount by 30 bushels, the quantity being determined in the same manner. If the grain is loaded in a high wind, the blowing out of chaff, he thinks, would lessen the measure considerably. He has never found the same quantity on re- measurement as on the first trial; there would always be some excess or deficiency. As a general rule, he should expect that one thousand bushels loaded by weight would deliver twelve bushels more by measure. According to his experience, the mode of shovelling may easily make a differ- FEBRUARY, 1848. 195 Manning v. Hoover. ence of one pound or more to the bushel. A third witness, Mr. Verplanck, proves that the amount put on board was determined by weighing it in lots of twenty-five bushels each. It was weighed by his clerk, without his personal superinten- dence. It also appears that freight was charged and paid, accord- ing to the statement of the quantity made by the weigher. I think that upon aU the proofs, the inference is just as direct and satisfactory that less thari the named amount of corn was laden on board the vessel, as that the defendant delivered less than he actually received. In order to charge him with a supposed deficiency, the preponderance of evi- dence must be decidedly in favor of the libellant, that more grain was laden on his vessel than she delivered on her dis- charge. The amount of deficiency being only about five per cent., would hardly justify an inference of misconduct or negligence against the parties sought to be charged therewith ; when it may be assumed, upon presumptions equally cogent, that the difference arose from mistakes in computation of weight or measure, in the combined operations of making up the calcu- lation of quantity, or in actual wastage in the process of loading and discharging. I shall dispose of the case upon this view of the facts, with- out reference to the question raised as to the jurisdiction, of the Court over the subject-matter. Admitting the jurisdiction of the Court, there is not sufficient evidence, in my opinion, to charge the defendant with any loss of corn while on its carriage from Brooklyn to its delivery in New York, and the libel is accordingly dismissed. The libeUant has shown a fair primd facie case on his proofs in the first instance, and I therefore impose no costs upon him. Libel dismissed without costs to either pasty. 196 CASES IN ADMIRALTY. Goodrich v. Norris. Goodrich *. Norris. A bill of lading is to be regarded in a double aspect, — as a amtrant for the trans- . portation and safe delivery of the goods covered by it, at the stipulated freight, and also as a receipt for the goods' for the purposes of the contract. In so far as a bill of lading operates as a contract, it is conclusive as to the inten- tions of the parties, and may not be varied by parol evidence. In so far as a bill of lading operates as a receipt merely, it is open to explanation of rectification by ^afol evideiice', as in any" otlier receipt The statement of the quantity of goods received, contained in a' bill of lading, may be rectified in an action by the originar shipper, by proof that through mistake the bill was signed for a greater quantity than was actually delivered. But the proof of mistake in such case must be clear and unquestionable, to rebut the evidence afforded by the bill. This was a libel in personam, by James E. GoodridB arid others, against JoHh Norfis, mastel: of the schooner John I. Adams, to recover dam'age's- for the breach of a contract of affreightment. The libel sTidwed that the libellants had shipped on board the respondent's schooner a number of barrels of tripe, to be delivered to consignees ai Boston, and that the respondent failed to deliver .five of the barrels,^^^1;6 recover the value of which this action was brought. The other facts appear in the Opinion. ■ George S. SHU, f6r libellaiits.- I. The respondent cannot contradict his bill of lading. Cree'ry v. HoUy, 14 Wend. 26 ; Barnet v. Rogers, 7 Mass: 297. A bill of lading is a contract, and is conclusive, especially as against the master ; it may hot be in all cases conclusive aS against the ship-owners. II. Adriiittingj however, for the purpose of the argument, that respondent may shdw a mistake in fact, he has not shown such mistake. 1. His witness merely swears that when the vessel was on her voyage they compared the cargo with the MARCH, 1848. 197 Goodrich v. Norris. bills, and found but twelve barrels of tripe on board. This is all the testimony produced to prove the pretended mistake. But it does not prove that the eleven barrels mentioned in our bill of lading were not received by the schooner or deliv- ered by the libellants. 2. In this case the respondent had the means of ascertaining the truth, as he undoubtedly did, and there is no pretence of fraud. This is not a " mistake of fact," within any proper sense of that phrase. See Saltus v. Everett, 2 Hall, 252. III. The proofs indicate that in fact seventeen barrels were delivered to the vessel. IV. The libellants claim a judgment for the highest price proved, twelve dollars per barrel, and interest on that amount from the latter part of December, 1846, allowing the ordinary time for a voyage to Boston. Burr and Benedict, for respondent. I. The objection taken by libellants' counsel, that no evi- dence can be received to vary the bUl of lading, cannot be sustained ; because, 1. The libellants were the original ship- - pers of the goods, and as between the shipper and the ship- owner, the bill of lading may be contradicted; (Abbott on Shipp. 334 ;) and, 2. If the goods were never on board, the libellants cannot be injured by having the truth established, though it should contradict, vary, or explain a written instru- ment signed through fraud or mistake. II. Upon the question of fact, whether the goods were in fact delivered on board, the evidence is satisfactory that they were not. Betts, J. This case rests wholly upon one fact, and turns upon the force and effect of the evidence relative to that fact, oflFered upon both sides. On December 3, 1846, the respondent signed a bill of lad- ing, in the usual form, for eleven barrels of tripe, shipped by 17* 198 CASES IN ADMIEALTY. Goodrich V. Norri^. fhe libellants on board the responderit's schooner, to be deliv- ered at Boston, to the firni of IJEtvis & Whittemore, The bill described the barrels as being " marked and numbered as in the margin," but it contjtined no marginal marks or nunibets. The vessel arrived at Boston, haVitig on board twelve bar- rels of tripe, but six only were marked fdr Davis & Whitte- more, and that number were delivered to them; The other six were delivered to other consignees, conformably to theii marks. No bill of lading was shown for them, although the mate testifies that he believes one was signed ; and he also proves that freight was received for twelve barrels only; He also testifies that no more than twelve barrels were on board the vessel, and that after the Vessel got out of port, it was ascertained, by the amount of cargo and by the freight Ust, that bills of lading had been signed for five barrels more than Wiere in the vessel. The libellants contend that evidehd^ to eonttkdict or ex- plain the bill of lading is incompetent, aiid maintain that the respondent is concluded by his signature to the one pro- duced; This is not the rule as between the origihal parties of the bill of lading, aiid where ho irights of third persons are in ques- tion; In that case evidence triay be received to show a mis- take in the statement of the quantity of goods received, con- tained in the bill of lading. In an action by the original shipper of the goods, the mas- ter or owner will be allowed to show that he was induced by fraud to sign a bill of lading containing an exaggerated state- nient of the quantity of gbods received ; and that such evi- dence will defeat an action for the recovery of an alleged deficiency in the delivery made, is well settled by the case of Bate^ V. Todd, (1 Mood. 8f R. 106;) That was an action against the owners of the ship ThameSj'on a bill of lading, signed by the master at Singapore, for eight hundred and MARCH, 1848. 199 Goodrich v. Norris. ninety bags of pepper. The declaration alleged that eight btihdred and ninety bags wete shipped, and that some of them had been lost. The defence was, that only seven hundred and ninety bags were in fact shipped, and that the captain had beeh induced to sign the bill of lading for eight hundred and ninety by the fiaud of the plaintiifs' agent at Singapore. It was contended for the plaintiffs, that the bill bf lading was conclusive, and estopped the defendant who was owner of the ship. But Chief Justice Tindal held, that as between the original parties, the bill of lading was merely a receipt, liable to be opened by the evidence of the real facts, and he left the question to the jury, whether in fact eight hun- dred and ninety bags or only seven huiidred and ninety were shipped. The case of Berkely v. Watling, (7 Ad. ^ E. 29,) is some- what broaderi The plaintiff there declared, in assumpsit, that the defendants, Watling and Nave, were owners of a ship called the Search, and that in consideration that the plaintiff, at their request, shipped goods on board, to be delivered to him or his assigns, the defendants promised to deliver them and had failed to do so. Nave pleaded separately, that the plaintiff did not cause the goods to be shipped in the vesseL On the trial the plaintiff produced a bill of lading, signed by the captain of the ship, transmitted to the plaintiff by Wat- lingj which stated the goods to be shipped by Watling, to be delivered to the plaintiff of his assigns. It was also proved that the plaintiff held the bill of lading for value; Evidence was offered at the trial, on the paft of the defendant, Nave, to show, that although the master signed the bill of lading for the gobdsj yet they were never shipped on board the vessel, as therein expressed ; and the question was, whether Nave was festopped by the bill of lading from showing that fact. " The statement in the declaration," said Mr. Justice Littledale, « is that the plaintiff caused the goods to be shipped, which is put in issue by the second plea. How does the plaintiff prove his 200 CASES IN ADMIRALTY. Goodrich v. Norris. allegation ? He puts in a bill of lading, which certainly appears to be signed by the master, but, on the face of it, the goods are shipped by Watling. Then the plaintiff must prove Watling to be his agent ; by so doing he supports the allegation. It turns out that in fact the goods were not ship- ped on board the Search at all. But the plaintiff says that the defendant. Nave, is estopped from showing this by the bill of lading signed by his own agent. How is he estopped ? Watling knew the fact, and his knowledge is the plaintiffs knowledge. The plaintiff, knowing the fact by Watling, his agent, how is the defendant, Nave, estopped by what Wat- ling does as his agent? Since, therefore, the plaintiff, as shipper, is cognizant of the facts, we need not say how far, on the general question, there is an estoppel, but, in my opinion, the bill of lading is not conclusive." In the case now presented, no suggestion of fraud is made, but the respondent relies upon proof of the mere fact that the goods receipted for by the bill were never actually delivered to the vessel. That fact, if clearly proved, will exonerate the master from responsibility to the original shipper, though it might not release him in an action by an assignee. The bill of lading has, in legal effect, a double aspect. It is a contract for the transportation and safe delivery of the property ship- ped, and it also embodies, as a matter collateral to that con- tract, a receipt for the goods so shipped. In so far as the bill operates as a contract, it is, undoubtedly, the exclusive evi- dence of the obligation of the parties ; but in respect to those clauses which operate merely as a receipt for the goods, it has no higher obligation than an ordinary receipt, and is open to explanation and rectification by parol proof. Phill. Ev. 3 Cow. ^ H. 1439. The fact that both a contract and a receipt are embodied in one instrument, forms no reason why they should be regarded as differing in effect from similar instruments ex- ecuted in an independent form. The clauses in the bill of lading which relate to the quan- MARCH, 1848. 201 Goodrich v. Norris. ttty and condition of the ^oods received, do not enter into the contract between' the parties ; they are parts of the receipt. The contract is for the transportation of the goods; for theii? delivery, for the stipulated freight, &c. But the statements that the goods epibraced within this contract have been received on board the vessel, and that they are of such and siich description in point of quantity, quality, condition, marks tod numbers, &c., are in the nature of a receipt, not an agree- ment. They are therefore explainable, not alone by evidence 6f fraud, but by st)(ch proof of mistake as is by Well-settled rules of law permitted to conferol the operation of ordinary receipts. It is proper, therefore, to receive the evidence of- fered on the part of the defence in this ease, and if it clearly Shows that the goods for which this suit is brought were fiever, in point of fact, delivered to the respondent, it will con- stitute a good defence to this action. On the part of the libellant, the testimony, if iiot direct and coinplete, to the fact that the seventeen barrels were deHvered dn board the vessel, 'at least strongly corroborated the bills of lading, and may furthermore account for the difference be- tween the quantity receipted and that found on board ; as one witness states that he took down five barrels, and another person in the libellant's employment carted down twelve bar- rels. The latter saw barrels already on the dock, and was told in answer to his inquiry on board the vessel, that they belonged to the libellant's parcel. He left his five barrels on the dock near the vessel, by direction of those on board. He does not remember that he had a receipt given him, but thinks ^the other man brought back a receipt for his loads. He assisted the other man (who is now at sea) in loading twelve barrels, eleven of which were marked Whittemore Sf Davis, ^nd one to O. Robinson. One of those he carted down had the same mark, and the other four wete Russel & Squires. The mate'^ impres^loh is, tha% six of the barrels were ad- 202 CASES IN ADMIRALTY. The New Champion. dressed to Russel & Squires, and* were delivered to them out of the twelve on board. He further says he found four barrels on the dock when the vessel came into her berth, and had them rolled on board. They were marked for Whitte- more & Davis ; and he further testifies that the twelve bar- rels were allbrought to the vessel by one person. If the evi- dence of the other cartman is credited, there are then five more barrels which were delivered by him, of which the mate took no account. Under these circumstances, the testimony of the mate does not destroy the effect of the biUs of lading. The written evi- dence must prevail, and the respondent must be held to account for the five barrels deficient in the delivery. The proof is they were worth here from $10 to $12 per barrel ; and the lowest valuation of the goods will be taken in sux;h case, when the evidence carrying them higher is not precise and clear. The libellant is entitled to a decree for $50, with interest from December 3, 1846, to this day, and his costs to be taxed. The New Champion. A sailing vessel is bound, when navigating in proximity to a steamboat, to take all reasonable precautions to protect herself, and to avoid injury to the steamboat, and she is not entitled to impose upon the steamer the duty to guarantee her against a collision. If injured by collision with a steamboat, the sailing vessel must discharge herself from fault, and show the adverse vessel guilty of culpable neglect, or want of due equipment or skill, which led to the collision. This was a libel in rem, by John Hurley and William Murray, owners of the sloop Mary, against the steamboat New Champion, to recover damages for a collision. The facts out of which the action arose were as follows : APRIL, 1848. • 203 The New Champion. The steamboat arriving from Hartford in the night time, made her turn on the. Brooklyn side of the East River, and waa passing across the river to her berth at a wharf in New York. The sloop was at the same time running up with a free wind from the southwest, being close in upon the New York side. Those engaged in navigating her saw the lights of the steamer, and knew that she was on her turn towards the slip, and also what berth she was intending to take. At the time the steamer starboarded her helm and had commenced coming around, the river was clear in her proper course and direction to her berth. The sloop ran up across the line of the track she was turning into, unperceived on board the steamer, until the two vessels were nearly in col- lision. A quick order to luflf was then given to the sloop by the master of the steamer, but it was not complied with in time, and the collision occurred. The pilot and master of the steamer testified upon the hear- ing, that at the time when the order to lufF was given, the sloop could easily have been luffed enough to avoid the steamer ; and their testimony was corroborated by proof of declarations subsequently made by the pilot of the sloop, to the effect that he gave the order to his helmsman to luff, but that the order was not obeyed. It was also proved that a good look-out was stationed and kept at the proper post on board the steamer ; that her lights were exhibited conspicuously and shining brightly, and that strict precautions were employed on the steamer to avoid col- lision with other vessels whilst so gaining her berth ; that she was coming into her usual and well-known place of landing, • and that she pursued the customary method of doing it, as was notorious to vessels navigating the rivers near the docks in this port. It was furthermore proved that the sloop had sufficient time to have luffed and avoided the steamer, had she adopted that manoeuvre when the necessity of it was discovered by her. 304 CASES IN ADMIRALTY. The New Champion. George White, for IJie libellants. I. The question to be considered is not whether the New Champion has been guilty of exkaordinary neglect; but. iPid she, on the occasion on which this collision occurred, observe due carp and exercise the proper precaution ? II. Public safety requires that steamboats, particularly when navigating our crowded waters, should obs&rye extra- ordinary care and unremitting vigilance. The smaller craft are comparatively helpless, but the steamboat possesses and exercises a power to which the winds and the tides are obe^ dient. Her own momentum . is unresistingly subject to her control ; she is independent of external resistance ; and in all cases, it may be positively asserted, wherever the smaller vessel is seen, a steamboat, unless her machinery is out of order, can avoid her. ni. The New Champion did not observe ordinary caie ; no due precaution was taken to avert the collision, although she saw the sloop in ample time to avoid her. Nothing was done on board the New Champion but to hail the people on board the sloop, ordering her to luif. The testimony of the claimants' own witnesses shows this. IV. The sloop Mary was comparatively helpless; while the 'New Champion had the full sweep of the river and the entire command of her machinery. The facts, uncontroverted and uncontradicted, are, that the sloop Mary, a very small vessel, was pursuing her course up the East River, near the New York side, to avoid a strong ebb tide ; while the New Champion, a steamboat of a very large class, was crossing over from the Brooklyn side, the sloop and the New Cham- pion came in coUision with each other ; that the New Cham- pion saw the sloop when she was about one third or one half of a mile from her, and saw her distinctly, although the sloop had no lights. Now, from the mere statement of these facts, the necessary conclusion must be, that the large and strong New Chapi- APRIL, 1848. 205 The New Champion. pion, with a propelling power to which the winds and tides are as implicitly obedient as is her own momentum, could, with a suitable effort, which she was bound to make, have avoided a collision with this little vessel, unless by some posi- tive mismanagement the sloop placed herself in the way of the New Champion, so as to baffle any attempts of the latter to avoid her. Then, did the sloop place herself in the way, unnecessarily, of the New Champion ? So far from this being the case, she did every thing she could to avoid the steamboat. She was hemmed in, while the steamboat had the full sweep of the river. Claimants' witnesses, indeed, state, that if the helm of the sloop had been put down, she could have avoided the New Champion. This was the very thing that was done ; in short, they made every effort on board the sloop, while they on board the New Champion did nothing ; whereas, if the sloop had made no effort, no blame could have been attached to her. Betts, J. There is evidently a wide-spread misapprehen- sion as to the relative liabilities and privileges of steamboats and sailing vessels, in cases of icollision between them. In actions prosecuted against steamers, this Court has repeat- edly upheld the rule to be, that sailing vessels are' bound to exculpate themselves from blame, and employ aU reasonable precaution for their own protection, as well as to avoid injury to steamboats ; and that they are in no way entitled to hold their own positions and courses under all circumstances, and rely upon steamers for a full guarantee when navigating in proximity to them. The South American, MSS. 1847. In the case of the steam-tug William Young,' {MSS. 1844,) a collision occurred between a sloop and a steam ves- sel, running in opposite directions upon the North River, in 1 Since reported, Ohott, 38. VOL. I. 18 206 CASES IN ADMIRALTY. The New Champion. consequence of an abrupt variation of the sloop's course. The Court declared that it was not to be assumed that the fault was with the steamer ; but the burden of proof was upon the libeUant to show her in the wrong ; that although a higher degree of responsibility was cast upon steamers, yet a sailing vessel could not be justified in an improper movement on her part, because of an apprehension of encountering an approaching steamer, unless the latter was crowding so much upon her track as to create an imminent danger of collision. In the case of the steamboat New Jersey,' (MSS. 1846,) it was held that the laws of navigation imposed no peculiar general duties or liabilities on steamboats, in relation to col- lisions with sailing vessels ; but the sailing vessel is bound to use, with reasonable promptitude and skiU, all the means in her power to avoid a threatened collision ; that it was only because the means at command by steam vessels are so much more efficacious and ready than those possessed by sailing vessels, and because the consequences of an omission to ap- ply such means are so immediately destructive, that vessels propelled by steam are required to use the more watchful precautions ; and the rule was there maintained, that the ves- sel under canvas must contribute to the common security so far as within her power ; and that the owners of steam- boats were by no means to be made insurers against the negligence, ignorance, or misconduct of persons in charge of sailing vessels. In the case of the steamboat Neptune,'^ {MSS. 1847,) the declaration was reiterated, that steam vessels Eire not bur- dened with the sole risks and responsibilities of encounters with sailing vessels. It was stated that the rule is reciprocal, and places both classes of vessels under a common liability and privilege ; that a sailing vessel under way was bound to 1 Since reported, Olcott, 415. S OlcoU, 483. APRIL, 1848. 207 The New Champion. exculpate herself from all negligence or misconduct leading to' a collision, before she could claim damages against a steamboat for injuries received from her ; and it is believed this is the spirit and policy of the marine law. In each of these cases the proof was, that the collision was occasioned by an improper change of her course, on the part of the sailing vessel, unexpectedly to the steamer, bringing the former suddenly in the track of the latter. There is, how- ever, no doctrine of the law which limits the duty and liability of the sailing vessel to cases of that description alone. It does not rest upon any specific kind of blame occurring in her management ; but the general principles of law govern- ing the navigation of vessels nearing each other have their full effect over her, with the exception that she has the privilege to hold her own course, unless it be palpable that she will endanger a collision •with the steamer by so doing. Those principles are, that every vessel, however propelled, is bound to exert herself to avoid injury to others in the vicinity of which she is moving, and can found no claim to damages resulting solely from her own culpable want of care, or which are caused by her misconduct. .To be entitled even to a con- tribution to her loss by collision, it must be made to appear there was at least a concurrent fault in the conduct of the other vessel, conducing to produce the collision. The quali- fication to these obligations is no more than that a steamer is not entitled, as against a vessel under sail, to keep a partic- ular course, but must leave the latter to hold her own when it can be done with safety. The libeUant in this case must prove the steamer was in fault, and must show that his vessel was managed in a prudent and skilfnl manner, and interposed no needless im- pediments in the way of the steamer, and was not herself the cause of her own misfortune. Smith v. Condray, 1 How. 28 ; Waring «. Clark, 5 Jb. 501 ; The Ligo, 2 Hagg'. Adm. R. 356 ; The Alexander Wise, 2 W. Rob. 66 ; The Woodrop Sims, 2 Dods. 83. 20S CASES IN ADMIRALTY. Thr New Champion. The sloop, on the occasion, was running close in under the shadows of the city, in a dark night, without showing any lights, and took a course crossing the track of the steamer, at so small a distance that it must be palpable to her that if she were not seen from the steamer and avoided by her, a col- lision would be extremely probable. She approached the steamer at the time the latter, as her lights would indicate, was working round to get into her sUp. When a steamer is in the act of coming about, she cannot command her move- ments so promptly as under direct headway, and thus the reason for holding her to an extraordinary responsibility is, for the time being, in a measure suspended, as well as the privilege, of a sailing vessel in respect to her own course, and this would be so especially in this instance, as the sloop was violating the duty imposed by law upon vessels in port, of showing lights in the night to steamboats coming in, &c. Her master must have been conscious that in so doing, the steamer was exposed to the hazard of coming upon her with- out warning of her position. 2 W. Rob. 1 and 347. I think, upon the evidence, the collision was caused by the inatten- tion and mismanagement of those on board the sloop, and not from any fault on the part of the steamer. The sloop was before the wind, running against a strong ebb tide ; and the evidence is clear, that she might, with the greatest facility, have avoided the steamer, had she ported her helm, and that she had sufficient warning that she was in a situation where the steamer must inevitably come in conflict with her. She, however, needlessly and rashly passed into the narrow pas- sage between the wharves and steamer, and thus placed herself within the range the Champion must take in swinging around to her berth. This was a gross act of remissness on the part of the sloop, and she has no right to cheirge the steamer with the consequences of it. Libel dismissed with costs. APRIL, 184a, 209 Bradstreet v. Heron. Bradsteeet V. Heron. The owners of a vessel are excused from fulfilling the engagement of a bill of lading to deliver the cargo at a specified port, by the interposition of sanitary or prohib- itory laws controlling them in that respect ; for the contract to deliver will be construed as subject to all restraints of government. A usage of consignees at a particular port to receive shipments daring the quaran- tine season, at the quarantine grounds, as being a compliance with the engage- ment of the bill of lading to deliver at such port, is valid ; and the bill of lading should be construed with reference to it. As between the original parties to the bill of lading, its statements respecting the condition of the goods at the time they are laden on board, may be explained or rectified by parol proof. But as against assignees of. the cargo upon a valuable consideration, the rule is clear that the master and owner are concluded by the representations of the bill of lading. Consignees are entitled to a reasonable opportunity to ascertain whether goode delivered to them correspond in quantity and condition with the description given in the shipping documents, and the liability of the master and owner remains undischarged during such period. This was a libel in personam, by John A. Bradstreet, mas- ter of the bark LoweU, against David Heron and others, members of the firm of Heron, Lees & Co., to recover a bal- ance of freight due. The libel showed that the libeUant took on board the Lowell, at the port of New Orleans, 507 bales of cotton, consigned to the defendants at this port, and that the cotton was brought hither and duly delivered to the respondent ; and the libel claimed a balance of $1,756.02, freight due. The bill of lading was in the following terms : " Shipped in good order and well conditioned, by M. D. Cooper & Co., on board the bark called the Lowell, whereof is master, now lying in the port of New Orleans, and bound for New York, to say, 507 bales of cotton, one bundle containing samples, &c., and are to be delivered in the like good order and condition at the port of New York, (dangers of seas 18* 210 CASE^ IN ADMIRALTY. Bradstreet v. Heron. excepted,) unto Messrs. Heron, Lees & Co., or to their assignees, &c. July 6, 1847." The grounds of defence appear in the opinion of the Court. Edwin Burr, for libellants. Luther R. Marsh, for respondents. Betts, J. Two objections in bar of this action were relied upon by the defendants. First, that the cotton was not de- livered at the port of New York, in fulfilment of the shipping contract. Second, that the cotton, when delivered, was not in gobd order and well conditioned. The vessel arrived in the port of New York during the latter part of July, and under the laws of the State was sub- ject to quarantine at Staten Island. The cotton was there discharged on board of lighters employed by the respondents, and was taken to Brooklyn, where it was received and stored by them. It was not only proved that vessels from New Orleans, at that period of the year, were prohibited by law firom landing cotton in the city of New York, but also that it was the estab- lished usage for owners and consignees to receive their ship- ments at the quarantine, as being delivered pursuant to bills of lading engaging to make delivery in New York. In either point of view, these facts defeat the obligation. The owners of the ship are excused from fulfilling their en- gagement to deliver their cargo in the city, by the interpo- sition of sanitary or prohibitory laws, which control them in that respect ; as the contract to deliver will be construed to be subject to all restraints of goyernment, and that risk con- sequently falls upon the shipper. The case of Morgan v. The Insurance Company of North America, (4 Ball. 455,) is an authority upon this point. In that case the cargo was shipped from Philadelphia for Surinam, August, 7, 1799, at which time the colony of Surinam was in possession of the Dutch, The vessel arrived in the River Surinam the 17th of APRIL, 1848. 211 Bradstreet v. Heron. September following, but meantime the colony had been con- quered by the British forces. Permission was obtained from the British commander for the vessel to go up the river to the town Paramanto, which she did, and lay in the harbor for a week ; but the British officers absolutely refused permission to land any article of the cargo whatever, excepting the pro- visions, whereupon it was brought back to Philadelphia. The Supreme Court of Pennsylvania held that under these cir- cumstances freight was earned. Chief Justice StiUman says : " The owner of the ship has been in no fault whatever. When he took the goods on freight, there was an open com- merce between Philadelphia and Surinam ; the goods were carried to the port of delivery ; the vessel waited there seven days, and the captain offered to deliver the cargo to the con- signee, who refused to receive it. Nothing prevented it but the prohibition of the British government. It is not like the case 'of a vessel which is prevented from entering the port of delivery by a blockading squadron, for there the voyage "is not performed, and it is impossible to say certainly that it would have been safely performed if there had been no blockade. I think it most agreeable to reason and justice, that the (jbtaining permission to land the cargo should in this case be considered as the business of the consignee. That being established, it follows that the freight was earned." But furthermore, it is proved in the case that it is the estab- lished usage of this port for owners and consignees to receive delivery of their shipments made at the quarantine during the quarantftie season, as being a compliance with the engage- ment in the bill of lading to make delivery in New York. Such a usage is valid, and the bill of lading should be con- strued in reference to it. Gracie v. The Marine Insurance Company of Baltimore, 8 Cranch, 75. Upon these grounds I am of opinion that, independently of the alleged acceptance of the goods by the respondents, their defence, so far as it rests upon the first point taken, cannot be maintained. 212 QASES IN ADMIRALTY. Bradstreet v. Heron. But upon the second ground of defence, viz. : that the cot- ton, when delivered, was not in good order, it seems to me that, as the case stands, the respondents are not made respon- sible for the freight. It was contended, on the part of the libeUant, that the con- signees were in fact the shippers of the cotton — ^it having been furnished to the vessel by their agent. This fact, if it had appeared in evidence, would have had a most important bearing ; because, as between the original parties, the repre- sentation of the bill of lading as to the condition of the cot- ton at the time it was received, might undoubtedly be explained or rectified,^ (Abbott on Shipp. 324,) and so, in that aspect of the case, the libeUant might have shown, as was attempted, that the damage to the goods was received before they were laden on board. But the suggestion that the respondents in fact shipped the cotton on board through agents, is wholly unsupported by proof. They therefore can- not be regarded as the shippers or owners of the cotton, but must be treated as consignees ; and they prove by their book- keeper, that on the receipt of the bill of lading, they made the shippers an advance of $21,000 on the cotton, before its arri- val in this port. The whole property became thereby, accord- ing to the mercantile law, pledged to them for the security of 1 See the case of Goodricli u. Norris, ante, 196, where the right of the ship- owner, in an action by the shipper, to explain the statements in the bill of lading respecting the quantity of goods received, is considered. See, also, on the admissibility of evidence to explain the bill in other respects, the case of Manchester v. Milne, ante, 115, where it is held that a variance between the quantity of the cargo delivered and that receipted for, may be explained by evidence showing it to be the result of an inaccurate mode of measurement employed ; also, Zerega v. Poppe, decided January, 1849, and reported post, in its order of date, where it is held, that notwithstanding the acknowledg- ment that the goods are received in good order, the carrier may, as against the owner, show that the injury to the goods was occasioned by insufficiency in the cask, case, &c. in which they were packed. APRIL, 1848. 213 Bradstreet v. Heron. their advance, and they are entitled to demand it as described in the bill of lading, in solido, or its equivalent, of the ship- owner ; his lien for freight being first satisfied. Nor is it necessary to aver such advance in the answer, in order to be entitled to prove it. The pleadings on both sides allege that they are consignees, and they have a right to show the extent of their privilege or lien on the consignment. The rule of law is clear, that the master and owner are concluded by the representations of the bill of lading, as between themselves and third persons entitled to the cargo as assignees upon a valuable consideration. The Portland Bank v. Stubbs, 6 Mass. R. 422 ; Abbott on Shipp. 323. Nor can the Court regard the suggestion that the cotton is amply sufficient to repay the respondents their advances, and also to satisfy the freight. I am furnished with no evidence showing the fact to be so. It is accordingly unnecessary to inquire what rule of law would govern, if such a state of facts existed. There would be a serious difficulty in receiving testimony on the part of the libellant, in the present shape of the plead- ings, showing that the cotton was injured by country dam- age ' when laden on board, if the suit had been brought by the shipper. The libel avers that it was shipped in good order and well-conditioned. The answer admits that fact. Accordingly, independent of the effect and operation of the bill of lading making the same assertions, it would be against the well-settled. principles of Admiralty proceedings to receive evidence 'contradictory to the averments and admissions of the pleadings on the same point.^ The libellant, under the pleadings and bill of lading, was 1 Dealers in cotton are accustomed to call damage received by cotton while it is yet in the country where it is grown, as contradistinguished from such as is received on board ship, country damage. 2 See JDavis v. Leslie, ante, 123. 214 CASES IN ADMIRALTY. Bradstrcet ». Heron. bound to deliver the cargo of cotton to the respondents in good order and well-conditioned ; and it being fully proved on their part, that when delivered to them it was damaged by water and injured to an amount greater than the balance of freight unpaid, they are entitled to withhold that freight, either by way of recoupment of damage, or upon the ground that the libellant cannot maintain an action on the contract, without showing that its requisitions have been fuUy com- plied with on his own part. The Ship Nathaniel Hooper, 3 Sumn. R. 549 ; Jordan v. The Warren Insurance.Company, 1 Stori/, R. 352 ; The Schooner Good Catharine, 7 Crtmch, 358 ; McAlister v. Reab, 4 Wend. 483, affirmed 8 Wend. 109. The delivery to the respondents in lighters, to unlade the ship, cannot be regarded such an acceptance of the cotton, on their part, as to conclude them from showing that it did not conform to and fulfil the stipulations of the bill of lading. It is not the usage, nor in most instances would it be practica- ble, for consignees to inspect and examine shipments when delivered from the ship. A reasonable opportunity must be allowed, after packages and bales come into their possession, to ascertain whether they correspond in quantity and condi- tion with the shipping documents, and the liability of the master and owner remains undischarged during that period. The damage complained of in this case was not external and exposed to view when the goods were landed, but to its chief extent was internal, and only discoverable by opening and separating the contents of the bales. The disbursements and charges on the part of the respondents in making such examination were $261.40, which sum they insist they are entitled to retain from the freight. The libel admits payment of the residue of the freight, and only demands this balance. Under the facts in evidence I think that they cannot enforce the payment. Decree for respondents, with costs. APRIL, 1848. 215 The Joshua Barker. The Joshua Barker. A vessel having on board a cargo of flour for transportation, capsized at her wharf before sailing, and the cargo was much damaged. The carriers might easily have communicated with the owners of the cargo, and sought instructions as to the disposal of it | but they neglected to do so, and sold the cargo upon their own authority, at auction ; after which the vessel sailed, and in due time arrived at the port of delivery. Held, 1. That the sale of the flour, under these circumstances, was an unlawful conversion by the carrier. 2. That the owners of the cargo were entitled to recover the value of the cargo at the port of delivery, deducting freight and charges, and adding interest on the balance. > 3. That.the value of the cargo should be computed by the market price at the port of delivery, at the time of the arrival of the vessel, it appearing that except for the accident, the cargo would at that time, in the ordinary course of things, have been delivered ; with a privilege, however, to the owner to claim the amount realized upon the sale of the goods at auction. Of the allowance of costs upon exceptions to a commissioner's report made in the alternative. This was a libel in rem, by James M. Hoyt and Jesse Hoyt against the bark Joshua Barker, to recover the value of goods shipped on board that vessel, but never delivered pursuant to the affreightment. The owners of the vessel intervened by claim and answer, and contested the action. The facts in the case were, that in October, 1847, the libel- lants shipped on board the vessel at Albaijy, for transporta- tion to the city of New York, a large quantity of flour, to be there delivered to consignees. The bark was secured to the wharf at Albany in such manner, that on the falling of the tide, after the flour was laden on board, she capsized and sunk. This was on October 8, 1847. On the following day she was raised, and the flour taken out and immediately sold by order of the owner of the vessel, without any communica- tion with the consignees or iibellants, who were then in New 216 CASES IN ADMIRALTY. The Joshua Barker. York. The bark was pumped out, laden with lumber, and despatched to New York, where she arrived on the 15th of October, bringing to libellants the first intelligence received by them of the loss of the flour. The cause came before the Court for hearing on the merits, in February, 1848, when the Court, by interlocutory decree, determined that the libeUants were entitled to recover in the suit the value of the flour, and directed a reference to a com- missioner to ascertain and report its value " at the time when the libellants were deprived of it." On the hearing before the commissioner, the libellants con- tended that they were entitled to recover the market value of the flour at New York city on the 15th of October, (the day of the bark's arrival at that port,) with interest from that day, but deducting freight. The claimants insisted, — first, that they were not responsible for more than the amount received from the auction sale, which they claimed fixed the value of the flour for the purposes of the suit ; — and, second, that at most they were not liable for more than the market value of the flour at the time of the sale. The commissioner reported that the market price in New York, of such flour as that shipped by the libeUants, was, on the 8th of October, $4,290.50, and that it was on the 15th of October, $4,491 ; referring it to the Court to determine which valuation the libellants were entitled to recover. He also reported the amount due for freight and for interest. The sum received by the claimants from the auction sale of the flour was $3,648.88. The cause now came up on exceptions by the claimants to the commissioner's report. E. ElUngwood, in support of the exceptions. C. Van Santvoordt and Henry E. Dodge, opposed. I. By the phrase " the time when the libellants were de- prived of the use of their property," referred to in the decree, in the connection in which it is used, and in reference to the APRIL, 1848. 217 The Joshua Barker. subject-matter of the suit, must be understood, the time when, under the circumstances of this case, the claimants should have delivered the property in question in New York. This construction is according to the rule of law, and the only one which will afford the libeUants adequate indemnity. Arthur V. The Cassius, 2 Story, R. 81 ; Amory v. McGregor, 15 Johns. 24 ; Sedgwick on Damages, 370, 372. Upon a con- tract to deliver goods, the general rule of damages for non- delivery is the market value of the goods at the time and place of the promised delivery. 2 Greenl. Ev. 215, § 261. The same principle ap{)lies to this case. See The Commer- cial Bank v. Kortright, 22 Wend. 348, and cases cited. II. Instead of selling the flour without consulting the own- ers, which they might have done in a few minutes by tele- graph, the claimants should have put the flour back again, and it should have been delivered at New York on the arrival of the boat on the 15th of October last, when, for the first time, the libellants had notice of the loss of their property. The damage to the flour would then have been measured by the difference between what the flour sold for and the market value. There was no necessity for selling it, and the claim- ants had no right to sell it. Arnold v. Hallenbake, 5 Wend. 33. As to the time of delivery, the extent of the carrier's liability is to deliver within a reasonable time, and what time is reasonable tnust depend on the circumstances of each par- ticular case. Story on Bailm. § 545 a, ed. 1846 ; House v. The Lexington, 2 N. Y. Leg. Obs. 4. III. The libellants, therefore, ask for a decree for the amount found due upon the valuation of the flour of the 15th of October last, the time of the arrival at New York of the Barker, and of the first notice to the libellants of the loss. IV. But if the libellants are not entitled to the amount found due on that valuation, then, although this does not amount to an indemnity, they ask for a decree for the amount found due on the valuation of the 8th and 9th of October VOL. I. 19 218 CASES IN ADMIRALTY. The Joshua Barker. last, when the property was wrongfully sold at a sacrifice, and the money withheld from the libeUants, to force . them to agree to the claimants' terms, V. The allowance of interest is expressly provided for in the decree, and is proper in this case. In cases where interest has been withheld on the value at the port of destinatioil, in suits against carriers, it has been expressly on the ground that the loss complained of happened by misfortune, without any fault or misconduct on the part of the carrier. It was not mis- fortune, but gross misconduct on the part of the claimants to sell the flour, and retain the use of the proceeds, (nearly $4,000,) and during a time when money has been worth more than legal interest. There never was a case where interest was disallowed when the defendants had converted or received the proceeds of the property ; and this is the foundation of the rule allowing interest in actions of trover. Betts, J. The answer admits that the floior was taken out of the bark at Albany, after her disaster, and immediately sold, and that the sale was made without authority from the libeUants. It is matter of notoriety that communication could have been had with the owners of the flour at New York in a few minutes, by telegraph, and their instructions thus taken on the subject ; and also, that the regular mail conveyance by steam from Albany to New York and back, is made within forty-eight hours, while by the ordinary running of the steamboats, a special messenger could have obtained orders in New York, and returned with them to Albany within twenty-four hours. Under these circumstances, the acts of the •claimants, in making peremptory sale of the flour at their own discretion, immediately on the bark being raised was, in respect to the rights of the libeUants, unnecessary and wrong- ful. The libeUants were accordingly entitled to charge the claimants with the fuU value of the flour laden on the vessel and not deUvered at the port of destination, as tortiously dis- posed of by them. APRIL, 1848. 219 The Joshua Barker. No case of necessity for the sale being shown by the claim- ants, the fact in proof that subsequently to the sale they de- manded of the libellants the allowance of an account against them, amounting to $1,175.15, arising upon prior distinct transactions, before they would pay over the proceeds of the flour, indicates that the claimants assumed the power to dis- pose of the flour at their own discretion, and having its avails in hand, to force the libellants to a settlement of antecedent dealings between them, as a condition to their accounting for the conversion of the property. Common carriers cannot coerce payment of debts in that manner out of property com- mitted to them for conveyance. This would be an abuse of the bailment, amounting to a trespass. They have not power, in any emergency, to sell the entire bailment, so as to give a purchaser title to it against the bailor or shipper. Arnold v. Hallenbake, 5 Wend. 23. Upon the general principles of mer- cantile law the libellants are entitled to the fuU value of the property at the port of delivery. Watkin v. Laughton, 8 Johns. 213 ; Amory v. McGregor, 15 lb. 24 ; Brackett v. McNair, 14 lb. 170 ; GUlingham v. Dempsey, 12 Serg. ^ R. 188 ; 12 Barn. ^ Aid. 932. And the wrongful disposal of it also justifies imposing interest on carriers. See same cases. Interest is the appropriate recompense in case of loss of prop- erty by the fault or misconduct of another. 17 Pick. 1 ; 21 lb. 559 ; 1 Mete. 172 ; Stevens v. Low, Hill, 132. The exceptions raise the question whether the libellants can demand more than the value of the flour at the time it might have been reasonably delivered at New York if it had not been sold. This point becomes material, because between the 9th of October, when the bark, in her ordinary course of navigation, might have reached New York, and the 15th, the time of her actual arrival after being raised, the price of flour was materially enhanced. The commissioner reports the dif- ference upon this shipment to amount to $200.50. The delay of the vessel in this case was merely temporary. 230 CASES IN ADMIRALTY. The Joshua Barker. The accident did not disable her from completing her voyage, and it was well known, when the flour was taken out and sold, that the bark was uninjured, and that she could be im- mediately despatched to her port of destination. The inter- ruption was no more than a circumstance which prolonged her voyage. The delivery of the flour at New York on the 15th could incontestably have been made within the under- taking of the claimants, and the libellants must then have accepted it, subject to compensation for the injury it had received. Carriers by water are liable for the actuaF value of goods withheld or lost, without legal excuse, computed at the time when the goods might have been delivered at the place ©f destination. Arthur v. The Cassius, 2 Story, 81 ; House v. The Lexington, 2 N.Y. Leg. Obs. 4. ' The arrival of the ves- sel herself (she not having made intentional deviation) on which the goods were laden, would ordinarily be received as satisfactory evidence of the time at which the delivery might reasonably have been made. Casualties which should retard the arrival beyond the usual period would not vary the rule so as to enable the consignee to charge the carrier upon the footing of a wilful or unreasonable delay. Accordingly, when the goods are' sold, or applied to the necessities of the ship during the voyage, the measure of compensation to the owner is the clear net value at the port of destination, as the market stands on the failure of the ship to deliver the goods ; with the privilege, however, to the owner,' to take the sum for which the goods actually sold. Abbott on Shipp. 455. And the inquiry as to value does not seem, from the authorities, to turn at all upon the consideration, whether without the accidental delay, the goods would have come into a better market. In a case of tort, the owner, doubtless, might have taken either period for fixing his damages ; that at which the wrong was done and his property destroyed or converted, or that at which he might have had possession of it but for the wrongful act ; and where he has notice he might be compelled APRIL, 1848. 221 The Joshua Barker. to declare at once his election. But I do not pursue that question, because the laches of the claimants prevented the libeUants insisting upon having the property delivered to them in its then condition, which could have been easily and safely done in a few hours ; and also, because the arrival of the ves- sel, notwithstanding her misadventure, was in a reasonable time after the flouf was laden on board ; and the libeUants are, accordingly, entitled to take the time of her arrival as that at which the VEilue of her cargo, put on board, shall be determined. I think that the finding of the commissioner, that the flour was worth in New York, on the 15th of October, $4,841, is justified by the proofs. In addition to the deduction of $350, admitted by the libel and answer to be properly allowable, the fi:eight from Albany to New York, amounting to $70, is also to be deducted as composing in part the value of the flour at New York. The libeUants will therefore take a decree for the balance, of $4,421, with interest thereon from October 15, 1847, to the date of the final decree, together with their costs to be taxed. Costs wiU not be aUowed to either party upon the excep- tions. They are not aUowed against the claimants, because the report is in the alternative, and does not fix definitely the sum with which they are chargeable, and because they are not aUowed by it the freight to which they are entitled. And costs are not aUowed against the libeUants, because the claimants are defeated upon the merits of the exceptions to the report, and because the refusal of the commissioner to aUow the freight, was the consequence of the inadvertent admissions of the claimants in their own answer. Decree accordingly. 19' 222 CASES IN ADMIRALTY. The H. B. Foster. The H, B. Foster. There is no determinate rule of law absolutely distinguishing towage service from saloage service. ' Salvage service is such service as is rendered in rescue or relief of property at sea, in imminent peril of loss or deterioration. Towage service is aid rendered in the propulsion of a veSsel, &c., irrespective of any circumstances of peril. Towing may be a salvage service, when performed in aid of a vessel in distress. Where there is a hiring or bargain bcma fide, and free from fraud or mistake, for aid to be rendered by one vessel to another in distress, the terms of such agree- ment are adhered to as the rule of compensation; but where no agreement is made, the rate of remuneration for such services is to be governed by the con- siderations applicable to salvage cases. A vessel laden with a valuable cargo, being overtaken by a storm while entering the harbor of her port of destination, was left by^her crew, wholly crippled and unnavigable, and in a situation where a recurrence of severe weather might have produced a total loss, yet lying in the mouth of the harbor and within ready reach of assistance. A steamer, engaged in the business of towing vessels to and fro in the harbor, went out to her relief, reaching her just as another steamer of like occupation was approaching, with a view to render similar assistance, and took her in tow and brought her up to the wharf; the entire time consumed Sjeing five hours, and the severity of the storm having abated. HeM, — 1 . That this was a ease for salvage compensation, and not one of mere itowage service. 2. That it was not a case of legal derelict, nor one entitling the salvors to ex- traordinary compensation. 3. That $250 was a reasonable compensation for the service rendered. A mere attempt to negotiate a compromise of a claim at an amount specified, un- accompanied with a tender or direct oflFer to pay such amount, does not operate as an equitable bar to costs. This was a libel m rem, by Oroondates Mauran and others, the master and owners of the steamboat Samson, against the schooner H. B. Foster, to recover compensation for sal- vage services rendered to that vessel. The facts in the case, as they appeared by the pleadings and proofs, are stated in the opinion of the Court. W. K. Thorn and W. Q. Morton, for the libellants. Frcmcis B. Cutting, for the claimants. APRIL, 1848. 223 The H. B. Poster. I. The libellants have not established a case which entitles them to any extraordinary compensation for their services. Although, upon the afternoon of Saturday, they had reason to believe that the lives of those supposed to be on board of the schooner were in jeopardy, they both declined to assume any risk or hazard themselves, and neglected to impart their ipformation to others who might have volunteered to assist those then believed to be. in distress. II. The case lacks all the elements of a case of meritorious salvage service, as these elements are stated in The Clifton. (3 Hagg. Adm. R. 120.) Nor are there any circumstances con- nected with the towing of the schooner which entitle libel- lants to any unusual compensation. No lives were saved, and, the schooner was in perfect safety when the steamboat reached her. III. The conduct, on Sunday morning, of those on board the steamboat, shows, in several particulars, more eagerness to secure a prize than to save property. 1. Another steamboat was on her way, and was in sight of the schooner. The libel- lants, in their haste, slipped the cables, and left the schooner without ground tackling to protect her in case of accident. 2. They omitted the obvious duty of attaching a buoy to the anchors, so as to mark the spot where they were left. Their excuse that the anchors were twisted, ought not to avail them, because they made no effort to extricate them. Thqy pretend that they could not find the brakes of the windlass ; but there ought to have been handspikes or other means belonging to the steamboat by which the anchors could have been ex- tricated. IV. In The Neptune (1 W. Rob. 300,) it was held that sal- vors must show that they possessed skill commensurate with their vocation and condition in life, and adequate to the de- mands of the service which they undertook to perform. In the present case, it appears that the Samson started for the 224 CASES IN ADMIRALTY. The H. B. Foster. relief of a vessel in distress, with a crew short by one man, and ignorant of the soundings and navigation, and without handspikes or other means to get up anchors. « V. The steamboat was absent, engaged in rendering the service, only about five hours. Under the circumstances, the libellants ought to be allowed little if any more than a mere remuneration pro opere et labore. The case can scarcely be considered a case of salvage service ; and if it was some- thing more than mere towage, the schooner having sustained some damage, yet the compensation ought not greettly to exceed towage compensation. The Reward, 1 W. Rob. 174 ; H. B. M. Frigate Thetis, 3 Hagg. Adm. R. 62. Here the claimants offered $150, or three times the ordinary com- pensation allowed by the usage of the harbor for towage for an equal length of time ; and went so far as to inquire if $250 would be satisfactory,- intimating a willingness even to pay that sum to avoid litigation. The libellants ought to have accepted this offer, or at aU events to have manifested some disposition to settle upon reasonable terms ; instead of which they hastened to file their libel, and demanded fifty per cent, on the vessel and cargo. VI. Even in cases of derelict, the rule is not invariable that one half should be awarded. The principle, as now estab- lished, is, that a reasonable compensation shall be given ; but the amount is discretionary. Abbott on Shipp. 555. VII. The schooner was not a legal derelict. She was fastened by her anchors within the bay of New York. The spes recuperandi was not gone, nor was the animus revertendi abandoned. Her crew intended, as the testimony shows, to have returned. Under these circumstances she was not dere- lict. The Bee, Ware, 332 ; The Upnor, 2 Hagg. Adm>R. 3. E. Paine, for the claimants of the cargo. Betts, J. The libellants, owners and master of the steam- APRIL, 1848. 225 The H. B. roster. boat Samson, for themselves and others, demand a salvage compensation for the relief and rescue of the schooner H. B. Foster and her cargo. The facts upon which the decision rests, only will be stated ; and they, upon the pleadings and proofs, are these : — The schooner, on March 26, 1847, arrived inside of Sandy Hook from St. Croix, with a cargo of sugar, rum, and molas- ses, of about $12,000 value. The schooner was worth from $1,600 to $2,000, dismantled, and about $3,000 when fitted for sea|^ She anchored under the West Bank at about half-past seven, P. M. It came on to blow a gale, with a heavy storm of snow and rain ; and during the night the schooner dragged her anchors, and continued to drag the next day, till half-past one, P. M. The masts were cut away at eight A. M. Wind was N. and W. N. W. About three o'clock in the afternoon of the next day, (Sat- urday, the 27th,) the storm ceased and the wind moderated. The schooner struck bottom two or three times after the masts were cut away, but not with violence, and no injury was pro- duced by it. She made no water in consequence. She had dragged a distance of two and a half miles to the Eastern Bank, and brought up in from thirteen to fifteen feet water, at nearly low tide, on her outside, and about eleven feet on the shoalest side, and distant about four miles from Coney Island, and sis or seven from Sandy Hook. The sea broke over her the last time at about three, P. M., and at about four, P. M. she struck once. The pilot stated that the master and crew were frightened at her striking. When she last struck, the master jumped from' his berth, and said, " This won't do ; we must go ashore." The crew aU rushed to go ashore. All on board, nine in number, immedi- ately left the schooner in a small boat for Sandy Hook, tak- ing nothing from the vessel. The wind was still blowing hard, and so as to render it, in the opinion of the pUot, very 226 CASES IN ADMIRALTY. The H. B. Foster. dangerous to attempt going to Sandy Hook, a distance of six or seven miles, in that boat, — more dangerous even than to remain with the schooner. The next morning (Sunday) the wind was fresh, but not so as to render it dangerous for steamboats to navigate the bay, or to go to and alongside the schooner. The principal-employment of the steamboat Samson is to tow vessels to sea from New York, and in from sea to the port, and also to go to the assistance of vessels within and outside the harbor, requiring aid. When engaged f^ such service, her compensation is $10 per hour, from the time of leaving on the expedition to her return. This is the common rate allowed steam-tugs in the harbor for that description of services, others also being enga'ged in it. When no bargain is made, and either party refuses to be governed by the cus- tomary price, the rate is adjusted upon the principle of a quantum meruit. About noon on Saturday, the schooner was seen by a per- son residing near the light-house on Staten Island. He went to the wharf of the libeUants on the Island, to give notice of her situation. A letter was written to the master of the Her- cules, (another steamer employed in towing, &c., and owned by the owners of the Samson,) then in New York, super- scribed to be " on urgent business." In the absence of the master of the Hercules, it was delivered to the master of the Samson, between four and five, P. M., of that day. It stated, " There is a vessel of about 200 tons lying in the lower bay, with all her masts gone. She is between the East Bank and Romer, and requires immediate assistance, as the sea is making a complete breach over her, rendering it impos- sible for her to be seen, except at intervals." The wind at the time was blowing so heavily tliat the master of the Samson declined going down, and said he should not be able to assist another vessel, or do more than take care of his own boat in such weather, but he would go for her if the wind lulled. APRIL, 1848. 227 The H. B. Foster. Steam was put on the boat, and she was kept in a con- dition to leave till between nine and ten, P. M. The master then left her and went to his house, with orders to have steam on again at four the next morning. He was called at that hour, but considered the wind too violent to justify his going out. At five, he concluded the wind had abated ; he got under way for the schooner, and finding he could navigate safely, he kept on slowly to her, and reached her between seven and eight, A. M. These are the representations on the part of the libellants. The weight of evidence in the case is, decidedly, that the weather at that time had become moderate, so as to render it perfectly safe for boats of the size and power of the Samson to go to and from the schooner, and tow her in any part of the bay. She was brought up to the Quarantine in tow by the Samson, a little after nine o'clock, and the whole time she was engaged in going and returning to the city was about five hours. The tug was run close to the quarter of the schooner, near enough for one of the men to jump on board. A hawser was secured to the bow of the schooner, her cables slipped, (being foul, which rendered it difficult to raise her anchors promptly,) and she was then towed up to the city, without impediment or difficulty. This general outline of the facts is sufficient to bring under consideration the two main questions on the merits discussed between the counsel. These are — first, whether the services rendered the schooner were salvage services or mere towage — and, second, if they are regarded as salvage services, whether the schooner was at the time derelict, so as to entitle the salvors to the scale of compensation usually applied in cases of derelict. I am not aware of any determinate rule of law which dis- criminates towage service from salvage. It is manifest that circumstances may exist rendering towage the most efficient, 228 CASES IN ADMIRALTY. The H. B. Poster. if not the only service, which can be afforded in saving prop- erty and life. A dismantled and disabled ship of large bur- den, filled with passengers, may be thus rescued by a very small vessel, wholly inadequate even to receiving on board the sufferers on the wreck. It has, therefore, never seemed to m,e that any advance was made towards solving the question, whether a service was salvage in its character, and to be rewarded as such, by proving that it was performed by tow- ing only. If there is any intrinsic difference between towage and salvage, it would appear to be only that salvage service must always be that given in rescue or relief of property in immi- nent peril of loss or deterioration, while towage may be applied merely in aid of a vessel against adverse winds or tides, or in difficult passages, while she is in possession of her ordinary powers of locomotion. Sir Stephen Lushington says, in the case of The Reward, (1 W. Rob. 177,) " mere towage service is confined ta vessels that have received no injury or damage, and mere towage reward is payable in those cases only where the vessel receiv- ing the service is in the same condition she would ordinarily be in without having encountered any damage or accident" In that case, a ship going to sea grounded. She was got off with the loss of her two best anchors and cables, and with the starboard end of the windlass and bulk-head carried away. She was proceeding back to repair damages, when she fell in with a steam-tug, and accepted its services to tow her into the dock. She tendered £17, which was the rate established for towing (greater distances) by the company owning the tug. The tender was refused, and the Court held the service was salvage, and awarded £80. 1 W. Rob. 176. See, also, 2 lb. 294. In The London Merchant^ (3 Hogg. Adm. R. 396,) £400 salvage was allowed a steam-tug for towing a vessel off the rocks and into harbor. See, also, The Meg Merriles, 3 Hogg. APRIL, 1848. 229 The H. B. Foster. Adm. R. 346, and note. No other assistance than towing was rendered by The United Kingdom, and .£800 salvage was awarded. 3 Hagg. Adm. R. 401, note ; S. P., The Earl Grey, lb. 386 ; The Traveller, lb. 370. Sir John Nicholl lays down the rule, that if towage leads to the rescue of a vessel from danger, it should be remune- rated as salvage. The Isabella, 3 Hagg. Adm. R. 428. In The Industry, (3 Hagg. Adm. R. 203,) £143 salvage was awarded a pilot smack for towing a brig into Cowes' roads. See, also. The Sussex, lb. 339. The condition of the schooner was such, when the Samson came to her, as to constitute the assistance given her a salvage of vessel and cargo, in the proper acceptation of the term. She was utterly unmanageable and helpless, and without a crew or guard to protect her and the cargo. It was no less so than if the libellants had boarded the schooner, fitted up masts, sails, and steering apparatus, and brought her into port by such means of self-navigation, or had even transferred her cargo to the steamer. The difference Would only have been in the greater amount of labor, exposure, and peril. So, also, compensation is awarded upon a common prin- ciple, whatever may be the method by which the relief is effected. The cases above cited afford sufficient exemplifications of the application of the rule, where the service has been by towing, to dispense with the necessity of fortifying it by fur- ther references. When there is a hiring or bargain, bond fide, without fraud or mistake, the terms of such agreement are adhered to as the rule of compensation. But if no agreement is made, set- tling the terms on which aid will be given by one vessel to another in distress, remuneration is awarded with regard to considerations appropriately governing salvage cases. The Britain, 1 W. Rob. 40 ; The Betsey, 2 lb. 167 ; The True Blue, lb. 176 ; The Mulgrave, 2 Hagg. Adm. R. 70 ; The VOL. I. 20 230 CASES IN ADMIRALTY. The H. B. Foster. Traveller, 3 lb. 372. The same principle may be considered as involved in The Zephyr, 2 Hagg. Adm. R. 43. Sir John NichoU, however, intimates that if an engagement even were made to tow, unforeseen circumstances may convert such towage into a salvage service. The Isabella, 3 Hagg. Adm. R. 428. On the second topic of discussion, I do not deem it import- ant, to review the cases relied upon on each side, or weigh very scrupulously the facts or principles connected with the subject ; for if it be conceded that the schooner for the time being, and when taken in charge, was technically a derelict in respect to her crew, that circumstance would in no way determine the scope of compensation to which the libellants would be entitled. Abbott on Shippi 660, notes. She was not derelict, in the sense of being; at the time helpless of relief except by the aid of these libellants. She lay safely at anchor in the bay. The danger of the storm was over. She had been seen the day previous from Staten Island, and that morning she was visible from Sandy Hook, and, of course, would be from the nearer vicinity of Coney Island and Staten Island. Another steamboat was directly in the rear of the Samson, going down the bay, for the pur- pose, among other objects, of looking out for this schooner. The Boston, 1 Sumn. 337. Contingencies might occur in her then condition and posi- tion, making it highly desirable and advantageous to her to be immediately taken into port. But prospective and possi- ble calamities which might attend her remaining there, do not constitute a case of imminent peril, especially where other resources for aid and relief are at hand. The Emulous, 1 Sumn. 215. The circumstances amount, in my judgment, simply to a case of salvage of a vessel laden with a valuable cargo, wholly crippled and unnavigable, and placed in a situation where a recmrence of severe weather might have produced a total loss ; but lying in the mouth of her port of destiaation, at APRIL, 1848. 231 The H. B. Foster. anchor, and within ready reach of assistance, with competent aid going to her relief, and akeady very near to her, when the libellants took her in possession. But I regard the allegation of the defence set up that the steamer Duncan C. Pell was surreptitiously prevented by the libellants from relieving the schooner, as not supported by the proofs. There is probable cause to suspect it was known on, board the Samson that the Pell contemplated running to this wreck, but it being proved that other vessels in the vicinity were aground, or injured from the effects of the storm, there might be reasonable grounds with the master of the Samson to suppose the Pell was not specially destined to the schooner, and was out on a general adventure, to give assistance where it might be desired. It was well known to the Samson that the Pell was employed ordinarily in towing vessels, and affording them assistance as required. Both steamers were wreckers as well as to wing-boats, and it is to be assumed, that after the tempest, they would, in pur- suit of their vocation, be on a cruise to render aid wherever it might be needed, and that their object would be mutually well understood ; and neither was bound to give place to the other, and avoid visiting a wreck which she supposed her competitor might intend going to. Although this fact does nor take away a just claim to compensation, it is certainly not without influence in determining whether the interposition of the Samson was valuable to the salved vessel, in an emi- nent degree ; and so, also, it becomes an element of weight in determining the salvage to be awarded. The particulars in evidence in the cause tend to diminish any claim to extraordinary compensation for the services ren- dered. Had the Samson gone down and relieved the schooner and her crew on Saturday afternoon, when apprised of their situation, her gallantry and exposure in the act, equally with the rescue of life and property, then in serious hazard, would have entitled her to the highest grade of reward. The Clif- 232 CASES IN ADMIEALTY. The H. B. Foster. ton, 3 Higg. Adm. R. 117. But on Sunday, so far as the danger to the steamboat or her crew, or the safety of those on board the schooner was concerned, the aspect of things was wholly changed. The libellants, as is most natural, magnify their labors and exposure, but facts independent of their tes- timony demonstrate that the service could have been no more than a very ordinary one, for with less than her full comple- ment of men, the tug ran the distance to the wreck, fastened to her, and towed her alongside of the wharf in New York, in five hom:s. The evidence of other witnesses on the bay at the time shows the weather to have become fine, and it is also to be remarked that the Samson was not taken from or delayed in other business, or subjected to hazard which might jeopard her insurance as if only a passenger or fi:eight boat, for this was no more than part and parcel of her daily and ordinary employment in towing vessels in and out of the harbor, or giving assistance to those in distress. The original libel, filed on the 2d of April, alleged, " that on Sunday morning, March 28, about 6^ o'clock, as the hbel- lant, &c., in the steamboat Samson, was going down below the Narrows to look for vessels coming in and needing a tow- boat, he discovered the schooner," &c. This averment was substituted on the 15th by an ameud- . atory one, alleging that the boat went down in consequence of a previous notice, &c. ; but the claimants have a right to invoke that allegation as an admission on record, attested by ■ oath, in corroboration of evidence showing that the tug did not go out of her common line of business, or assume a haz- ard beyond what was incident to her calling, and was antici- pated ; and no fair ground for doubt exists that if she had been applied to by any person interested, she would have gone down and towed in the schooner that morning, for the usual compensation of $10 per hour. No such agreement having been made, she is now entitled APRIL, 1848. 233 The H. B. Foster. to lay the case before the Court, and demand payment com- mensurate to the merit of the act, considered as a salvage service. The claimants impute to the libellants a want of due skill and care in not raising the anchors of the schooner, and also in slipping the cables without attaching buoys to them ; and that they have been compelled to pay other wreckers $75 for searching for and raising the anchors, and restoring them to the schooner. I think, however, on the proofs, that as the cables were foul, and considerable time must have been nec- essary to extricate them and raise the anchors, and as the tide was falling, and there might be danger, in case of a slight swell, that the schooner in that depth of water would ground on the bank so as either not to be easily moved off, &c., or by thumping to spring a leak, to the injury of the cargo; the course taken by the libellants was prudent and justifiable, not to risk the vastly greater value of vessel and cargo for the purpose of saving the anchors, even if their total loss might ensue from slipping the cables. Such loss was not to be apprehended, as the shoalness of the water and the known position of the schooner would leave little doubt that they could be easily recovered in calm weather. After the libel was filed, the owner of the schooner sought a compromise with the libellants. He claimed that they were responsible to him for the value of the anchors and chain- cables, but proposed to settle the matter by relinquishing that claim, and paying $150. That proposition they peremptorily refused. He then inquired whether an offer of $250 would be accepted, and was given to understand that would be re- jected also. The libellants claim a large percentage upon the proved value of the schooner and cargo, say, $14,000; and, on the argument, it is put at from one third to one moiety, the familiar allowance in cases of derelict or desperate stranding. Abbott on Shipp. 666, note 1. 20* 234 CASES IN ADMIRALTY. The H. B. Foster, Enough has already been stated to evince that the Court does not regard the libellants entitled to any extraordinary compensation. I have perused all the cases cited, in which the subject has been passed upon ; but it is manifest, that beyond the recognition of the general principles composing the doctrine of salvage reward, ' and a few facts of a pervad- ing and permanent character which may serve as guides to the discretion of the Courts, the cases must each have been determined essentially upon particulars peculiar to itself. Other circumstances being alike, steamboats, as having the ability to render more prompt and efficacious assistance than sail vessels, are encouraged by a more liberal reward. The Raikes, 1 Hagg. Adm. R. 266. This is most rightfully so, when they turn aside firom their voyage, or leave other pur- suits to go as mere volunteers to vessels in distress. This doctrine has certainly less force applied to them as professional wreckers and towers. Their intrinsic superiority to sail vessels for such service, will secure them the preference in that employment when they can be obtained, and thus the calling of itself will be sufficiently encouraging and advan- tageous, without the aid of the stimulus of high salvage rewards. At most, in reference to mere harbor service, and that ren- dered about the mouths of their own ports, it is by no means manifest, that steamers whose regular pursuit is to tow and relieve vessels, should be regarded as meriting a rewEird out of all relation and proportion to what would have been accepted as satisfactory on a fair bargain for their services. When the steamer is employed under contract, she receives full pay, whether she brings in the vessel she is sent for or not, and of consequence can afford to place a lower price on her employment than if the enterprise was entirely at her own expense and risk. This consideration should not be overlooked in measuring the reward in this case, where the libellants assumed the hazard of wasting the day at their APRIL, 1848. 235 The Bay State. own charge, with, perhaps, exposure of the boat and her machinery to more or less damage ; and it certainly would tend to retard their adventuring in like undertakings without the security of an express promise, if they, after assuming the hazard and expense and loss of time without reward, were still to be left, as to compensation, on the same footing as if under regular hire. Giving the most liberal weight to these considerations, and viewing this case in the light of its special circumstances, I shall award the libeUants $250, and their taxed costs. No offer of payment was made by the claimants in such manner as to operate an equitable bar to costs. No more was done by the claimant than attempt at negotiation for compromise. On failing in this he should have made a reg- ular tender, if he relied upon his offer as amounting to full satisfaction of the demand. The charge of embezzlement against the libeUants I con- sider fully repelled by the proofs. Decree accordingly. The Bay State. A steam vessel running into harbor, or through the common thoroughfare of other vessels, is bound to take extra precaution against collision with sailing vessels ; and in the night, or in case of a fog, must move with great circumspection, or even lay-to or anchor, according to the danger of encountering other vessels. A sailing vessel at anchor or lying-to in a dark night or in a dense fog, is also bound to take such precautions as may be in her power, to give warning of her position to other vessels, whether steamers or vessels under canvas, which may be Hearing her. Under the usages of navigation upon Long Island Sound, the blowing a horn, the ringing a bell, or the beating upon an empty barrel or upon an anchor, is a rea- sonable precaution which a sailing vessel lying-to in a fog is bound, as towards a steauier which may come in collision with her, to take, in warning off such steamer. (Since reversed.) The rule of 0) and the outside canal boat on the starboard side struck the schooner, doing considerable damage. The ground of defence was, that there was negligence on the part of those in charge of the schooner, which contributed to^the accident. The facts relied upon as showing this negli- gence are stated in detail in the opinion of the Court. E. C. Benedict, for the libeUants. C. Van Scmtvoordt, for the claimant. Betts, J. The libeUants having established a right, primd facie, to compensation for the injuries received in the collision articled upon, the case rests upon the sufficiency of the de- fence made on behalf of the claimant. That defence specifies three acts of the KbeUants which, it is contended, were wrongful under the circumstances, and operated to cause the collision, without fault or negligence on the part of the claimant. Those facts are the following : — 1. That the schooner was anchored, in a thick, dark night, nearly in the middle of the river, in the ordinary route and channel of steam vessels passing up and down the river. 2. That no light, proper and sufficient to warn approaching vessels of the position of the schooner, was exhibited upon her at the time of the collision. 3. That no watch was kept on her deck at the time. It is contended, that owing to these acts of culpable negli- gence, those in charge of the steamboat were prevented from 333 CASES IN ADMIRALTY.. The Indiana^ discerning the Schooner until so near her as to render it im- possible to avoid the collision. So far as respects the character of the weather and the position of the schooner, the evidence upon both sides is in substantial h&tiaonj, For although some of the testimony introduced on behalf of the libellant changes that the night tvas so dark that no vessel could be safely navigated, yet the weight of evidence on that side, in concurrence with all the testimony offered for the claimant, is to the effect that it was proper and safe, on the night in question, for steam vessels to fun, inasmuch as the land on each side of the river could be seen. And although there was a slight disagreement amongst the witnesses as to the position of the schooner — ^the claim- ant's witnesses stating that she lay " in the middle of the river," and the vdtnesses for the libellant saying that she was " a third or more of the width of the river from the east shore," — yet the discrepancy is too slight to embarrass the Court in applying to the ease the rules of law governing cases df a similar kind. For the assertion of the pilot of the In- diana, that the position taken up by the schooner was an unusual one for vessels to anchor in, is not contradicted by any evidence upon the othef side* These facts, then, are established by the pleadings and proofs. That the wind was northeast, and the tide a strong ebb. That the schooner lay at anchor wide off in the river. That the night was so thick and dark, that an object of the size and color of the schooner could not, without the aid of a light on board of her, be discovered by those on board of a steamboat running on the same iarack, at a distance of more than ten or fifteen rods off. That the position thus taken up by the schooner was one far out in the river, there a mile or more in width, and at a place where steamboats were not bound to exercise extraordinary circumspection or precaution in expectation of coming upon vessels at anchor. In respect to that diarge of negligeno© on the part of libel- NOVEMBER, 1848. 333 The Indiana. lants, which is based on the position selected by the schooner for anchoring, the rule applicable to such cases requires the promovent to show that there was positive fault or negligence on the part of the colliding vessel, and that there was no blameable conduct in the one injured, conducing- to the col- lision. The utmost that is made out by the claimant is, that the choice of the place where the schooner anchored might pcissibly have led to the accident. There is no evidence that any fixed understanding exists amongst navigators on the Hudson River, to the effect that vessels will not anchor out towards the middle of the river, even at points where it is of such great breadth ; nor any proof that it is the invariable or even the most usual course for steamboats to ^old a course directly midway the river during the night time. I do not think, therefore, that this case can be ranged with those where vessels are guilty of culpable negligence in anchoring in the common passages of great thoroughfares. After leaving the immediate harbor of New York, and particularly in those parts of the North River where there is a navigable channel of a mile or more in width, there does not seem to be any rule, or any necessity, compelling vessels to confine their anchor- age within any particular limit, or excusing those under way in one part of the channel from exercising the ordinary pre- caution and vigilance which might be required from them in another part. The charge of negligence, in not keeping a light conspic- uously suspended on the schooner, is better founded. Both the statute law of the State and the equally stringent rule of the maritime law, require a vessel at anchor, under such cir- cumstances as are shown in this case, to maintain a good and sufficient light throughout the night, so placed as to be visible to other vessels approaching her from any direction.' Compare, also, The Santa Claus, Olcott, 428. 334 CASES IN ADMIRALTY. The Indiana. 1 Mev. Stats. 685, \ 2 ; Train v. The North America, 2 N. Y. Leg. Obs. 67 ; Simpson v. Hand, 6 Wheat. 324 ; Bullock v. The Steamboat Lamar^ 8 Law Rep. 275 ; Waring v. Clarke, 5 How. 441^ And the testimony on the part of the claimants is full and- satisfactory to show that no light on the schooner t?as discernible from the steamboat^ either before or at the time of the Collision^ This evidence is given not by the pilot and other persons on board th© steamboat alone^ but by others on the canal boats in tow alongside her» The witnesses all assert that they were on a vigilant look-out,--- the alarm-bell of the steamer having been rung,-"and that they saw a few rods ahead a dark object on the water, but no appearance of a light upon any part of it. It is proved, by those on board of the schooner, that a globe lamp was trimmed and lighted, and properly set, at about eleven o'clock that night, and that at the time of the collision it remained in the same place, still lighted, and was taken down and used in searching for the damages she might have received. The pilot, however, adds that the wick was found (Srusted thickly, and he picked the wick before hSftging it up again. After the tWo vessels were Separated, the steamer passed down the river, but returned a short time subsequently to piit back upon the schooner one of her crew, who had got on board the steamer during the collision. On that occasion the light of the lamp was plainly seen by those on board the Steamer, in season to give them notice of her proximity ifi atnple time to avoid a coUisioH. This circumstance is urged, on the pa.lt ot the libellants, to show that the lamp had all the time given sufficient light to warn the steamer where the schooner lay ; while it is, on the other hand, invoked by the claimant, as evidence that the re-trimming of the lamp was necessary to render it of any service to other vessels approach- ing her. NOVEMBER, 1848. 330 The Indiana. I think this particular is not sufficient to countervail the strong proofs furnished by the claimant of the absence of any light exhibited on tlie schooner at the time of the collision, competent to afford warning to the steamer of her position. The light probably continued feebly kindled and burning too obscurely to give more light than enough to show the men, as they came on deck, that the wick was still ignited ; and even that effect might well be produced from the jar of the two vessels in the collision, shaking up or resuscitating slightly the flame. The weight of evidence, in my opinion^ is against the libel- lants upon this point, and fastens the fault on them of having failed to keep up, burning during the night, a clear Hght, placed conspicuously on the vessel, The omission of the libeUants to maintain a competent watch on deck throughout the night is clearly proved. That was an act of gross negligence on their part.^ All hands on board the schooner turned in at about eleven o'clock in the evening, A look-out, doing his duly on deck, could have secured the schooner from the accident. He could have given the steamer timely warning, by hailing or by waiving a light, and especially would have acquitted the schooner of fault in respect to a standing light on the vessel, by seeing that the lamp was kept in proper condition, and furnished the light required by law. Aside from the positive duty to maintain such a light, enjoined by the local statute, these acts of omission are made by the maritime law evidence of culpable inattention and want of precaution, which bar the schooner of aU claim to damages she may have suffered in consequence of the neglect. The libel must therefore be dismissed, with costs to be taxed. 1 Compare, also, The Kebecoa, 1 Bhtehf. §• H. 347. 336 CASES IN ADMIRALTY. The Washington Irving. The Washington Irving. A collision occurred in the day time, between a sailing vessel sailing on her star- board tack, on a flood tide, and a steamboat ; for which a libel was filed on the part of the vessel. Held, 1. That it was incumbent on the steamboat to show some improper act or omission on the part of thaisailing vessel, causing the collision, or it would be presumed that the steamboat neglected to use those precautions to avoid col- lision which the law required her to exercise. 2. That in order to protect the steamboat, such excuse must be set forth cle'arly in the answer of the claimants, and must be proved as laid. When a steamer and sailing vessel, proceeding in opposite directions, are approach- ing each other on courses which may lead to a collision, the steamer cannot be excused for holding her way, upon the hypothesis and belief that the sailing ves- sel cannot with safety to herself keep her tack, but must go about or come into the wind before they meet. The law casts upon the steamer the obligation of using effectively and promptly the extraordinary means she possesses to prevent a collision. Where the defence in the answer, in a cause of collision between a schooner and a steamboat, rested on faults imputed to the schooner in holding her course across the bows of the steamer under circumstances in which it was her duty to have gone about ; and the defence set up by the proofs rested upon faults committed on the part of the schooner in an attempt to come about abruptly, and falling off or drifting in the attempt, against the steamer, — Edd, that the latter defence was a deviation from the answer ; and that under the pleadings the claimants were not entitled to the benefit of it. This was a libel in rem, by Joseph Odell, owner of the .schooner Superior, against the steamboat Washington Irving, to recover damages for a collision between the two vessels. The facts appear sufficiently in the opinion of Court. William Jay Haskett and W. Q. Morton, for the Ubellant. J, W. C. Leveridge, for the claimant. Bbtts, J. The collision upon which this action is founded occurred in Hell Gate, near the Westchester shore of the East River, in the day time. The libellanf s schooner was sailing eastward on a flood tide into the Sound, and the steamboat NOVEMBER, 1848. 337 The Washington Irving. was running to New York, crowding close in by the shore of Ward's Island, in slack water, or what was regarded an eddy of the tide. The wind was N. E., and the schooner on her starboard tack from the Pot Rock across toward Negro Point, and in plain view of the steamboat. The starboard side of the schooner and bow of the steamer came in collision. Under these circumstances it is manifestly incumbent on the steamer to show some improper act or omission on the part of the schooner causing the collision, or it must be pre- sumed that the steamer neglected to use, in due time, the means at her command, and which the law required her to employ to avoid it. The exculpatory defence must be pleaded specifically in th*e answer, and must be proved as laid, in order to protect the claimant. In comparing the pleadings and proofs on this point, they are found not to harmonize, and the difier§nce is essential in 4 its character. The answer charges the whole fault to the schooner, and to have consisted in holding upon her starboard Jfcack, into an eddy and across the bows of the steamer, when her true navigation was to have gone about, as, had she cleared the bows of the steamer, there would not have been room for the schooner to pass or lie between the steamer and the land; and further, by holding that course into the eddy tide, aU control of her direction would be lost to her. Upon the assumption of the facts, the argument is cogent, that the pilot of the steamer had no reason to expect the schooner would undertake a movement so hazardous to herself, if not impracticable, and was not bound to take precautions against it, and rightfully continued on the course, which was the proper one, had the schooner been managed according to the usual and safe method of navigation under like circum- stances. There are important assumptions in this line of deferice which are not confirmed by the proofs. First, that the steamer vol.. I. 29 338 CASES* IN ADMIRALTY. The Washington Itving. was at the time in an eddy out of the tide, whetej for that reason, the schooner could not be expected to venttirej as, without aid of the tide, she would not have sufficient steer' age way to be worked about on the other tack before reach- ing the shore ; and. Second, that there was not space between the steamboat and the shore to ailbrd the schooner means of escape from bilging if she could be got past the bows of the steamer. The officers of the steamboat had a right to act upon the presumption that the schooner wouldmot be intentiotiaJlyrun in dangerous proximity to the shore, or to a point where she must become disabled or embarrassed in tacking by a loss or change of the current. But if these impediments to her course were not palpable and inevitable^ the steamboat had no right to anticipate any variation of her course by the schooner, and was bound to regulate her proceedings so as to leave the schooner^ free to be navigated according to the judg* ment of her master and pilot. They were entitled to deter* mine, at their discretion, the advantage or prudence of contin- uing her tack beyond the true tide, and even to what migh^ seem to the officers of the steamer a dangerous proximity to the land. The law, under circumstances of uncertainty or doubt in respect to these particulars, imposed on the officer^ of the steamboat the duty of taking timely precaution to secure the ■sailing vessel the free exercise of the discretion of her master in the choice of her course, and the expedients to be adopted in case he should encounter dangers in pursuing it. Had both vessels been under sail, the schooner being dose-hauledj was entitied to run out her tack, or hold it so long as she deemed proper, if the opposite vessel was ruiming free, and this privilege was still broader in respect to a steamer. Her pilot had no right to speculate upon the purpose or duty of the schooner, but, possessing the means and ample time, it devolved upon him to have avoided aU hazard of collision by NOVEMBEE, 1848. 339 The Washington Irving. stopping and backing her engine, or starboarding her helm and bearing oiF into the river, leaving space for the schooner to extricate herself in any manner she tnight elect. But these various grounds and assumptions of defence are no way sustained by the proofs produced on the part of the claimant. They are wholly inapplicable [to it. The scope and bearing of his testijmony is to show that the collision was occasioned by an improper manoeuvre of the schooner in luff- ing up into the wind so as to shake her sails, and thus mis- leading the pilot of the steamer by indicating the intention to bear off on the larboard tack, and then abruptly veering back upon her former course, when she had approached so near to the steamer that it was no longer in the power of her pilot to go astern of the schooner, or to prevent the latter being blown or drifted against the stern of the steamer. This line of defence is not within the answer ; it is a vital departure from it. It seeks to make an issue on merits out- side the allegations of the pleadings. This the law and prac- tiee of the Court will not permit to be done. In my opinion, the claimant entirely fails supporting the allegations of his answer, if they could be deemed &i law an adequate justification of the acts of the steamer in the transaction complained of, and that the libellant is entitled to a decree condemning the steamer in the damages sus- tained by the schA)ner from the collision. It will be refer- red to a commissioner to ascertain and report those damages to the Coturt. Decree accordingly. 340 CASES IN ADMIEALTY. Cox V. Murray. Cox V. Murray. A Court of Admiralty has no jurisdiction to afford a remedy, either in rem or in personam, for the breach of an executory contract for personal services to be ren- dered to a Tessel in port, in Jading or unlading her cargo. In order to clothe a contract with the privilege of a remedy in the Admiralty Courts, the subject-matter of the contract must be maritime in its nature. This is the case only when the matter done, or beguji to be done under the contract, regards the fitment of the vessel herself for the voyage, — aid and assistance ren- dered on board her in prosecuting the voyage, — or the employment of her as the vehicle of a voyage. This was a libel in personam, by Henry Cox against Rich- ard Murray, to recover for services rendered by the libellant to the respondent. The libellant was a stevedore. The respondent was mas- ter of the Gem, a British brig owned in Glasgow. The libel embraced several claims, among which was a demand of $60 for the breach of a contract alleged to have been made by the respondent with the libellant as stevedore, engaging the ser- vices of the latter to stow a cargo of corn on board the re- spondent's vessel for shipment abroad. It was shown, how- ever, that all the demands stated in the libel were satisfied by the respondent, excepting the one for damages for non-per- formance of that contract ; and that no se^Kces were rendered by the libellant under the contract to load the vessel, beyond what he had received compensation for. The sole question upon which the case turned was, whether a Court of Admi- ralty can take jurisdiction of a suit for damages for the bare breach of a contract for services to be rendered in loading a cargo on board a vessel. Almson Nash, for the libellant. J. T. Doyle, for the respondent. Betts, J. The libellant avers that he was employed by NOVEMBEE, 1848. 341 Cox V. Murray. the respondent to load and stow on board the brig Industry, commanded by the latter, a cargo of corn j and that he was afterwards; unjustly discharged by the respondent, and pre- vented from doing the work, whereby he has been damaged to the amount of $60. The respondent contests the amount of damages, and also objects to the jurisdiction of the Court over the demand. The inquiry as to the extent of damages sustained will be laid out of view, and the question of juris- diction will alone be considered. This being a foreign vessel, the remedy would, ordinarily, be concurrent either in rem against her, or in, personam against the owner or master, when the subject-matter is one of maritime jurisdiction. The General Smith, 4 WJieat. 438. K that position be not accurate universally,^ I do not consider the form of action in this case affords the libellant any advantage in respect to the question under consideration. The decision of the cause does not rest upon the point con- tested between the advocates of the parties on the hearing — that is, the right of a stevedore to sue in Admiralty for ser- vices rendered by Mm in loading or unloading a vesseP— rbut upon a point widely different, viz.,, the competency of the Court to sustain an action or afford a remedy for a mere breach of contract, when no services have been rendered, nor any materials famished, nor other acts of performance donfe imder it, upon a vessel. I understand the dbctrine of the liability in Admiralty, of vessels or their owners to material-men and laborers, is based upon the consideration that the ship has been benefited and aided in her business of navigating the. sea by the supplies or services furnished her. 4 Wash. C. C, B. 453. And I am 1 See the case of The Merchant, ante, 1. ^ That the services of a stevedore are not the basis of a lien upon the ves- sel, suable in rem, was decided in this Court, in The Amstel, 1 Blatchf, Sf H. 215, and in "^he Bark Joseph Cunard, Olcott, 120. 29* 342 CASES IN ADMIRALTY. Cox V. Murray. not aware that maritime' courts have ever sustained actions for personal services upon the footing of an executory contract merely. It may be a close question, whether a distinction may not exist, in respect to contracts of affreightment and others, which have relation to the use of a vessel in maritime employments, either by the owner or freighter, or to those entered into by mariners, which contemplate performance at sea, and thus assume, in most points, the strong similitude of a maritime character. But a contract made in port, and intended to be there per- formed, to fit out, rig, or repair a ship, or to put on board necessary stores for a voyage, is not easily distinguishable in principle from the contract to furnish her a cargo ; and I apprehend it would be difficult to fix upon any settled doc- trine of maritime law which brings contracts of the latter description within the cognizance of maritime courts. If suits can be maintained in Admiralty upon contracts where there has been no fulfilment, then, since the right of remedy should be reciprocal, the master or owner might resort to the same tribunal for the violation of agreements to bmld or repair a vessel, to supply her with stores, or to provide her with a stipulated cargo. The strong current of authority runs against the existence of any such powers in Admiralty Courts. tVillard v. Dorr, 3 Mass. 91 ; Plummer v. Hill, 4 lb. 380 j The Lady Horatio, Bee, 170 ; The Steamboat Orleans v. Phoebus, 11 Pet. 175 ; Andrews v. Wells, 3 Bow. 372 ; L' Arina V. Mainwaring, Bee, 199 ; Bains v. The Schooner James and Catherine, 1 Baldw. 544; The Crusader, Ware, 437; Bracket v. The Herci4es, Gilp. 184 ; Davis v. A New Brig, lb. 473 ; Thackaiey v. The Farmer, lb. 524. Undertakiogs which are merely personal in their character, or which are preliminary and leading to maritime contracts, do not seem ever to have been recognized as within the jurisdiction of Admiralty. Bracket v. The Hercules, Gilp. 184; The Schooner Tribune, 3 &mm. 144. The subject-matter of the NOVEMBER, 1848. 343 Cox V. Murray. contract — ^the substantial object and end — must pertain to navigation, or be connected with transactions performed by vessels on the sea, to become maritime in its nature, and be clothed with the privilege of a remedy in Admiralty Courts ; and it appears to me that an agreement acquires this mari- time quality only when the matters performed or entered upon under it pertain to the fitment of a vessel for navigation, aid and relief supplied her in preparirlg for and conducting a voyage, or the freighting or employment of her as the instru- ment of a voyage. Collateral contracts with or assistance by services or advances to an owner or master, incidentally benefiting a voyage, acquire no special property thereby . which renders them maritime. The loading or stowing a cargo on board does not involve either of these fundamental ingredients of maritime service. This position was taken in the decision rendered in this Court in the case of The Amstel,^ decided in 1831. The services of a stevedore in stowing or unlading a cargo, were there placed upon the same footing with those of a drayman who hauls it to the vessel or away from her. The stevedore's ser- vice is of no higher character, in respect to maritime privilege, than that rendered by any shore laborer who assists in pulling at the falls, or moving the merchandise along the wharf while the vessel is taking in or discharging cargo, or who aids in weighing or measuring it. The engagement entered into by a master with a stevedore, to employ the latter in such ser- vice, is of no higher quality than the service itself, and cannot, therefore, afford foundation for an action in Admiralty, either in rem or in personam. I therefore pronounce against the jurisdiction of the Court over this demand. Decree accordingly. 1 Since reported, 1 Blatchf. §• H. 215. 344 CASES IN ADMIRALTY. Bingold V. Crocker. B/iNeoLD V. Crocker. A seaman is entitled to be cnred, at the. expense of the shipi of sickness, hurts, wounds, &c., iqcnrred in the service of the ship. The phrase " service of the ship " is not confined in meaning to acts done for the benefit of the ship, or in the actual performance of the seaman's duty. A sailor must, in judgment of law, be deemed in the service of the ship while under the powei; and authority of its officers ; and he is entitled to be, cured at the ex- pense of the ship of any Injury received by him in executing an improper order, or inflicted upon him directly by the wrongful violence of an ofBcer of the ship in the exercise of his authority as officer to punish him. This was a libel in personam, by Washington Eingold, against Ebenezer B. Crocker and others, owners of a ship, to recover seamen's wages. The libeHant shipped for a voyage from New York to the East^idies, and back to New York, on board the ship, at $17 per month wages. The voyage covered a period of four- teen months. This action was brought to recover the wagea earned on liie voyage, indluding the expenses of his cure on shore. It appeared that while the vessel was in port at Manilla, the libellant went on shore one afternoon, and stayed over night. As he came alongside the vessel the next morning, the mate asked him why he went ashore without leave. The libeUant replied that he went because he wanted to. As. the Ubellant came up the side of the vessel, the mate struck him three blows on the head with an iron belaying-pin, by which libellant was much hurt. He went on shore and complained to the master, who was then boarding on shore, and who thereupon plticed him at a house on shore, and directed a physician to attend him. Twenty-one days passed before libeUant was able to return to his duty on board ship. The respondent claimed to deduct for the time thus lost, and this presented the principal question discussed. NOVEMBER, 1848. 345 Eingold V. Crocker. There was no evidence that the libellant was required to stay on board ship to be cured, or that the ship was provided with means for his cure. Alcmson Nash, for the libellant. Burr ^ Benedict, for the respondent. The liljellant, it appears, was not injured in the service of_ the ship, nor in the course of his duty. The injury received by him was a mere personal wrong, brought on by the insub- ordination and insolence of the libellant, and for the conse- quences of which the respondents were not responsible. . Betts, J. It is plain that the ship is liable for the charges incurred in the medical treatment- of the libeUant on shore, and expenses of attendance, if his case was one which the ship was bound to provide for.^ Jacobsen's Sea L. 144; Abbott on SMpp. 259, note 1 ; Cmtis on Merch. Seam. 106, note 2 ; lb. 107, note 1. , The point taken for the respondents is, that the libellant was wounded in a personal brawl with a sub-officer of the ship, and that they are not answerable for the expenses of the cure of his hurt received in that manner. The testimony proves the injury to have been received by the libellant on board the ship, from blows inflicted by the mate in punishing him for alleged misconduct and contu- macy. The instrument employed was every way an improper and unsafe one to use in correcting a sailor, if he rightly de- served punishment. The mate, however, plainly considered himself in the exercise of his authority over the libeUant as an officer of the vessel, for he first reprimanded him for ab- sence from the vessel, and then struck him with a belaying- pin because of impertinent or disrespectful language in reply. 1 See, also, on the liability of the ship for the expenses of a mariner's cure of hurts received in her service, The Atlantic, decided in February, 1849, and reported ^osi, in order of date. 546 CASUS IN ADMIRALTY. Kingald v. Crocbep. There was at th% iiime no qua^el between them, and no assault upon the mate was attempted on the part of the libe]? lant. The version given by the mate of the transaetion is contra- dicted by the bystanders, and ought, under th© circumstances, to have little weight without corroboration, The excess of punishment ^ven by an officer in the exerdse of his authority on board, or the use el an improper instrument tQ inilict ^t, cannot change the natuie of the sailor's rights in respect to the ship or her owners. Had the seaman sickened firom the infliction of a punishment given by an officer in the ordinaiy; i^aanner on ^ip«board, and whieh proved to be beyond his strength or state of health .to bear, theie can hardly be a ques- tion that he would be entitled to be cnred of such sickness at the expense of the slap.. A sailor must, in judgment of law, be deemed in the service of the ship, whilst under the power and a^ithority of its officers ; and an injury received, by hint in executing an improper ordei, or inflicted on him diiectlyy by the wrongful violence of the officer, in the exereise of his rightful power and command over him as an officer, must equally entitle him to this privilege secured him by the law inaritimfe. The ancient sea ordinances provided, that mariners falling sick during the voyage, or hurt in the performance of their duty, should be cured at the expense of the ship. Curtis m Merch. Seam. 106, note 2. The service of the ship is by no means limited to acts done for the benefit of the ship, or in the actual performance of seaman's duty on board. Reed w. Canfield, (1 ^mn. 195,). was the case of a sailor who drifted to sea, and was badly frozen, in a boat, in port, after the voya^ had terminated. The whole boat's company had gone on shore wrongfully, and had also disobeyed orders in overstaying the time limited them, and that iniaoonduct probably led to the injury; as a sudden change of weather, occurring subsequent to the ter- NOVEMBER, 1848. 347 Eingdia V. Cfockei'. mination of the leave of absence, prevented the boat reaching the ship, and caused the exposure Vhich resulted in the libel- lant's being frozen and disabled. Still the Court held that he was entitled to charge the ship with his cure. If the present case presents a point not clearly included within any adjudged case, the principle, in my judgment, is common with that upon which the ship is ordinarily held liable for the cure of seamen ; and I am in no wise disposed to -^veigh a balancing question, should this be regarded one, unfavorably to the mariner. If there is hardship in the rule, it is better that it should bear more heavily on the ship and owners than on the seaman. The ship is to bear the expense of board, medical advice and attendance, and those other charges incident to the nature of the coiiiplaint and the cli- mate, or circumstances of the confinement. The Brig George, 1 Sumn. 151 ; Lamson v, Wescott, lb. App. And the respon- sibility of the owners personally is co-ordinate with that of the ship. 3 Kent, 5th ed. 133, note ; Abbott on Shipp. 158, 172, 780. I SfeaU pronounce for full wages for the voyage, and an order of reference must be taken to a commissionet to state the araounti Such deductions are to be made as are properly allowable for payments, if any, by the Baastef , in behalf of the libeUant, incidental to his cure, and iiot directly required for it. The respondents are also to be credited with the amount of advance payments in money, and articles fur* nished the libellant at his request by the master during the voyage. Decree accordintgly. 348 CASES IN ADMIRALTY. Baxter v. Leland. Baxter v. Leland. As between the original parties to a shipment, it is competent for them to show the actual condition of the goods at the time of the shipment. The phrases, " the dangers 61 the seas," " the dangers of navigation," and " the perils of the seas," employed in bills of lading, are convertible terms. A dampness or sweating of the hold of a vessel, shown to be the ordinary accom- paniment of a voyage from southern to northern ports, and to result not &om tempestuous weather, bat from occult atmospheric causes, is not a " peril of the seas." Wherever a cause of injury to a cargo lies very near the line which separates ex- cusable perils of the seas from those dangers for which carriers are responsible, regard is to be had to the custom of the trade in determining whether it is to be classed with ]^eril8 of the seas or not. Where there is a notorious custom in a particular branch of commerce, of stowing goods of a particular description on board ship in a certain way,'shippers, who consider such mode of stowage hazardous, must notify carriers of their wish to have a different one adopted, or they will not be entitled to charge the latter with injuries received in consequence of its adoption. The propriety of the common-law rule respecting the liability of common carriers considered. • This was a libel in personam, by Sylvester Baxter and oth- ers, owners of the ship Cleone, against Horace Leland and others, to recover fireight and primage on a cargo of flour. The libel showed that the libellants had transported a cargo of 1076 barrels of flour in the UbeUants' vessel, from New Orleans to New York, which were consigned to the respond- ents at the latter port, and were duly delivered to them there. The libellants demanded $430.40 freight, and $21.52 primage. The answer set up that the flour was delivered in a dam- aged condition, and that the loss incurred by the respondents and chargeable to the libellants amounted to $531.50. It appeared upon the proofs in the cause on the part of the respondents, that on an inspection of the flour, when deliv- ered at this port, 601 barrels were marked « B. bad," and 69 barrels were marked «xd. bad;" and it was further proved , NOVEMBER, 1848. 349 Baxter v. Leland. that the deterioration in price updn those marked " B. bad " was from seventy-five cents to one dollar a barrel ; that upon the others was about twenty-five cents a barrel. For the libeHants, evidence was offered tending to show that the flour was not put on board the vessel in good con- dition. Thus they showed that ten barrels were stained on the outside when shipped at New Orleans, though it appeared that the residue of the shipment was, so far as was indicated by external appearances, in good order. Evidence was also put in by the UbeUants, tending to show that by the method of transportation adopted for bringing the flour from the interior of the country to New Orleans, and also by exposure on the wharf at New Orleans, while waiting to be laden on board ship, the flour had been liable to get we*, and that it was taken on board under circumstances which might well cause its injury in the manner disclosed upon its arrival at New York. To rebut the inference sought to be drawn from these facts, the Ubellants gave evidence that the flour, when manufac- tured and put up, was perfectly sound and sweet, and that such care and attention were bestowed in forwarding it as to leave no ground to presume that it was put on board the ship in a damaged condition. It was manufactured at Ewing Mills, in the county of Muskingum, Ohio, and early in De- cember, 1847, was forwarded by canal and flat-bottomed boats from the mills to New Orleans, where it arrived about January 20, 1848. The bill of lading, signed by the master of libellants' ves- sel, and dated February 1, 1848, contained an admission that the flour was received on board the ship in good order and well-conditioned ; but a memorandum in the words " weight and contents are unknown," was added by the master before his signature. Other facts, especially such as relate to the usage prevail- voL. I. 30 350 CASES IN ADMIRALTY* Baxter v. Leland. ing amongst persons engaged in the business of shipping and forwarding like goods from New Orleans to the North, are stated in the opinion. E. C. Benedict, for the libeUants. A. P. Man, for the respondents. Betts, J. As between the original parties to the shipment, it is competent for them to show, by evidence outside the bill of lading, the actual condition of the flour at the time of shipment, (Howard v. Tucker, 1 Barn. 8f Aid. 712,) without the aid of this exception ; and the reservation by the master, in executing the bill of. lading, imposed on the shipper no obligation to give other evidence than the bill of lading itself, that the contents of the casks corresponded with the admis- sions in it, until affirmative evidence is furnished tending to show a mistake in the receipt in that respect. The memorandum made by the master, that the contents and weight of the casks were unknown, does not change the character of the instrument. It operates as it would without that reservation, as primd facie evidence that the shipment corresponded with the representation, but subject to be recti- fied by proof that it was otherwise. The libellants show that ten barrels were stained upon the outside when received on board, but they furnish no evidence raising a reasonable presumption that the contents of any part of the shipment were injured. The gist of the controversy has been, on the part of the libellants, to show that the damage the flour had received arose from its inherent qualities, — from dangers of the sea, — or from the usual and ordinary damp and sweating of the ship on the voyage. The struggle on the part of the respondents has been to make it appear that the cargo of the ship was improperly stowed, and that the injury received by the flour was occa- sioned by placing it in the hold of the ship on the top of hogs- NOVEMBER, 1848. 351 Baxter v. Leland. heads of new sugar, and laying over it sacks or bags of Indian corn. The libellants deny their liability for the damage, should it be found to have been so occasioned, upon the assertion that the storage was in consonance with tMyjommon and well- known usage of ships engaged in freight!^ from New Orleans to the northern Atlantic ports. I do not think a custom has been established in this respect, which, if the loss sustained by the respondents is owing to wrongful stowage of the ship's cargo, will, of itself, exonerate the libellants from their liability as carriers. As to the essen- tial damage, the case hinges, then, in my view of it, on the point whether it is satisfactorily made out by the respondents that the injury to the flour was caused by stowing it in juxta- position with the sugar and corn, and that such stowage was improper and unsafe. There seems to be no essential disagreement in the .evidence respecting the condition of the hold when opened to unlade the cargo. It was found heated to a high degree. The corn in . some of the bags had sprouted, and the grain was so hot as to render moving it by hand painfnl. This part of the vessel was eJso filled with a strong vapor and dampness. The flour in many of the barrels was found caked or coagu- lated, so that it could not be separated by the hand, and in others it was soured; and there is no reason to question, upon aU the proofs, that the condition and temperature of the hold would ordinarily and probably produce the consequences found to exist in respect to the flour, had it been sweet and in good condition when laden on board at New Orleans. The disagreement in the testimony is as to the prob^le cause of that state of the hold of the vessel. The ship, when she took in cargo, was in sound condition, and on her arrival here was found not to have leaked at all. It is proved, by numerous witnesses of great experience in the New Orleans trade, that vessels running north will almost 352 CASES IN ADMIRALTY. Baxter v. Leland. invariably sweat, or disclose an interior moisture or dampness, sufficient often to be productive of serious injury tQ goods on board, and that this condition of the ship, except as to degree, is irrespective of the cargo she carries. The cause of this cannot be asceitayl^ with certainty, but it appertains in no way to the insufncBicy of the ship ; it is generally ascribed to the sudden change of climate, and augmented, as has been usually noticed, by rough weather, and also by any natural moistness in the cargo, yet exhibiting itself to the highest de- gree in the cold seasons of the year. The libeUants contend that -if the damage to the flour is imputable to the state of the vessel, whether produced by the sweating of the ship or the character of the cargo, they are exonerated from liability ; — on the first supposition, because their undertaking does not guaranty against loss ; and on the second, upon the custom or usage of the trade, which justifies this method of stowage ; and also on both, by the exception in the bill of lading, of " the daggers of the seas" in one copy, or " the dangers of navigation," as expressed in the other. It is to be remarked that this change of phraseolgy is not to be understood to indicate any different intent with the parties ; and either mode of expression, standing without qualifica- tion in an instrument of this character, should be accepted as equivalent to " perils of the sea," and aU are treated in the cases as convertible terms. In The Reeside, (2 Sumn. 568,) and Aymar v. Astor, (6 Cow. 266,) the exception was of « dangers of the seas," and in Fairchild v. Slocum, (19 Wend. 329,) the "dangers of Lake Ontario;" and these exceptions were regarded by the courts as of the same significance as the comm to lessen the peril of the collision, her engine was again re- versed, and an attempt made to move ahead, when the stem of the Columbus struck and perforated the Fairy Queen, and caused her to sink immediately. The number of steam craft in this harbor, running in and out of its various slips at all hours, some at fixed times and others indefinitely, renders it important to the common safety of navigation along the wharves, that the law regulating their movements, in approaching and leaving the slips, should be well understood and strictly enforced. That consideration DECEMBER, 1848. 387 ' The Colambus. calls for a fuller notice of this case than its special difficul- ties would demand. A steamer, although appointed to go out at fixed periods, is bound to remain in her slip, notwithstanding the time of her departure has arrived, if a vessel is seen, or is in a posi- tion to be seen outside, which she will be in danger of strik- ing if got under way at the time. But she is not compelled to lie waiting the expected arrival of another vessel, whose period of return to the same point or known time of passing it is about to expire. The evidence goes no further here than to fix about the usual time the Columbus passed that point daily, and shows that a variance of ten or fifteen minutes in her arrivals was not unusual. It also proves that two min- utes would be sufficient time to carry the Fairy Queen out of her way, after she reaches the place where she may be seen approaching. The Columbus was not discovered in that interval of time on this occasion, because a vessel, loaded with hay, lying at the end of Charles-street pier, intercepted the view from the Fairy Queen in that direction. When the Columbus came out from behind that vessel, and the ferry-boat had passed out of her slip sufficiently far to bring the Columbus in sight, the two boats were found in such hazardous proximity, and the danger of collision was so imminent, as naturally to cre- ate uncertainty and confusion on board the ferry-boat, and in my opinion, the collision cannot rightfully be charged to any culpable misconduct of her's, if an hypothesis may be framed upon which a different course would have freed her from the danger. She did what in the exigency seemed to offer a chance of rescue, and whether any thing else could in reality have better served to that end, must be only matter of con- jecture. The claimants have not, therefore, in my judgment, suc- ceeded in protecting themselves, by showing that the collision was produced by any blamable omissions or acts of the Fairy Queen. 988 CASES IN ADMIRALTY, The Columbus. But to throw upon the claimants the consequences of this disaster, more is incumbent upon the libellants than to prove themselves clear of blame ; — they must make it manifest that the loss was occasioned by the fault of the Columbus. This steamboat made daily trips between New York and Sing Sing, landing both ways at Hammond-street dock, a distance of one thousand feet north of Christopher-street per.. The landing had that afternoon just been made, and she vas under way towards her berth at Chambers-street, moving ^t a slow rate, about two hundred feet out from the docks. Two or three vessels were lying at anchor below Ham- iRond-street, and one hundred yards or more from the docks. The steamboat Pioneer was running a few yards ahead of the Columbus, on her starboard side, and close outside of the anchored vessels. About opposite, or slightly above Chris, topher-street, and just astern of the vessel anchored lowest 4own, the Pioneer changed her course to come into the slip, when the engine of the Columbus was immediately stppped and reversed, and worked back with all its power till the 'col» lision occurred. The witnesses differ in opinion as to the exact place the Columbus had reached when the collision took place. The pilot of the Pioneer thinks it was opposite Charles-street. The pilot and engineer of the Fairy Queen place her below Amos^street ; whilst witnesses on the Columbus suppose her a,t Charles-street, or between that and Amos, or against the Amos-street cross-pier. No witness supports his estimate by any collateral fact which gives certainty to it. The differ- ences in estimates may arise from looking at and from differ- ent parts of the Columbus, (she being one hundred and eighty feet long, and nearly or quite extending over the space be- tween the two slips,) or from oblique ranges of vision, or from a few seconds difference of time in observing her, when the impetus given by the wind and tide would necessarily urge DECEMBER, 1848. 389 The Columbus. her forward with considerable rapidity. Either of these cir- cumstances might reasonably account for the disagreements of the witnesses in this particular. The Columbus was man- aged in this respect solely with regard to the movements of the Pioneer, and to avoid coming in contact with her. The Fairy Queen was first noticed from the Columbus, after the order had been given to back the latter, and when the former was just showing herself beyond the end of the pier, and moving out of her slip. Upon this evidence there is no ground for imputing blame to the Columbus, in the measures taken or omitted by her, ' after she and the Fairy Queen came in sight of each other. The measures she took in order to avoid the Pioneer were those which would have been demanded of her had she been acting in respect to the Fairy Queen, also, and for the sup- posed omission of which, her coming upon the latter is imputed to her as a fault. Nor is the Columbus chargeable with want of precaution in advancing so near to the Fairy Queen, without discov- ering her. The reasons assigned by the libellants as an ade- quate excuse to the Fairy Queen for not discerning the Columbus, equally enure to the protection of the Columbus. The sloop lying between the two boats interposed the same obstacle to the view of each. The Columbus was not called upon to notice the position of the Fairy Queen, or her prob- able purposes, until she showed herself in motion ; and it is clearly proved that did not occur until the engine of the Columbus was already reversed, and she was in the act of working back to avoid the Pioneer. This was the appropriate and only means in her power for protecting the Fairy. Queen also. The Columbus was on a track safe for her to run, and the most prudent watchfulness would exact no more from her than to guard against vessels under way or lying at anchor outside the slips. She had a right to rely upon the presump- tion that her position and direction would be observed by any 33* 390 CASES IN ADMIRALTY. The Colambns. vessel desirous to get under way, and that such vessel would not put out to cross her track without being sure of sufficient distance and speed to render such movement safe. It would have been gross remissness in each boat to have pressed ahead in their relative nearness to each other, had no acci- dental impediments prevented their discerning those move- ments at the moment. The Fairy Queen would have been, culpable in leaving her fastenings before the other was clear of her track, and the Columbus guilty in continuing her head- way when it must have been dubious whether she had room to pass the ferry-boat safely. Upon the testimony, I regard the collision as a pure casu- alty, so far as the agency of the Columbus was concerned, attributable to no fault or negligence on her part, and thiat she is, therefore, not liable to respond for the damtiges aiising from it. The matter of costs is undoubtedly very much under the discretioil of the Court. Canter v. The American Insurance Company, 3 Pet. 307 ; The United States v. The Brig Malek Adhel, 2 How. 210. The general principle is, as at law and in equity, that costs, in causes of damage, in this Court, fol- low the decision. The Ebenezer, 7 Jmt. 1117 ; The Athol, 1 W. Rob. 374. In cases of collision, however, the usage is to charge them upon the party most to blame. The Celt, 3 Hagg. Adm. R. 321. If neither party is found culpable, each pays his own costs. The "Washington, 5 Jur. 1067. In the English Admiralty, where both vessels are to blame, it would seem that the costs are imposed on both in common, lb. No fault is fastened upon the Fairy Queen in this case, and accordingly each party must pay his own costs. Decree accordingly. JANUARY, 1849. 391 Truesdale v. Young. Truesdale V. Young. Whether, unrler the estahlished usage among^steamboats plying upon the Hudson Kiver, the mere hiring of a pilot at monthly wages, eiFected prior to the com- mencement of the season of navigation, carries with it an implied engagement that the employment shall continue thi-oughout the entire season, — Query » Whether such engagement could he implied where the hiring was effected after the season was partly over, — doubted. Where, in the case of a contract for services in which no definite term of service is expressed, there is proof that the party claiming to have been hired as pilot rep- resented the engagement was terminable at his option, this aflpords a strong pre- sumption that it was terminable, also, at the option of the other party. This was a libel in personam, by Verdine Truesdale against Jacob Young, to recover wages as second pilot on board the steamboat Oswego. The libel stated, that in May, 1848, the respondent, then being in command of the steamboat Oswego, engaged in towing between New York and Albany, hired libellant to serve as second pilot on the boat, at the wages of forty dollars a month and board ; that by such engagement the libellant became hired for the remainder of the season, — ^that is, until January 1, 1849 ; and that he was unjustly discharged Sep- tember 1, 1848. He claimed to be entitled to wages for the remainder of the season, including boaS:d, amounting to $228. The answer of respondent set up as a defence, that the em- ployment was merely temporary, and during the consent of both parties. That libellant was a connection of his through the marriage of relatives, and was, as he had understood, des- titute of employment and means of support; that libellant applied to him for temporary employment until he could find a situation ; that he took libellant into the employ of the boat for so long, only, as his services should be required, — ^the libel- lant being also under no obligation to remain longer than he chose, — and that he dismissed libellant, September 1st, because he did not consider hipa competent to perform pilotage service 392 CASES IN ADMIRALTY. Trnesdale v. Young. in the fall months, during which the difficulty of the nav?gar tion is increased. Upon the trial, January 3, 1849, it appeared that the libellant was employed in May, 1848, and discharged September 1st, following. It also appeared that he had meanwhile made some eifforts to obtain other employment, and had expressed some intention of leaving the Oswego. It did not appear that the engagement of libellant was definite as to time. But to show that it was an implied engagement until the close of the season, the libellant relied upon evidence of a usage on the Hudson River, in steamboat navigation, that pilots em- ployed at monthly wages were understood to be employed for the entire season. The proper construction of the contract between the parties, in view of this usage, wasthe priiicipal question in the case, and the chief evidence in reference to the usage was as follows : — 'Edward L, Van Buren, testified. I was first pilot on board the Oswego during the season of 1848. I have followed the business of pilot on the Hudson River for twenty years. The employment of a pilot on the river is usually considered to be a hiring for the season ; that is the custom of steamboats upon the river. The season ends January 1st. It is the cus- tom of the tow-boat lines to employ first officers for the entire season of ten months. I am not employed by the season. John Van Arsdale. My business is that of pilot upon Hud- son River steamboats. The custom upon the river is to hire pilots for the entire season, from March to January 1st. Henry Verplanck. I have been first and second pilot for fifteen years. The custom of the river is to hire pilots for the season of ten months, beginning March 1st. Other witnesses gave evidence to the same purport respect- ing the alleged custom. Testimony was also given, touching the services of the libellant and his competency as pilot. Edwin Bmr, for the libellant. C. Van Santvoordt, for the respondent. JANUARY, 1849, 393 Truesdale v. Young. Betts, J. The libel in this case is based upon an alleged hiring of the libellant, as second pilot, by the respondent, mas^ ter of the steamboat Oswego, for the season. The answer denies that any such agreement was made, and alleges that the libellant being out of employment, the respon- dent from motives of friendship, and because of marriage connection, gave him temporarily the place of second pilot on the boat, and for so long a time only as his services should be wanted. On the first of September, the respondent informed the libellant that his services would no longer be required. The libellant two days thereafter offered to respondent to continue as second pilot during the remainder of the season, and claimed the right to the place. The respondent declined to retain him ; and this suit is brought to recover wages for the months of September, October, November, and December. There is no proof by the libellant that an express agree- ment was made with him for any definite term of services. There is evidence conducing to prove an established usage and course of business among the steamboats upon the Hud- son River, to engage, pilots and engineers at monthly wages for the season, which is considered to extend from March 1st to January 1st, and to pay them for the entire ten months, although the boats may not continue to run during the whole period. But the testimony is not explicit or clear that this mode of payment obtains in cases where it is not a part of the express bargain that the hiring is for a season. And I am not prepared, upon the evidence adduced in this case, to pro- nounce that a mere hiring of a pilot at monthly wages, upon the Hudson River boats, implies, by the usage and custom of the business, that his compensation shall continue throughout the entire season. This point has been before the Court in a previous case. The Hudson, {MSS.) 1846.1 1 Since reported, Olcott, 396. 394 CASES IN ADMIRALTY. Truesdale v. Young. If such custom prevails in respect to engagements made previous to or at the commencement of the season, there would be stronger grounds for the Court to sanction and enforce it, than would exist if the pilot or ofEcer is taken into service after the season has in considerable part expired. The usage proved relates to employments beginning with the sea- spn ; and in such case, if it falls short of a fixed custom, a stronger presumption would arise that the engagement em- braced the entire season, than when the hiring is at monthly wages in the progress of the season, and after it has nearly elapsed. The pilot is then without a place, and the oppor- tunity to seek one from among the whole body of steamboats is no longer open to him. Moreover, it will not be implied that a general usage of that character would include and gov- ern the chance occasions for hiring a pilot as a supernumerary, or J;o replace another temporarily, which the conveniences of navigation must render frequent. Whatever, then, might be the effect of taking a pilot on the Hudson River at monthly wages, without stipulation of time, prior to the first of March, I am by no means prepared to say, upon the proofs produced in this case, that such employment, at any after period of the year, will create rights or responsibilities in respect to either party, beyond an agreement for services and compensation in ordinary cases of hiring. This case cannot, however, be justly regarded as resting upon implication or presumption as to the intention of the parties. The evidence in the cause sufficiently shows an en- gagement terminable at the option of the respondent. The libellant was not by profession a pilot, and he leaves it at least equivocal upon his own evidence whether he had ever before acted in that capacity. He had for many years been master of sailing vessels and steamboats employed on the Hudson River and elsewhere, having passed three or four years of the intermediate time in keeping a public house, established near the Highlands. But even his character as captain in vessels JANUARY, 1849. 395 Truesdale v. Young. of the description mentioned, would not import any ability or experience as pilot. The evidence shows that masters of steamboats are not charged with the duty of navigating them. And although upon the Hudson River, such duties are per- formed by masters of steamboats occasionally, and frequently by masters of sailing vessels, yet in neither case does the mere holding the place of master import any nautical skill or experience. It is clear, from the testimony of Mr. Van Buren, the pilot of the Oswego, and who was examined on behalf of the libel- lant, that the respondent did not consider the libellant quali- fied to fill the place of second pilot at. the time he was cut gaged and taken on board the steamer. Placing him in that position, under such circumstances, raises the presumption that he was taken temporarily or upon trial, to determine his capacity for the station, rather than absolutely assigned to the post of second pilot for the residue of the season. The declarations of the libellant, made after he entered upon this service, to the witnesses King and Whittemore, confirm the inference that a temporary engagement only was contem- plated by the respondent ; and they show, also, that the libel- lant did not consider himself committed to any definite period of service. To King, he stated in June that he was making interest for a different employment in "New York, and did not intend remaining with the Oswego longer than until he could get a better situation. This declaration was made on board the boat, and the libellant' added that others besides himself were looking out for such a situation for him, importing that it was understood he was attached to the boat but tempo- rarily. To Whittemore, he stated early in August, and on board the boat, that he expected to leave her, and advised him to go down in her from Albany to New York, and obtain the berth which he occupied. He alluded to the ofiice of harbor-mas- ter as one which he and others expected would be obtained 396 CASES IN ADMIRALTY. Traesdale v. Young. for him. The witness does not recollect whether the libeEafit specified the time at which he intended to leave the boat. But after that conversation the respondent wrote him at Al- bany, desiring to employ him as second pilot ; and the wit ness, in compliance with that request, came from Albany in the boat, on the first of September, in that capacity. * The libellant was then on board, and came to New York, but made no remark to witness relative to the latter having displaced him. Neither pilot exacted any services of the libellant during the trip, nor is it shown that the respondent put him to any duty, though the first pilot says, once on the trip he saw the libellant rendering some assistance on the deck. • I think, upon the whole evidence, it is manifest that the libellant well understood he was engaged only provisionally, and was at liberty to leave the boat whenever he chose to do so. There must be strong and clear proof that the respond- ent bound himself-absolutely to more than was secured in his own behalf against the libellant. In the absence of such proof, the presumption will be that the contract was recipro- cal in respect to the right of each party to hold the other for a definite term, as also to the right of each to terminate it at his option. So far from showing an obligation upon the respondent to retain the libellant in the service of the boat during the entite season, I think all the testimony tends to prove a mutual un- derstanding that the libellant was engaged for so long a time only as the respondent should see fit to employ him, with a correspondent right on his part to seek other service, and leave the boat at his pleasure. It ought, probably, to be added, that, in my opinion, the evidence fairly imports that the engagement was terminated by the libellant himself, as it is no more than reasonable to infer that he gave the respondent notice of the communica- tion made by him to Whittemore, in August, The libel must accordingly be dismissed with costs. JANUARY, 1849. 397 Zerega v, Poppe. Zerega v. Poppe. Under a bill of lading which acknowledges the receipt of goods for transportation in good order, the carrier may, notwithstanding, show, in case of injury to the goods, and as against the owner of them, that it was occasioned by insufficiency in the cask, case, &c., in which they were packed, and not by any negligence or misfeasance upon his partA But the law presumes that the goods were delivered to the carrier in the condition specified in the bill of lading ; and the burden of proof lies upon the carrier to rebut this presumption. It is not sufficient, in ease of damage to goods received under such a bill, for the carrier to show that the goods were delivered to him in insufficient packages, and that the defect was not discoverable by him. He must also show that the loss actually resulted from such insufficiency, and from no fault of his. This was a,]lhelinpersonam,hy Augustus Zerega, Thomas Andrews, and IsEiiah C. Whitmore, owners of the ship James H. Shepherd, against Edward Poppe and Theodore Poppe, to recover the freight of thirty-two casks of linseed oil, shipped on board the James H. Shepherd, at Antwerp, and consigned to the defendants at this port. The goods were shipped under a bill of lading, in French, of which the following is a translation : — I, J. Ainsworth, captain of the American ship James H. Shepherd, at present at Antwerp, bound for New York, acknowledge to have received on board my said ship, in good order, from Messrs. F. & J. Badart Freres, thirty -two casks of linseed oil, containing together twenty thousand and sixty- three litres, which I bind myself to deliver at the said place, well-conditioned, excepting the perils of the sea, to order, they paying me for freight two American cents per gallon, and no more ; for the accomplishment of which I bind myself, my 1 Compare, also, on the right to explain a bill of lading, Manchester v. Milne, ante, H5 ; Goodrich v. Norris, ante, 196 ; Baxter v. Leland, ante, 348. VOL. I. 34 398 CASES IN 'ADMIRALTY. Zerega v. Poppe. property, and my said ship, freight and equipment, and have signed four receipts of the same tenor and of one effect. Done at Antwerp, March 10, 1848. Contents unknown — not accovmtable for leakage. James Ainsworth. Thirty-one of these casks of oil were safely delivered to the respondents, the consignees, in New York. The other cask was found, on unlading, to have been broken, and its contents had escaped. The consignees, considering that the value of the oil lost, including duties paid upon the lost oil, as a part of the invoice, exceeded the amount due for freight, and that the carriers were liable for the loss, refused to pay the charges for freight, and this suit was accordingly brought by the ship- owners, to recover it. The amount claimed was $89.20. Other facts appear in the opinion. Mortimer Porter, for the libellants. Edga/r Logan, for the respondents. Betts, J. This action is by the owners of the ship James H. Shepherd, to recover the freight of thirty-two casks of lin- seed oil from Antwerp to New York. Thirty-one of these casks were delivered to the defendants, as consignees. One cask, of the capacity of two hundred and six gallons, was found, on discharging the vessel, to be broken, and its con- tents had leaked entirely out. The value of the oil lost, in- cluding sixteen dollars duties paid upon it by the consignees, exceeds, it is contended, the amount of freight stipulated for the transportation of the thirty-one casks. And the question between the parties is, upon which this loss shall fall. The liability of the ship-owners is fixed primd facie by the bill of lading, as between the parties to it ; and considering the defendants to have no other rights than those of the own- ers of the goods shipped, the burden is on the respondents to show an adequate excuse for not delivering the entire cargo, JANUAR'Y, 1849. 399 Zerega v. Poppe. conformably with the terms of the bill of lading. Abbott on Shipp. 323 ; Ctirtis on Merch. Seam. 169. The acknowledg- ment by the bill of lading that the cargo was received in good condition is primd facie evidence that, so far as indicated by the external appearance of the casks, it was in good order when laden on the ship. It is not, indeed, conclusive upon the libellants. They are at liberty to show that the loss resulted from inherent insufficiency or concealed defects in the cask, or other facts constituting an adequate cause for its breakage,, without fault or negligence on their part. It, however, de- volves upon them to supply satisfactory proof that the admis- sion made in the bill of lading is inaccurate, and that this cask was not received by the ship in good condition. The exculpation set up is, that the cask, when sent to the ship, was rotten and insufHcient to bear the weight of oil in it, and the handling necessary for lading and unlading it. Such defects of the cask, not discernible to the carrier on an ordinary examination, will undoubtedly relieve him of respon- sibility in case of the loss of its contents in the course of trans- portation. Story on Bailm. § 492. But this insufficiency of the package, and the fact that it was the cause of the loss, Eiust be proved. It is not to be presurhed from the circum- • stances that the goods were not safely delivered. The libellants have undertaken to establish the fact, by proving the broken cask was in appearance old, decayed, and rotten; and from that condition of infirmity, they contend ~the leakage was owing to the insufficient state of the cask, and not to any negligence or improper act of the master or crew. It is not necessary to consider the pertinency and weight of those suppositions and inferences, for the libellants have not succeeded in showing that the injury to the cask did actually' arise from its insufficiency to sustain the ordinary treatment of lading and stowage on board. Several respect- able and intelligent witnesses have been examined, who ex- 400 CASES IN ADMIRALTY. Zerega v. Poppe. press the opinion, that from the present state and appearance of the broken stave, it would not have borne rolling over a stone or other hard substance, in getting it to the ship, or being let down heavily on dunnage of wood in the course of stowage. The stave was crushed inwardly near the bilge. The fracture was manifestly caused by the cask encountering a sudden shock or pressure. The ligaments of the stave are severed by being driven inwardly in a splintered state, but held in contact without being actually broken short off. Some of the witnesses inferred this appearance of the frac- ture was caused by prying the cask with a lever of iron or other hard material, in endeavoring to lift it or move it in stowing ; but all agree that the break could not result merely from the resting of the cask on its bed and supporters, in the manner the evidence shows it was dunnaged on board. This testimony displaces all ground of presumption that the break- age arose from any inherent defect of the cask. The opinion of all the witnesses and the exhibition of the stave, demon- strates that the fracture must have been produced by consid- erable external violence, and could not result from the work- ing of the cask in its place on board. Admitting, then, that the shippers were bound to supp^ casks of strength sufficient to bear the ordinary usage in stow- ing, it is incumbent upon the libeUants to prove that this one came to the ship in a broken state, or in such condition that the loss befel it without any act of carelessness on their part. The call upon them "to make this proof is pertinent and the more stringent, as it appears that, before the cargo was ex- posed to sea-perils, the pumps threw up oil from the hold, and on examination of the stowage at the time, this cask was found empty. The strong presumption upon the evidence is, that the injury happened in lading the cask on board, while it was under the responsibility of the respondents. It is to be remarked, that the opinions of witnesses respect- ing the inherent defectiveness of the cask are strongly contra- JANUARY, 1849. 401 Zerega v. Poppe. dictory, and the indirect evidence from that source must be received ^vith great caution. Many coopers and others, ex- perienced in this business, pronounce the cask a sound and sufficient one for the transportation of oil. Some consider its long use as a whale-oil cask tended to strengthen it, and that it was at that time as sufficient to. carry linseed oil as when new, whilst others considered its long service had softened and enfeebled the stave so as to destroy its tenacity. Those who carefully inspected the stave, and picked the fibres of wood in presence of the Court, disagree in their opinions whether there was any decay or want of strength in it. The , weight of evidence in point of numbers is, in that respect, with the respondents. I think the libellants have failed to. prove that the loss of the oil in this case was owing to the defectiveness and insuffi- ciency of the cask, and the respohdents, on their part, have proved no more than that it was carefully and safely stowed, and that the fractiire cannot reasonably be ascribed to im- proper stowage ; that, however, does not satisfy the bill of lading, nor excuse them from delivering the entire cargo. The decree must accordingly be, that the value of the oil be deducted and allowed the respondents against the demand of the libellants for freight. If the parties do not agree between themselves in the ad- justment of the amount, let a reference be taken to a com- missioner to state it. K the loss equal in amount the freight, a decree will be entered dismissing the libel, with costs ; if a balance remains payable to the libellants, they will take a decree for the amount, with costs. 34' 402 CASES IN ADMIRALTY. • Bucker v. Klorkgeter. BucEER V. Klorkgeter. The maritime courts of this country and of England are not without jurisdiction over actions, whether in rem or in personam, hetween foreigners. But as a general rt^e, both the American and English courts wiU decline to enter- tain such actions, excepting where it is manifestly necessary that they should do so, to prevent a failure of justice. A stipulation in shipping-articles, by which.the master and crew of a foreign ves- sel, about to sail to this country, agree that they will not sue in any courts abroad, but will refer all disputes to the courts of their own country for adjudi- cation, is lawful and binding, and will, in general, be respected and enforced by the American courts. But where the interests of justice require it to be disregarded — e. j., where the . voyage is broken up in an American port, by some other cause than the wreck of the vessel, or where the man is discharged or becomes entitled to a discharge by reason of improper treatment — the American courts will entertain a suit by a' foreign seaman for his wages, notwithstanding his stipulation in the articles not to sue until his return home. TJnder the practice in this country, the approval of the consul, or other represen- tative of the nation to which foreign seamen belong, is not absolutely necessary to the maintaining of a suit between them. It seems that a deviation from' the voyage for which foreign seamen shipped, is not a ground upon which our courts should entertain jurisdiction of a suit for wages, where, by the articles, the libellants have stipulated to sue in their own country only. Unseaworthiness of a vessel releases the crew from obligation to sail with her ; and on showing such condition of the vessel, and that they left her on that account, they may maintain an action in personam for wages here, although.' all parties are foreigners, and are under agreement not to sue while abroad. A report that a ship is seaworthy, made by marine surveyors, upon occasion of the crew demanding to leave her for unseaworthiness, is not conclusive against the crew, in a subsequent action for wages, after leaving. This was a libel in personam, by Gerhard Backer against Henry Klorkgeter, master of the bark Pacific, to recover wages as seaman. The libellant, a foreigner, shipped at Bremen on board the Pacific, for a voyage to New York, elsewhere and back. Arti- cles to that effect were signed by him. The original agree- ment and an admitted translation of it were put in evidence JANUARY, 1849, 403 Bucker v. Klorkgeter. in the cause. By the terms of the agreement, the libellant bound himself, under penalty of forfeiture of wages, not to leave the vessel (abroad, and not to ask his dismissal nor any wages due, of foreign courts ; and also agreed, that if any difference arose between himself and the master, he would bring no action therefor, excepting in the courts of Bremen, after the end of the voyage ; and that he would appear in the courts of Bremen and await their sentence in reference to his services and duties. The Pacific, after arriving at New York, was despatched to Havana, and returned thence to New York. The HbeUant , performed both voyages in her. She was then loaded and made ready for a voyage to Madeira. While she was lying in the North River, the crew, including the libeUant, refused to go in her, alleging that she was unseaworthy, and they demanded a survey. Marine sur- veyors were accordingly called in to examine the ship. After trying the pumps, and finding that although she leaked, she did not make water so fast but that she could be kept free with about five minutes working of the pumps per hour, they certified that she was seaworthy. The respondent and the Bremen consul then required the crew to make the voyage ; but they, including the libellant, refused to go in her, still in- sisting that she was unsafe and unseaworthy. Another crew was then shipped and the bark put to sea. In about five days she returned in distress. She had encoun- tered heavy weather during this absence, in which she was much strained. A more careful survey was then had, and she was pronounced unseaworthy ; and her cargo being un- laden and her hull examined, she was found rotten through- out, and not worth repairing. , Her hull and masts were sold at auction for $25, and on the same day were resold by the purchaser for $200, to be broken up, they being found useless for any other purpose. The respondent refused to pay the libellant his wages, and 404 CASES IN ADMIRALTY. Bucker v. Klorkgeter. no provision was made by the Bremen consul for his support here, or for his return home. E. C. Benedict, for the libellant. I. The crew were under no obligation by the articles to go with the vessel to Madeira. The articles did not bind them to return to IjTew York after leaving it for another port ; nor were they bound to go from New York to more than one other port. This obligation they had abeady fulfilled by the trip to Havana ; and the attempted voyage to Madeira was a deviation from that contemplated by the articles. II. The stipulation in the articles referring aU matters in dispute to the Bremen courts, rests evidently upon the assump- tion that the vessel would return to Bremen. The contract is, that the libellant wOl bring no action except in the courts of Bremen, after the end of the voyage. This contemplates a return to Bremen ; and the stipulation can have no applica- tion under an emergency wholly unprovided for by the arti- cles, namely, the entire breaking up of the voyage in this country. III. The failure of the voyage by the unseaworthiness of the ship brings the case within a well-recognized exception to that general doctrine, that the courts of this country will not interfere in the disputes of foreigners. The seamen had a right to leave the vessel if she was unseaworthy. It is true the presumption is against them upon this point ; but if upon the trial the libellant has proved her unsafe at the time when he left her, — ^which has clearly been done, — he has established his right to refuse to sail. The certificate of the first sur- veyors does not prevent libellant from showing the ship to have been in fact unfit to sail. T. Tucker, for respondent. I. The stipulation in the articles is lawful, and should be enforced in this Court by a dismissal of the suit. Thompson V. The Catharina, 1 Pet. Adm. R. 104; Willendson v. The Forsoket, lb. 197. JANUARY, 1849. 405 Bucker v. Klorkgeter. II. Moreover, this Court will not take cognizance of con- troversies between foreigners, even in the absence of such agreement. III. The certificate of the surveyors upon the first survey was conclusive upon the men, as to the condition of the vessel. That she was afterwards found unseaworthy i? not surpris- ing, nor is it inconsistent with the truth of the first certificate, when the evidence as to the weather encountered by her during the attempted voyage to Madeira is taken into view. The leaving the vessel after the surveyors had reported her in good condition was a forfeiture of the wages claimed. Betts, J. An exception is taken on behalf of the respon- dent to the jurisdiction of the Court in this case, upon two grounds : — 1. Upon the general ground that maritime courts will not entertain suits for wages brought by foreign seamen against foreign masters or owners. 2. Upon the terms of the shipping articles, by which the libellaut agreed that if any difference arose between him and the respondent, he would bring no action therefor, except in the courts of Bremen, after the end of the voyage ; and that he would appear in the courts of Bremen, and await their sentence, in reference to his services and duties. In respect to the question raised by the first objection, it is sufficient to say, that the nature and limits of the jurisdiction of Admiralty Courts of the United States over suits between foreigners have been .several times brought under careful con- sideration in this Court. And while I recognize very sufficient reasons why our courts should, in general, decline to take jurisdiction of such cqntroversies, yet I am clear that the power exists, and that the Court may hear and determine an action of this description between foreigners, whenever the general interests of justice demand that it should be done. 406 CASES IN ADMIRALTY. Bucker v. Klorkgeter. ' The reasons for this view were fully stated in Davis v. Leslie,^ {MSS.) 1848. A further question arises, however, upon the effect of that stipulation in the shipping articles which limits the libellant, in case of controversy, to a resort to the courts of Bremen for redress. Such stipulations in the shipping articles are regarded by the American courts as valid. A contract by which the sea- man binds himself not to sue in any case, or not to sue in the proper court, or in the courts of his own country, is not to be supported. But a stipulation in a shipping contract between foreigners, by which the parties bind themselves not to sue ex- cept in the courts of their own nation, is lawful and should be sustained. Thompson v. The Catharina, 1 Pet. Adm. R. 104. And I believe it to be the recognized doctrine, as now estab- lished in our courts, in respect to suits by foreign seamen for their wages, where the shipping contract contains a provis- ion of this kind, that if the contract remains in force, and the voyage is yet unended, the courts wiU decline jurisdiction, especially if the suit is not sanctioned by the representatives, diplomatic or commercial, of the nation to which such sea- men belong. Abbott on Shipp. 786 and note; Cwrtis on Merck. Seam. 359 and note. The English and American tribunals, however, never de- cline jurisdiction in these cases, when the voyage is broken up, or the seamen discharged, or other emergency has occurred, entitling them clearly to thek wages. A leading authority on this point is the case of The Wilhelm Frederick, (1 Hag-g. Adm. R. 138,) between which and the case now before me are many points of resemblance. That cause was instituted against the ship by the seamen for their wages. t Reported ante, 128. See, also, The Napoleon, Olcolt, 208 ; The Infanta, ante, 263 ; One Hundred and Ninety-four Shawls, ante, 317. JANUARY, 1849. 407 Bucker v. Klorkgeter. The owners appeared under protest to the jurisdiction, based on the following facts : The owners were subjects of the King of the Netherlands, and the ship was a Dutch ship. Previous to. sailing from Amsterdam, the crew had stipulated by the shipping articles that none should have a right to take proceedings at law against the master in foreign ports, but aU disputes and complaints against the master should be set- tled or prosecuted on arrival in their own country. In case the ship while abroad should be sold, or condemned, or the continuation of the voyage be suspended, so as to render it necessary to discharge the crew, the master was to make a settlement with every one upon terms prescribed in the arti- cles, and no one should claim a larger sum ; and in case the master should be remiss in the performance of his duty, the injury was to be made good at Amsterdam. On the arrival of the ship at Cowes, she was surveyed ; and, in consequence of the damage she had received, was found to be utterly un- able to proceed on her voyage, the further prosecution of which was, therefore, abandoned, and the men discharged on a tender of wages and a passage home, which they refused. The owners abandoned the ship to the discretion of the mas- ter, who assigned her in trust to pay the wages, and for other purposes. The protest to the jurisdiction was overruled. Lord Stowell says : " The owners had abandoned the ship to the discretion of the captain, who assigns her over to British creditors, at Cowes. Here, then, was a disclaimer by the owners of their own articles of agreement ; their contract with the seamen was at an end ; and I am satisfied that the sea- men may, under these circumstances, proceed on the general law to establish their claims." On similar grounds, actions by foreign seamen for wages have been sustained, notwithstanding such stipulations, by the English common-law courts. In Sigard v. Roberts, (3 Esp. 71,) and in Limland v. Stephens, (lb. 269,) the plaintiffs were under articles which contemplated a .settlement of dis- 408 CASES IN ADMIRALTY. , Backer ii. Klorkgeter. putes between the master and crew in the courts of their own country only ; yet in both these cases the action in the Court of King's Beach was sustained, upon the ground, in the first case, that the master had discharged the seamen ; and, in the second, that the seaman had received ill treatment from the master, which entitled him to a discharge. This jurisdiction is also sustained by a dictum of Mj\ Justice Le Blanc, in Hulle V. Heightman, 4 Esp. 75. But see Gienar v, Meyer, 2 H. Blackst. 603. In the courts of the United States the same course has been followed ; and while, in general, our courts will respect and enforce a stipulation between a foreign master and his crew, which limits them to suing in their own country, they have frequently asserted both the power and the willingness to grant relief to a seaman, notwithstanding such an agree- ment, whenever the interests of justice demand that they should do so. Cases in which the voyage was broken up or ended in this country, or in which the men were discharged here, have been specified as those in which the courts would most readily enforce the payment of wages due, although, by the strict letter of his contract, the seairian was forbidden to ask their aid. _ Aertsen v. The Aurora, Bee^s Adm. R. 160. In one respect, indeed, the American courts show a greater favor to seamen, in these cases, than do the courts of Great Britain ; for the former proceed, irrespective of any inter- ference on behalf of the seaman by his consul or other national representative, whilst the English courts would seem still to insist that the sanction of such an ofiicer to the action shall be procured, unless the nature of the case forbids. The Wil- helm Frederick, 1 Hagg. Adm. R. 138 ; Edw. Adm. Jur. 128. I am clear that, notwithstanding a stipulation of this sort, the courts of the United States are open for the protection of foreign seamen, left destitute within their jurisdiction, by improper discharge, or by the breaking up of the voyage for any other cause than the wreck of the vessel. JANUARY, 1849. 409 Bucker v. Klorkgeter. T have never been disposed, however, to entertain jurisdic- tion in those cases in which the ground upon which the Court is asked to disregard the stipulation prohibiting the suit is a deviation of the foreign ship from the voyage contemplated in the articles. Judge Peters has, indeed, intimated that a gross deviation would be a legitimate ground for the interpo- sition of the local courts. Moran v. Bauden, 2 Pet. Adm. R. 415 ; and see Weiberg v. The St. Oloff, lb. 428. But I have always considered questions of deviation to be fitly referable to the home tribunals. They are best able to determine what the obligations and rights of the respective parties may be under the apparent change of the agreement. I should not, therefore, entertain this action because of the proposed voyage to Madeira, upon which the bark entered, and her deviation thereby from the voyage described in the shipping agreement ; and had the point been the right of the libellant to leave the vessel for that cause, I should have referred him to the courts of Bremen for redress. This is not the case, however. The crew refused to serve on board, because of the unseaworthiness of the ship. They left upon that allegation, openly, and with the knowledge of the master and consul. This circumstance, also, takes away from their departure the character of a desertion, endeavored to be given to it by the defence. If done unwarrantably, the men may have incurred, under the law maritime, a penalty fequivalent to the value of their wages ; but the refusal to go to sea in a ship found to be leaking constantly, and which they desired to leave for no other cause, would not amount to a technical desertion. I think, therefore, that neither the po- d.tion taken in favor of the libellant that he could rightfully abandon the vessel because of her deviation from the voyage agreed upon, nor that, on the part of the respondent, tiiat the refusal to sail was a desertion, and involved a forfeiture of the right to wages, is maintainable. The case then turns upon the question, whether the vessel' VOL. I. 35 410 CASES IN ADMIRALTY. Backer v. Klorkgeter. was unseaworthy at the time of the libeUant's refusal to sail in her ; and I think it clear upon the evidence that she was. The slight and exceedingly unsatisfactory examination made by the marine surveyors, on giving their certificate of sea- worthiness, even if it could operate to put the men in the wrong, in case no facts had afterwards been brought out respecting the condition of the vessel, cannot, nor can their formal certificate, avail against the clear and indubitable evi- dence furnished within a week after, that the ship must have been at that time totally unsafe to undertake the voyage she was to enter upon.^ It is alleged that she encountered heavy weather in the short time during which she was out, and was greatly strained in it ; yet if the fact were so, the state of the weather would have no connection with the condition of en- tire rottenness in which her whole body was found on her return. It caniiot, upon the proofs, be matter for question, that the ship was not merely unseaworthy in a nautical sense, but was moreover unfit and unsafe for any navigation what- ever. The libellant took the risk of making out the unseaworthi- ness of the vessel, in justification of his refusal to remain by her ; and having done so completely, under circumstances demonstrating that such was her condition when he asserted it and left her, he is entitled to every adv9,ntage that can arise from the clear establishment of that fact afterwards, with the same effect as if it had been brought to light at the time of her sailing. Manifestly one consequence is, that he was released from all obligation or duty to go to sea in her. And it follows no less certainly that the voyage being broken up because of the destruction of the ship for rottenness, the libel- lant is entitled to his wages upon his contract, as upon its full and faithful performance on his part. The stipulation to ' On the effect of a marine survey, see the authorities cited by Smith, arguendo, in The Lucinda Snow, ante, 805. JANUARY, 1849. 411 Bose V. Niles. refer all actions to the Bremen courts, contained in the arti- cles in this case, relates, by its terms, to an anticipated ending of the voyage at that port. It cannot be accepted as govern- ing the case of an entire breaking up of the voyage in a foreign country, by a sale of the ship, as in this instance, for incapacity to prosecute and complete it. To give that effect to the contract would be not only wrongful and oppressive to the seamen, but would render it deceptive and fraudulent in respect to their rights and remedies, inasmuch as the master would have it in his own power, by disposing of his vessel, abroad, to cut them off from all recovery of wages. The master abandons the .vessel in this port as worthless, and leaves the libeUant to take care of himself; — accordingly he is liable for wages already earned, for the necessary support of the libeUant here, and for means' sufficient for his return home. It must be referred to a commissioner to ascertain these amounts, giving the respondent allowances for past payments, and for the earnings of the libeUant since he left the vessel. Decree accordingly. Rose v. Niles. A female offered as a witness and objected to, upon the ground that she is the wife of the party calling her, cannot be examined to disprove the marriage when there is sufficient evidence aliunde before the Court to raise a presumption of marriage. This was a libel in personam, filed by George Rose against Hiram NUes and John R. Wheeler, to recover seamen's wages. The libel demanded wages for navigating the canal boat Emerald, owned by^the respondents, from Troy to New York, and for remaining with and keeping her afterwards, upon an alleged agreement to pay libeUant one doUar per day, with 412 CASES IN ADMIRALTY. Bose V, Niles. board, for these services. The answer denied the agreement ehajged, and that the services alleged were rendered. The libellant offered the deposition of one Julia Kemble, taken out of Court in the cause, in support of the allegations of the libel. The respondents objected to it as incompetent, upon the ground that the vsdtness was the wife of the libellant. To sustain the objection, they proved by several* witnesses, that the proposed witness and the libellant cohabited together as man and wife, and had declared, in presence of each other, that they were married. It was also shown that the woman had on one occasion stated, in the presence of libellant, the time and place of their marriage, without contradiction ftom him. So also, the libellant had spoken of her to others as his wife, in her absence, but during the cohabitation. The libellant then proposed to prove, by the deposition of Julia Kemble herself, that she was not his wife. This depo- sition the Court excluded as incompetent, and this ruling raised the principal question in the case. A. a Morrill, for the libellant. F. F. Marbury, for the respondent. Bbtts, J. In my judgment, the primd facie proof of mar- riage made by the respondents, renders the deposition of the supposed wife inadmissible even to disprove the marriage. There can be no pretence that the libellant is authorized to call in the testimony of his wife in his own behalf, and the only question to be considered is, whether a woman is a com- petent witness for a man, to disprove a marriage in fact with him, when there is sufficient evidence aliunde to establish a legal marriage between them. As a general rule, it is well settled that proof, such as was' made in this case, of cohabi- tation, with admissions and reputation of marriage, authorize the presumption that a legal marriage was had. Morris v. Miller, 4 Bwr, 2056 ; Reed v. Passer, PeaAe.'s Gas. 231 ; Her- vey V. Hervey, 2 W. Blackst. 877 ; Fenton v. Reed, 4 Johns. 52 ; Jackson v. Claw, 18 lb. 346. JANUARY, 1849. 413 Rose V. Niles. It was formerly a subject of debate in the English courts, whether a woman who had lived in a meretricious state with a man, but under representations by him that she was his wife, was not an incompetent witness for or against him in all respects as if the parties were legally married. It was contended that in ordinary cases, and especially where the relation was still subsisting at the time of the trial, the testi- mony of the mistress was open to nearly the same objection on the score ,of interest, as that of the wife, since her testi- mony would tend to increase or preserve the fund to which she looked for her support. And it was also urged, with more force, that it was against pubHc policy and morals to give to persons living together in an illicit connection, under the pre- tence that it was a lawful one, a power to aid each other by their testimony which was denied those cohabiting in the relation of husband and wife. And this view received some seeming sanction from a ruling of Lord Kenyon in 1782, (cited in Campbell v. Tremlow, 1 Price, 81.) The prisoner in that case was tried on a charge of forgery. Being a man of competent education, he addressed the Court in his defence with considerable effect. In the course of his speech, he fre- quently alluded to a woman who then accompanied him, and whom he spoke of as his wife ; and he concluded by offering her evidence in corroboration of some facts which he had stated. "When the objection of her being his wife was taken, he said, that they were not in fact married. But his Lordship would not permit him to call her, after having spoken of and represented her as his wife. And he was convicted and exe- cuted. In the case of Campbell v. Tremlow, (1 Price, 81,) the question was much discussed but not decided. In the case of Battliews v. Galindo, (3 Carr. ^ P. 238 ; 14 Eng: Com. Law, 284,) Chief Justice Best ruled at Msi Prius, that a woman, living with a man as his wife, was incompetent to testify for him ; but a new trial was granted on this point, 4 Biriffh. 610 ; 15 Eng. Com. Law, 88. The Court were unan- 35* 414 CASES IN ADMIRALTY. Kose V. Niles. " ' - - - ^ - imous in holding that the objection went to the credit of the witness only, and that the witness could not be excluded as incompetent. Chief Justice Best says : " The ground on which I think nay decision at Nisi Prius wrong, is this, that the principles on which the rejection of testimony rests, have been greatly narrowed in late times, and are directed rather to the credit than the competejicy of witnesses. It is now generally agreed that the principles of our law of evidence are too nar- row, and that much inconvenience is produce^ by a too fre- quent exclusion of testimony. The true principle to follow on such occasions is, that the witness is not to be excluded, un- less dejv/re the wife of the party. Where the situation of the female may be changed in a moment, and is so different from that of a wife, who cannot be separated, it is much better that the objection should go to th6 credit than to the compe- tency of the witness." And it is now regarded, I think, as settled in England, that the disqualification extends only to the case of parties united by a lawful marriage, or by a rela- tion considered equivalent thereto.^ 1 Phil. Ev. 48 ; Stark. Ev. Pt. 4, 711 ; Roscoe Grim. Ev. 147 ; 1 Greenl. Ed. § 339. The same question was raised in 1820 in the Oyer and Terminer in New York city, before Van Ness, Judge of the Supreme Court ; Golden, Mayor ; and Jay, Recorder ; in a cap- ital case, (Randall's case. City Hall Recorder for 1820, 141.) The Court there held a woman an incompetent witness for the prisoner, he having cohabited with her, representing her to be his wife, although he gave evidence that they were not actu- ally married, when by mutual agreement they commenced cohabiting together. This was undoubtedly carrying the rale to the extreme; and although decided by three most experi- enced and able Judges, the case would probably, on revision 1 As, for example, where the parties have lived together believing them- selves to be lawfully married, but the marriage is discovered to be invalid. JANUARY, 1849. 415 Rose V, Nilfis. at this day, be qualified so far as not to hold the cohabitation and admissions conclusive as to theii status, except, perhaps, in respect to the civil liabilities of the man and the rights of their children. It goes greatly beyond the present case, for here no evidence is offered to disprove the marriage except that of the woman herself. The Supreme Court of Massa- chusetts would seem to countenance the doctrine declared in EandalPs case ; for it held the reputed husband who offered evidence showing that a connection which he had represented to be lawful was in fact void, as being within the prohibited degrees, to be estopped from founding any advantage upon his own guilt or infamy. Divoll v. Leadbetter, 4 Pick. 220. See also Mace v. Cadell, Cowp. 232. I suppose the true distinction to be, that while a party is forbidden to contradict representations of this character, in cases where third parties have acted upon such representa- tions and cohabitation, by giving credit, or otherwise acquir- ing rights or incurring responsibilities, (1 Greenl. Ev. § 207 ; 2 lb. 462,) such representations are not absolutely conclusive upon a mere question of the competency of one as a witness for the other, in a case in which the rights of third persons are not thus involved. I should, therefore, receive the deposition, if there were before me competent evidence that the witness was not in reality the wife of the libellant. There is, however, a further question in the case ; for the evidence on the part of the respondents amounted to primd facie proof of a marriage de faptp et de jwre ; and the only evidence offered by the libellant to rebut this presumption, and remove the apparent incompetency, was the testimony of the supposed wife hersdf. • But she abeady stood before the Court in the character of the lawful wife of libellant, and as such must be excluded from testifying for him until tfee disqualification is removed. The only case I have seen which conflicts with this view is that of Alien v. Hall, (2 Nott 8^ McC. 114,) where the Court 416 CASES IN ADMIRALTY. Rose V. Niles. ■ ■■ »- declare that if the proof of marriage is only presumptive, the supposed husband and wife are competent witnesses to disprove it. As I understand that case, the presumptive proof of mar- riage which the Court ruled was conclusive unless rebutted, arose from cohabitation only. But if the case is to have a broader effect, and applies to all proof short of actual marriage, it would be difficult to sustain it, or even to reconcile it with the principle declared by the Court in that very case, — viz. that the parties are, by force of the presumption, proved, as re- spects themselves, to be man and wife. For while that rela- tion subsists, they are incompetent to testify for each other.' ' In the case of Soheaph v. Szadeczky, (1 AbboWs Pr. R. 366,) nearly the same question arose in the New York Common Pleas. That was an action for enticing away the plaintiff's wife. Evidence having been put in by the plaintiff, that he and the alleged wife had lived together as man and wife, were reputed to be such, and frequently admitted that they stood in that rela- tion towards each other ; the defendant afterwards offered to prove by the testimony of the alleged wife herself, that she had never been married to the plaintiff. It was contended (on the authority of Peat's case, 2 Lew. Cr. 288; Wakefield's case, lb. 278 ; Allen u. Hall, 2 Nott §• McC. 114 ; Stevens ii. Moss, Cowp. 593 ; Mace v. Cadell, lb. 232 ; King v. Bromley, 6 T. M. 330 ; Poultney v. Fairhaven, Brayt. 185 ; Commonwealth v. Littlejohn, 15 Mass. 413 ; Phil. Eo. 88 n. 163 an* 192 ; 1 Greenl. Ev. § 339 ; to which might be added Wells v. Fletcher, 5 Can: §• P. 12 ; S. C. 24 Eng. Com. Law, 192,) that the evidence of marriage being merely prima facie, the witness was com- petent to disprove it. It was held, however, that she was properly excluded ; that, there being proof of marriage already in the case when she was offered as a witness, that proof was suflRcient to establish the marriage, in the absence of all proof to the contrary, so far as to render the witness incompetent. There may seem to be an inconsistency in the principle laid down in this Q^se and in the text; and those cases where on an indictment for forcibly ab- ducting and marrying a woman, such female hjs been received as a witness. This was done in Brown's case, (1 Ventr. 243,) upon the authority of Ful- wood's case, (_Cro. Car. 488. See also The King v. Fezas, 4 Mod. 8 ; Bac. Abr., tit Marr. and Div. D. 1 ; Respublica v. Hevice, 2 Yeates, 114,) where the female was admitted to prove the force used to accomplish the marriage ; and also in Perry's case, (Bristol Assizes, 794, cited in Macnall^s Ev. 181,) JANUABY, 1849. 417 Bose V. Niles. The fact of marriage arising in cases before courts of law must, unquestionably, be determined by a jury.; and because their determination of facts is more absolute and conclusive than the decision of a Court of Equity, Canonical, or Admi- ralty jurisdiction, being less open to revision and correction by appeal to higher tribunals, greater precaution is exercised in the admission of evidence, and its quality is more strictly scrutinized on jury trials, yet a common principle must prevail substantially with all courts in determining the legal character of evidence. And, as I understand the law of evidence, so long as a person stands in the relation of husband or wife, he or she is prohibited from testifying in behalf of the other. The disability must be removed by evidence from other sources. I hold, accordingly, that the deposition of Julia Kemble, offered by the libellant, is inadmissible. The libellant further attempted to prove the allegations of his libel by the cross-examination of witnesses offered by the respondents. In this attempt he wholly failed. The depo- sition upon which he relied being excluded, his claim stands before the Court unsupported by evidence. The libel must be dismissed with costs, but without preju- dice to any action which the libellant may hereafter bring for the same cause. where the female was examined on behalf of the prisoner, to prove the mar- riage voluntary. The true ground of these cases appears to be, that the pros- ecution must be allowed ex necessitate to call the female to prove the force, and that, as a necessary consequence, she is competent to disprove it at thfi call of the defendant 418 CASES IN ADMIEALTY. McCormick v. Ives. McCoEMiCK V. Ives. A Court of Admiralty has not jurisdiction of an . action to recover wages for ser- vices in a voyage upon a canal not connecting navigable lakes or different States or Territories. Nor will the fact that a small portion of the voyage is through public navigable waters, give jurisdiction, if the main end contemplated by the contract was a ser- vice upon such canal. This was a libel in ■personam for wages, by Edward McCor- mick against Edwin E. Ives and John Chambers. The libel set out a shipping contract, whereby the respon- dents employed the libellant to perform a voyage in the canal- boat Camden, then in New York, to Buffalo, and back to New York, — principally between Albany and New York,— at $20 a month ; and then averred that in pursuance of the agreement, the libellant entered on board the vessel on May 4, 1848, and proceeded therewith to Albany, and thence back to New York ; and so continued in the employ of the respon- dents until about December 1, 1848, when he was discharged. The libel claimed a balance of $102.29. William Jay Haskett, for libellant. H. S. Mackojy, for respondents. I. The libellant must succeed on the case stated in his libel, or not at aU. That proceeds on a hiring in a canal boat, des- tined on a voyage " from New York to Buffalo," and avers the services to have been performed "principally between Albany and New York." It avers, also, that the boat " pro- ceeded with the libellant on board to Buffalo and back to New York." The libel, schedule, and proof show, that what- ever services the libellant rendered, were in pursuance of an entire and indivisible contract, to serve in a canal boat on a canal route. II. It follows from the first point, that the libellant could not, at the hearing, as he attempted to do, set up a new or JANUARY, 1849. 419 McCormick v. Ires. distinct demand, separate and separable in itself, by going for services performed on the river alone, irrespective of the gen- eral contract or, hiring stated in his libel, and which was also shown by the proof. III. The case, therefore, presents one of the hiring of a hand to serve on a canal boat on trips from New York to Buffalo, in the doing of which by far the greater portion of the services were rendered on the canal ; in which case this Court has not jurisdiction. IV. No decree can be given for that portion of the general services which were performed on the river, (admitting such to be of Admiralty cognizance,) 1. Owing to the indivisibility of the claim. 2. The want of allegation to support it in the libel. 3. The oppression and injustice which would result to both parties, by exposing them to two separate suits in two distinct tribunals for one and the same demand. V. It is not necessary to plead the want of jurisdiction, as neither consent or acquiescence can confer it. Whenever the want of it appears, the Court must dismiss the suit. Although here the protestcmdo with which the answer begins and the objection with which it concludes, do distinctly allege and set up the want of jurisdiction. That is in equity, and so heT&, an answering demurrer. VI. But there is no jurisdiction in this case on other grounds. 1. A qanal boat proper, such as this, belongs, as a machine, to the waters of the canal. It is a fresh-water fish, and when it gets into the sea or its waters, it is out of its ele- ment. In other words, what it does on rivers, bays, and creeks on the ebb and flow of the tide is, by the by, and merely tem- porarily incident to its main and essential object, which is to traverse the surface of the waters of the canal. It has no capacity for or adaptation to any^of the purposes of a sea or river craft. It is a log upon the water, without the aid of ex- trinsic force. On the cana,l it depends on the power of horses 420 CASES IN ADMIRALTY. McCormick v. Ires. moving on the land for its progress, and on the river on tugs for its headway. It is no more a ship, or craft, that falls within the jurisdiction of Admiralty, than a horse-cart or a steam-cai that might be launched into a river and buoyed upon its waters ; nor do the hands bear any of the merits or character- istics of the sailor, or of persons connected with shipping. 2. The act of Congress of 1845, by declaring that canal boats shall not be proceeded against in Admiralty, in rem, not only shows the legislative sense as to their want of nautical char- acter, but also, by denying jurisdiction over the boat, has by necessary implication also taken away jurisdiction over the person for services in any such boat, as if the boat be not a sea craft in respect to which a libel could be filed in rem, juris- diction of the person would, for the same reason, fail, for that cannot be a maritime contract in respect to a hulk which is not itself of Admiralty cognizance. Betts, J. It is unnecessary to consider the matters of defence set forth by the respondents in their answer, as an objectiQU to the recovery is taken which is fatal to the libel- lant's claim, upon the case as made by himself. The objection is, that the contract of hiring was one entire contract for the navigation of a boat firom New York to Buf- falo, and back from Buffalo to New York, each way through the, Erie Canal ; and that this Court cannot ta:ke jurisdiction over an agreement of this description. The averment of two or three trips made between New York and Albany or Troy and back, and the proofs given of theste particular services, do not aid the libellant, for they were all under the one employment, the boat fa ilin g to run out the whole extent of the voyage contracted, only when freight could be had but for a portion of it. The Court has repeatedly held, upon the principles estab- lished in The Thomas Jefferson, (10 Wheat. 428,) The Phoe- JANUARY, 1849. 421 McCormick v. Ives. bus, (11 Pet. 175,) and in other analogous cases,' that this class of contracts are not suable in Admiralty. The main end contfemplated was a service upon the canal, and the contract could not be severed, so as to give a remedy upon one por- tion of it in a maritime court, leaving the residue to be sued upon in a court of common law. I. do not now consider the question, whether the act of Con- gress of July 20* 1846, (9 U. S. Stats. 38, c. 60, § 1,) in relation to canal boats, which forbids jurisdiction in rem to any United States Court over canal boats, for the wages of any person or persons who may be employed on board thereof, or in navi- gating the same, affects also the jurisdiction of the courts against owners in personam, or against that class of vessels when employed on tide-waters ; because, upon the allegations of the libel, and the proofs in the cause, I hold that the action cannot be maintained. The transit of the boat from New York to Buffalo, and reversely from Buffalo to tide-water at Troy or New York, is not an employment of the boat in business of commerce and navigation between ports and places in different States or Territories upon the lakes and navigable waters connecting the said lakes, within the provisions of the act of Congress, approved February 26, 1845, (5 U. S. Stats. 726,) which extends the jurisdiction of this Court to cases of that char- acter, so that an implication can be raised that this form of action may be sustained upon the instance side of the Court upon that description of contract. Libel dismissed with costs. 1 The principle determined in the cases cited, was, that the Admiralty Courts of the United States have no jurisdiction of a contract for services in a voyage substantially to be performed upon a river, and above the ebb and flow of the tide. Since the time when the decision in the text was made, the case of The Thomas Jefferson has been reversed, in The Propeller Genesee Chief V. Fitzhugh, (1 2 How. 443,) where it is held, that the Admiralty jurisdic- voL. I. 36 422 CASES IN ADMIRALTY. Gaines v, Travis. Gaines v. Travis. There is no rule of practice governing proceedings in Admiralty suits in the Dis- trict Court which requires either party to give the other notice of a final decree, otherwise than by adopting the proper means for enforcing it. A decree from which an appeal may be taken, cannot be executed within ten days after it has been rendered ; but the delay is for no other purpose than to favor the right of appeal, and the mere entry of the decree is notice to all parties. Under the rules promulgated by the Supreme Court, execution properly issues against stipulators, summarily upon the decree rendered against their principals ; the giving the stipulation being regarded as a submission by the stipulator to such decree as may be rendered against the party for whom he is bound. The act of Congress of August 23, 1842, (4 V. S. Stats. 518, § 6,) conferring upon the Supreme Court, power to regulate the practice of the Circuit and District Courts, taken in connection with the rules promulgated by the Supreme Court un- der that act, in 1845, operates as a suspension of the acts of Congress of 1839 and 1841, abolishing imprisonment for debt on process issuing out of the United States Courts in all cases where, by the local law, it would be abolished. Since the adoption of the rules of 1845, parties are liable to arrest and imprison- ment on process issuing out of the United States Courts, irrespective of subse- quent legislation in the several States abolishing imprisonment on like process. This was a libel in personam, filed by Levi Gaines against John H. Travis, to recover wages as seaman. Former proceedings in the cause are reported, ante, 297. The cause now came before the Court on a motion on be- half of the stipulator for the respondent, to set aside the pro- ceedings subsequent to the final decree, and to discharge him from arrest. S. SoMxay, for the motion. Alanson Nash, opposed. Betts, J. This is a motion on behalf of McKee, the stipula- tor for the respondent in the cause, to set aside all proceedings tion of the District Courts of the United States extends to the navigable lakes and rivers of the United States without regard to the ebb and flow of the tides of the ocean. The reasoning of this case does not apply, however, to canals, and the decision does not impair the authority of the case given above. JANUARY, 1849. 423 Gaines v. Travis. therein subsequent to the final decree, and also to discharge McKee from arrest on a capias ad satisfaciendvm issued upon the decree. It appears upon the papers and minutes of Court, read on the motion, that the cause was brought to hearing upon proofs given in Court, in September term last. The matter in contestation was the liability of the respon- dent to pay to the proctor of the libeUant the taxable costs which had accrued in the case. Circumstances intervened after the argument which pre- vented the Court considering and deciding the cause until November term last, when a decree was rendered in favor of the libeUant. Early in December, his proctor served on the proctor of the respondent a copy of the bill of costs, with due notice of tax- ation. The biU was returned by the respondent's proctor with a note, stating that he had not yet received notice of any decis- ion in the case, and saying, " when I do, if it is against me, I shall, I think, most certainly appeal." This note was dated December 5th. The Ubellant's proctor proceeded notwith- standing, to tax his costs, and having perfected the decree, issued a writ of capias ad satisfaciendum thereon. The decree entered was against the respondent, and McKee, his bail or stipulator, for the amount of taxed costs ; and McKee was imprisoned upon the execution. These proceedings, it is alleged, are without warrant of law, and irregular ; first, because the decree was inoperative against the respondent until a copy with a notice of its rendi- tion and entry was served on the proctor of the respondent ; and, secondly, because the libeUa:nt took a final decree sum- marily at once against the bail or stipulator, without any process against him or warning of the proceeding, and fol- lowed decree so obtained by peremptory process of arrest. It is further contended, that if the regularity of the practice 424 CASES IN ADMIRALTY. Gaines v. Travis. is supported by the Court, the respondent and his surety are, by the laws of the United States, exempt from imprisonment upon the judgment, and that the bail is accordingly entitled to instant discharge therefrom. The first objection is not tenable. This Court does not pursue the practice of the English Admiralty and Ecclesias- tical Courts in awarding edicts or monitions to parties to appear in Court, and hear sentence or perform it, or admonish their fidejussors to do so. 2 Browne's dv. 8f Adm. L. 356, 407, 429 ; Clarke's Praxis, 63, 65. The multifarious proceedings connected with the progress of a cause through its different stages in those courts, are here dispensed with, and after issue, an Admiralty cause is put upon the calendar, brought to hearing, and disposed of substantially in the same manner as suits in the common-law courts. Betts's Adm. Pr. 98. The omission of the Supreme Court, in its code of rules adopted in 1845, to change the notorious course of the federal courts in this particular, strongly implies its sanction. No rule of this Court, or of the Supreme Court, renders it necessary for either party to give the other notice of a final decree, otherwise than in employing the proper means for enforcing it, and no trace of such practice appears in any other of the United States Courts. Dunlap's Adm. Pr. 301 ; Cankling's Adm. Pr. 703. If the case is appealable, the decree cannot be executed in this Court within ten days after it has been rendered, {Dist. Ct. Rules, 152) ; but it is not made incumbent upon the party obtaining the decree to warn the other when that period of delay will expire. The entry apud acta, is notice to all parties. The delay or suspension of execution, is for no other purpose than to aid the party in exercising his right of appeal. In case of surprise or misapprehension, the Court will always interfere on motion and due proofs, and enlarge the JANUARY, 1849. 425 Gaines v. Travis. time or stay execution untU a reasonable opportunity is afforded to perfect an appeal. Except to that end, the prac- tice in this Court extends no indulgence or privilege to the parties in the suit, to be notified or advised out of Court of proceedings in respect to the final decree. The libellant is not, therefore, chargeable with any irregu- larity in omitting to serve a copy of the decree on the respon- dent or his proctor. In the present case, it is admitted that the respondent's proctor was informed by the deputy clerk that the decree was rendered before he received the bill of costs with notice of taxation, which of itself was sufficient intimation to put him on inquiry. The proceeding excepted to by the second objection, is comparatively a novel one in the practice of this Court, and therefore deserves more critical attention. Under the standing rules and usages of the Court, it had formerly been necessary, in order to enforce the undertaking of stipulators, to proceed by independent orders and notices, after the lapse often days, to bring them before the Court, to show cause why execution should not issue against them. Dist. Ct. Rules, 145 ; Beits' s Adm. Pr. 98. The obligation of stipulators, as fixed by the rules of this Court, and also the remedy against them, have, since the pro- mulgation of these rules, been essentially altered by the rules of the Supreme Court. The bond or stipulation in this case was taken under the latter, ( Sup'. Ct. Rules, 3) ; and the condition prescribed by that rule is, that the respondent will appear in the suit, and abide by all orders of the Court interlocutory or final in the cause, and pay the money awarded by the final decree ren- dered in Court. And the rule provides that " upon such bond or stipulation summary process of execution may and shall be issued against -the principal and sureties by the Court, to en- force the final decree." It appears this is a well-considered 36* 426 CASES IN ADMIRALTY. Gaines v. Travis. direction of the Court, for the same language is repeated in Rule 4. The practice in the Massachusetts courts had long antece- dently been in conformity with that provision, (Dimlap's Adm. Pr. 301-3) ; and in this Court, since 1838, execution issued summarily against stipulators if the original decree was not satisfied, [Dist. Ct. Rules, 59) ; although the stipulators were charged by distinct proceedings. Dist. Ct. Rules, 145. Under the Supreme Court rule, however, execution goes against stipulators, upon the decree against the principal ; the sureties subjecting themselves by force of their undertaking to abide and fulfil the decree against the principal. Conklin^s Adm. Pr. 459-774. This practice may fall within the usages familiar also to courts'' of law and equity, of requiring parties who have a common interest in questions litigated in the same court, in several distinct causes, either by agreements or stipulations between themselves, or by express order of the Court to abide the decision of the subject-matter made in one case only. Such judgment or decree thereby, has the same eSect and is executed in like manner against aU. The stipulator under this rule binds himself to pay the money decreed against the principal. There is nothing, there- fore, left open for him to question, as between the original parties, after a final decree fixing the liability of the principal. If admonished or cited by sci. fa., he could not be permitted to set up error of any kind in the decree, or surrender the prin- cipal, or invoke prior execution upon his property, and all the advantage of such after-proceeding would be to afford delay to him in satisfying the terms of the decree. The Court, however, accepts his undertaking as placing him in a common predicament with his principal, and as a submission of himself to the same processes upon the decree. Conkling's Adm. Pr. 774. The execution taken out in this case was, therefore, author- ized by Rule 4, and is in conformity with Rule 21 ; and the JANUARY, 1849. 427 Gaines v. Travia. objection to this method of proceeding cannot, therefore, be supported.! The term swnmary., when used in relation to process, means immediate, instantaneous. This in no way interferes with the authority of the Court over it, whilst in progress of execution, but it is issued summarily in contradistinction from the ordi- nary course by emanating and taking effect, without interme- diate applications or delays. The last point discussed in the case relates to the effect of the non-imprisonment acts of Congress and of this State, and whether a stipulator can now be made subject to arrest and imprisonment on execution upon a decree in the Admiralty, for breach of a contract. A preliminary question was raised as to the regularity of the process issued, it being a fi. fa. against the property, with direction to arrest the person in case no property was found to satisfy the decree. This objection is not tenable. Under Rule 3 of the Su- preme Court, the stipulator becomes subject to the same decree and process with hjs principal, and this form of execu- tion is authorized by Supreme Court Rule 21. The two acts of Congress abolishing imprisonment for debt on process issuing out of the courts of the United States, were passed February 28, 1839, and May 14, 1841. i U. S. Stats. 321, 410. The second act is supplementary to and declar£\,tory of the first, and directs it to " be so construed as to abolish impris-- onment for debt on process issuing out of any court of the United States, in all cases whatever, where, by the laws of the State in which said cowrt shall be held, imprisonment for debt has been or shall hereafter be abolished." The act of 1839, in 1 See also, on this point, Holmes v. Dodge, ante 60. 428 CASES IN ADMIRALTY. Gaines v. Travis. terms applied only to the laws of the States existing at the time of its enactment. The Revised Statutes of New York, in force when both acts of Congress passed, direct that no person shall be arrested or imprisoned on any civil process issuing out of amy court of law, or any execution issuing out of any court of equity, in any suit or proceeding instituted, for the recovery of any money due upon any judgment or decree, founded upon con- tract, or due upon any contract, express or implied, dr for the recovery of any damages from the non-performance of any contract. 1 Rev. Stats. 807, § 1. Regarding the State statute as thus incorporated into the act of Congress, it would manifest the intention of the legis- lature to limit its application to arrests and imprisonments made on civil process issuing out of courts of law, and execti- tions only issuing out of courts of equity. This Court cannot enlarge the repealing force of the statute beyond the plain meaning of its language, nor suppose the legislature looked beyond the two descriptions of process specifically designated. The distinction between courts of law, equity, and admi- ralty, is pointedly marked in the constitution and- laws of the United States. Const, art. 3 ; Process Acts of 1789, 1792, and 1828 ; 1 U. S- Stats. 93, 276. It is directed, that the forms of writs, executions, and other process, and the forms and modes of proceeding in suits in those of common law, shall be the same in each State, as used or allowed in the Supreme Court thereof, in those of equity, and in those of admiralty and maritime jurisdiction according to the princi- ciples, rules, and usages which belong to courts of equity and to courts of admiralty respectively, as contradistinguished from courts of common law. Act of May 8, 1792 •,1U. S. Stats. 276, § 2. The act of May 19, 1828, is to the same effect in respect to States admitted into the Union since 1789, (4 U. S. 278); and section 3 of the latter act, which directs JANUARY, 1849. 429 Gaines v. TraYis. executions and final process issued on judgments and decrees rendered in any of the courts of the United States to conform to those of the State, plainly limits the decrees to those made by courts of equity. Manro v. Almeida, 10 Wheat. 473; Hind V. Vettis, 5 Pet. 298. Power is given the courts by these acts, to vary their processes at discretion, and so as to render them operative entirely beyond like process issued by State courts, (The United States v. Halstead, 10 Wheat. 51,) unless Gongress has regulated the subject by specific enact- ments. Duncan v. The United States, 7 Pet. 435. It is manifest upon this succinct summary of the acts of Congress and decisions of the United States Courts, that the State statute referred to has no application to arrests and im- prisonments under process from Courts of Admiralty. Their practice remains as it was declared by the acts of 1789 and 1792, and as altered by the courts under the authorization of those acts and that of 1842, to be adverted to hereafter. Gardner v. Isaacson,^ (MSS.) 1848. On April 12, 1848, the legislature of New York passed an act " to simplify and abridge the practice, pleadings, and pro- ceedings of the courts of this State." By section 153 of that act, it is declared, that " No person shaU be arrested in a civil action except as prescribed by this act," and then specifies the cases in which a defendant may be arrested ; none of which include suits or contracts without fraud or deceit. A libel and warrant of arrest, in personam in Admiralty, is a civil action within the proper classification of remedies ; and this interdiction of arrest, in connection with the act of 1841, would give to defendants in Admiralty the same exemption fi-om arrest as defendants have under processes firom the courts of law and equity. There is no doubt that Congress may, by clear enactment. ■Reported ante, 141. 430 CASES IN ADMIRALTY. Gaines v. Travis. aidopt the prospective legislation of the States, and impart to it the effect of an act of the national government. The United States V. Paul, 10 Pet. 150. Upon the same principles, Con- gress can confer on the United States Courts power to regu- late ptocess in conformity to existing State laws, or direct it to be conformed to future legislation of the State upon the subject. Ross v. Duval, 13 Pet. 45. All regulations relating to processes of courts are regula- tions of practice. 10 Wheat. 1. In this, the United States jurisprudence is wholly distinct and independent of that of the States, and accordingly the local methods of proceeding govern the United States Courts only in so far as they are sanctioned by authority of Congress or the courts. This authority is expressed as well by rules which the courts are empowered to prescribe, as specifically by statutory enact- ment. The acts of Congress to abolish imprisonment for debt, assume to act only over process, and are merely provisions regulating the practice of the United States Courts. They are not placed upon high principles of humanity or public policy. They profess no more than a purpose to conform to the processes employed by the States where the courts exercise jurisdiction, forbidding the imprisonment of debtors when not allowed by the laws of one State, and permitting it wherever authorized by the laws of others. Accordingly, if the legislature of New York at its present session, should rescind the code of practice promulgated by the last, this provision, which is supposed to stand in connection with the act of Congress of May 14, 1841, would eo instawti cease to have influence over the proceedings of the United States Courts. It becomes necessary, therefore, to examine the act of Con- gress of 1842, to ascertain whether this matter is not now withdrawn from the regulation of the State legislature, and specifically provided for by Congress. JANUARY, 1849. 431 Gaines v. Travis. The act of August 3, 1842, (4 U. 8. Stats. 518, § 6,) confers upon the Supreme Court "full power and • authority to pre- scribe and regulate and alter the fornas of writs and other process to be used and issued in the District and Circuit Courts of the United States, and generally to regulate the whole practice of said courts." In January Term, 1845, the Supreme Court adopted a body of rules governing the United States Courts in Admiralty pro- ceedings, and the portions of those rules before cited fully appoint the form of process used in this case. The question then is, does the existing law of New York, in connection with the act of Congress of May 14, 1841, pre- vent the operation of the act of August 23, 1842, and the rules of the Supreme Court established under its provisions ? The act of Congress of May 14, 1841, at the time of its passage, took effect the same as if it had incorporated the State enactment of 1848. It thus interdicted the arrest and imprisonment of parties prosecuted in matters of contract and debt in this Court, suits in Admiralty being civil actions. Upon the same principle, the rules of the Supreme Court of 1845, are to be regarded as acquiring the force and effect of a positive enactment. Congress can legislate prospectively through the action of the Supreme Court as well as that of a State legislature. Manifestly then, the act of 1842, carried out by embodying the rules of the Supreme Court of 1845, repeals or suspends so much of the act of 1841, and its complement of State laws, as stand in contradiction to it. The latter law reg- ulates the form and effect of Admiralty process, and reinstates the power of arrest and imprisonment under it for debt. The law of New York, passed subsequent to the act of 1842, cannot supplant or suspend the provisions and effect of the latter, and restore those of the act of 1841, Congress having, by the act of 1842, substituted the Supreme Court in place of State legisla- tures as the law-making power in the future regulation of the processes and practice of the courts, the action of the Court 432 CASES IN ADMIRALTY. Gaines v. Travis. under that power necessarily annuls all antecedent and subse- quent control of the State laws over the subject. So long as the Supreme Court Rules remain unchanged by the Court or Congress, they must supply the absolute law of practice over the subject. I do not enter into the discussion whether, upon this con- struction of the act of 1842, the Supreme Court may not also extend to courts of law and equity, the same power to arrest and imprison on process, that is given in Admiralty cases. The point is not before me for adjudication ; and although that is a legitimate and forcible consideration on weighing the probable meaning and intent of Congress in the entire provision, it is not in my judgment of such force as to justify me in holding that the Supreme Court had misinterpreted their powers under the statute in relation to Admiralty prac- tice, or that the act of 1841 should be expounded to draw within its provisions cases clearly not covered by it at its enactment, and brought into existence by State legislation subsequent to the act of 1842, and the rules of the Supreme Court established under its authority. The known usage in the Admiralty Courts, up to the present time, to arrest for debt and hold to bail, or imprison for want of it, upon their processes, notwithstanding the acts of Congress of 1839 and 1841, and the laws of State legislatures abolishing arrests and imprisonment for debt, is impressive evidence that Congress acquiesced in the judg- ments of the courts, that those laws did not govern the prac- tice in Admiralty; more especially since the promulgation of the Admiralty Rules, in 1845, by the Supreme Court, in which the authority to arrest and imprison on Admiralty pro- cess, was explicitly recognized and declared. And the prac- tice having since been constant and open to arrest and im- prison parties on mesne and final process, from the Admi- ralty, it must be accepted that Congress intended by the act of 1842, to place the regulation of this branch of practice un- JANUARY, 1849. 433 Henry v, Cnrry. der the direction of the Supreme Court, and not leave it sub- ject to the changeable legislation of the States. I accordingly pronounce against the motion on all the points raised, but they being of novelty and importance, the decision is without costs. Henry v. Cuery. In defence to a libel for wages as cook and steward by One William Henri/, re- spondent put in shipping articles executed by William Henderson as cook and steward. Held, that the presumption was that the libellant was the person who had entered into the articles. Maritime courts will not lay much stress on an objection of misnomer, unsup- ported by evidence that the party was in fact not known by the name ascribed to him. It seems, that where original shipping articles are proved before a commissioner, and redelivered to the vessel, who thereupon pursues her voyage, a copy certified by the commissioner is competent evidence upon the hearing. This was a libel in personam by WiUiam Henry against Frederick Curry, sued as Johnson, master of the bark Alpine, for wages. Alcmson Nash, for the libellant. Griffm Sp Laroque, for the respondent. Betts, J. The libellant alleges that he shipped on October 24, 1848, in the bark Alpine, as cjook and steward, at $16 wages per month, to perform a voyage from Halifax, Nova Scotia, to Sydney and New York, whiere the voyage was to terminate ; and that he performed his duty on board up to November 12th, when the vessel arrived at this port and the voyage ended. He claims $9 balance of wages due him. The answer asserts that the bark is a British vessel, and the libellant a British seaman ; and that the voyage for which he engaged was from Halifax to various ports including New VOL. I. 37 434 CASES IN ADMIRALTY. Henry ». Curry. York, and to Europe, and back to British North America, for a period not exceeding one year. The original articles were produced on the preliminary hearing before the commissioner, and identified by the testi- mony of the chief mate. William Henderson is entered therein as cook and steward. The name is signed with a cross or mark. The handwriting of the witness to the Ex- ecution of the articles by Henderson is proved, and that he resides in Nova Scotia. This action is in the name of Wil- liam Henry. The sufficiency of this evidence is controverted by the libeUant, on the ground that, as he is not proved to have been known on board by the name of Henderson, the presumption is that he came out as a substitute for Henderson, but never bound himself to the engagement of Henderson by subscrib- ing to the articles. The objection is also extended to the fur- ther suggestion, that even if proof of the handwriting of subscribing witness is ever adequate evidence of the execution of articles, it can be so only on the exhibit of the original articles to the Court, in order to show that the whole trans- action wears the appearance of genuineness and correctness. The libeUant having brought suit for wages in the capacity of cook and steward, and having adopted the name of Wil- liam Henry, it is incumbent on him to prove that to be his true name ; otherwise the inference will be, that he is the per- son who shipped and subscribed the articles in that capacity. The difference in surnames is not so great, but that a mis- conception in pronunciation might easily occur; and mari- time courts are too familiar with the habit of sailors to assume a variety of names, to lay special stress on an objection of misnomer, unaccompanied with evidence on the part of the seaman that he did not use the name attached to the articles, and that he was known in the ship by a different one. No evidence is offered by the libeUant that he is WiUian Henry and not WiUiam Henderson; and since he assumes to him- JANUARY, 1849. 435 Henry v. Curry. self the description of cook and steward, appKed in the arti- cles to William Hendei^son, it must be presumed by the Court that he is the person who entered into the contract. It is moreover to be observed, that the libeUant is not very exact in his recollection and statement of names. He sues the master by the name of Johnson, but gives no evidence that anybody on board did not perfectly well know that his name was Owrry. It so appeared upon the articles, and was proved to be his true name by the testimony of the chief mate. The original articles, after having been examined and proved in presence of a commissioner, upon the hearing on return of the summons, were restored to the vessel, and had gone with her on her voyage, A copy certified by the com- missioner is attached to the depositions. For the libeUant, it is objected that such copy 'is incompetent evidence. The cause not depending upon the evidence furnished by the arti- cles, I do not think it necessary to go into the discussion of that point ; but nxy impression is, that the evidence should be regarded competent and sufficient, the authentication of the articles having been made in a judicial proceeding in the cause under the act of Congress of July 20, 1790, before a magistrate authorized to conduct it. The chief mate testifies that the voyage was not to end at New York, but was to be continued from here to Ireland, and back to Halifax, and that the libeUant shipped for the voyage. No evidence is furnished by the libeUant showing the termi- nation of the voyage at this port, or his discharge by the master. Upon the well-settled doctrine of Admiralty Courts, he thergfore cannot sustain this action, irrespective of the nationality of the vessel. But suing as a British seaman, for services on board a British vessel, his claim to relief in this Court is wholly desti- tute of merits. Lihel dismissed with costs. 436 CASES IN ADMIRALTY. Love V. Hinckley. Love v. Hinckley. There is no statute in force regulating the compensation payable for pilotage ser- vice rendered through Sandy Hook channel. The former laws upon this subject reviewed. Doubtful words in a general statute may be expounded with reference to a gen- eral usage ; and when » statute is applicable to a particular place only, such words may be construed by usage at that place^ The libellants piloted a vessel partially crippled, but not in immediate peril, nor unnavigable, through the Sandy Hook channel, and claimed extra fees, as for a vessel in distress, on. the ground of usage of the port. Held, — 1. That the proofs in the cause did not authorize the Court to say, that the term distress was by the usage of the port applicable to the condition of the Vessel in question. 2. That the proofs did not show a usage of charging and paying double fees 9B a legal right, even for services rendered to a vessel in distress. 3. That the UbeUants were entitled to a reasonable extra compensation to be fixed by the Court, for the increased responsibility and effort presumably incur- red in consequence of the crippled condition of the vessel. This was a libel in personam, by William Love and others, against William A. Hinckley, to recover pilotage fees, includ- ing compensation for alleged extra services, in the sum of $83. The facts are sufficiently stated in the opinion of the Court. P. Hamilton, for the libellants, cited The Frederic, 1 W. Rob. 16 ; The Elizabeth, 8 Jur. 365 ; The Enterprise, 2 Hagg. Adm. R. 176, note ; The Reward, 1 W. Rob. 174 ; The Elvira, Cfilp. 68 ; Abbott on Shipp. 563. R. H. Ogden and G. Bowdoin, for the respondent. • Betts, J. The libellants are owners of the pilot boat Mist, of this port, and are pilots engaged in the pilot service through Sandy Hook. About October 12, 1848, one of the libellants, William Love, entered on board the bark Gipsey, at sea, sis miles outside of Sandy Hook, and at the request of the master, piloted her into this port. The bark at the time JANUARY, 1849. 437 Love V, Hinckley. had lost her three upper masts. The wind was easterly and fair, and the bark was brought into port upon it, without difficulty or extra exertion on the part of the pilot. So far the facts are agreed upon by the pleadings. The libel charges, howeyer, that the bark had suffered other dam- ages, and that she was in a crippled and disabled condition, and in distress. These allegations are denied by the answer. The libellants claim double the accustomed pilotage, amounting to ^83, because of the crippled condition of the bark, rendering it more hazardous to navigate her, and sub- jecting the pilot to greater exposure and responsibility. The answer insists that the service was no more than ordi- nary, that it was performed within five or six hours, without extra exertion or skill on the part of the pilot, and that he is only entitled to $41.50, the usual pilotage fees for bringing up a vessel of like draught. There is no statute in force which determines the rights of parties in cases like the present. The act of Congress of 1789, (1 U. S. Stats. 54, § 4,) provides, that all pilots " shall continue to be regulated" in conformity with the existing laws of the States respectively, wherein such pilots may be, or with such laws as the States may respectively hereafter enact for the purpose, until further legislative provisions shall be made by Congress." No further legislative provision has since been made, and the whole subject of pilot service remains a matter controlled by State laws. Under the colonial government, the business of pilotage through the channel of Sandy Hook was the subject of care- ful statutory regulation. Those regulations may be found in the act of 1759, (2 Livingston ^ Smith's Laws, 160, c. 161,) which act was continued in force by the act of 1763, ( Van Schaick's Laws, 433, c. 1215, § 2,) and by the acts of 1767, (76. 498, c. 1330,) and 1768, (lb. 516, c. 1362,) until 1775. This act awarded no extra comjfensation for services rendered to a vessel in distress ; but provided that any pilot neglecting 37* 438 CASES IN ADMIRALTY. Love o. Hinckley. or refusing to gi^?e all the aid and assistance in his power to any vessel in distress should forfeit his office and pay a fine. Act of 1789, 2 lAving-ston Sf Smith's Laws, 160, c. 161, § 4. An early act of the State government, passed in 1801, (2 Kent ^ Radcliff's Laws, 138, § 18,) and which provided for the appointment of pilots for the Sandy Hook channel, by the harbor-master and wardens of the port, contains the earliest provision I find upon the subject of extra compensation in oases of distress, in the laws of the State. That provision is in. substance, that the master or owners of the vessel in dis- tress shall pay to such pilot as shall have exerted himself for the preservation of such ship or vessel, such sum for extra Siervices as may be agreed upon ; or in default of any agree- ment, such sum as the harbor-master and wardens shall de- termine to be reasonable. § 18. The act of 1837, (Laws of 1837, 168,) which repealed aU former laws on the subject of pilots through the Sandy Hook, prescribed a new system, intrusting the power of appointment of pilots to a board of commissioners created by the act. This statute contained, also, new provisions upon the subject of compensation, (§§ 30-36,) enacting, among other things, however, that every pilot who shajl have exerted himself for the preservation of any vessel in distress and in want of a pilot, should be en- titled for any extraordinary services to such sum as should be agreed upon ; or in case of not agreeing, as the commissionr ers should determiiie to be reasonable. § 39. It is unneces- sary, however, to trace the history of the legislation upon this subject minutely, as by act of 1845, {Laws of 1845, 30, c. 40, §, 1,) all laws relative to pilots, or pilots through Sandy Hook channel, are repealed ; and no law upon the subject has since been enacted.. It seems, however, to be conceded upon both sides, that the usage at this port has continued to be to charge fees for pilotage in confbrnaity with the rates established by the act of 1837, since its repeal ; and that $41.50 would have been JANUARY, 1849. 439 Love V. Hinckley. the legal charge under that act, and would be the charge as since established by usage, for single pilotage. Upon the part of the libellants, evidence has been given showing a custom and usage, whilst the statute was in force and since, to charge double pilotage on vessels crippled and disabled. Some of the witnesses stated the custom to be, to charge the extra compensation when the vessel was in dis- tress. There was some contrariety of opinion whether the damage which the bark Gipsey had received was to be. regarded as putting her in distress ; but the majority of the witnesses gave it as their judgment that she was in distress in the nautical acceptation of the term, and stated that the usage was to pay double pilotage for services rendered to a vessel conditioned as she was. Of the five pilots called by the libellants, and who testify to the usage, two had been in the commission but a short period ; one for five years and the other since 1842 ; one other had been in service since 1834 ; another about thirty years. The time of service of the fifth was not stated. A member of the board of commissioners, and who for twelve years had great experience as a ship- master and ship-owner, testified that he never knew any usage putting vessels nearly crippled on the footing of vessels in distress, and that a vessel situated as this one was, would not, as he understood the acceptation of the term among owners and masters, be deemed in distress. All this testimony is open to two remarks. First, the period elapsed since the repeal of the law in 1845 is not sufficient to create a custom or usage in respect to this matter which shaE be obligatory upon ship-owners and masters. Indeed, it is not proved that an individual, case, analogous to the present in its circumstances, has occurred in this port since the pas- sage of the repealing act. A usage in respect to mercantile transactions must be shown to be notorious, uniform, and of long continuance. 2 Kent's Comm. 6th ed, 260 and note. But second, this usage to have any effect must be allowed 440 CASES IN ADMIEALTY. Love V. Hinckley. t6 control or fix the interpretation of the State statutes ; be- cause the practice referred to, if not derived from, must seek its support or sanction in the provisions of section 39 of the act of 1837. There is no evidence that it preceded the enactment. A general statute may be expounded when its words are doubtful, by reference to any general usage with reference to which the law may be supposed to have been enacted. " Where the words of the act are doubtftd," says Grose, J., in The King v. Hogg, (11 Dwnf. 8f E. 728,) « usage may be called in to explain them." In that case, which involved the construction of an act of Parliament applicable to the whole kingdom, it was very properly held that, as a universal law could not receive different constructions in different towns, therefore a statute of general application could not be explained by the usage of this or that particular place. And the cases of The King v. Saltrem and The King v. Harman were cited from the early reports, as showing that it is only by a universal usage, and not by the usage of a particular place, that an act of general application could be expounded. But I should think it entirely consistent with this principle to hold, that a statute may be construed by the usage of a par- ticular place or pursuit, when the act has relation to that place or special business. It is not shown in this case that there is a fixed and defi- nite sense attached by established usage at this port to the term distress, which would include a vessel partially crippled and disabled, but in no immediate peril, and not rendered unnavigable. The witnesses examined on the stand do not concur entirely in their description of the custom ' or usage which they suppose prevails here. It may be considered as doubtful upon the proofs, whether it has not been the usual course for the pilot in ^boarding a vessel of this port, in any way crippled or disabled, to state to her master that he should claim double pilotage for her as being in distress. In that case it might be in the option of the master to accept him or JANUARY, 1H49. 441 Love V. Hinckley. not, and if he were allowed to pilot her in, it might be under- stood to be by agreement for that rate of compensation, and thus bring the case within the provisions of section 39 of the State act, whilst that was in force, and applying to the cus- tomary rate of fees since its repeal. So, had a long uninterrupted practice been shown under the State laws, to charge pilotage for every crippled vessel as for a vessel in distress, such practice would be good evidence of the true meaning of the act. McKeen v. Delaney, 5 Crcmch^ R, 22. But the testimony of the two witnesses who speak most directly in proof of a long practice, does not show that the rate was uniformly charged and paid as a legal right. The one who speaks of thirty years' experience says, that he uniformly mentioned, on boarding the vessel, that he should claim extra pilotage ; and it is to be remarked that the State apts always embodied provisions for adjusting pilotage fee» when not agreed upon between the master and pilot, by the award of commissioners, by the board of wardens, or other functionaries designated in the various statutes. See the acts already referred to ; also 5 Webster Sf Skirmer's Laws, 11. It certainly cannot be maintained ^hat the testimony in the ^ case amounts to proof of a long-continued and uninterrupted practice pursued at this port, to charge double pilotage as a legal demand in such cases as the present. The evidence, fairly weighed, amounts to no more than this, that pilots were accustomed to claim double pilotage when they brought in vessels crippled or disabled, and that it was usually paid,, By adverting to the provisions of section 39,. it wUl be perceived, however, that the demand and payment would not necessarily import a concession that the statute gave the pilot a right to the fees ; nor would it even imply that the demand was rested upon the statutory grant. Such practice, therefore, although of ever so long duration, would mot furnish evidence of a customary construction of the clause upholding a right in pilots to such fees. 442 CASES IN ADMIRALTY. Love V. Hinckley. The section is in these words : " Every pilot who shall have exerted himself for the preservation of any vessel in distress and in want of a pilot, shall be entitled for any extraordinary services to such sum as the pilot and master, owner or con- signee can agree on ; or in case of not agreeing, as the com- missioners shall determine to be a reasonable reward." It is plain that to make out a title to extra reward under his enactment, not only must the pilot have exerted himself for the preservation of a vessel in distress, but also that he can only claim a compensation limited to a proper reward for his extraordinary services on the occasion. The vessel in the present case was brought into port without any uncommon efforts on the part of the pilot. Even if, therefore, she had been indubitably in a state of distress, the statute would afford no ground for a claim to extra pUotage ; no extraordi- nary services having been rendered. No practice under the stat- ute could be admitted as dispensing with the two fundamental conditions to the grant of fees ; for this would be something quite different from interpretation ; it would be allowing usage under a statute to override and annul its positive pro- visions." No mode of construction, not even the most solemn judicial decisions, can rightfully dispense with the plain and positive terms of a statute ; and the reasonable presumption in respect to the supposed usage and custom of this port is, that it was not derived from the directions of the statute, but from its permission given to the parties to stipulate between themselves the rate of compensation, under which an express or virtual agreement between the master and pUot generally fixed the extra reward. In my opinion, no usage independent of statutory authority is proved, authorizing a charge of double pilotage in a case lilte the present, nor any practice under the statute giving it an interpretation which would include this demand. There being no rate fixed by statute, of fees payable to pilots in this port, the libellants are entitled to be paid a rea- JANUARY, 1849. 443 Love V. Hinckley. sonable reward for the services performed by them. The answer admits that the accustomed compensation, $41.50, for ordinary pilotage, would be a proper allowance in this case ; and the consignees express a readiness to pay that sum. All the witnesses for the libellants testify, that some degree of extra care and exertion would be required in bringing in a vessel so situated, in the most favorable weather, as well as some increase of the responsibility of the pilot. For such extra liabilities he is entitled to a reasonable compensation. What amount is appropriate and proper, in such cases, it will always be difficult for the Court to ascertain and deter- mine, either by general rules or by any course of specific in- quiry and adjudication, in a way likely to establish a criterion acceptable to those interested, or. satisfactory to the Court itself. The statute made provision for adding four dollars to the usual pilotage fees, on vessels drawing more than ten feet of water, for services rendered between the first of November and the first of April ; (§ 36,) on the presumption undoubtedly that more exertion and hazard would be incurred on the part of the pilot, in the case of such vessels, during that season. So also an addition of one quarter to the usual pilotage was allowed, where the vessel was taken charge of out of sight of Sandy Hook light-house. § 31, These enactments were de- vised with a view of adapting the compensation to the degree of risk and skill which might be demanded from the pilot ; and for the want of any other acceptable guide, they may perhaps.be properly referred to, as indicating the extra reward meet to be allowed for services which import a degree of care and watchfulness beyond that required in ordinary pilotage. It may be noticed, that while the addition of one fourth pilot- age was awarded in a class of cases in which an extra service was of necessity rendered, the extra allowance of four dollars was based only upon a presumption, that in the special instances to which it was applied, an unusual exertion, care, or hazard would generally be incurred ; and the extra sum 444 CASES IN ADMIRALTY. Wicks V. Ellis. was to be uniformly paid, although in the particular case the actual service might not have been increased. As I consider this to be a case for extra reward, only because of greater presumptive risk and exposure to the pilot in managing a crippled vessel, I shall, as a reasonable measure of the quan- tum meruit, apply to it the rule of increase prescribed by the statute for the class of cases, where, from general facts, a par- ticular enhanced risk was to be presumed, and shall direct that there be added to the accustomed fee of $41.50, the sum of four dollars extra, the former statutory allowance for pilot- ing the larger class of vessels between the first of November and the first of April. The compensation awarded to the libellants is accordingly fixed at $45.50. The circumstances of the case, however, do not entitle the libeUants to plenary costs. The respondents show fair ground for contesting the demand, and the libellants, not showing themselves entitled to more than $50, ought not to recover above summary costs. Decree accordingly. WicKS V. Ellis. A motion to discharge respondent from arrest, on the ground that the libellant has no legal cause of action against him, will not be granted where the affidavits read upon the motion in behalf of the respective parties, ai-e contradictory as to the merits of the cause. In an action by a minor to recover wages as seaman, the respondent is not entitled to require the appointment of a guardian ad litem or next friend for the libellant. This was a libel in personam, by Daniel Wicks against John Ellis, to recover seamen's wages. The respondent now moved, upon affidavits, that he might be discharged from arrest, on the ground that the libellant had na legal cause of action against him ; or that, if the suit were JANUARY, 1849. 445 Wicks V. Ellis. not dismissed, a guardian might be appointed for the libellant, and he be required to" file security for costs, on the ground that he was not twenty-one years of age. Betts, J. The first branch of the present motion cannot be granted, because it turns upon the merits of the cause, in respect to which the parties stand in direct contradiction as to the facts. The controversy between them cannot be disposed of summarily by the Court upon ex parte aiEdavits. It must be deterrnined upon proofs and upon a regular hear- ing- The nonage of .the libellant does not entitle the respond- ent, as of right, to the relief asked by the second branch of his motion. He must, at least, show that he may lose some advantage of defence or recovery (as of costs,) if the case is allowed to proceed to contestation in the name of the libel- lant alone. Admiralty Courts allow a minor to recover in his own name wages earned in sea-service when the contract on which he sues was made personally with him, and it does not appear that he has any parent or guardian or master entitled to -receive his earnings. In this case the libellant swears that he always makes his own contracts of hiring, and that he re- ceives to himself the wages earned, and that there is no other person entitled to receive them. The respondent gives no evidence disproving these allegations ; and it appears that the libellant is nineteen or twenty years old, accustomed to trans- act business for himself, and that he is not, therefore, to be presumed to require, from imbecility of age, the protection of a next friend or guardian to manage his suit. The libellant is also a privileged suitor, not under obliga- tion to file a stipulation for costs ; nor could his prochein ami be required to do so. Dist. Ct. Rules, 45 ; and Add. Rule, April, 1847. There is, under these circumstances, no equita- ble ground laid for the interposition of the Court to prevent VOL. I. 38 446 CASES IN ADMIRALTY. Jones V, Davis. the libeUant from proceeding in his own behalf ; and if the objection is foundation for legal defence to the action, the respondent must be put to his plea to the competency of the libellant. When, however, the action is for other causes than the recovery of wages, and security for costs must be given, Admiralty Courts conform to the course of practice prevailing in other courts in respect to parties disqualified from suing in their own rights. Belts' s Adm. Pr. 18. The motion is denied ; but without costs as against the respondent. Order accordingly. Jones v. Davis. The employment of a master to take command of a vessel for a foreign voyage, is usually a circumstance so notorious that there can seldom be wanting definite and decisive evidence by which the fact of such employment may be established. There is, moreover, no incompatibility between the employment of one person as master to superintend the loading and preparing a vessel for sea, and the engage- ment of another person to take the command of her upon the voyage. When, therefore, one claiming under an alleged employment as master for a foreign voyage seeks to establish such employment, merely by inference fi-om services rendered and acts performed by him, under authority of the owners, in making the vessel ready for sea, the Court will require that the evidence shall be so strong as to exclude all reasonable doubt that an employment for the voyage was intended. This was a libel in personam by Frederick W. Jones against Samuel G. Davis and Cornelius Savage, owners of the brig Fawn, to recover damages for the wrongful discharge of libel- lant from an alleged employment as master. Betts, J. The libel avers that the respondents hired and engaged the libellant to take charge of the brig Fawn, owned By them, as master thereof, at the wages of a dollar a day for the time she should remain out of employment, and at the JANUARY, 1849. 447 Jones V. Davis. wages of sixty-six dollars per month from and after the time of her obtaining employment. That, in pursuance of the agreement, the libellant entered on board the brig July 17, 1848, and continued on board, in command of her, until August 2d, following, when a charter was obtained for her to St. Petersburg, and other places. That thereupon, on August 3d, he commenced loading the Fawn for the voyage, which was to be circuitous and of uncertain duration, and continued that service until the brig was loaded and fully ready for sea ; when on August 14th, the respondents wrongfully and with- out previous notice, discharged him, and would not permit him to make the voyage, upon the allegation that they had disposed of part of their interest in the vessel. The libellant avers, that by such wrongful discharge, he has sustained dam- ages to the amount of f 800, being wages, expenses and board for the probable duration of the voyage." He prays the Court to pronounce for the damages aforesaid. The answer explicitly denies any agreement with the libel- lant, hiring him as master of the brig, for any time or upon any terms ; and also denies that the respondents were part- ners, or that the brig was chartered for the voyage described, or that they gave libellant any encouragement to incur expenses of preparation to act on board of her as master for the alleged voyage. It sets forth, in detail, what the respondents assert to have been the agreement made between them and libel- lant; but it is not necessary to advert to that portion of the defence, as the libellant seeks no decree for services on board as ship-keeper, but sues wholly in the character of mas- ter, hired to serve as such over the vessel, both in port, while seeking freight, and afterwards at sea, and for damages for loss of wages, &c. during the probable duration of the voyage for which the vessel was engaged. The answer, moreover, admits that on August 14th, during the lading of the brig, they agreed with one Shaw that he should go in her as master, and states that libellant was then informed in substance that 448 CASES IN ADMIRALTY. Jones V, Davis. a master was engaged for the voydge, and that his further services would not be required. No express hiring of the libellant, as charged in the libel, is proved, nor is it shown that he was put in possession of the vessel in the character of master. The argument in his behalf is, that the agreement set up is to be implied from the facts in evidence. The facts relied upon to raise this implication are, that the libellant was on board the vessel for some time in July and August, — ^that one of the respondents said to the notary who was employed to ship a crew for the voyage, that Captain Jones would superintend the selection of the men, — that the shipping articles were drawn up, and the crew hired by the notary, in the expectation that the libellant was to command the vessel, — ^that the libellant gave orders and made arrangements on board for the voyage, in taking in cargo, sup- plies, &c., — that upon one occasion the libellant, at the express direction of one of the respondents, signed bills of lading for part of the cargo, — and that he was also conversed with by one of the respondents, in relation to the course he would pursue in case the vessel should be detained by ice in the Baltic. The respondents proved a conversation had since the cause was at issue, between a witness and the libellant, in which the latter stated to the witness, that the ship-keeper of the brig having left her, he, the libellant, agreed with the owners to go on board her and sleep at night, and to look for business during the day ; and that respondents were to give him a dol- lar a day for the service. They further proved that the libel- lant did not sign the shipping articles, or ship the first or the second mate for the voyage, — ^that a provisional agreement was made by him, with the assent of the owners, -with one Coffin, to go on board and assist in loading the vessel at a dol- lar and a half a day, with the understanding that if he was approved he should be employed for the voyage as first mate ; another person was, however, shipped in that capacity,— JANUARY, 1849. 449 Jones V. Davis. that when the brig was ready for sea, and hauled out into the river, the libellant left her, and Captain Shaw having then become a part-owner, cleared her as master, and came on board, and made the voyage in command of her. Evidence was given on the part of the libeUant of his gen- eral repute for skill and fidelity, and of his ample experience as shipmaster. The respondents on their part proved, that they made inquiries of persons who had employed him, and that they obtained unfavorable accounts of his qualifications. The facts and circumstances in evidence, are clearly con- sistent with the claims set up by the libellant, that after August 3d, he was employed by the respondents as master ^of the brig for the voyage, but they are by no means of force sufficient to exclude the presumption that he was continuing with the vessel on his original undertaking, with a hope and expectation of receiving the command of the brig when she should be sent upon a voyage. Indeed, it must be conceded that the facts tend about equally to the support of either hy- pothesis. The circumstance which most directly sustains the claim of the libeUant is his act of signing bills of lading in presence of one of the owners, during the time the brig was loading. This being one of the functions of a master, very strongly im- ports that libellant was at that time clothed with a master's authority. It must be remarked, however, that the appoint- ment and employment of masters is wholly at the discretion of owners, (Abbott on Shipp. 156 ; 3 Kent, 161,) and, that there is no incompatibifity in assigning a person to that agency in a home port, for the purpose of loading and fitting out a vessel, although he is not to act as master for the voy- age. Advantages may result to owners and to commerce from placing this home service in the hands of men of expe- rience and dispatch in the business of inspecting, taking in and storing cargo, or selecting the men, who no longer go abroad as navigators, or may not possess proper qualifications 38* 450 CASES IN ADMIRALTY. Jones V. Davis. for that duty. Such employment of a master in port might ' also be desirable for the purpose of satisfying owners of his competency to take charge of the ship or manage her business upon her voyage. The owner and ship would stand charged by his acts as master pro hoe vice, without respect to the fact of actual command at sea. A transaction which occurred in loading this vessel illustrates this principle. It appears that Coffin applied for the office of first mate, which was vacant, and he was recommended by the libellapt as a proper person to fill it. He was taken into service to assist in loading the vessel, with a view to his engagement as first mate, if he should be approved of. The fact of his being on the vessel, and acting in port as her first mate, does not accordingly de- termine that he was shipped for the voyage in that capacity. The auxiliary fact of his having signed the shipping articles would certainly be requited, in absence of oral proof of express hiring. It seems to me that this principle should be applied to the engagement of a master, and that it governs the present case. There would appear to be rarely any occasion to resort to implications and presumptions for the purpose of showing employment in that important capacity. The fact must almost invariably be too notorious and marked, to leave any room for question. The owners treat with masters publicly as such. The vessel is advertised for her voyage in his name. Bills are furnished to him, and certified by him in that ca- pacity, and scarcely any particular can be referred to in the employment of a vessel, less likely to be wanting in means of clear and decisive proof, than the appointment of master for a foreign voyage. When, therefore, a resort is had to circumstantial evidence to establish the employment of a master, the evidence required should be of a character which leaves no fair reason to doubt the fact ; and must' certainly go further than to present a case equally consistent with the supposition of a temporary en- FEBRUARY, 1849. 451 The Atlantic. • gagement in port in preparation for the voyage, as with an appointment to go out in command of the vessel. I forbear expressing any opinion upon other topics of importance in- volved in the case, the right of a master to consequential damages, because of a breach of a contract of hiring of this kind with him, or the legal measure of such damages, or the limitation, if any, of the power of an owner to displace a master from his command, or to refuse entrusting a vessel to him. There being no satisfactory evidence of any contract en- tered into between the respondents and libellant, engaging him as master, or corresponding in substance with the agreements alleged by him in his Ubel, I must pronounce against his demand for damages. Libel dismissed, with costs. The Atlantic. Where, in answer to a libel for wages, the claimants set up a discharge of libellant in a foreign port by order of the consul, it is incumbent on them to set forth in their answer a state of facts justifying the discharge relied on, and to support the allegations by adequate proof. The discharge of a seaman in a foreign port (under the acts of February 28, 1803, and July 20, 1840,) can be ordered by the consul, only upon the consent of the seaman, given, or proved before-him. The party relying upon such discharge in defence to an action for subsequent wages, must show the fact that such consent was given. To entitle an instrument to the respect accorded to documents under official signa- ture and seal, the signature must be legible, and the impression of the seal suffi- ciently distinct to allow the vignette and motto to be distinguished. In answer to a libel for wages, the claimants set up a stipulation in the shipping articles in bar of the recovery. The libellant served a replication in the usual form, but contended, upon the trial, that the stipulation relied upon was void. Held, 1. That so far as the claim to treat the stipulation as void might rest upon any matters of fact outside the stipulation itself, the question was not raised by the general replication; but the libellant ought, either by an amend- 452 CASES IN ADMIRALTY. The Atlantic. • ■ ment of the libel or by a special replication, to have introdaced into the plead- ings averments contesting or avoiding the apparent bar contained in the stipu- lation. 2. That the question, whether the stipulation was not void in point of law in itself considered, and apart from any extraneous facts, might be raised on the > general replication, and should bo considered as if it had arisen upon demurrer or exception to the answer. As a general rule, seamen are competent to bind themselves by a contract with the master and owners ; and in the ordinary case of a hiring for money wages at a specific rate, the contract of the seaman in respect to the rate will be upheld. The contract of a seaman in respect to his compensation will likewise be upheld where the mode of compensation contemplated is by a proportional division of the earnings of the vessel among the owners, officers, and crew. Shipping articles entered into for a whaling voyage, and contemplating the pay- ment of the officers and crew by " lays " or shares in the vessel's earnings, con- tained a stipulation that either of the officers or crew who might be prevented by any cause from performing their duty during the whole of the voyage, should receive of his lay only in proportion as the time served by him should be to the whole time of the voyage. Held, That this stipulation would be sustained ; even without evidence that special explanation of it was made to the seaman. A mariner receiving injury in the performance of his duty is entitled to be treated and cured at the expense of the ship ; and this is equally true, whether his com- pensation is by specific money wages, or by a share in the earnings of the vessel. As a general principle, the liability of th^ship in this regard is limited to the re- conveyance of the disabled mariner to the United States, or to such period of time as may be reasonable, to enable him to return thither ; but this rule is lia- ble to variations. This was a libel in rem by George Stotesburg, against the ship Atlantic, to recover wages, and also the expenses of libeUant's cure for injuries received during his service on board. The libel stated the following facts : That in July, 1845, the master of the Atlantic, then in the port of New London niaking ready for a three years' whaling voyage to the North- west coast, shipped the libellant as green hand for such voy- age, on the two hundred and twenty-fifth lay or share of what should be taken by the ship, as the libeUant's wages. That the libellant signed the shipping articles, in which the contract was fully set forth. That in August following, he entered FEBRUARY, 1849. 453 The Atlantic. upon the service of the vessel, under the agreement, and the vessel, with the libellant on board, proceeded on her intended voyage, and cruised for about seven months, when she arrived at Maui, one of the Sandwich Islands. That on March 16, 1846, the ship being yet at Maui, the libellant, while in the performance of his duty, fell from the maintopsail yard, and was so severely injured that he was taken ashore to the hos- pital, where he remained confined to his bed for about twenty- one months. That whUe he was in the hospital, the ship proceeded on her cruise until November, 1847, when she started for home, and on her way touched at Maui, and took the libellant on board, and then proceeded to the port of New London, where she arrived April 20, 1848 ; having taken a cargo of which the two hundred and twenty-fifth part claimed by the libellant was averred to be of the value of $300 and upward, which he claimed to recover from the ship. The libel further stated, that by reason of the injuries received by libellant in his fall, he had lost the use of one of his legs, and one of his arms J;iad' been rendered almost use- less ; that he had already incurred great expense for medical advice, and must incur still more before he could be fully restored ; and he claimed to recover from the ship " his rea- sonable expenses abeady incurred, and hereafter to be incur- red in his cure, and his reasonable support since his injury and till he shall be cured." 'The answer stated that the libellant shipped on board the Atlantic as alleged in the libel,, except that he shipped as car^ penter's mate instead of green hand, and that no limit of three years or otherwise was set to the duration of the voyage. The answer then set up as a defence to the claim for wages a clause in the shipping articles, which was in these words : " It is also further agreed between the owner of said ship At- lantic on the one part, and the captain, officers, and crew on the other part, that if the captain, officers, and crew, or either of them, are prevented by sickness or any other cause from 454 CASES IN ADMIRALTY. The Atlantic. performing their duty during the whole of said voyage in said ship Atlantic, that any of them so falling short, shall receive of their lay or share in proportion as the time served or duty performed by them is to the whole time said ship is performing her voyage." And it was also charged, in respect to the injury received by libellant, that the accident with which he met was not occasioned by his being engaged in any unusual duty, or by any agency Or through any fault of the master, or of any officer of the ship, but through want of sufficient care on the part of the libellant. The answer further showed, that on the libellant's being placed in the hospital at the port of Lahaina, at Maui, the libellant was discharged from the ship with his own consent, and by the authority of the United States consul at the port. That the master of the ship then produced to the consul the list of his ship's company certified as required by law, and paid to the consul $36, being three months' wages of libel- lant, for which the consul eave his receipt, together with his certificate that the libellant had been discharged from the ship according to the laws of the United States. That on the return of the vessel to the port, the United States consular agent put the libellant on board the ship as a sick and dis- abled seaman, to be carried as passenger to the United States, and that he was so received and brought home. The answer further stated that advances had been made to the libeUant, which more than paid the amount due him upon his lay or share under the stipulation in the shipping articles be- fore mentioned. To this answer the libellant filed only a general replication in the usual form. The cause was heard upon depositions and documentary evidence ; the important points of which are adverted to in the opinion of the Court. Burr 8f Benedict, for libellant. I. The rule of the maritime law is well settled from the FEBRUARY, 1849. 455 The Atlantic. earliest periods, that a seaman taken sick shall be cured and tended at the ship's expense, and have his whole wages ; if he be hurt in doing his duty, and in rendering services to the master or the ship, he must be cured and indemnified at the expense of the ship ; if he be disabled for life in defending himself or the ship, he must be provided for, for life, at the ship's expense. Cleirac, 25, on art. 6 of Laws of Oleron ; Laws of Oleron, art. 6, 7 ; o/ Wisbuy, art. 18, 19 ; of Hanse Towns, art. 39 ; Pardessus, passim, 1 Valin, 721 ; 2 lb. 167 ; 2 Boulay- Paty, §§ 9, 10, 11, tit. 5 ; Abbott on Shipp. 622, 624, note ; Harden v. Gordon, 2 Mason, 541 ; The Brig George, 1 Sunm. 151 ; Reed v. Canfield, lb. 195 ; The Forest, Ware, 420. II. This law is dictated by humanity and policy. " The Spaniards are the most unkind and indeed unjust to their sick mariners of any people, for they neither pay them any wages, nor maintain them, unless they pay others to serve in their stead." 1 Pet. Adm. R. App. 107, note ; Sea Laws, 203 ; TroMslation of Cleirac, note to art. 45 of Laws of Hanse Towns. " Public policy, as well as the ordinary claims of humanity, demands that the interests of the seaman should be linked, in these respects, to those -of the ship." The Brig G^rge, 1 Sumn. 155. All the ancient codes and their com- mentators, and the uniform current of modern decisions, agree in the rule and the reasons of it. III. The claimants, however, insist that the rule is confined to seamen who ship by the month, and does not apply to sea- men on whaling voyages, whose wages are usually a- share of the profits. It is not easy to see how the mode of hiring should alter either the humanity or the policy of the law, or in any manner change the rule. In length of voyage, — in ab- sence from friends and the comforts of civilized life on shore, — in purely maritime service, and perils, and hardships, — ^in the great profits and national benefits which result from his la- bors, — and in the necessity of being kept in good condition, the whaling seaman is the mariner j>flr excellence. 456 CASES IN ADMIRALTY. The Atlantic. IV. A participation in the profits of the voyage is believed to have been originally the mode of compensation of mari- ners in all employments, and by degrees the capitalist took the profits, and the mariner had fixed wages ; but in the fish- eries the original and primitive plan has always prevailed with modifications. In the time of Cleirac there were six modes of hiring mariners. 1. By the voyage or by the run — a fixed sum. 2. By the month, week, or day. 3. By the dis- tance — so much a mile or league. 4. By a share of the freight. 5. By the right to put so much freight on board belonging to themselves or others. 6. The most common — ^part in money and part in the right to put freight on board. Cleirac, 38, §§ 32-34 ; Laws of Oleron, art. 19, 28, 29. All the cases in which mariners are spoken of, in the codes and elsewhere, make no distinction in their rights and duties, depending on the mode of payment. Pardessus, Lois Mar. passim ; Laws of Oleron, art. 19 ; Laws of Wisbuy, art. 35 ; 1 Pardessus, ' 382, 485. Their rights belong to them as " mariners," " ma- telots," and not as paid by the month or otherwise. V. The whaling business existed before the codes and the commentators. The Biscayans were the first people who prosecuted the whale fishery as a regular commercial purluit. They carried it on with great vigor in the twelfth, thirteenth, and fourteenth centuries. Encyc. Am. art. Whale-fishery. The whale-fishery is one of the oldest, most profitable, and purely maritime commercial pursuits. Cleirac, in his notes to art. 44 of the Laws of Oleron, (p 119,) devotes more space to this subject than to any other in his whole commentary. Twelve closely printed and interesting pages are devoted to the history, mode of conducting, and commercial importance of this great maritime pursuit. It was conducted then, as now, on shares. Not only the men in each vessel were paid in shares, but several vessels often went on shares. Those who pursued it were always subject to the maritime law, and to the jurisdiction of the Admiralty, except in England, since FEBRUARY, 1849. 457 The Atlantic. the masters of the English Admiralty have prohibited it from exercising its jurisdiction. 2 Valin, 794 ; Ou/rtts on Merch. Seam. 71, 353. VI. " Although seamen in whaling voyages are compen- sated by shares of the proceeds, this compensation is always treated as -in the nature of wages. They are never deemed partners, although they may be said to partake of the profits of the voyage. The apportionment of the proceeds is only a mode of ascertaining their compensation." Reed v. Canfield, 1 Story, 203, 204. This was a case of a seaman injured on a whaling voyage, and shows that the modern rule, like the ancient one, extends to whaling seamen as well as others. VII. It is said, however, that the mariners contracted in the articles that they should not be paid for time lost by sick- ness. The clause in the articles is a most extraordinary one. 1. Its inhumanity and impolicy in connection with whaling voyages is most manifest. It leaves the sailor after eight months' service sick and unprotected, 12,000 miles from home, on -an island in the sea, without a dollar. It makes it the pecuniary interest of the officers to have the men sick, or to disable them, or confine them, or disrate them, or put them off" duty, during that large portion of the voyage when there . is little to do. It makes it the interest of the seaman to shrink from peril and exposure. Every accident or a cold must cost them a portion of their lay. 2. It also makes the measure of compensation two things which cannot be cor- rectly measured — ^relative health and labor. How long must he be sick, and how sick, and how much labor shall he fail to do ? Shall every hour be deducted, or must it run to a day, a week, or a month ? Shall every headache, and stifi" joint, and swelled finger, that impairs his efficiency, take away a portion of his wages ? VIII. Courts of Admiralty are in the habit of watching with scrupulous jealousy every deviation from the principles of the maritime law ; and when any stipulation is found in VOL. I. 39 458 CASES IN ADMIRALTY. The Atlantic. the shipping articles which derogates from the general rights and privileges of seamen, Courts of Admiralty hold it void, unless the nature and operation of the clause be fully and fairly explained to the seaman, and an additional compen- sation is allowed. Brown v. Lull, 2 Sumn. 449, 450 ; The Juliana, 2 Dods. 504 ; 2 Mason, 541, 556 ; 3 Kent, 193 ; The Minerva, 1 Hagg. Adm. R. 347 ; Abbott on Shipp. 609, § 3, and 610, note, and cases cited. IX. It is not material whether the articles be in the usual form, or what is the custom of New London. It is the de- parture from the principles of the maritime law, and the gen- eral rights of seamen, and not the departure from the usual form of articles, or from the custom of a particular place, that avoids the clause. All articles are stuffed with void clauses. Abbott on Shipp. 609, ^ 3 ; The Minerva, 1 Smjww. 158; Cur- tis on Merck. Seam. 57, note. X. There is no evidence that the articles were explained to the libellant, nor that he received any additional compen- sation, nor that he knew of any custom or was bound by it. It is not to be presumed from his signing articles at New London. Harden v. Gordon, 2 Mason, 558 ; 1 Sumn. 158 ; 1 Hall, R. 631, 632. XL This clause may be construed consistently with the maritime law. The Court will therefore so construe it 1. It may reasonably apply only to cases in which seamen, from sick- . ness or other cause, needlessly or wrongfully, or by consent of the consul, leave the service before the voyage is up, — or only to provide that in cases in which a seaman for any cause should not be entitled to be paid for the whole voyage, that he should be paid his share of the whole voyage ratably to the time, and not be entitled or restricted to his share of what was taken before he left. 2. Does he not do his duty who does aU he can ? By either of these constructions, the rule of the maritime law is unimpaired, and the libellant is enti- tled to recover his entire wages. XII. There is nothing in the articles to impair his right to FEBRUARY, 1849. 459 The Atlantic. recover the indemnification for the injury received in the ser- vices of the ship. That stands under the maritime laws. The clause in the articles only relates to wages. XIII. The alleged discharge of the libeUant in Maui the morning after the accident is not proved. The consular cer- tificate is not evidence of a discharge. It is only a certificate that the seaman was left there sick, to save the captain's lia- bility on his bond to the collector if the ship should not return to Maui. The consul has no jurisdiction to discharge a man except in cases of joint application or consent, of which this does not appear to be one, there being no pretence of any consent, and the man was not in a situation to consent, and it would have been brutal to ask him. Asa Childs, for the claimants. I. The libellant's claim is founded on the special contract. He does not set up the relation of a mariner to the ship, and claim wages, and the expense of his cure from the ship, as the result of that relation in virtue of the maritime law ; but he sets up this contract, alleges he signed it, and making it the ground of his claim, asks the Court to decree its specific performance, and give him his share of the products of the voyage. 1. Now, either the contract is in force or it is not. If it is not in force, or is abandoned, then it is certain this action cannot be sustained. If it is in force, then the duty of the Court is to ascertain its import, and giving it a fair legal con- struction, to enforce it. But in respect to compensation, the rights of seamen are find always have been matters of con- tract. The maritime law, like the common law, wiU imply a contract to pay wages, in the absence of an express contract, upon the principle of a qucmtum meruit, but it leaves parties free to make their own contracts, and when there is a contract made it will enforce it. The whole regulation as to shipping articles rests upon, this recognition of the right of parties to make contracts. 2. Whatever may be the rules of the mari- time law as to the rights of parties, it is perfectly well settled 460 CASES IN ADMIRALTY. The Atlantic. that they may be eontroUed by special contracts in respect to the parties themselves. 1 Pet. Adm. R. 113 ; lb. 186 ; lb. 214. 3. It is not denied that the contract, to be valid, must be fairly and honestly made. But the law as to seamen is in this respect the same as the law^ as to other men. Acts of oppression, cunning, deception, introduced into contracts. Courts will protect the parties against. Inequality in terms, disproportions in bargains, sacrifice of rights on one side only, not compensated by benefits on the other, Courts will pro- nounce unjust, and regard as evidence of fraud. 4. All the rules as to the illegality of provisions inserted in shipping arti- cles, and all the grounds for showing special favor to seamen by Courts, rest upon either their liability to be imposed upon, in consequence of their peculiar relation, or actual fraud prac- tised upon them. But even in the extreme cases, if the con- tract is fairly made, the parties are bound by it. II. The contract now under consideration can be affected by none of the principles referred to. It is not a contract im- posed upon seamen by the master or owners of a ship. It is in the nature of a copartnership. Abbott on Shipp. 5th Am. ed. 915. The owners, officers, and men have associated to pur- sue a particular business. The owners furnish the ship, the officers and men agree to do the work ; and they are all by their agreement to be interested jointly in the whole enter- prise. They all unite in a mutual covenant, and for their own protection submit to the authority of the captain, and prescribe their own terms of interest. The men are not labor- ing for the owners, but for themselves, as much so in every sense as the members of a mercantile firm. The business in which they engage is not a trading voyage, but rather a man- ufacturing business. Except the time spent in passing from port to their fishing ground, they are engaged in the actual labor of procuring oil and bone, &c. The early business of catching whales and other fish was carried on by companies collected in tents on the shore, and had no connection with FEBRUARY, 1849. 461 ■ The Adantic. shipping business whatever. The peculiar rules adopted in maritime ports for the regulation of seamen in trading voy- ages — men employed simply to navigate ships — cannot be applicable to such an association as this. III. This contract was fairly made. It is in the form used at the port where made by every company engaged in the business for thirty years. It is free from all suspicious cir- cumstances. It is signed by the libeUant, who writes a good hand, and furnishes evidence of having been understandingly executed. There is no pretence of unfairness. The captain and officers are all subject to the same rules, and have signed the same articles. IV. The contract is reasonable in its terms, and equal as respects all parties. Every man is to receive the fruit of his own labor for the time he shall perform his duties. In a trading voyage from port to port, where the seamen take charge of the owner's ship, and expose themselves to danger for his exclusive benefit, there may be a reason and it may be just that he receive his wages from the owners, though sick. But this IS not such a voyage. The voyage is without limit ; the crew acre to engage for themselves, as well as the owners, in a particular enterprise, to work as long as circumstances shall seem favorable. If a man fails to continue with his . associates, and another person is procured in his place, the loss should be his own, and not fall upon his associates. At any rate, a contract so providing is not unjust or unreason- able. It is not just, it is not right, that the earnings of others should be transferred to him. The question is not, what shall be done to cure a sick man ; but the question is, can it be said to be an unreasonable provision in a contract that he shall not, as a pecuniary interest, receive the fruit of other men's labors. Bear in mind this is not a claim against own- ers of the ship for wages, but against the associates in the enterprise, to obtain a peirt of their earnings. V. The principle adopted by Story in 2 Mason, 541, and 39* 462 CASES IN ADMIRALTY.. The Atlantic. 2 Sumner, 449, that where a contract imposes unusual hard- ships on a seaman without extra compensation, or deprives him of rights secured by the mercantile law, the Court will presume the contract to be fraudulent, does not apply to this case. No such unusual hardships are imposed, no ordinary rights are taken away. This contract stands like every other contract brought before the Court, presumed upon well-settled principles of law to be fair till the contrary is shown. Admit that a contract on its face apparently unjust imposes upon the party who sets it up the burden of proving it to be fair. This contract contains no provisions which* justifies any presump- tion against it. VI. As to the claim of the libellant, that he is to be cured at the expense of the ship, no question of any practical im- portance can arise. He was placed in the hospital at the Sandwich Islands, and all the expenses paid by the captain. He was brought home at the expense of the United States. His board bill and his surgeon's bill at New London, and all his expenses, were paid by the owners. VII. The libellant was discharged according to law at the Sandwich Islands, and this wotdd be conclusive against his claim to be cured at the expense of the ship. 1. The consul had a right to discharge him. Act of July 20, 1840, 5 U. S. Stats. 394. 2. His certificate is that he was discharged ac-- cording to law. 3. The presumption of law is that a pub- lic officer has done his duty. 4. The payment of $36 is con- firmatory evidence that the consul discharged him according to law. 5. His sending him home as a disabled seaman proves that he was discharged. Bbtts, J. The libellant shipped at New London in July, 1845, as carpenter's mate, on a whaling voyage. In consequence of injuries received by him, in the discharge of his duty, he was taken on shore in the port of Lahaina, in the island of Maui, one of the Sandwich Islands, and left in FEBRUARY, 1849. 463 The Atlantic. the hospital there. The ship proceeded on her voyage, and after completing her cruise, touched at Maui, on her return home, and received the libellant on board, he being placed there as a sick and disabled seaman by the consul, and was brought to the United States, the master receiving $10 pas- sage money from the consul therefor. The libellant now demands wages for the whole voyage, together with the expenses of his cure. There are disagreements in several particulars between the statements of the libel and those of the answer, but they do not essentially affect the points upon which the cause turns, and accordingly no time will be spent in the consideration of them. The questions in the case are three : — Was the libellant discharged from the ship at Maui, so as to terminate the shipping contract, and exempt the vessel from all further liability in consequence of his shipment ? Was the condition contained in the shipping articles, limit- ing the libellant's compensation or wages to the time he was actually on board and capable of rendering the services he contracted to perform, a legal condition and obligatory upon him? Is the ship chargeable with the expenses of the libellant's •cure ? and if so, to what extent ? 1. It is incumbent on the claimants to set forth in their answer, a state of facts justifying the discharge of the libel- lant in a foreign port, and to support the allegations by com- petent and sufficient proofs. They plead that the libellant, on March 16, 1846, fell from the topsail yard of the ship through want of sufficient care on his part, and was so severely injured by the fall, and became so sick in consequence of it, that he was rendered unable to perform his duty on board, and was, at his own request, and by order of the captain, and by aid of the consular agent, placed in the hospital. That on March 18th, he was dis- 464 CASES IN ADMIRALTY. The Atlantic. charged from the ship by his own consent, and by the con- sent and authority of Giles Waldo, the United States consul at that port, the master of the ship having produced to the consul the list of the ship's company, certified according to law, and having paid to the consul the sum of $36, being three months' wages to the libellant. The evidence to support this discharge is a certificate, — ^rep- resented to be under the consular seal, but the impression of the seal is too faint to admit of its being deciphered, — attached to the articles, and expressed in these terms : — United States Consular Agency^ i Ldkaina, Hawaian Islands. | " I, the undersigned U. S. Consular Agent, do hereby cer- tify, that George Stotesburg has been discharged fi"om ship Atlantic on account of sickness and in accordance with the laws of the United States. " Given under my hand and seal this 18th day of March, 1846. Giles Waldo, U. S. Consulaj Agent. " By A. H. Linigsyez," (or some other similar name, not easily determined from the signature.) On another paper a memorandum or account is made in this form : — " Ship Atlantic and owners to U. S. Consulate. 3 months' wages to Stotesburg, $36 00 Certificate 2 00 $38 00 Rec'd payment, (Signed as above.) Lahaim, March 18, 1846." These papers are all the evidence produced to support the allegation of the answer, that three months' wages had been FEBRUARY, 1849. 465 The Atlantic. paid to the commercial agent, and that the discharge had been given under the authorization of the act of Congress of February 28, 1803. 5 U. S. Stats. 396. The discharge, however, manifestly was not made in con- formity with the provisions of the statute ; for the cardinal requisite to the exercise of that authority is, that applica- tion for the discharge shall be made by both the master and mariner ; and it is not even certified that the consular agent acted on any such application ; on the contrary the proofs import that the libellant was sent ashore by direction of the master, and under expectation that he stiU remained con- nected with the vessel as if he had continued in her. The Court cannot assume that the assent of the libellant to his discharge was given, merely upon the fact of his being left in a hospital in his then maimeji and dangerous condition ; nor upon the assertion of the person acting for the consular agent that the libellant was discharged from the ship in accordance with the laws of the United States. It is unnecessary to in- quire, whether an averment in such certificate that consent was given by the seaman and master in the presence of the consul, or was proved to him, would justify the discharge without other evidence of the fact, because the certificate con- tains no such allegation.- Indubitably the particular which gives authority to consuls to act in this behalf under the stat- ute, must be duly established, or his proceedings will be. a nullity. This is a special power and trust confided to. consuls and commercial agents, and must be exercised by those officers strictly in pursuance of the directions of the statute. Nor can the payment of $36 wages made to the consul by the master, be accepted as a payment of the three months' wages prescribed by the act. The hiring was for a share of the takings on an entire whaling voyage ; and the rate of the lays could not, by the method of apportionment appointed in the articles, be applied with any justness to the period of ser- vice which had then elapsed. The vessel was on her outward 466 CASES IN ADMIRALTY. The Atlantic. cruise to the fishing grounds, and it would be evidently un- just to measure the compensation of the libellant by lay shares out of the chance takings on that part of the cruise. The takings of the entire voyage was the basis upon which the libellant's share should be computed. Twelve dollars per month was evidently adopted as an arbitrary allowance of wages. It might chance to be more advantageous to the libellant than his lay of the earnings of the adventure, appor- tioning the time he was in the ship with the entire duration of the voyage. Still, it might be disproportionately short of his share. And it certainly was not competent to the master and consular agent to determine that matter without the clear understanding and concurrence of the libellant. I think, there- fore, there is not in this discharge that conformity with the requirements of the act of 1803, which wiU uphold it to protect the ship. Jay v. Almy, 1 Woodb. Sf M. 210} The act of July 20, 1840, (5 U. S. Stats. 394, c. 48, §§ 5, 6, 9,) empowers consuls and consular agents abroad, to discharge seamen from their contracts or their ships, and to exact the payment of three months' wages, or even more, or to dispense with it as in their judgment they may think expedient. This power can be exercised but in two cases, — upon the applica- tion of both the master and the mariner, or upon that of the mariner alone. The master can act in the matter only jointly with the mariner. And it is not enough for the consul to cer- tify that he gave the discharge " lawfully," or that he gave it " in accordance with the laws of the United States." It must be made to appear upon what grounds he proceeded. The Court cannot intend that it was on the joint request of the master and seaman ; nor that it was on the sole application of the latter, nor even that one or other ingredient of fact ac- tually existed. The power imparted to consuls is limited and specific in character, not appertaining to him virtute officii, 1 Compaic Hutchinson e. Coombs, Ware, 66 ; also Minor v. Harbeck, post. FEBRUARY, 1849. 467 The Atlantic. but conferred by a statutory provision ; and the law raises no presumption or intendment in support of his doings, until it is shown that his jurisdiction attached to the subject, — that a case had occurred falling within the scope of his powers. The rule is coeval with the existence of statutory or limited tribunals or officers, that their doings must be made to appear to be within their authority, and that nothing can be supplied in support of their jurisdiction by intendment. 1 Co. Inst. 117 ; 2 Co. R. 16 ; 1 Lilly, Abr. 371 ; 1 Levinz, 104 ; Powers v. The People, 4 Johns. 292 ; Atkins v. Brewer, 3 Cow. 206 ; Grignon V. Astor, 2 How. 319 ; Bennett v. Bush, 1 Den. 141. Nor is it sufficient for the officer to aver ever so positively his jurisdic- tion. He must set forth the facts necessary to confer it, and those jurisdictional facts must be established by proof. The People V. Koebar, 7 Hill, 39, and cases cited. I do not discuss the question raised respecting the suffi- ciency of the proof, that Giles Waldo was the consular agent of the United States at Lahaina, or that the gentleman who ha^ subscribed the act for him, was his legally authorized substi- tute. Admitting that the seal of the consulate imports a legal authority in the person using it to do all official acts apper- taining to the office, still the case calls for the remark, that the papers should present a distinct impression of a seal so that it may be identified and discriminated. The paper be- fore the Court does indeed bear a faint similitude of a seal, but neither vignette nor motto is distinguishable ; and the vague flourish employed for a signature, affords no means by which the authentication of the discharge can be verified.^ 2. To meet the claim for wages during the period of the libeUant's disability, the answer sets up a stipulation in the 1 That a regular and valid consular discharge, properly certified, is con- clusive on all points duly passed upon by the consul, unless his conduct be proved corrupt or fraudulent, see Lamb v. Briard, ante, 367 ; Tingle v. Tucker, decided April, 1849, reported joos<, in its order. • 468 CASES IN ADMIRALTY. The Atlantic. shipping articles signed by the libellant, whereby it was agreed that if either of the officers or crew should be prevented by sickness or other cause from performing their duty during the whole of the voyage, he should receive of his lay or share only in proportion as the time served or duty performed by him should bear to the whole time the ship should be in perform- ing the voyage. A general replication to the answer is filed by the libellant, which has only the effect to put both parties to the proof of the allegations in their respective pleadings not admitted to be true, (Dist. Ct. Rules, 88) ; or of permitting the cause, when the answer operates as a plea in bar, to be set down for hearing upon the libel and answer alone. Dist. Ct. Rules, 78. That rule allows the libellant to treat the answer as a plea in bar, and by so replying to it, save himself from the consequences of admitting its truth, which he would do in effect by setting it down for hearing on a general replication. ^ It may admit of question whether the Supreme Court Rules {Rule 27) do not, by fair implication, take away the right of a, claimant or respondent to interpose a formal plea or demur- rer on the merits to a libel or information in Admiralty, and whether he is not limited to a defence by answers alone. See Sup. Ct. Rules, 27. The rule, however, does not import that he can interpose no other defence than a denial or admission of the facts. The facts may be undisputed, and yet supply no cause of action ; or the defendant may be able to adduce other facts avoiding the effect of those alleged by the libellant, or he may possess matter of estoppel and bar which the Court could never intend he should be pre- cluded from using, without his being also compelled to make formal denial of the facts set up by the libel. Certain Logs of Mahogany, 2 Bumn. 589 ; Pratt v. Thomas, Wa/re, 427. The provisions^ of the Supreme Court Rule must be deemed satis- fied if the defendant, whether or not required by the libel, replies to the allegations in the libel by a full and explicit FEBRUARY, 1849. 469 The Atlantic. answer. The special replication authorized by the District Court Rule, may thus be urged to create a triable issue upon the merits. This is the practice in Equity. Sup. Ct. Rules, Equity. There would be equal conveniency and fitness in applying it to pleadings in Admiralty. The Supreme Court Rules indicate no method of pleading applicable to such case, unless it be embraced in the right to amend the libel. Rule 24. That would necessarily lead to a new answer, and would by no means further the simplicity in pleading which was regarded by Congress as an object of cardinal importance in authorizing the Supreme Court to reg- ulate Admiralty proceedings. Act of August 23, 1842, 5 U. S. Stats. 5W, \ &1. In the summary of the practice of this Court, it is stated that the replication to an answer as to a plea, may, in case of urgent importance, be special or double; but ordinarily it should take a single idsue upon the allegations of the answer, however multifarious those may be. Betts's Adm. Pr. 50. The practice iri the District of Louisiana appears to be essen- tially to the same effect, ('^Varing v. Clark, 5 How..Ml,) but in general, special replications to answers would not seem to be in use, in American Courts of Admiralty, unless demanded by the libellaht. Dvml. Adm. Pr. 197 ; Coffin v. Jenks, 3 Story, 108, 121. It is otherwise ip,the English Admiralty, although an emi- nent compiler appears to regard the .practice as irregular. ? Browne's Civ. Sf Adm. L. 365, 415. Pleas in bar may be interposed, with the right to plead generally afterwards, (The ^arah Jane, 7 Jw. 659 ; S. C. 2 T^. Rob. 110,) and a reply or rejoinder contradictory to the allegations in the answer, or setting up new matter, are of constant use in the English Admiralty. The Aurora, 1 W. Rob.,32o ; The Anne and Jane, 2 3. 104 ; The Hebe, lb. 146, 152. Manifestly, then, the libellE^nt ought to have introduced into the pleadings, either by an amendment of the libel after the VOL. I. 40 470 CASES IN ADMIRALTY. The Atlantic. answer was interposed, or by special replication to this branch of the defence, such averments as were necessary to enable him to contest or avoid the bar to his recovery supposed to be contained in the stipulations of the shipping articles, which he admits he signed and that they contain the true contract ■ with him. His counsel, however, insist that he has a right to treat the engagement as a nullity, without alleging any facts impugn- ing it ; and that the Court, as matter of law, must pronounce an agreement of that description, entered into with a mariner, to be nugatory and void, in respect to him. In considering the question thus raised, I shall regard the objection urged to the defence founded upon the stipulation, as if it arose upon demurrer or formal exception to that part of the answer. It is not to be denied that a common sailor is competent to make a shipping contract. Indeed, the statutes of both the United States and England imperatively impose on masters the duty of entering into contracts in writing with seamen employed by them. And the acts of Congress clearly imply that such contracts will be valid although operating to the disadvantage of the mariner even in their most essential fea- ture, — ^the rate of wages, — for they make that a particular which must be stipulated, and on omission by the master to have a written contract, they give the mariner a chance of higher wages than he may have bargained for verbally, by allowing him to demand the highest current rate at his port of shipment. Act of July 20, 1790, IKS. Stats. 131, ch. 29, § 1 ; Act of July 20, 1840, 5 lb. 395, § 1, arts. 3, 10, 19. The written or printed shipping articles must now " contain all the conditions of contract with the crew as to their service, pay, voyage, and all other things." Act of July 20, 1840, 5 U. S. Stats. 395, § 3. It is remarkable, that the act of Congress of July 20, 1790, in specifying the constituent parts of a contract with seamen, FEBRUARY, 1849. 471 The Atlantic. should omit the rate of pay or wages he 'was to receive. By the provisions of that act the agreement must " declare the voyage or voyages, term or terms of time for which such sea- man or mariner shall be ^hipped." § 1. The act of July 20, 1840, assumes that the rate of wages is a component part of shipping articles, (§ 3,) and the Courts, previous to that enact-, ment, always enforced against masters of vessels the obliga- tion to stipulate the rate of pay as an essential part of the written contract. Bartlet v. Wyman, 14 Johns. 260 ; Johnson V. Dalton, 1 Cow. 543 ; 3 Kent, 4th ed. 177 ; Gilpin, 305, 452. The English statutes moreover are precise and unequivocal upon this point. Abbott on Shipp. 607. See 3 Kent, 196, note c, where a summary of the last English act is given. The English and American Admiralty have, in many instan- ces, interposed to protect seamen against stipulations intro- duced into shipping articles, not demanded by statute, and which were in abridgment of their rights under the law mari- time, and where no adequate compensation was secured them as an equivalent for the rights relinquished. Abbott on Shipp. 722 ; Ou/rtis on Merch. Seam. 44 ; 3 Kent, 6th ed. 193, note. But they have uniformly held that the shipping articles are conclusive as to the wages, where no fraud or deception is proved. Upon these principles it would seem to result, that the mar- iner can act in forming a contract foj wages or compensation with the same authority, and can bind himself to the same .degree as any other contracting party,- where specific wages for a period of time, or for a voyage or cruise are agreed upon, or where any other special mode of compensation is adopted. The Sidney Cove, 2 Dods. 11 ; The Mona, 1 W. Rob. 137 ; The Riby Grove, 2 lb. 52 ; The Mariner's case, 8 Mod. 379 ; Howe V. Napier, 4 Bv/rr. 1944. The law has established no distinction which goes to invalidate his contract when coupled with conditions or qualifications to his right to recover the stipulated wages in full. 472 CASteS IN ADMIRALTY. The Atlantic. The Courts have gone no further than to declare that they will scrutinize agreements to the seaman's prejudice, which are outside of the statutory requirements, or unusual in ship- ping articles ; and will absolve the mariner from them unless it is proved by the master or owners that he clearly under- stood their character, and was secured a compensation corre- spondent to the disadvantages or restriction imposed upoii him. 3 Kent, 193, and note ; Abbott on Shipp, 722, and note. With this limitation the contract operates in respect to the mariner with no less efficiency than .upon the owner. Contracts for wages in money have become almost ex- clusively thbse now employed in general navigation by com- mercial nations. 3 Kent, 185. Shipping agreements are ac- cordingly greatly simplified in comparison with what might be required were seamen now accustomed to be rewarded, as in the earlier periods of commerce, out of the freight or prof- its of the voyage, or by their own ventures on board. In de- fining and fixing the method of compensation in such cases, agreements might be required or appropriate, which should make the mariner's right to a full share, or to any share of the ship's earnings, dependent upon circumstances which ought npt to affect a contract for money wages. I do not find, in looking carefully through the ancient ordi- nances of maritime countries, any inhibition upon the right of a master or owner to make special contracts with seamen in voyages for freight or profits, or any exoneration of seameh from the obligation of their special agreements in relation thereto. Both parties were considered as acting in concert and by mutual consent in arranging the terms upon which the voyage Was to be undertaken and in conducting it after it commenced, ( Laws of Oleron, art. 16 ; Laws of Wisbuy, art. 32,) and as having a common interest in the direction of the vessel. Laws of Oleron, art. 21. In all critical emergencies the advice or opinion of a major part pi the ship's company determined the matter. Laws of Oleron, art. 2 ; Wisbuy, art. FEBRUARY, 1849. 473 The Atlantic. 14, 21. The laws secured to seamen certain advantages of venture or portage in shipping portions of the cargo on their own account, {Laws of Oleron, art. 16 ; Wisbuy, art. 30 ; 1 Pwrde'ssus, Lois Mar. a 836 ; Lubeck, art. 10 ; Hamburg, art. 9,) and the privileges were sometimes in addition to money wages ; at other times they constituted the entire com- pensation. 3 Pardessus, 340. These provisions denote that the mariners, in a common adventure, had a concurring voice with the owners and master in controlling its management, and could, regulate, at their own discretion, the privileges they were to have in the voyage. No intimation is made that they were undpr tutelage or disabilities in that respect, so that their engagements- would be voidable if varying from the familiar formula adopted in money hirings. .Whaling voyages, as conducted in England and in the United States, form a species of navigation bearing consider- able similitude to the ancient method of rewarding seamen by shares of freight earned, but very little, if any, with the sys- tem of employment on money wages, which forms the basis of ordinary shipping agreements. They are held not to be sfaictly copartnerships, {Abbott on Shipp. 705; The Phebe, Ware, 263 ; 3 Kent's Comm. 185,) yet they are mutual con- cerns, involving an entire reciprocity between owners and mariners in respect to the profits and losses of the adventure. 1 Boulay Paty, 197, § 7 ; Chirac, Gout, de la Mer, 66, note 2. They result in communities or associations, in which each and all take a common risk, and are mutually entitled to a profit. The owner supplies the ship, her equipment, and stores, and the officers and crew contribute their services, and an agreed ratio of remuneration out of the earnings of the en- terprise ds allotted to these respective, interests. The propor- tions in this distribution will, from the nature of the case, be exceedingly dissimilar, and are invariably the subject of express agreement, because not a matter capable of adjustment by 40* 474 CASES IN ADMIRALTY. The Atlantic. the Courts on any principle of legal or equitable merits be- tween the parties. It is somewhat siftgular that an interest of such magnitude in this country as the whaling business, should not have been regarded by Congress as deserving regulation by law as much as fishing voyages, or ordinary trading ones. No statute has, however, fixed the rights of parties in these adventures, or required their agreements to be in writing. Chancellor Kent is mistaken in supposing that the act of June 19, 1813, (8 U. S. Stats. 2, ch. 2,) applies to whaling voyages. 3 Kent, 178. It is limited to the bank and other cod fisheries. But a spe- cies of usages, adapted to 'the necessities of th^se adventures, are growing into practice, which the Courts seem disposed to favor, and which may soon acquire the character and useful- ness of authoritative ordinances. Curtis on Merch. Seam. 394, App. 2 ; Barry v. Coffin, 3 Pick. 115 ; Baxter v. Rodman, 76.435. The contract brought before the Court in this case is a fair representation of the terms upon which these engagements are usually arranged. If the limitation of the rights of the crew to shares in those takings only which they have aided in making be npt of general use, the stipulation would seem in itself reasonable and appropriate, if entered into by the mari- ner with an understanding of its purport and aim. The ex- ception taken in this case to the argument does not go to the provision as in itself inadmissible, but the scope of the objec- tion is, that the stipulation is void for want of proof on the part of the owners that the libellant had it clearly explained to him, and that he was secured an equivalent for a general right to wages for the voyage surrendered by this clause of the engagement. There are facts in evidence affording a strong implication that the libellant well understood this provision. The vessel was fitted out in the port of New London, and it is proved FEBRUARY, 1849. 475 The Atlantic. that for a long period of years a like condition has been intro- duced into shipping articles signed at that port, and that for twenty years, or more, voyages have been made up and set- tled there upon that basis. The libellant, in his libel, evinces ^ familiarity vith the contents of the shipping articles, as he asserts that his contract is fully set forth in them. He was a mechanic, a carpenter's mate, shipped at New London, and joined the vessel there ; and in the absence of all evidence to the contrary, it wiU be implied that he was a resident of that place or vicinity, and he must be deemed cognizant of so old and notorious a custom in the line of business in which he engaged. His handwriting indicates a good education, and as he took a rate ofi wages above that of green hands and ordinary seamen or cooper's mate, and equal with that of sea- m.en, it is also fairly inferable that the particulars of his com- pensation and the circumstances likely to affect it, were ascer- tained and particularly attended to upon his part. But, in my opinion, the stipulation is not of that unusual or extraordinary character that any e:?j;plan'ation of it to the libellant was requisite. It clearly was the customary one at that port, and it seems to be exactly adapted to the character of the adventure in which the parties were about to unite upon a ground of common interest. Upon the basis of ♦re- compense adopted, each party would be solicitous to secure the whole advantage of his own labor, and to prevent others from. participating in. profits and earnings towards which th&y had contributed no aid. There was a legal and equitable equivalent for the engage- ment in its mutuality. It applied alike to officers and crew. Those who were to receive large shares and those whose por- tions were the smallest reciprocally sixrrendered and acquired like rights under it ; and it is to be observed, that although the libellant was entitled to a precedence over portions of the ship's company, other portions had reserved to them shares ''liiuch larger than his own. His chance of gain might thus, 476 CASES IN ADMIRALTY. The Atlantic. by their shares falling into the distribution fund, counter- balance his risk of loss. The adventure was in its nature one of hazard, and each person would naturally compute the chances as more likely to turn in his favor than against him, and would accordingly regard the stipulation ^ promising an advantage to himself. I shall accordingly hold that the engagement was valid, and that the libellant cannot claim any part of the takings earned during the period of his disability. 3. The remaining question is, as to the liability of the ship in this peculiar engagement, to bear the charge of the hbel- lant's sickness and cure. The general principle applicable to the rights and liabil- ities of seamen is, that the shipping contract is presumed to jnclude the provisions of the law maritime, except as varied or modified by express stipulation between the parties. The Crusader, Ware, 448 ; Jameson v. The Regulus, 1 Pet. Adm. R. 212 ; Curtis on Merch. Seam. 106. A fundamental doctrine applicable to mariners' contracts, and one regarded in the maritime law as forming a part of the contract, is the right of seamen to be cured at the expense of the ship, of sickness or injury received in the ship's service. Jacobsen, 144 ; Abbott oil Shipp. 258 ; Ou/rtis on Merch. Seam. 106, 111. Pardessus, in his compilation of marine ordinances and laws, collects the provisions upon this subject embodied in those edicts and usages. 1 Pardessus, 327, 471, 474 ; 2 i5. 521 ; 3 lb. 141, 374, 510, 518. See, also, 1 Boulay Paty, 202. Valin comments upon the import of several of the ancient ordinances which are embraced in Article XI. of the Ordinance of the Marine of Louis XIV. ; and evidently regards them as being of uni- versal obligation, including mariners employed under every method of hiring. 1 Yalin, 721. The decisions of the Ameri- can Courts rest upon and sanction the maritime codes of Continental Europe upon this subject. Abbott on Shipp. 260, notes ; 3 Kent, 6th ed. 184-186, notes ; Curtis on FEBRUARY, 1849. 477 ■ The Atlantic. Merch. Seam. 106-111. Seamen are entitled to be main- tained and cured at the expense of the ship of sickness or injuries received while in her service. And Courts would receive with great distrust any engagement upon the part of mariners to dispense with or qualify this privilege, alike im- portant to them personally in point of humanity and in view of wise policy, in aid of the navigation and commerce of the country. The case of the libellant falls clearly within this rule, and nothing is shown in its character in any way detracting from! his right to the full benefit of it. The preterided discharge at Lahiana was of no effect upon the rights of libellant,' for the reasons already stated ; and his assent to be put on shore, if such assent is to be implied, was orily in accordance with the direction of the master and the convenience of the ship. He still continued entitled to sup- port from the vessel, and to all the advantages he would have possessed if put on shore without being consulted or against his consent, or if he had continued on board during the resi- due of the cruise. In my judgment, therefoffe, there is no ground to question his right to be treated and cured at the expense of the ship. The essential question is, what is the extent and duration of that charge, and how is its value to be measured in money ? The Vessel must cover every necessary and appropriate ex- penditure made and responsibility incurred by the libellant during the period, for board, nursing, or medical treatment. The authorities above referred to fully Support his right of recovery to that extent ; and whether such disbursements have been made by him, or there is an outstanding liability on his behalf for them, may be a fit subject of reference and adjust- ment before a commissioner. The main difficulty is, whether the libellant's disabilities still continue a charge upon the vessel after the voyage is 'fully 478 CASES IN ADMIRALTY. The Atlantic. completed, and if so, what is to be the legal termination of the charge. The expression often employed in the various ordinances and in the decisions is, that mariners are entitled to be cured of sickness and wounds received in service of the ship.^ This statement is clearly not to be taken in an absolute sense. That would involve impossibilities. Diseases and injuries so incurred are frequently in their nature, and in their direct consequences, incurable. An exposure to unusual labor or privations on the voyage may induce maladies permanent or irremediable in their character ; thus broken limbs, or bodily debility resulting from services in the ship, are very often the sailor's heritage for the residue of his life. Judge Story was manifestly laboring under uncertainty of mind whether the liability of the ship or owner was of inde- terminate duration, and might be enforced so long as the necessity should continue. In Harden v. Gordon, (2 Mason, 541,) the rule was laid down with great amplitude, that the expenses of sick seamen were to be borne by the ship, includ- ing medicines, medical advice, nursing, and lodging. In The Brig George, (1 Sumn. 59,) this rule was restated, and applied to the case of a mate substituted as master by the consul abroad, and who was lodged and treated on shore. In Reed V. Canfield, (1 Sumn. 195,) the point was presented with more distinctness, as that was a case of disability continuing after the termination of the voyage, and which might proba- bly last for the life of the sailor. Judge Story puts the inqui- ries : — " "What are the limits of the allowance ? " " May they be extended over years or for life ? " " Are they to be like the pensions allowed by some of the marine ordinances in cases of wounds and other injuries received by seamen in defehding the ship from the attack of pirates ? " These are Compare Ringold v. Crocker, ante, 344. FEBRUARY, 1849. 479 , t_ The Atlantic. interrogatories of great significance and weight, and it is to be regretted that the learned Judge has not relieved the sub- ject of its pressing difficulties by a more full solution of the questions. He says, — " The answer to suggestions of this sort is, that the law embodies in its formulary the limits of the -liability. The seaman is to be cured at the expense of the ship of the sickness or injuries sustained in the ship's ser- vice. It must be sustained by the party while in the ship's service ; and he is not to receive any compensation or allow- ance for effects of the injury which are merely consequential. The owners are liable -only for expenses necessarily incurred for the cure,' and when the cure is completed, at least -so far as the ordinary medical means extend, the owners are free from all further liability." This is sufficiently distinct as to the period within which the injury must have been received, or the sickness incurred. The ship can only be held liable for those events occurring whilst the mariner is attached to her. 1 Pardessus, Droit Comm. § 688. StiU, the inquiry whether the cure required during the voyage is to be continued after its termination, is not met in terms by this decision, and seems to be left open for solution upon general principles. Reed v. Canfield, 1 Sumn. 195. • The British act of 7 & 8 Victoria, (c. 192, § 18,) lays down a clear and practical rule upon this subject. It enacts that, in case the master or any seaman shall receive any hurt in the services of the ship, the expense of medical advice, attend- ance, medicine, and subsistence for him " until cured, or brought to this covmtry," together with the costs of his conveyance thither, be defrayed by the owners without any deduction whatever from his wages. This is but a reenactment, in sub- stance, of the provisions of the act of 5 & 6 Will. IV, c. 19. Abbott on Shipp. 170 ; lb. 616. It is probable that the ancient ordinances referred to by Judge Story, were those cited by Cleirac, ( Cont. de la Mer, 25, 26,) which provided that sea- • 480 CASES IN ADMIRALTY. • The Atlantic. men wounded in fighting for their vessel, should, besides their cure, be supported for the rest of their lives at the expense of the ship and cargo ; but I do not find this rule extended to ordinary cases of sickness or injuries in the merchant service. Ord.de Oleron, art. 7; Chirac, 27. This was regarded as a general average charge. 9 Code de Commerce, art. 400. The French marine law, according to the commentary of Pardes- sus, limits the obligation of the master, in case of a seaman left sick abroad, to the providing for the charge of his sickness, and for the expense necessary to place him in a condition to return home. 1 Pa/rdessus, § 688 ; 1 Boulay Paly, 202 ; The Little- john, 1 Pet. Adm. R. 117. The Code of Commerce leaves the subject without special legislation, ( Code de Commerce, art. 262,) further than the general principle that the mariner shall be cured by the ship, and receive his wages without abatement. The term cwre, was probably employed originally in the sense of taken charge or care of the disabled seaman, and not in that of positive healing. The obligation of the ship to the mari- ner would then be coextensive in duration to that of the mariner to the ship. Natural reason would seem to point to that limitation, it being the one consonant to the relation in which the law places the parties to each other, and by which it measuresr their privileges and liabilities under a shipping contract. This rule may undoubtedly be subject to variations. When a course of medical treatment, necessary and appropriate to the cure of the seaman, has been commenced and is in a course of favorable termination, there would be an impressive propriety in holding the ship chargeable with its completion, at least for a reasonable time after the voyage is ended or the mariner is at home. So, also, in case due attention to his necessities has been unjustly omitted by the ship abroad, or his case has been improperly treated, the Courts may properly enforce against the ship this great duty towards disabled mari- ners, even after her contracts are terminated, upon the ground FEBRUARY, 1849. 481 ' The Josephine. of a failure to perform towards them the obligation in the shipping contract. These particulars, however, are not stated as ingredients in the present case, but are referred to in' illus- tration of the doctrine involved in some of the authorities, and to show they are not inconsistent with ihe general principle, that a seaman has no claim upon the ship or her owner for the cure of his sickness or disabilities after his con- tract has terminated, and he is returned to his port of ship- ment or discharge, or has been furnished with means to do so. A reference must be ordered to have an account stated upon the principles of this decree, stating the expenses incur- red by the libeUant, and the amount of wages due him, the credits to which the claimants are entitled, and the balance, if any, due the libeUant.^ Decree accordingly.* The Josephine. A motion to dismiss an appeal taken from a decree in the District Court to the Circuit Court, must be made in the Circuit Court. The authority of the District Court, in cases pending on appeal, extends only to the protection of parties against unreasonable delay. This was a libel in rem, by Joseph Smith and othfers, against the brig Josephine. The final decree in the cause, which was in favor of the 1 The report of the commissioner, filed pursuant to this decree, found that no balance was due to the libellant. On the confirmation of this report, the claimants moved, that the libel be dismissed with costs. The libellant objected to the allowance of costs, upon the ground that the main point in controversy was novel, and that the decision against his claim turned upon a point of law and not on the merits. The Court concurred in this view, and denied costs against the libellant. VOL. I. 41 482 CASES IN ADMIRALTY. The Josephine. claimants, was rendered March 8, 1847. An appeal from this decree was taken in due time by the libellants. The claimants now moved that they be discharged from their stipulations given on the appeal, and that the appeal be dismissed. In support of this motion they produced the cer- tificate of the clerk of the Circuit Court, that the notice of appeal and afiidavit of service, with the papers required to be returned with the appeal, had not been filed in the Circuit Court, as late as February 3, 1849. Mr. Bliss, for the motion. E. C. Benedict, opposed. Betts, J. The application for relief in this matter must b^ addressed to the Circuit Court ; as the question relates to the regularity and sufficiency of the proceedings to vest that Court with cognizance of the cause. That Court, and not the District Court, must determine whether the rules of the Cir- cuit Court have been complied with, and whether the cause is to remain with that tribunal or to be dismissed from it. The authority of the District Court in appealable cases extends only to the protection of suitors against unreasonable delays therein. Ten days after notice of the decree is allowed to the failing party to appeal. Dist. Ct. Rules, 152. If he omits to enter an appeal within that time, the successful party may proceed and execute the decree rendered in his favor. Dist. Ct. Rules, 153. So, if after regularly entering the notice of appeal, the appellant neglects for thirty days to have the proceedings transcribed in order to be transmitted to the Circuit Court, the decree may be executed in the Court below. Dist. Ct. Rules, 155: It is not charged that either of these steps have not been regularly taken ; and it is only on the failure to take them that relief can be sought in this Court. The relief given by this Court in the cases indicated does not act upon the ap- peal itself. With that this Court has no concern. The relief FEBRUARY, 1849. 483 The Buffalo. extends no further than to allow the prevailing party to pro- ceed upon his decree in this Court as if no movements for an appeal had been signified to the Court. The present motion, therefore, cannot be granted in this form. Order accordingly. The Buffalo. Three causes brought, on the same facts, by different libellants, being at issue, it was stipulated that two should abide the decision of the third. Before the third was brought to hearing, the libellant died ; and his, administratrix continued the cause. A decree was rendered in favor of the claimants ; but mthout costs, for the reason that the action was prosecuted by an administratrix. Held, that in the other causes, the claimants were entitled to decrees dismiss- ing the libels, with costs. Three libels in rem were filed against the steamboat Buf- falo, to recover damages sustained through a collision between that boat and the schooner Mary, resulting in the total loss of the latter, with her cargo. One of these libels was filed by Hugh Crawford, owner of the schooner, to recover for her loss. The second was filed by Eli Kellum, master of the schooner, to recover for loss of freight, clothing, provisions, cabin furniture, &c. The third was filed by William and Anson Gray, to recover the value of a cargo of coal owned by them, and lost with the schooner. The libels were filed July 23, 1847 ; and separate answers were put in on the 16th of August following. On the 1st of December thereafter, a stipulation was entered into between the proctors of the respective parties, by which it was agreed that the suit brought by Crawford, the owner of the schooner, should be first brought to trial ; and that the decision of the other two causes should depend upon the event of that, ex- cept as to the amount of damages. 484 CASES IN ADMIRALTY. (The Buffalo. Crawford died before the hearing in his cause ; but the suit was continued by his administratrix, and brought to final hearing on pleadings, proofs, and arguments; and on Jan- uary 2, 1849, a decree was rendered dismissing the libeL with- out costs to either party. In the opinion pronounced by the Court, it was declared that the allegations of the libel, charging fault upon the steamboat, were disproved ; but the Court stated that in the exercise of its discretion as to costs, they would not be charged upon the libellant, the action being then prosecuted in the name of an administratrix. The claimants now moved for an order that they have leave to enter a decree for costs against the libellants in the other two causes. This was opposed, on the ground that under the stipulation of December 1, 1847, the same decree must be entered in each of the other writs as was entered in that of Crawford. Albert Matthews, for the motion. Edwin Burr, opposed. Betts, J. As a general rule, costs in Admiralty follow the event of the cause. The rule is only deviated from under equitable considerations presenting a reasonable ground for exempting the unsuccessful party from its operation. In the case before the Court, the circumstance that the libellant acted in a representative capacity, and was not pur- suing a personal interest, was regarded as raising an equity in her favor to be relieved from costs. In many instances the privilege of exemption from costs is secTired to executors and administrators, and in chancery it is the usual course to dis- charge them of costs, when they act bond fide and upon fair color of right ; although the Court, in the exercise of its gen- eral jurisdiction, may impose costs on the estate represented. Admiralty Courts do not look beyond the actors in the cause ; and as they cannot decree costs to be paid out of the FEBRUARY, 1849. 485 A Eaft of Spars. estate in behalf of which an' administrator sues, it may be at least questionable whether they can shape their process bo as to reach the assets of such estate by a decree against the representative. These considerations might induce the Court to withhold an award of costs against an administrator, when on the merits of the case the opposite party would be entitled to them. So in respect to these very parties ; the merits of their respective cases may rest upon a- common right, yet there be great diversity as to their title to costs. The conduct of the owner in discarding fair offers for settlement, or otherwise, might deprive him of his equity to costs in the case, when the decree was in his favor on the merits in litigation. I think, therefore, that the stipulation is not to be construed as relating to the costs of suit ; but that*" the decision of the cause," by which the parties are bound to abide, is the deter- mination of the contested questions involved in the issue. I therefore hold, that in the two causes now brought before the Court, the claimants are entitled to have decrees entered, dismissing the libels, with costs to be taxed. Order accordingly. A Raft of Spars. The rescuing a raft of timber found adrift in harbor, and floating out to sea un- accompanied by any person, is in its nature a maritime salvage service, for which salvage compensation may be awarded. The law governing such cases in England, — considered. The considerations which should govern the Court in adjusting the amount of sal- vage compensation, and its distribution amongst the salvors, in case of timber found adrift and rescued, — stated. This was a libel in rem, filed by John S. Keteltas, with whom other libellants were afterwards joined on petition, against a certain Raft of Spars, to recover compensatioii for salvage service. 41* 486 CASES IN ADMIRALTY. A Baft of Spars. The cause was brought before" the Court in May, 1848, on a motion to set aside the action or stay proceedings in it, until a replevin suit which had been commenced in the Supreme Court of the State of New York, by the owner of the timber against the HbeUants, who claimed to hold it by virtue of a lien for their salvage, should be determined. The decision of the Court denying that motion is reported, amte, 391. The cause now came up for final hearing. The grounds of the libellants claim are fully stated in the opinion of the Court. Betts, J. The libellants claim a salvage reward for arrest- ing a raft of sixteen spars, which they found afloat below the Narrows, and towii^g it ashore and securing and watching it there, until it was removed by the claimants. On the night of the 7th of April last, the spars floated out of a basin on the East River, in this harbor, where they had been kept by the claimants, and at daybreak the next morn- ing were discovered by the libellants, drifting to sea on a strong ebb tide, about a half a mile from the shore. Evidence was given by the claimants tending to show that the spars must have been tortiously abstracted from the basin ; but if the fact was so, there is no proof connecting the libellants with the commission of any improper act, or the knowledge of it in respect to the spars. They were eleven or twelve miles below the city, out in boats opposite their residence engaged with their fishing-nets, when the raft was discovered floating past them. The spars were, at the time, secured together by a chain passing through staples driven into the end of each log, and unaccompanied by any person. The whole body was drift- ing off" to sea at the rate of two to three and a half knots the hour. It was proved, that at that period of the year little or no flood tide makes up the channel below the Narrows ; so that FEBRUARY, 1849. 487 A Raft of Spars. it must be nearly hopeless that the raft would be floated back into the harbor or its coasts by a return tide. One of the libellants rowed off in his boat alone to the raft, fastened a line to it, and towed or turned it within his fishing hedges or poles, so as to stay or check its progress to sea ; and then two other bdats put off successively with two of the libellants in each, to his assistance, and the five persons, by aid of the three boats and an anchor, succeeded in towing and warping the raft to the beach and making it fast there. They were occupied in this business from daylight to between seven and eight o'clock in the morning, — a period of about two or three hours. It is contended, 1. That no case is made out by the libel- lants which falls within the jurisdiction of the Court. 2. That at most, the transaction was mere towage, and not one of a salvage character.^ In my opinion, the relief given on the occasion was in its nature maritime salvage, and accordingly the claim for remu- neration may be pursued by the libellants in this Court. The English Admiralty clearly admit the principle that ser- vices of this description are of a salvage quality ; but it is held that maritime courts cannot take cognizance of the case when the service is rendered within the body of a county, the jurisdiction then appertaining to the courts of law; and the Admiralty Court i would be subject to interdiction if it attempted to entertain a salvage claim for such service; • Nor was that impediment to the jurisdiction of the Court removed or so enlarged by the act of 3 & 4 Vict. c. 65, § 6, as to embrace a case like the present, because the provision of the act is limited " to any ship or sea-going vessel." Raft of Timber^ 2 W. Rob. 251. 1 That towage may be a salvage service when rendered under circum- stances of difficulty or danger, &c., see The H. B. Foster, ante, 222. 488 CASES IN ADMIRALTY. A Raft of- Spars. The last decision was rendered previous to the passage of the act of 9 & 10 Vict. c. 99, § 40, which gives the Admiralty- jurisdiction in salvage, for services performed, "whether in the case of ships, goods, or other articles found at sea or cast ashore ; " and the provisions of the latter act, carry the juris- diction of the English Admiralty no further than its accus- tomed exercise in the United States. Waring v. Clark, 5 How. 441 ; The Wave,i (MSS.) 1849. In the present case, the raft was adrift on tide-waters, rap- idly floating out to sea, and its rescue was clearly an act of salvage service. The Court has, on a former occasion, expressed the opinion that the institution of an action of replevin by the claimants, did not affect the jurisdiction of this Court,^ and that those proceedings were not of a character to afford the libellants a ready and full recompense, so as to render it equitable that they should be restrained to their remedy in the court of law under that proceeding. The service rendered by the libellants, although opportune and valuable to the claimant^, was not in itself one of hazard, or characterized by any features of extraordinary merit. One man in a boat met the raft coming down on .the tide, and was enabled alone to turn its direction and bring it within the check of his fishing stakes, and then, by aid of two other small boats, to tow it to the beach. The distance it was so carried was only about haK a mile, and only about three hours' time^as occupied in that service. If the raft had been reclaimed at that stage of the transaction, it is manifest a slight compensation would have covered all that could have been justly demanded. The shore at that place is exposed to the sea surf, and it became necessary for the preservation of the raft, to separate 1 Since reported, 1 Blatohf. §• H. 236. i A Raft of Spars, ante, 291. FEBRUARY, 1849. 489 A Raft of Spars. the logs and get them on to the beach, and so secure them with stakes and lines as to protect them from being washed off by the surge and tide. To accomplish this, the day was spent by five men, most of the time in the water, and they were afterwards compelled to keep a watch over the timber at high tide, to guard against its being swept away. This service continued for four or five days, but was no way haz- ardous or laborious. The libeUants took the earliest measure to have notice pub- lished in a city paper, of the rescue of the raft and its situa- tion. In every thing within their power to. do, their conduct appears to have been upright, correct, and prompt. When the raft was discovered by the claimants, the highest compensation intimated by them for the services of the sal^j vors was the sum of $30, and that implied offer was accom- panied by insulting and discrediting suggestions, respecting the manner the libeUants came in possession of the raft ; and was foDowed by an arrest of the timber on a writ of replevin. The spars were estimated to be worth from $600 to $800, and from the state of the weather and the season of the year, there is reasonable ground to believe they might have been reclaimed by the claimants without the interposition of the libeUants. ' This, however, must be merely conjectural, and if it had so turned out, there must, most probably, have been considerable delay and augmentation of expense»in efiecting th^r recovery. The persons sent out in pursuit of the raft, arrived at the Narrows at about 10 A. M., five hours after it had been secured by the libeUants, about a mUe below that place. If it con- tinued moving on the tide at the rate of two and a half miles the hour, it would, at ten o'clock, have been fourteen iniles out at sea below the Narrows. It is hardly supposable that the raft, at that distance, would have been discernible by persons in pursuit of it, nor, if tidings were obtained of its 490 CASES IN ADMIRALTY. Gumey v. Crockett. direction, but that considerable expense must have been in- curred in getting it back. I do not consider the situation of the raft to have been des- perate, nor but there was a reasonable chance of its being thrown back upon Coney Island or Staten Island By a flood tide ; for although the evidence shows that the ebb tide or current chiefly prevailed at that season, yet it is proved by the claimants, that the raft four or five days afterwards, was floated back to the city with great ease, upon the flood tide. Under the circumstances, the libellants are, in my opinion, entitled to a compensation beyond what was proposed by the claimants, but not an extraordinary one, amounting in any degree to what was demanded by their counsel, to the one half or one third of the value of the timber, or even $100, the sum suggested by the libellants before suit brought. I shall award them the sum of $50, with costs, considering that a reasonable compensation for the actual service per- formed by the libellants. As four of the libellants were hired men in the employment of Keteltas, and as the whole busi- ness was under his direction and at his expense, $30 of the amount is to be paid to him, and $5 to each of the other libellants. Decree accord GuRNEY V, Crockett. • To impart a maritime character to personal services rendered in or upon a yessel, they must be connected with the reparation or betterment of the vessel, or be rendered in aid of her navigation directly by labor on the vessel, or in sustenance and relief of those who conduct her operations at sea.i 1 Compare the somewhat analogous definition of a maritime service given in Cox V. Murray, ante, 840, where it was decided that a libel could not be maintained for a breach of contract for services. FEBRUARY, 1849. 491 Gurney v. Crockett. A person employed to visit a vessel at anchor, from time to time, to see to her safety, ventilate her, try her pumps and the like, cannot maintain a suit in Ad- miralty to recover his compensation for such services. But if, in the course of such employment, a necessity arises that such keeper should get the ship under way, and navigate her from one anchorage to another, this is a maritime service for which libellant may recover in a Court of Admiralty. This was a libel in personam by Jacob Gurney against WiUiam Crockett, to recover wages earned by the libellant as ship-keeper. The respondent, master of the schooner Excelsior, employed the libellant to unload her, as stevedore,, on her arrival from Tampico. It appeared that the libellant was afterwards em- ployed to watch and take care of the vessel during the tem- porary absence of the master from town. The agreement on the part of the libellant was, that he should have the schooner anchored at a proper place, with a sufficient length of chain payed out for her safety, and should visit her and see that she • remained in good condition, and secure from harm, but that he need not remain on board at night. During the master's absence, and while the vessel was in charge of the libellant, she was moved from her anchorage, by advice of the resident physician, and moored some hundred yards from the shore. The libellant afterwards went out to her frequently, nearly every day, in his own boat or that of the schooner, and occa- sionally opened her hatches to air her, and pumped her out. •The libeUant's claim was chiefly contested on the ground that the Court had not jurisdiction of such a demand. J. B. Pv/rroy, for the libellant. E. C. Benedict, for the respondent. Betts, J. Assuming the demand of the libellant to be well founded, he has, in my judgment, no remedy for it in a Court of Admiralty. The line of discrimination between cases which are mari- time in their nature and those not so, is exceedingly dim and 492 CASES IN ADMIRALTY. Garney v. Crockett. vague ; and in the contested state of Admiralty jurisdiction in respect to these border subjects, it is most desiraWe to keep within the limits of the clear powers of the Court. Manifestly not every contract in relation to maritime mat- ters falls within the cognizance of*maritime courts ; and with- out attempting to define with strictness the terms within which the jurisdiction of Admiralty Courts is circumscribed, it may be safely asserted, that to impart a maritime character to a subject relating to personal services in vessels, it must be connected with the reparation or betterment of the vessel, or be rendered in aid of her navigation, directly by labor on the vessel, or in sustenance and relief of those conducting her operations at sea. Under this general description, services are compensated as maritime which are not necessarily performed by mariners, or whieh may not in any way contribute to the benefit of a ves- sel in a nautical sense. Such are those of a cabin-boy, steward, chambermaid, and surgeon, on a voyage. These instances, however, carry the rule to its farthest extension, and are embraced within it because the services ^re performed mainly at sea, and have an immediate tendency to the pre- servation of the ship by promoting the health and efficiency of the ship's company. 2 Dods. 100 ; Bee, 424 ; 3 Ha^g. Adm. R. 376; Wwre, 83; Pet. Adm. R. 266; 1 Sumn. 168; lb. 384 ; GUp. 514. The case of engineers and firemen of steamships may appropriately be ranged under the head of maritime service, as their employment is necessary to the propulsion and navigation of the vessel. When we recede firom these classes to those of a more obscure claim to a maritime character, and even to such as can only be brought under the cognizance of the Court by adopting the most enlarged interpretation of its powers, it would seem advisable for the subordinate tribunals, particu- larly in cases not Subject to review, to confine their action within well authenticated limits. FEBRUARY, 1849. 493 Gurney v. Crockett. A ship-keeper is ordinarily nothing more than a watchman having guard of "a vessel anchored in harbor, or lying at a wharf or in a dock. In the present instance, the libeMant did not remain on board by night or by day. His duty was to repair occasionally to the schooner, at her anchorage, to see to her safety, open her doors and hatches for ventilation, and to try her pump. I advert to his casual resort to the vessel, not for the pur- pose of suggesting a distinction between this case and that of a keeper stationed on board, but to mark the description of services connected with his employment, and to ascertain whether they have the characteristics of maritime. Evidently these duties are in no respect nautical. They can be fully as well performed by shore laborers as by seamen; aad the libeUant, in this instance, it appears, was a common steve- dore. The services are distinct from the navigation of the vessel, ceasing when that commences ; and have the same character and importance on board a hulk under keeping to be broken up or destroyed, as upon a vessel preparing or intended for sea. Sweeping and scrubbing the decks, throwing out and securing lines for her fastening, or keeping watch on the wharf against robbery, fire, or other injuries that might reach a vessel from the shore, are services rendered towards her preservation of lite nature with those of ordinary keep- ers. No principle ever yet announced seems, however, to range services of that description under Admiralty jurisdic- tion. In the case of The New Jersey Steam Navigation Com- pany V. The Merchants' Bank, (6 How. 344,) the inquiry and discussion as to the just character and extent of the Admi- ralty jurisdiction, was very largely pressed by counsel, and the different members of the Court who delivered opinions. The suit in that case was instituted upon a contract of VOL. I. 42 494 CASES IN ADMIRALTY. Gurney v. Crockett.. affreightment, for the purpose of recovering a large amount of specie lost in the Lexington, one of the steamsrs of the respondents, running between New York and Providence, which was consumed by fire on the night of January 13, 1840, on Long Island Sound, about fifty miles from the for- mer city, and probably without the jurisdiction of any State or county. The libel was dismissed by the District Court pro formd, and a decree entered accordingly. On appeal to the Circuit Court, this decree of dismissal was reversed, and a decree entered for the libellants. Upon the review of the case before the Supreme Court, it is manifest that a strong portion of that high tribunal are dis- posed to restrain the Admiralty jurisdiction within boundaries quite as narrow as the common-law courts in England have ever demanded ; and the judgment of the Court in that case, affirming the decree for the libellants, after renewed argu- ment, seems to have been obtained only on the consideration that it was in character a case of tort at sea. The result of the reasonings of the several Judges demon- strates that the positions taken in the opinion delivering the judgment of the Court were not sanctioned by a majority of the members concurring in the result. Two of the Judges who declined assenting to the authority of the Court over the subject as a matter of maritime contract, held, that cognizance could be taken of it as a tort, and on that ground united in supporting the decree. So far as contract and service can characterize a subject and bring it under the jurisdiction of Admiralty Courts, those particulars are certainly not of less force in an un(iertaking for transportation of goods upon the high seas and the actual attempt to execute the agreement, than in one to act as keeper to a vessel lying in port. In my view of this claim, it is for mere labor, not for the reparation or fitment of the vessel, and in no respect maritime, FEBRUARY, 1849. 495 Proceeds of Prizes of War. as being nautical in its character, or distinguishable from ordinary services rendered in going to and from a vfessel, or incidental to her probable employment at sea. I shall there- fore disallow the claim entirely in this action. It appears upon the testimony, that during the period thq libellant was keeper of the vessel, he was directed by the health officer to move her from her anchorage farther out into the bay. He was compelled to get her under way and ■ navigate her to the designated place. This was comparative- ly a small service, but it was in its nature maritime, and the libellant had a right to resort to thi§ Court to receive a proper compensation for it. As his remedy might have been equally perfect in a local court, costs would be denied him, but that the respondent has evinced a disposition to contest unreason- ably and unnecessarily this demand, fair and just in itself. Had he proffered a reasonable reward for that service, no costs would have been adjudged against him. On the facts before me, I shall decree the libellant two dollars for that ser- vice, and summary costs, and dismiss the libel for the residue of the demand. Decree accordingly. Proceeds of Prizes of War. Original proceedings taken in a Court of Admiralty against vessels captured in war by a public vessel, ^o divest the former ownership and to confiscate the captured property, should be taken in the name of the goyernment under whose authority the capture was made, and not in the names of the individual captors, unless express authority is given to the latter to sue in their own names. But where the proceeds of prizes have been brought into Court, the parties entitled to distributive shares therein may file their libel in their individual names. Where the United States District Attorney authorizes a suit for the condemnation of a prize to be filed in the ijames of the individual captors, the Court will allow the proceedings to be so conducted, instead of requiring that the suit be instituted on behalf of the government. 496 CASES IN ADMIRALTY. Proceeds of Prizes of War; This was a libel in rem, filed by the commandant of the U. S. brig of war Vesuvius, against the proceeds of cer- tain Mexican vessels captured by the libellant's vessel dur- ing the late war with Mexico, to obtain distribution of the same. The facts are sufficiently stated in the opinion of the Court. Betts, J. The libeUant, commandant of the United States brig of war Vesuvius, files a libel in the nature of a notifica- tion in Court, that during the late war between the United States and Mexico, whilst in command of said brig, and on the high seas and waters leading to the sea, he had captured as lawful prize of war the Mexican vessels or " bungos," with their cargoes, called the Bella India, the Francisca, the Joren, the Margarita, and the Julio. That the said vessels were taken into Laguna, a place then in possession of the naval forces of the United States, under the command of the libel- lant. That the vessels and cargoes were unseaworthy and perishable, and that no access could be had with them to any competent civil tribunal for prosecution and condemna- tion as prize of war, and that the same were accordingly sold at public auction by the libellant, conformably to the requisitions of the existing war-tariff" of the United States, and that the proceeds of said property are now brought by him within the jurisdiction of this Court, and prays the usual monition. The Court ordered a monition to issue, and the appoint- ment of a prize commissioner, with directions to receive the funds representing the captured property, and deposit the same in the deposit bank of the Court, subject to the order and decree of the Court, and that he proceed to take testi- mony in the cause conformably with the standing rules of Court. The commissioner has filed his report in the premises, to- gether with the testimony taken by him. ^ FEBRUARY, 1849. 497 Proceeds of Prizes of War. The evidence fully supports the allegations of the libel. It is moreover shown, that the brig was of superior force to the Mexican vessels, and that Commodore Perry was flag officer, in chief command of the United States naval forces off" that station. The proceedings and proofs are such as, if the captured property had been brought before this Court, would require its condemnation as prize of war. Does the anomalous manner in which the case comes up vary the principle or interfere with the exercise of prize juris- diction by this Court ? The captures were made during the latter part of 1847. It is not necessary to detail the circumstances connected with the case of each particular vessel ; they and their cargoes were sold at public auction at Laguna, under the direction of the properly constituted officers of the United States at that place, and the proceeds arrived in this port in January, 1849, when this libel was filed. If this proceeding is to be regarded as the original one to divest the Mexican ownership and confis- cate the captured property, the action should have been in the name of the United States. When the capture is by a public vessel, the government sues in its own name and by its proper officer for condemnation, (The Eole, 6 Eob. 220 ; Betts's Pr. 73 ; The Palmyra, 12 Wheat. 1 ; The Pizarro, 2 lb. 227,) un- less express authority is given the commandant of the ship to sue in his own name, and for the benefit of the owner, the State being the real proprietor of property so captured. French Guiana, 2 Dods. 162 ; 2 Browne's Civ. 8f Adm. L. 262-264. ( But there may be a distinction in j^espect to the proceeds of a prize. The parties entitled to a distributive share of it may file their libel and attach such proceeds in their individ- ual names, when no formal adjudication has been had in the matter, or compel the captors to proceed to condemnation of 42* 498 CASES IN ADMIRALTY. Proceeds of Prizes of War. the p]foceeds. Genoa Ships, 4 Rob. 317. And in the Eng- lish Admiralty it would seem that although the king's proctor conducts the suit in matters of prize, in the case of public and private ships it is in the name of the captors and on their petition, (2 Browne's Oiv. ^ Adm. L. 444, 4^8 ; Capture of Chiiisurah, 1 Acton's Prize Causes, 179,) and the condemna- tion may still be made to the crown, and not to the immedi- ate captors. Genoa Ships, 4 Rob. 329. It is clear, upon general principles, that the captors of prop- erty lawfully priize of war, should have a participation in its value, unless they lose their privilege by misconduct ; and when the thing captured is, itself, from the necessity of the case disposed of, and something else, money or goods, substi- tuted for it, that the right of the captors should attach to that which represents the thing captured. This doctrine is recognized in the strongest terms in Eng- lish adjudications of high character. Genoa Ships, 4 Rob. 317 ; French Guiana, 2 Dods. 162 ; The Eole, 6 Rob. 224. Sir WiUiam Scott admits, that in case of capture in a dis- tant part of the world of property perishing, it may justifiably be converted into other property, and that the Court will have jurisdiction over such proceeds, the property still continuing prize. The Eole, 6 Rob. 224, 225. If the proceeds in Court, and claimed by this suit, are to be regarded as the prize itself, yet to be adjudicated upon, the "course of practice of the American courts would, as before shown, require the libel to be filed in the name of the United States, unless authority is given to the captors to proceed in their own name. I think such authority is clearly to be implied in this case. The Secretaty of the Navy, it appears, directed the libellant to bring the property into this port, and obtain the adjudica- tion of the proper Court upon his rights and those of his crew. This unquestionably might have been effected through a libel APRIL, 1849. 499 The Ann D. Richardson. filed by the district attorney in the name of the United States ; but it seems, that the suit was instituted in the name of the captors with the knowledge and concurrence of the district attorney, and having been brought iri such form, it must, un- der the circumstances, be deemed to have been brought with the assent and approval of the government. Without considering, then, the question whether this action could be maintained technically against the proceeds until a formal adjudication of prize had been made, I see no obstacle in the way of allowing it to be conducted, as instituted, under the facts and circumstances accompanying this case. I accordingly pronounce the captured property lawful prize of war, and that it- be condemned as such ; and that one half the net proceeds in Court, after payment of costs, be paid into the Treasury of the United States, and the other moiety be distributed amongst the captors, conformably to the report of the commissioner of prize. The Ann D. Richardson. As between the owner of the cargo and the ship-owner, the delirery of the cargo at the port of destination is a condition precedent to the right to freight ; and with- out such delivery the acceptance of the cargo at an intermediate place by the owner of the cargo, is necessary to enable the ship-owner to recover either full ' or pro Tata freight. The master, although agent for the ship and cargo to the extent of being empow- ered, in a case of extreme urgency, to sell either or both, is not authorized to accept' the cargo on behalf of its owner short of the port of delivery. The laying claim to the proceeds of a sale of a cargo made by the master at an intermediate port, or the bringing suit for such proceeds, does not amount, in law, to a voluntary acceptance of the cargo, or to a ratification of the act of the master in breaking up the voyage. Wliere a vessel puts in at an intermediate port in distress, and it is there found that a portion of the cargo has been rendered worthless by perils of the sea, while the residue is not of sufficient value to warrant continuing the voyage, and such portion is therefore sold by the master and the voyage broken up, no claim for 500 CASES IN ADMIRALTY. The Ann D. Richardson. freight, either in fall or pro rata, or upon a quantum meruit, can be maintained by the ship-owner against the shipper. Upon what principles the general average should be adjusted in such a case, as re- spects the contribution dae from the cargo. This was a libel in rem, by Robert Taylor ^gainst the bark Ann D. Richardson, to recover the proceeds of a sale of goods shipped on board the bark by the libellant. The facts are stated in the opinion of the Court Francis B. Gutting, for the libellant. Daniel Lord, for the claimants. Bbtts, J. The facts upon which the points in contestation in this cause arise, are these : The libellant shipped at Phila- delphia, on March 18, 1847, on board the bark Ann D. Rich- ardson, for Londonderry, a cargo consisting of wheat flour, Indian meal, corn, and navy bread, for which the usual bills of lading were executed by the master, engaging to deliver the cargo to the consignees in the bill of lading named, they paying stipulated freight therefor. The vessel sailed the next day on her voyage. She was new and stanch, but before leaving sight of the Capes made water at the rate of one hundred strokes the hour. It appears, however, upon the evidence, that she was fully seaworthy when she sailed, and that the amount of leakage she exhibited was usual in new vessels, and did not atfect the cargo or her seaworthiness. On the- 27th of March she encountered a heavy gale from the S. E., which continued to the 30th, and then increased to extreme violence. The bark was • thrown on her beam ends, her masts were cut away, and she lay water-logged. The crew, with great labor, freed her of water, and rigged spars and endeavored to work the vessel to Bermuda, but' be- ing unable to make that port, they put into St. Thomas, on the 23d of April, as a port of necessity. A survey was there held of the cargo. A portion of the APRIL, 1849. 501 The Ann D. Richardson. corn, (557 bushels,) was found in a putrefying state, and was thrown overboard as valueless. The chief part of the residue of the cargo had been wet and damaged by the stress of weather to such a degree that it could not safely be trans- ported to the port of destination, and the master was advised by the surveyors to sell the whole cargo remaining, that not in- jured not being deemed of value to justify carrying it to Lon- donderry. It was accordingly sold on the 11th of May, at auction, for $7,730.02. The claimants allege this sum is subject to an average charge of $582.08 ; ' and they also contend that the vessel is entitled to full fi-eight and primage for the whole voyage, amounting to $4,562.26, and the balance, $1,712.85, they are willing to pay over to the libellant. They deny their liability for any thing beyond that sum. The vessel was repaired at St. Thomas and ready to receive a cargo- and prosecute her voyage, by the 2d of June. She did not offer to proceed to Londonderry with the sound portion of the cargo, nor did she provide any other vessel in her place. She was employed on a different service. The libeUant was not present in person or by any authorized agent at St, Thomas, and was no way consulted in the disposition of the cargo and breaking up the voyage. Three questions were discussed upon these facts : 1. Whether the owner of the vessel was entitled to full or pro raid freight, or any freight for the transportation of the cargo to St. Thomas. 2. Whether he was justified in selling the cargo and break- ing up the voyage at the latter port. 3. What average the cargo of the libellant was legally lia- ble to pay. In arguing the case, the counsel have examined minutely ■the doctrines obtaining in the English and American courts, and it is strenuously contended for the ship-owner that upon the well-recognized principles of American law, full freight 502 CASES IN ADMIRALTY. The Ann D. Richardson. was earned in this case, and that the acts of the master, under the emergency, must be regarded as the acts of the libellant, by which the vessel was deprived of her cargo, and prevented completing the voyage undertaken. If this position is not sanctioned by the Court, it is urged that the libellant, by demanding the proceeds of the cargo and bringing suit to recover them, adopts and confirms the sale made by the master. It is not to be controverted that the English rule, applica- ble to a voyage so circumstanced, debars the ship-owner of all claim to freight. The case of Vlierboom v. Chapman, (13 Mees. ^ W. 230,) presents a statement of facts covering all the essential fea- tures of this case. A cargo of rice was shipped at Batavia for Rotterdam, by the bill of lading to be delivered there on payment of a stipulated freight. The ship encountered a severe hurricane, and it became necessary to throw part of the cargo overboard and to take the vessel, in a damaged state, to the Mauritius. The cargo was there examined, and it was found necessary, without delay, to sell the whole, otherwise it would become utterly worthless from the progress of rapid putrefaction. The rice was sold at Mauritius by agents, to whom the master, acting bond fide, confided the ship and cargo ; and the proceeds were remitted to the ship-owners. The plaintiff, (owner of the cargo,) had no agent at Mauritius, and neither of the parties was present at any part of the trans- action, nor had any knowledge thereof until after the sale of the cargo. Thus far the two cases are brought under the same range of facts. The English suit, however, seems to have been an amicable one, as the defendants did not retain freight money, nor set up an absolute charge for it. The question submitted to the Court was, whether the de- fendants had any lien or right of deduction or set-off against .the proceeds of the rice, either for the freight in the bill of lad- APRIL, 1849. 503 The Ann D. Eichardson. ing, or for, pro raid freight, or for any freight on a qucmtum meruit. The plaintiffs' point was, that under the above circum- stances, the defendants were entitled to no set-off for freight. The defendants' point was, that they had a set-off or lien, for freight, to the extent of £1,413.0.4, the produce of the sale, or, at all events, to some extent. The Court decided, that if the master might be regarded the agent of the owners ex necessitate, so as to validate the sale, he was not such agent with a right to accept for them a de- livery of the cargo at Mauritius, in place of Rotterdam, and that the plaintiffs not having, transported the cargo conforma- bly to their contract, were not entitled to full freight, nor to pro raid freight, as for a part performance accepted in lieu of a full one. It was also decided, that there was no foundation for a qvMntum meruit claim or allowance of freight. The Court grounded their reasoning and decision very much upon some American cases, cited by Judge Story, in his edition of Abbott on Shipping, (p. 328.) The argument for the defendant in this case now is, that the doctrine of the American decisions was misapprehended, and that the rule to be deduced from them is, that the ship- owner, under like circumstances, is entitled to full freight, or at least to pro ratd freight. In the case of Miston v. Lord,i decided in the United States Circuit Court for this district, in September, 1848, the doctrines of the case of Vlierljioom v. Chapman, were recognized in so far as the authority of the master to sell cargo under similar circumstances was. involved. As between owners and under- writers, he may, on general authority, have an implied power to do what is fit and right to be done, with ship or cargo, in case of emergency. Pa/rk. Ins. ed. 1842, 345. 1 Since reported, 1 Blatchf. C. C. R. 354. 504 CASES IN ADMIRALTY. The Ann D. Kichardson. But the Court regarded it a fundamental principle of the contract of af&eightment, that as between the owner of cargo and ship-owner, no right to freight accrued except upon per- formance of the contract by the ship, unless the terms of the contract were dispensed with by the owner of the cargo ; al- though such discharge need not be by express agreement, but might be implied or inferred from his acts. This is believed to be the rule of maritime law adopted and enforced in the European and American courts. Pothier Traits du Contrat de Louage, No. 59 ; Boulay Paty, tit. 5, sec. 16 ; Pardessus, Part 4, tit. 14, ch. 2, No. 718 ; Abbott on Shipp. 492, note 1 ; Vlierboom v. Chapman, 13 Mees. df W. 239 ; 3 Kent, 6th ed. 218 ; Hartin v. The Union Insurance Company, 1 Wash. C. C. R. 530. The delivery of the cargo at the port of destination is considered a condition precedent to the right to freight, and without that, the acceptance of the cargo at an intermediate place, by the owner of it, is necessary to enable the ship-owner to maintain a claim to full, or pro ratd freight. " Caza v. The Baltimore Insurance Company, 7 Crunch, 358 ; 3 Kent, 228, 229, note a ; Abbott on Shipp. 534, note 1 ; The Nathaniel Hooper, 3 Sunrn. 542. The case of The Nathaniel Hooper demonstrates that the rule in Admiralty is in consonance with that at common law on the subject. 3 Bumn. 555. ' The case is not affected by the later decision in Jordan v. The Warren Insurance Company, (1 Story, 342,) for there a voluntary ac- ceptance of the cargo by its owner was made ; but a claim to the proceeds of sale, or bringing suit therefor, does not amount in law to a voluntary acceptance of the cargo, or to a ratifica- tion of the act of the master in breaking up the voyage ; nor is the master, though agent for the ship and cargo to the ex- tent of being empowered in a case of extreme urgency to sell either or both, ex officio an agent of the ship, authorized t(j accept the cargo short of the port of delivery and break up the voyage. Miston v. Lord, Circuit Court, 1848. APRIL, 1849. 505 The Ann D. Bichardson. "The points in the case now under consideration, not in- volved in the decision in Miston v. Lord, or in Vlierboom v. Chapman, are, that a portion of the cargo on the arrival of the vessel at St. Thomas was sound and in a condition to be transported to the port of destination, but was sold by the master together with that which was injured and perishing, and that the vessel was repaired within a reasonable time at St. Thomas, and placed in a condition to perform her voyage, but did not offer to complete it. Most unquestionably the master was not bound to take on board and attempt to carry forward, the putrid and worthless portion of the cargo, nor was it his duty to receive that which had been so injured as to be liable to putrefaction, or to occa- sion disease or discomfort to her ship's company, or injury to the sound cargo in its transportation. Those principles are stated and enforced with earnest per- spicuity in the two American cases before cited. Jordan v. Warren Insurance Company, 1 Story, 352, 353 ; Miston v. Lord, Circuit Court, 1848. When the whole cargo is so damaged that it cannot be transported without endangering the safety of the ship or crew, or cannot, from its perishing state, be probably so preserved as to endure transportation at all, the ship need not proceed with it, or offer to do so ; but the remedy of the ship-owner is on his policy for freight, he having failed to earn it, by means of perils insured against or insurable. 1 Phill. Ins. 290. The loss of the cargo must, however, be total, for although damaged to such a degree as to be not worth the freight at the port of destination, this does not amount to that kind of total loss, which authorizes a recovery of the freight on a policy. Herbert t\ Hallett, 3 Johns. Cas. 93 ; Griswold v. The New York Insurance Company, 1 lb. 205. . The present action seems framed upon the notion that if the ship-owner, on the facts, would have a right to recover VOL. I. 43 506 CASES IN ADMIRALTY. The Ann D. Richardson. freight on a policy of insurance, he has the same remedy against the owner of the cargo. That is clearly not the law. Considering the condition of the cargo on the arrival of the vessel at St. Thomas, as equiv- alent to a total loss or physical destruction of it, the plaintiff would be entitled, on insurance of freight, to recover his whole freight for the voyage, (1 PMll. Ins. 290, 427,) yet as against the shipper, he cannot recover freight except on performance of the condition of transporting the cargo and delivering it at the port of destination, conformably to the contract of aflFreightment. Independent of this principle, there remained a portion of the cargo in this case, in sound, condition ; and to entitle the ship-owner to claim freight at aU, he must have carried for- ward so much of the cargo as could be transported. It is no concern of his, whether by so doing the interests of the ship- per would be advanced or consulted. He has nothing to do with the question of profit or loss to the shipper ; and his ves- sel having been soon repaired and capable of performing the voyage, it was his duty to complete it, and then he would be entitled against the shipper to full freight on all the cargo de- livered, in specie, whatever its condition or value ; and might recover against the underwriter for that portion which per- ished on the voyage, which, for that reason, could not be delivered. I shall, therefore, pronounce against the libellant on that part of his action which claims the recovery of freight in full oxpro raid, or compensation upon a quantum meruit. It is not denied by the 'libellant that the ship-owner is enti- tled to a contribution from the cargo on the general average of losses sustained by the ship. But it has been made a seri- ous question in the cause as to the particulars of valuation and loss which shall enter into the computation and adjust-, ment of that average. APRIL, 1849. 507 The Ann D. Richardson. Counsel, on *oth sides, however, conceding that a re- adjustment must be made, admit that the better course now is to take general directions from the Court respecting the method of stating the average, and to wait until the adjust- ment is presented, before a decision is asked in detail upon the particulars proper to be included in it. The adjuster may so settle these points as not to leave it desirable to either party to litigate the matter before the Court. In the adjustment presented to the Court, the ship is cred- ited with full freight for the voyage. This is erroneous. No allowance is to be made on that item beyond the value of the freight on the cargo thrown overboard, and that value will- be made contributable, also, in the general average. The cargo, on the question of general average, is not to be charged with any expenses incurred in respect to it, after the voyage was broken up and abandoned. The charges for reparations made to the vessel subse- quently, maj properly be referred to as a means of measuring the actual value of her injuries sustained for the common ben- efit. That allowance has no application to claims for the care and management of the cargo after it ceased to be con- nected with the vessel for the purposes of the voyage. Ser- vices or expenditures of that character have no connection with the ship or the injuries she incurred for the common advan- tage, and cannot, therefore, be subjects of general average. A decree, with special directions, must be entered accord- ing to the foregoing principles.' J The decree in this cause was affirmed, on appeal to the Circuit Court, October,. 184 9. 508 CASES IN ADMIRALTY. The Bark Laurens. The Bark Laukens and $20,000 in specie. The deputy-marshal is an officer of the District Court, amenable to its jurisdictioii for malfeasance in office ; and this jurisdiction may be exercised by summary order or attachment for contempt. The marshal is personally answerable (under Sup. Ct. Rules, 41, and Dist. Ct. Rules, 158) for any failure to pay moneys attached by him, into Court forthwith; and the responsibility of the deputy is no less stringent than that of the marshal. The resignation of office by an officer of the Court, does not oust the Court of jurisdiction to proceed against him by attachment for contempt for any acts of misconduct committed by him while in office. Where specie, although consisting of foreign coin, is attached under process of the Court, the officer is bound to pay it into Court as money ; and it is not to be con- sidered as cargo merely. Under the act of April 18, 1814, (3 U. S. Stats. 127,) — which directs that moneys received by officers of the United States Courts shall be deposited in bank, &c., — the Court is authorized to require its officers to pay moneys received by them into Court, to be deposited in bank by the clerks of the Court. This was a libel in rem filed by the United States against the bark Laurens, and $20,000 in specie on board her, alleged to be forfeited to the United States for being employed in the slave-trade. Former proceedings in the cause are reported, ante, 302. An application was now made for an order upon Eli Moore, United States marshal for the district, that he forthwith pay into Court the sum of $20,000 in specie, attached on board the bark Laurens, proceeded against by the United States on a charge of having been engaged in the slave-trade, and which specie, with other effects, had been taken into custody by Wil- liam H. Peck and others, specially deputed by the marshal to execute the process of the Court ; or that a peremptory attach- ment issue. A similar motion was made as to William H. Peck, the deputy, who was exclusively and directly identified with the custody and withholding of the specie. Other facts are detailed in the opinion of the Court. J. Prescott Hall, (U. S. District Attorney,) for the motion. Francis B. Cutting, opposed. APRIL, 1849. 509 The Bark Laurens. Betts, J. An order was granted by the Court on the 21st inst., on motion of the United States attorney, that the marshal of this district forthwith pay into Court the sum of money attached by him in the above-entitled cause. The hearing of the matter was deferred at the instance of the mar- shal until yesterday. The order of the Court was served on William H. Peck, chief deputy of the marshal, and concurrently with the motion against the marshal, the district attorney moves for an order that the said deputy pay the aforesaid money into Court, or that an attachment issue against him. It is objected on the part of the marshal, that no proof is made of personal service on him of the order of Court, and on the part of the deputy, that no order has been granted directing him personally to pay the money into Court. In order to lay a foundation for a peremptory attachment, it is incumbent on the applicant to show that his preliminary proceedings have all been strictly correct. The United States V. CaldweU, 2 Ball. 333. But the same rigor is not necessary to obtain an attach- ment to bring a party before the Court to answer upon mat- ters touching a civil suit. In such cases, the first proceedings may be by order that the accused party show cause why he should not be punished for the alleged misconduct ; or an attachment may be issued to bring him before the Court to answer for the misconduct, (2 Rev. Stats. 536, § 6,) and the practice of the State Court governs this Court when not other- wise regulated by its own specific rules. Circuit Ct. Rules, 102 ; Dist. a. Rules, 340. The material question is, whether a proper cause is shown for the interposition of the Court against the marshal or deputy, by process of attachment in the first instance, or by an order that they show cause why an attachment for contempt of Court, because of misconduct in officej shall not issue against them. ' 43* 510 CASES IN ADMIRALTY. The Bark Laurens. , Thus far the cases of the marshal and deputy have been considered as depending upon a principle common to both. Upon the facts brought out, however, by the depositions read in Court, it seems proper to separate them at this point, and to dispose of each case on its special circumstances. It appears that a monition and attachment against the bark Laurens, her tackle and apparel, furniture, appurtenances, guns, and goods and effects found on board, and $20,000 in specie, was delivered to the marshal on March 15, 1848. He deputed William H. Peck, J. S. Smith, Joseph Thompson, or either of them, to execute the process, and the same day it was served by Smith and Thompson, by the arrest of the ves- sel and the specie. The specie was taken by Mr. Thompson to the Mechanics' Banking Association in this city, and left there subject to the order of Eli Moore, the marshal, and as. Mr. Thompson deposes, on special deposit, according to his understanding. The deputy. Peck, states in his affidavit, that the specie attached was estimated at $18,992, and no more ; consisting of $1,000 in silver, and several kegs of doubloons and half doubloons, — gold pieces of a foreign currency. The $1,000 in silver were afterward by his direction placed to his credit, by the cashier, and the gold coin was sold and the proceeds also passed to his credit in the bank. He says he has dis- bursed a portion of these moneys for the official services of the office, and that the total sum he has received in his offi- cial capacity, including these moneys, amounts to $133,000, or thereabouts, and that he has disbursed and expended for and on behalf of the marshal, during that period, the sum of $126,000, or thereabouts, leaving about $7,000 in his hands, which he states he is ready to account for and pay over to the marshal. He farther says he resigned his office of deputy marshal on the 23d inst. The resignation was made after these proceedings were initiated and notice thereof had been served on him. APRIL, 1849. 511 The Bark Laurens. On these facts the counsel for Mr. Peck takes the following objections to the competency of the Court to enforce an order, or issue an attachment against him : — That if the moneys in the cause came to the hands bf the deputy, they were in judgment of the law received by the marshal, and the deputy is not answerable for them by summary order of the Court, nor by suit at law. That the remedy of the parties interested in the moneys must be taken against the marshal alone. That a deputy marshal is not an officer of the Court amenable to the authority of the Court by way of attachment for misconduct or malversation in' his office. That Mr. Peck is now no longer deputy marshal, and therefore in no way under the supervisory authority of the Court in respect to his transactions when in office. A subsidiary exception is taken that the specie cannot be regarded as money in the hands of the marshal, but only as cargo in his custody for safe keeping until the final decision and disposition of the cause, and accordingly not subject to be brought into Court. A farther point was taken under the terms of the act of Congress of March 3, 1817, that an attachment cannot be awarded for not paying the money into Court, but only on the refusal or neglect of the officer to pay it into an incorpo- rated bank of the State to the credit of the Court. 1. The main defence against this proceeding was placed on the first position, that a deputy marshal is not an officer of the Court, in such a sense as to render him directly amenable to its supervision, and subject to attachment for not paying over money received by him virtute officii. Whatever may be the rule at common law in respect to the direct liability of deputy sheriffs to suitors for moneys col- lected by process of Court, it seems to me there is no ground for question under the act of Congress of March 3, 1817, (3 U. S. Stats. 395,) that a deputy marshal ig subject to the 512 CASES IN ADMIRALTY. The Bark Laurens. same summary remedy in respect to moneys held by him offi- cially that the marshal is himself. The United States Circuit and District Courts are directed by section 1 of the act, to cause 'all moneys, being subject to their order, to be deposited in bank ; and section 2 provides that all moneys which shall be received by the officers thereof in causes pending in Court, shall 'be immediately deposited in bank to the name and credit of the Court ; and section 4 directs that, if any clerk of such Court, or officer thereof, having received any such moneys as aforesaid, shall refuse or neglect to obey the order of such Court for depositing the same as aforesaid, such clerk or other officer shall be forth- with proceeded against by attachment for contempt. 3 U. S. Stats. 396. If the Court were called upon to expound the language of the statute for the first time, there would seem to be no reasonable ground for not giving it its full, plain, and natural import, and applying it to every grade of officers carry- ing into execution the powers of the Courts, and receiving moneys under their process or by their direction. Chief Justice Marshall clearly considered the law as em- bracing deputy marshals; for in The United States v. Man, (2 Brock. 1,) he awarded an attachment against a deputy marshal to compel the payment of money into Court, collected on execution. No question was raised in that case as to the just liability of that officer to this form of procedure. This was in 1822. In 1844 the point was raised in the Sixth Cir- cuit, and Mr. Justice McLean, on a careful consideration of the statute, decided that the deputy marshal is an officer of the Court, and subject to its power as such, and that he may be compelled by attachment to pay over money collected by him virtute officii. The Judge remarked that it would be dis- reputable to the Court and to the institutions of justice, if, in such case, the Court could not afford a summary remedy against one of its officers. In that case, too, the deputy had received a portion of the money when he had no authority to APRIL, 1849. 513 The Bark Laurens. receive it, the execution having been returned ; and the Court bield he was responsible for it, although the marshal was not. Bagley v. Gates, 3 McLean, 465. If the money had come properiy, in the course of his official luty, into the hands of the deputy, the marshal would imme- iiately be liable for it. .Judge McLean holds that the deputy' is no less so for that cause. And it seems to be the rule 'in Massachusetts, not only that the sheriff is liable for the acts af his deputy done colore officii, but that such liability is 3onsequent upon that of the deputy for the same acts. In Knowlton v. Bartlett, (1 Pick. 275,) a deputy sheriff attached money, after the process was functus officio, and embezzled it. The Court held the sheriff liable, because the act was done under color of office. The same doctrines are declared by Par- sons, C. J., in Marshall v. Hosmer, (4 Mass. 63), and Bond v. Ward, (7 lb. 127) ; and all the cases go upon the assumption oi the personal liability of the deputy for the acts for which the sheriff was made responsible. In South Carolina the sheriff has been held liable to attachment for* moneys paid a 3lerk in his office, embezzled by the clerk afterwards. Aber- 3rombie v. Marshall, 2 Bay, 9 ; Carter v. Ken, lb. 112. Independent of the statute referred to, the Courts of the United States, under their inherent powers and their right to regulate their own process, possess ample authority to pre- scribe rules in relation to the collection and disposition of moneys obtained under their process or order, and to com- pel the observance of such rules by attachment. Bac. Abr., it. Attachment, A.; Com. Dig.,TiB.f?, ed., tit. Attachment for Contempt of Court, note 1 ; 3 Dwrnf. Sf E. 351 ; 2 Rev. Stats. 543, § 1. Such rules are prescribed by the Supreme Court md by this Court. In my opinion the deputy marshal is an officer of this Dourt, amenable to its jurisdiction for malfeasance in office )y summary order or attachment for contempt. The marshal 514 CASES IN ADMIRALTY. The Bark Laurens. would be personally answerable under the terms of Rule 41 of the Supreme Court, and of Rule 158 of this Court, for fail- ing to pay moneys attached by him forthwith into Court; and the' responsibility of the deputy is no less stringent. So, also, under the practice of the Supreme Court of this State, the sheriff is subject to attachment for not paying moneys collected by him on process to the party, or into Court, although no demand is made on him therefor. Brewster v. Van Ness, 18 Johns. 133. 2. It is earnestly contended that the resignation of his office by the deputy, on the 23d inst., ousts the jurisdiction of the Court over him, This is upon the assumption that the au- thority of the Court, by attachment, cannot be exercised over any one except he be at the time an officer of the Court. This doctrine is correct as to executory acts. The Court could have no power to compel the deputy to resume his office, or to proceed. hereafter in the execution of his duties. But this principle does not touch that of the rightful authority of the Court in respect to acts and omissions of its officers while acting, as officers. The power of the Court to afford a remedy against sheriffs by attachment, after they leave office, for malversation or neglect of duty in office, is one constantly exercised, and has never been questioned. In February terra, 1810, the Supreme Court of New York awarded an attachment against a late sheriff, for not return- ing a fi. fa. delivered to one of his deputies in 1797, to bring him into Court to answer on oath to interrogatories. Brock- way V. Wilbur, 5 Johns. 356. He was afterwards discharged on account of laches of the party prosecuting, the process having been delivered to a deputy more than fourteen years previously. The People v. Gilliland, 7 Johns. 555. Equally direct are the cases of Brewster v. Van Ness, (18 Johns. 333,) The People v. Brower, (6 Cow. 41,) and The People v. Evans, (4 Hill, 71.) It is presumed the argument would not APRIL, 1849. 515 The Bark Laurens. )e advanced, that the marshal, in this case, if the money in luestion came into his hands, could exempt himself from ;hese summary proceedings by resigning his office. The leputy, as an officer of the Court, stands on the same foot- ng. He is compellable to answer to the Court for abuse of ts process, or other contempt of Court, whilst acting as its' )fficer. The proceeding by attachment does not affect him 18 an officer, but individually. It is not against him in the iharacter of one now acting in office, but to compel him to jomplete and carry out his official dtities in doing something le had neglected and omitted, and because of malversation, vhilst an officer, in retaining in his hands moneys received by lim when in office, and by color of his office. The law em- jowers the Court to act directly upon the office of a deputy narshal, for misconduct committed by him in office, by remov- ng him. This Court had drawn an order, in execution of ihat power, removing this deputy from office, when informed, jf his resignation ; but that mode of punishment would in no svay affect the civil rights and remedies of suitors against him, "or embezzling their moneys collected by him, nor the power jf the Court to inflict punishment by way of fine on him for such malconduct. 3. I cannot assent to the doctrine set up in the third point •aised in behalf of the deputy, that this specie was merely jargo, which he is not bound to bring into Court or deposit n bank. The foreign coins mentioned in the depositions^ comprising the large sum in question, were all legal currency mder our laws. They were money, the same as coin of the United States Mint. By the laws of this State, the sheriff jan levy on money or bank bills, and must return and pay ;hem as so much money collected. 2 Rev. Stats. 290 ; Allen m Sheriffs, 159. The case of Knowlton v. Bartlett, (1 Pick. 171,) was that of money levied on and embezzled by the ieputy sheriff. The process in his hands w^.a mesne attach- Bent, the same in effect as the attachnSit and monition 516 CASES IN ADMIRALTY. The Bark Lanrens. issued in this cause. There was no necessity for changing the character of the property taken. It was already money ; . and the officer was bound to pay it into Court as such. 4. It is contended that this proceeding is not supported by the act of Congress of 1817, as it demands the payment of the moneys into Court, whilst the statute directs that they shall be deposited in an incorporated bank of the State to the credit of the Court. This is only a different phraseology for the same act and the same result. The purport and object of the mo- tion is to place the moneys under control of the Court for the protection of the parties litigant ; and the order might be modified so as to conform to the language of the statute, if that were necessary. The act of April 18, 1814, (3 U. S. Stats. 127,) directed the deposit of moneys paid into Court, in an in- corporated bank, to be designated by the Court. The act of March 3, 1817, (3 U. S. Stats. 395,) appointed the branches of the United States Bank such depositaries, stiU leaving it to the Courts to designate State banks when no branch of the United States Bank was convenient. On the termination of the char- ter of the United States Bank, this Court designated incorpo- rated banks in this city for that purpose. The Bank of the State of New York, the Manhattan Bank, and the Bank of New York, are the only ones appointed. Section 2 of the act of 1817 requires the moneys to be deposited in the name and to the credit of the Court. The marshal may, undoubt- edly, if he elects so to do, proceed directly to the appointed bank and place money collected by him in deposit in that form, provided the bank wOl accept it from him. But it is manifest that an orderly and accurate method of conducting this business, and keeping the accounts so that all parties in interest can acquire the information they need in respect to deposits, and so that the funds shall be emphatically in public keeping, is indispensable. The Courts in this district require, to that end, that 1J^ moneys be paid into Court, to be depos- ited by the clerk^nder the" title of the cause to which they APRIL, 1849. 517 The Bark Laurens. appertain. The Court, as such, keeps no bank account, and there is no general deposit of tnoneys to its credit. Every deposit is specific and special, to the credit of the cause out of which the money arises. No part of such money can be drawn out but by order of the Court, entered on the minutes, signed by the Judge, and then checked for by the clerk. Those minutes and records are open to inspection by all per- sons in interest. If, then, the money is, in the first instance, carried by the marshal to the bank, it will be necessary to re- deposit it under the order of the Court, in the manner provided for keeping the accounts, and for its safe and correct disburse- ment. Upon the law of the case, I am clearly of the opinion that the United States attorney is entitled to compel Peck, the deputy, to pay the money in question into Court, under pen- alty of attachment for contempt. There is, however, undoubtedly some want of formal steps to entitle him to a peremptory order to that effect. No order has been served personally on Peck which he has disobeyed,, and he is not, accordingly, put in a state of contumacy as yet before the Court. Sufficient, however, is shown upon his own affidavit to satisfy the Court that he was apprised of the pro- ceedings, and to justify an order or an attachment against him, to bring him before the Court to answer. It is accordingly directed, that the United States attorney may take an order on Peck, that he forthwith pay into Court the moneys in question ; or at his election he may have an attachment to bring Mr. Peck into Court to answer interro- gatories on the subject-matter. It is not made to appear upon the proofs submitted to me, that the marshal has personally been guilty of any delin- quency. He is answerable for the acts of his deputy done colore officii, (The People v. Dunning, 1 Wend. 16 ; Clute V. Goodell, 2 McLean, 193,) although without his knowledge VOL. I. 44 518 CASES IN ADMIRALTY. The Bark Laurens. or recognition; (Mclntyre v. Trumbull, 7 Johns. 35; Walden V. Davidson, 15 Wend. 575) ; and in respect to moneys so col- lected or taken by the deputy, the party entitled to them can have his remedy by process of attachment against the marshal personally. The People v. Brower, 6 Cow. 41. There is some want of complete formality in this instance, as to the proofs necessary to found a motion for a peremptory attachment ; and one for the purpose of bringing the marshal before the Court to answer is unnecessary, as he presents his own affidavit and that of Mr. Thompson, showing cause in excuse of himself. The excusatory matter set up will not protect him against an attachment, unless it appears that Peck obtained possession of the money tortiously and in fraud of the marshal's rights. The Court cannot, upon the state- ments laid before it, imply that Mr. Peck so acquired the money; and the marshal may be compelled to answer on inter- rogatories, whether the late deputy had not adequate powers in this behalf to take upon himself the possession and control of the money. As the evidence of the preliminary steps does not entitle the applicant now to a peremptory attachment, and as there does not appear to have been any personal delinquency on the part of the marshal, I shall direct that an order be entered for him to pay the money into Court on or before the first day of May next, or that an attachment issue against him. Order accordingly. APRIL, 1849. 519 Tingle u. Tucker. Tingle v. Tucker. Where a master procures a seaman to be discharged by a United States consul in a foreign port, if any deceit or collusion has been practised by the master in obtaining the discharge, he can claim no benefit or immunity under it. When there is no evidence of improper conduct on the part of the master in obtain- ing a seaman's discharge by a consul, and it appears that the consul has pro- ceeded fairly, and on clear prima facie proofs has ordered the seaman to be dis- charged for criminal conduct, such discharge itself is a bar to any continuing claim for wages which might be enforced' if the seaman's connection with the vessel stiU subsisted. The propriety of the consul's interference is to be determined upon the facts before him, and not by the case which may be afterwards shown upon a trial. This was a libel in personam by Abraham Tingle against Joseph I. Tucker, master of th%tship Diadem, to recover wages. Four other suits were brought by other members of the crew of the Diadem, upon the same state of facts, and involv- ing the same, questions. The five .suits were consolidated and heard as one. The five libellants were all colored men. The libels showe'd that the ship was up in January, 1848, for a voyage from New York to Apalachicola, thence to one or more ports in Europe, and back to a port of discharge in the United States. Some of the libellants sailed with the vessel from New York to Apalachicola, and all of them performed the voyage from Apalachicola to Marseilles. The libellants charged that they were ill treated on the voy- age, both as to provisions and as to time and manner of work, and that on the arrival of the ship at Marseilles, they were, by order of the defendant, thrown into prison, and there de- tained until the ship sailed ; and that they were then left by her at that place, although willing and desirous to continue on board and to perform the voyage. The libellants averred their own good conduct during the voyage, and claimed full wages to the time of the arrival of the ship at the port of New 520 CASES IN ADMIRALTY. Tingle v. Tucker. York, together with their expenses incurred in Marseilles, and in returning home ; the aggregate amount of their claims be- ing $702. The answers denied any improper conduct on the part of the respondent towards the libellants, and alleged that the libellants had been fully paid all their earnings by advances made to them, and by expenses and disbursements which the respondent incurred by reason of the misconduct of the libel- lants on board the ship. The answer then alleged that on the passage to Marseilles, the libellants" were guilty of disorderly conduct, amounting to open mutiny and revolt, and which was carried to the extreme of depriving the officers of the command and control of the crew, and putting them in fear for their Kves ; that on the arrival of the ship at Marseille|, the conduct of the crew was reported to the United States consul at that port, who, after taking the depositions of the officers, and steward, and inquir- ing into the facts, ordered the libellants to be discharged from the ship, and sent to the United States for trial ; that in so doing, the consul acted on his own judgment and authority, though, as respondent believed, his own life and the ship would have been unsafe, if the libellants had remained on board. The respondent further averred, that he had no knowl- edge that the libellants were imprisoned at Marseilles. On the hearing, numerous and very contradictory propfe were put in, relating to the conduct of the libellants com- plained of by the respondent. It did not appear, however, upon the whole, that the libellants were guilty of any extreme, piisconduct, or that the officers had any reasonable cause for apprehending personal danger or any intentional mutiny. It was further shown, that on the arrival of the libellants in New Orleans for trial, the proofs which were offered to the grand jury there were regarded by them as insufficient foundation for indictment. It was, however clear, that the conduct of libellants was at times perverse and offensive to the officers, APRIL, 1849. 521 Tingle v. Tucker. and that they were deficient in ready subordination and alac- rity in the performance of their duties. The respondent relied upon the discharge granted by the United States consul as being conclusive on the question relative to the conduct of the libellants. The certificate of discharge was as follows : — Consulate of the United States, Marseilles. " I, D. C. Croxall, consul of the United States at Marseilles, certify that Captain Joseph I. Tucker, master of the ship Diadem, of New York, personally came and appeared before me, at my office in the city of Marseilles, on the 19th day of May, A. D. 1848, and after depositing his ship's papers, declared that he had a charge to enter before me against several of the crew of the said ship, and proceeded to charge Joseph Tilman, Abraham Tingle, Henry Tingle, Joshua Boston, and David Martin, colored seamen, with having committed divers acts of premeditated violence, disobedience, abuse, and direct per- sonal obstruction of the execution of his lawful orders on board said ship dm-ing her voyage from New York to Apala- chicola, and from thence to Marseilles. That said five sea- men exercised great influence over others (colored) of the crew, and caused them to join in all their bad and mutinous conduct. That his (the said captain's) life had been threat- ened by one if not more of said seamen, and that neither he nor his officers had any control or command over them or the men under their influence. That he, and his first officer, did not consider it proper or safe that said five men, the ring- leaders, should be retained on board. That they, the said master and mate, should be afraid and unwilling to proceed again to sea with them, and therefore requested me, the said consul, to take steps to have said ringleaders removed from said ship and imprisoned, not deeming his (the said master's) person or life safe from them, and that he should produce 44* 522 CASES IN ADMIRALTY. Tingle v. Tucker. proofs preparatory to the discharge of said seamen from said ship. " I certify that after examining said master, the first officer, the cook, E. Cooper, and a seaman named Lewis, (George,) and also Mrs. Caroline Tucker, wife of the said captain, sepa- rately under oath, and finding the said master's statement confirmed by the other witnesses, I accordingly discharged said five seamen named herein, as the ringleaders in the vari- ous acts of mutiny, disobedience, abuse and revolt charged against them, from said ship, and shipped other ^amen in their stead. " Witness my hand and official seal, at Mar- [ L. s. ] seilles, this 3d day of June, 1848. (Signed,) D. C. Croxall, United States Consul." Alcmson Nash, for the libellants. E. C. Benedict,,foi the respondent. I. The rule of law is clear that the captain has the right, in cases of incorrigible disobedience, mutinous and rebellious conduct, to discharge a seaman before the end of the voyage. Ware, 707. The law clothes him with that discretion. II. Consuls, too, have very large discretion in such matterp, even by statute. It is a mistake, however, to consider the functions and powers of consuls as mere creatures of the statutes of the United States. Consuls have certain duties, given to them by statute, but they afe international ministers deriving most of their powers from the law of nations and international usages, and in all nations have always had a very extensive and beneficial jurisdiction, as well in advice as in action in all this class of cases. It is the duty of a master in all such cases to address himself to the consul of his nation for advice and aid, and doing so, the law will protect him when he acts in good faith. III. In this case, every thing shows that the captain and APRIL, 1849. 523 Tingle v. Tucker. the consul acted deliberately and honestly in the exercise of an official discretion. That discretion was conferred upon them by the law, and it is a principle to which there is no exception, that when the law confers discretion,, it protects the exercise of that discretion. If it be exercised in good faith, the act is binding, and the party that exercises it is sub- ject to no consequences. If the innocent suffer, it is their misfortune ; if the guilty escape punishment it is their good luck. IV. The men were lawfully discharged; their voyage was legally ended and their wages stopped. They were legally sent home by the consul to be tried. That they were never tried was their good fgrtune, but i^ has no effect upon the conduct of the captain or the consul. Betts, J. The sufficiency of the action taken by the United States consul ^t Marseilles to exonerate . the respon- dent from liability for the improper imprisonment of the libel- lants and for their discharge from the ship, is the main point to be considered and disposed of. The proceedings before the consul were had at the instance of the respondent ; and if any-deceit or malpractice had been resorted to by him to induce the official act of the consul, he could not claim any immunity or benefit under that act. There is nothing in the case, however, to show improper conduct or blamable motives on the part of the master in referring the subject to the consul, qx that he did not act in the belief that the libeUants had committed offences, against the laws of the United States, and that the consul had right- ful authority to examine into and adjudicate upon the charges, and take order thereon against the seamen. The consul certifies and returns in full the proofs taken by, him, and states his proceedings to have been had by virtue of section 5 of article 35 of the consular instructions relative to seamen of the United States. 524 CASES IN ADMIRLATY. Tingle v. Tucker. The instructions referred to are not before the Court, but they probably have relation to the duties of consuls under the acts of 1803 and 1840. Section 1 of the act of February 28, 1803, (2 U. S. Stats. 203,) implies the power of a consul to discharge a seaman in a foreign port, and to give a certificate of such act on his part ; as by the provisions of the section such certificate of the consular consent to the discharge relieves the master from the penalty imposed for not bringing back to the United States such seaman with the ship. The act of July 20, 1840, in terms requires the concurrence of the seaman and master in an application to the consul in order to authorize him to discharge 4;he seaman in a foreign port under the provisions of subdivisions 5 and 6 of section 1 of that act. 5 U. S. Stats. 395. The discharge contemplated by those sections is, however, manifestly one from the obli- gation of the shipping- contract, and has no connection with the authority of consuls in repressing criminal offences com- mitted by seamen, or in bringing them to punishment there- for. Subdivision 11 of section 1 of the same act, (Act of July 20, 1840, 5 U. S. Stats. 395,) declares, " it shall be the duty of consTils and commercial agents to reclaim deserters, and discountenance insubordination by every means in their power, and when the local authorities can be usefully employed for that purpose, to lend their aid, and use their exertions to that end in the most effectual manner." It is known to be the familiar practice, in French ports especially, for consuls, upon the representations of masters of vessels, and on a proper substantiation of facts, to obtain the interposition" of the local police, which of its own authority commits seamen to prison because of offences on board of their vessels, or for insubordination of conduct. Cases of this nature have for many years been of frequent occurrence. It is also a common exercise of authority by American con- APRIL, 1849. 525 Tingle v. Tucker. suls in foreign ports, to send home for trial, in their own ships, or by a different conveyance, seamen accused of crimes com- mitted at sea or in foreign ports. I am not aware that the obligation of ship-masters to bring home such prisoners, or the authority of consuls to transmit them, has ever been directly questioned. Some of our most distinguished Admi- ralty Judges have expressed strong doubts as to the power of consuls in these . respects ; and also, jvhether, in case seamen are imprisoned abroad or sent home compulsorily by them, such acts exonerate the master from liability to the men for full wages and damages. Those cases will be more particularly adverted to in another view of this subject. The question now raised in this cause, it is to be remarked, was not directly presented in those for decision ; and the suggestions of the Courts, as to the authority of those acts, were accordingly incidental, and in illustration of the general doctrines of the law. The inquiry in the present case is, whether the consul, upon the facts asserted by him, could lawfully discharge the libel- lants from the ship, and authorize the master to make up his crew by employing others in their place. The testimony taken before the consul proves that the con- duct and threats of the libellants on board of the vessel were highly mutinous, and that the officers had reasonable grounds for fear for their lives, and had no power to control or restrain the men, at sea. The testimony of the captain and his wife, taken by the consul, could not be admitted on the trial of the respondent in Court, the suit being personally against him for wages. The testimony, also, given by Cooper and Lewis, two of the crew, before the consul, was retracted, or changed in essential features on their examination in this Court. Two, other per- sons on board, who were not witnesses before the consul, were examined in Court, as were also the libellants each for the others. These proofs rendered the balance of evidence 526 CASES IN ADMIRALTY. Xingle V. Tucker. plainly in favor of the libellants against the charge- that their acts had been dangerous to the safety of the vessel or her officers. This result of the trial here, does not, how- ever, authorize the conclusion that the case before the consul did not warrant his proceedings, nor but that the hearing in this Court, had it been on an indictment before a jury, where the testimony of the master of the vessel and hds wife would have been competent, might have led to the conviction of the seamen of the mutinous conduct charged against them. The point, then, is whether the consular act, upon the proofs before him, in detaching these men from the ship, and ordering them home, to be there dealt with under the laws of the United States, on charges for criminal offences committed at sea, fails to bar their right to demand wages to the end. of the voyage, because the evidence before the Courts on full hearing disproves the necessity or propriety of the consular order. It is to be observed that the decision of the consul is not given merely at the instance and on the representation of the mas- ter and respondent. He examined into the charges officially, and decided the course he would adopt upon full hearing of proofs. Judges Hopkinson and Ware strongly intimate that the act of a consul in confining or discharging a seaman for criminal misconduct abroad, affords no protection to the master on a demand by the seaman for wages and expenses and damages accruing by his discharge or imprisonment. The Mary, Gilp. 31 ; The William Harris, Ware, 367. The force of these suggestions may, perhaps, be regarded as modified by the views expressed by Judge Ware in the more recent case of Smith v. Trent, (4 N. Y. Leg. Obs. 13.) This was a suit brought by the libellant, a seaman on board of the Nimrod, against the master of the vessel, for the recovery of wages. It seems that, by reason of the criminal conduct of the libellant at sea, he was arrested, upon the arrival of the vessel at Point Peter, in the West Indies, and confined in APRIL, 1849. 527 Tingle v. Tucker. prison, no other civil authority, being invoked than that of the American consul at that place. He was subsequently, Isy order of the consul, sent home in irons to answer to the charges brought against him abroad for such offences. In relation to that case, the Judge says : " As it. was, it was certainly the duty of the master to call upon the civil author- ity ofihe place, and put the affair in a train of judicial exam- ination. The result of that inquiry was, that Smith was sent home as a prisoner to answer for his conduct to the laws of his country. And from the facts developed on the trial here, it appears to me, that the civU authorities were perfectly jus- tified in this course." 4 K Y. Leg. Obs. 15, 16. Although it is not conceded in this decision, that the con- sul's discharge of the seaman abroad, and issuing a certificate of puch discharge, because of his criminal conduct, would bar to the man the recovery of his wages here, yet wages were in fact denied him, because, by his own misconduct, he had dis- qualified himself from performing the services fos which wages were to be paid. My mind is better satisfied with the more dbect and prac- tical principle applicable to the facts. The rightful authority and duty of the consul to interfere and take a seatnan from his ship, when his continuance there is dangerous to officers or men, being recognized, ( Ware, 16 ; The Nimrod, 4 iVi Y. Leg. Obs. 13,) I think it results that such practical discharge terminates the connection of the seaman with the ship, and disqualifies him from suing the master or ship for after wages of the voyage, and it is quite immaterial whether the judg- ment of discharge rendered by the consul in this instance, constitutes a bar to the action, if his act legally separated them from the ship and her service. This of course presupposes that there has been no improper collusion or deceit on the' part of the master or owners, and that the consul has proceeded with integrity and on probable cause in his doings. The consul is personally liable to the 528 CASES IN ADMIRALTY. Tingle li. Tucker. party injured, if guilty of any-abuse of power, for aU damages occasioned thereby. Act of 1840, art. 18 ; 5 K iS. Stats. 397 I apprehend, however, that the sounder and safer doctrine is, that when on clear primd facie proofs he orders a seaman to be discharged from a vessel for criminal conduct threatening the safety of the vessel, or of her officers or company, and transmits him home for trial on the accusations, sudi dis- charge is a bar to any continuing claim for wages, that might be enforced if his connection with the vessel still rightfully subsisted. The propriety of the consul's interference is to be deter- mined upon the facts before him at the time, and not by the case which may be shown afterwards on trial. As in the present instance, displacing part of the testimony legitimately admitted by the consul, and introducing other not heard by him, may give the case a new aspect, and show that the sea- men, though debarred -of wages 'eo nomine by the act of the consul, may yet resort to the master for damages because of their improper severance from the ship. Although the evidence before me is irreconcilably conflict- • ing on many points, I consider the preponderance of it to support the demand of the libellants .for wages up to the time of their discharge, and that no forfeiture or bar of those wages is established by the respondent. The expenses incurred by them in Marseilles, by imprison- ment or otherwise, were not caused by the master. His application to the consul was that the men should be dis- charged or taken from the vessel. That was granted. Then the consul, following his own judgment of his duty in farther- ance of public justice, had the men committed to prison, and afterwards sent home, as prisoners for trial. The testimony does not fix upon the defendant any respon- sibility for these acts, which can be enforced in this form of" action. The decree will be, that the libellants, in these respective APRIL, 1849. 529 Duryee v. Elkins. causes, recover their several wages up to the time of their discharge at Marseilles, with costs to be taxed ; and that the demand for wages to the termination of the home voyage be denied. Order accordingly. DuEYBB V. Elkins. A Court of Admiralty in this country may entertain a suit in personam for a bal- ance claimed by a seaman to be due to him on an account of the profits of a voyage, as his share thereof, where the libel avers that a specific sum came to the hands of respondent as the proceeds of the voyage, and that libellant is enti- tled to a specific share of such sum. On such a libel, the Court may inquire into the validity of any charges in account made by the respondent against the libellant, and relied upon as reducing or satisfying his share. A Court of Admiralty cannot entertain a libel in personam which seeks to bring respondent to a general accounting for the proceeds of the voyage, and to com- pel an adjustment of the proportion in which libellant is entitled to share in thgm. This was a libel in personam by William Duryee against George B. Elkins, to recover libellant's share of the takings of a whaling voyage. The libellant was one of the crew of the whaling ship Sarah. He filed his libel August 10, 1848, against the defend- ant, sued as owner or part-owner of the ship, and assignee of the proceeds of the whaling voyage in which libellant served, and garnishee of the master's interest therein, seeking to recover libellant's share, alleged to be the one hundred and ninetieth part of the takings of the ship. The libel charged that the libellant shipped at New York in December, 1843, and made the voyage with the ship, in various parts of the Pacific Ocean, until July 1, 1846, when she put into Tahiti, was there condemned as unseawor- thy by the United States consul, and the crew discharged ; that the oil and bone taken by the ship were sent home and VOL. I. 45 530 CASES IN ADMIEALTY. Duryee v. Elkins. sold for the use of the owners ; that no account had ever been rendered to the libellant of the proceeds of the voyage and of his share thereof, thou^ he had demanded an account and payment of the share due him. The libel prayed process of arrest against the defendant, (with a clause of foreign attachment,) to compel him to ap- pear and answer the libel and such interrogatories as might be propounded to him, and that he might come to a just, rea- sonable, and equitable accounting with the libellant of and concerning the libellant's lay or share of said voyage, and be ' decreed to pay to the libellant whatever balance might be found due to the libellant upon such accounting. The answer of respondent, filed September 5, 1848, admit- ted the main facts averred in the libel respecting the respon- dent's ownership in the vessel, and the voyage made by her ; but averred that the libellant's lay was a two hundredth part instead of a one hundredth and ninetieth, as alleged by him, and also that respondent had made up and delivered to libel- lant an account of the expenses and proceeds of the voyage, and of the advances and payments made to libellant, upon which account the libellant stood indebted to the ship in a large sum. The respondent therefore prayed a decree, with costs in his favor. On the hearing, proofs were put in to substantiate the mat- ters set up in the answer ; but the cause was finally disposed of on the question of jurisdiction. Alanson Nash, for the libellant. I. The Court of Admiralty in England, prior to the re- straining act of Richard II., possessed jurisdiction over all cases of jettison, ransom, average, consortship, insurance, mandates, procurations, payments, acceptilations, discharges, loans, hypothecations, forms, emptions, venditions, conven- tions, taking or letting to freight, exchanges, partnership, fac- torage, passage-money, and whatever is of a maritime nature, either by way of navigation upon the sea or of negotiation at APRIL, 1849. 531 Dnryfie v. Elkiils. or beyond the sea in the way of marine trade and commerce. (See the old Sea Laws, p. 209, being an extract from Godol- phin's Sea Laws, &c., in his view of the Admiralty jurisdic- tion.) So, also, the Court had jurisdiction over all matters immediately relating to the vessels of trade and the owners thereof ; all affairs relating to mariners, whether ship officers or common seamen ; all matters relaiiing to masters, pilots, steersmen, boatswains, and other ship officers. Also all ship- wrights, ^sAermew, and ferrymen. Also of all causes of mari- time contracts, or, as it were, contracts whether upon or beyond the seas. II. The statute of 13 Rich. II. declares, that the admirals and their deputies shall not meddle henceforth with any thing done within the realm, but only with things done on the sea. This statute was passed in 1389. The next statute, which wa^ passed in the 15th Rich. II., or in 1391, prohibited the admirals to hold pleas of matters arising in the body of the county ; in other words, these two statutes put together pro- hibited the admirals to hold pleas of things done on land, and also of things done or arising in the body of the county, though done upon the sea. In all other respects they left the Admiralty jurisdiction precisely where they found it. The statutes are both local, and do not extend to any case not arising on land, or within the body of a county in Eng- land. Hussey v. Christie, 13 Ves. 594; Rolle, R. 250. A statute of 1391 declared, that the admirals should not hold plea of matters arising in the body of the county, or of wreck. Our Courts have disregarded this statute by express decision ; they do take cognizance of wreck. Hobart v. Dro- gansi, 10 Pet 108 ; The United States v. Comb, 12 lb. 72. III. The Lord High Admiral of England, and also of Scot- land, the Judges of the Admiralty Courts in North America, including New Hampshire, Massachusetts, and Virginia, for- merly received commissions from the crown to hold "jurisdic- tion of pleas, bills of exchange, policies of assurance, accounts, 532 CASES IN ADMIRALTY. Duryee v. Elkins. charter-parties, agreements, and other things had or done in or upon or through the seas or public rivers of fresh waters, streams, havens, and places subject to overflowing whatsoever within the flowing and ebbing of the sea, upon the shores or banks whatsoever adjoining to "them." Dwnl. Adm. Pr. 34. IV. Our Courts have held the doctrine that they would take jurisdiction over aases of consortship. Wall v. Andrews, 2 N. Y. Leg, Obs. 157. Here is a case of accounting between parties. V. The Court may take this account by means of a refer- ence to the register or to an auditor or assessor appointed for this purpose. Indeed, there is the same right in the Court of Admiralty to refer a cause to an ofiicer created for this pur- pose, that there is for a Court of Equity to refer any matter to a master. Every Court has an inherent power to refer cases for their information to officers created for this purpose. Lee's Diet. ofPr. tit. Master's Report ; 1 Tidd's Pr. 518 ; The King v. Wheeler, 1 W. Blackst. 311 ; Hoffm. Ch. Pr. Introd. 16, note 13 ; 7 Bac. Abr. tit. Officers, C. ; 1 Pet. 604 ; 5 lb. 187 ; The Betsey, 3 Ball. 6 ; 3 Bulstr. 205 ; 13 Coke, 52 ; Lindo v. Rodney, Doug. 613 ; The United States v. Goodwin, 7 Cranch, 32 ; 1 Bac, Abr., PhUa. ed., tit. Admiralty Courts. E. C. Benedict, for the respondent. Betts, J. A question of practical importance arises upon the face of these pleadings ; that is, whether an Admiralty Court can take jurisdiction of a claim of a seaman for a share of the proceeds of a fishing or whaling voyage, before the accounts of such voyage are made up ; in other words, whether the Court can bring the parties to an accounting, and, by its decree, adjust their respective rights in the adventure. When the voyage is made up. Admiralty Courts will take cognizance of suits by seamen for their respective shares of the aggregate. The Sidney Cove, 2 Dods, 11. In a whaHng voyage the account may be referred to a commissioner, to see APRIL, 1849, 533 Daryee v. Elkins. that the computation is correct, or that no improper items are inserted against the crew. Reed v. Hussey,i (MSS.) August, 1836. That is done, however, not on the ground of an orig- inal authority to compel the account, but regarding the voy- age made up as an admission of the sum to be distributed to the ship's company, each seaman can have his remedy in this Court for his aliquot part thereof, and may claim the aid of the Court to protect him against overcharges. The same principle would extend to the case where the proceeds of the voyage are realized by the owner, and he refuses or neglects to make up the voyage, or holds the takings of the adventure in his possession at the home port an unreasonable length of time without sale. In such case the Court may equitably regard him as appropriating the cargo to himself ; and adopt- ing the price received as 131|e market value, may award to the seamen their compensation on that footing. The seamen may thus be permitted to claim their proportionate patt of the entire value in the hands of the owner, throwing on him the burden of proving the charges and deductions to which it is subject under the shipping articles. The case of Reed v. Hussey was one of wreck, where por- tions of the oil were saved and transmitted to this port and sold, a small parcel having been previously remitted home and sold during the continuance of the whaling voyage, and the voyage was made up by the owner on the footing of such net receipts. To that extent, the remedy of the sailor was allowed in this Court. The libeUant does not proceed for an acknowledged or proved account of takings come to the defendant's possession, but demands an original and fuU accounting for the whole 1 Since reported, 1 Blatchf. Sp H. 525. This case was affirmed on appeal to the Circuit Court, December, 1837. 45* 534 CASES IN ADMIRALTY. Duryee v. Blkins. voyage. In this respect the case differs from that above re- ferred to, which occurred in this Court. If the libel had set up a specific amount realized by the defendant as the earn- ings of the voyage, and the libellant had then claimed an entire one hundred and ninetieth or two hundredth part of the gross sum, I cannot perceive any objection to the juris- diction of the Court over the case as thus shaped, or to its competency to try and decide the case, so as to preserve aU legal rights to all parties. The defendant might be required then to justify the charges claimed by him as a satisfaction of the libellant's share, and the ofEce of the Court would be no more than to examine and adjudicate upon the credit so claimed.' The case made by the libellant, however, rests upon the assumption, that he is entitled tojhave the accounts at large stated in this Court, and to be secured the value of the takings irrespective of the method of disposition adopted by the mas- ter or owners, or the actual amount realized. It would be his right undoubtedly, in equity, to overhaul all the proceedings of the master and owner, and to compel them to secure him the entire value of his earnings according to the terms of his shipping agreement, and that without regard to the method of adjustment stipulated by the articles, if he could establish any unjust or inequitable conduct on the part of the owner or his agents, in disposing of the takings of the voyage or in making up the accounts. But can this be done by a Court of Admiralty ? As a gen- eral principle that Court does not take cognizance of partner- ship transactions, nor of any method of securing to a seaman compensation for his services, excepting on an agreement express or implied for the payment of wages. And thus all extraordinary arrangements, such as those secured by deed, Compare The Atlantic, ante, 451. APRIL, 1849. 535 Daryee v. Elkins. (Howe V. Napier, 4 Bwr. 1944 ; Campion v. Nicholas, 2 Stra. 405 ; Opy v. Child, 1 Salk. 31 ; Day v. Serle, 2 Ba/mard, 419 ; S. C. 2 Stra. 969,) or those contemplating a participation of profits, (The Sydney Cove, 2 Dods. 11 ; The Mona, 1 W. Rob. 137 ; The Riby Grove, 2 I&. 52,) are by the English law ex- cluded from that class of contracts on which seamen are privi- leged to sue in Admiralty. Abbott on Shipp. 659. The rule in the Courts of this country has not been so re- strictive upon the remedies of seamen, (Macomber v. Thomp- son, 1 Sumn. 384 ; The Crusader, Ware, 437,) the Courts being inclined to regard only the fact, that the agreement was or was not intended to secure to the seaman wages for his ser- vices. If that is the purpose, it may be enforced in Admiralty, although the wages were to arise out of a participation in the earnings of a freighting or fishing voyage, or although they were secured by a bond or other specialty. It is accordingly the common usage of the Courts of the United States to enter- tain libels for shares or proportions of earnings in fishing voy- ages, such shares bejng the measure of the amount of wages. A suit in Admiralty or at law may be maintained for such shares when ascertained by a final settlement of the voyage. 3 Pick. 435. In principle, there is no distinction between a suit in per- sonam in Admiralty and a common-law action for the recovery of wages. The same ingredients enter into the rights of both parties in each tribunal. The demand rests upon an agree- ment express or implied, and is enforced according to the methods of procedure of the respective Courts. Thus an action lies at law by a seaman to recover his pro- portionate share of a whaling adventure, after the oil has been sold, and the amount liquidated out of which the share is to be completed. Wilkinson v. Frasier, 4 Esp. 182. That doc- trine has always been adopted in this Court, and numerous suits and recoveries have been had on libels so filed after the whaling voyage was made up. 536 CASES IN ADMIRALTY. Duryee v. Elkins. There is no difficulty in furnishing the remedy when the materials are supplied from which the right is shown or may be deduced. The relief by suit in Admiralty proceeds upOn the same doctrine and like proofs as in the common-law ac- tion of assumpsit. Do the functions of the Court admit of its managing an action of account either according to the common-law prac-. tice, or under that of a Court of Equity ? The ancient common-law action of account is rarely used at this day. It was applicable to transactions between a lord and his baUiff, a man and his receiver, between partners and agaihst administrators, &c. Finch, N. B. 116 ; Co. Lift. 172 ; 1 Bac. Abr. tit. Account ; 2 Rev. Stats. 50, 306 ; Duncan v. Lyon, 3 Johns. Ch. 360. The action may be barred by plea that defendant has accounted. Baldw. C. C. R. 418. The action was founded on contract, and it was necessary that all parties should be joined in it, and that the defendants should have no claim in the thing to be accounted for. 1 Dane, Abr. 164. The auditors or referees can examine all parties on oath, and accordingly the proceedings in the action at law are of the same character and of similar efficacy with those in equity. Duncan v. Lyon, 2 Johns. Ch. 360 ; 2 Story, 648. In this Court, no other examination of parties can be had than by propounding interrogatories to be answered by them in connection with the pleadings. There is no usage or prac- tice authorizing a referee or commissioner to call a party before him for an oral examination ; and accordingly, if an Admiralty suit embraced aU the parties necessary to a full and proper accounting, there would be wanting, in order to carry it fully into effect, that essential attribute of the pro- ceedings at law and in equity. For that reason, it has been explicitly decided in this Court, that a suit in rem will not lie in a case where an accounting APRIL, 1849. • 537 Duryee v. Elkins. is required and must be decreed. The Fairplay,^ {MS8.) February, 1830. The jurisdiction was interdicted in England " in accounts betwixt merchant and merchant or their factors," (Dtml. Adm. Pr. 16 ;) and although in The Fairplay, the Court with- held the expression of any opinion as to the right to sue _ in personam to compel an accounting, yet the reason of the decision applies with equal force to either form of action.. The difference between the two, relates mainly to the greater inconvenience of keeping property on attachment pending an accounting, than that of subjecting a party to give bail. In the case of The Fairplay, the master had chartered the vessel, and the libellant engaged to run her with him a period of five months, upon an agreement to share with the master one half of her earnings and profits. The bther half was to be paid to the owner. No account had been stated between the parties. The libellant alleged ifcere was due him the sum of $305.81 as his share of the earnings and profits. The answer denied the debt, and averred that the libellant stood indebted upon the adventure in the sum of f 139.60. The decision went upon the general doctrine that this Court would not entertain an action for an account, laying stress upon the fact as a corroborative reason, that the vessel must be held in cus- tody pending such accounting. A whaling adventure is not regarded in our law as a part,- nership connection, but, as between the owner and crew, a trust is created and the right of the crew to compensation is, by the shipping agreement, usually made consequent to the acts of the trustee. A Court of Equity can no doubt secure the rights of a whaling crew independent of the method 1 Since reported, 1 Blatchf. §• H. 136. This case was affirmed on appeal to the Circuit Court, in July, 1830. 538 CASES IN ADMIRALTY. Dm-yee v. Blkins. arranged and agreed between the parties, when the neglect or misconduct of the crew interposes any impediment to legal relief. But is this within the powers of Courts of Admiralty pro- ceeding in personam ? They are clearly controlled by the shipping agreement in the remedy they administer, provided that agreement is valid. In the present ease, the engagement . in the articles is by the owner (on the fulfilment of the con- ditions stipulated by the crew) " to pay the shares of the net proceeds of all that shall be obtained by the crew during said voyage, as soon after the return of the voyage as the oil, or whatever else may be obtained, can be sold, and the voyage made up by the owner or agent of said ship, first deducting all such sums as may be due from them to the owner or offi- cers thereof, for advances, supplies, or debts arising from other considerations." The libel charges that the defendant refuses to give the libeUant an accouiit of the voyage or pay him his dues, and prays the Court to decree that the defendant come to a just, reasonable, and equitable accounting with him, of and concerning his share or lay of said voyage, and pay him whatever balance may be found on such accounting. It is true he claims general damages to $300, but he does not aver that such amount is due him on the account, nor that any specific sum whatever has come to the respondent from the takings of the voyage. The difficulty thus presented is not obviated by the answer, and it is manifest that the relief the pleading seeks, and the only one to which it is adapted, is that of an original account- ing upon all the particulars of the voyage. The counsel for the Ubellant maintained this view of the case in his argument, and strenuously presses the right of his client to such account,, and the necessity of its being decreed him. In my judgment, the case as brought before the Court is not one of which it can take cognizance. The appropriate relief would be a bill in equity, setting forth the amount of APEIL, 1849. 539 Simpson v. Caulkins. takings, and requiring the respondent to account for their dis- position. If, however, the libellant elects to go upon the account set forth by the answer, a reference may be taken to a commis- sioner to ascertain and adjust the amount of payments prop- erly chargeable to the libellant, and report whether any balance is due him out of the lay of $117.75, credited him on the ac- count made up by the defendant. Decree accordingly. Simpson v. Caulkins. A libel was filed \by each of two members of a ship's crew to recover damages for breach of a shipping contract ; and subsequently eleven other libels were sworn to by eleven other members of the crew, upon the same state of facts and upon the same cause of action. Before answer was filed to either of these libels, and before the eleven libels were filed, a stipulation was entered into that the thirteen causes should be consolidated. An answer, presenting two issues, was then put in, and the cause having been brought on for hearing, the libellants prevailed upon the first issue, bat the respondent succeeded upon the second. Held, on appeal from taxation of costs, 1 . That the costs of the two separate libellants and of the respondent were to be taxed in both the two suits first commenced, up to the date of the consolidation ; but from that date' libellants' costs were to be taxed only in the suit which was thereafter prosecuted. 2. That full costs of the issue on which the libellants prevailed should be taxed in their favor, and full costs of the issue on which the respondent succeeded should be taxed to him ; and that these two bills should be set off the one against the other, and the balance paid by the party from whom it might be due. This was a libel in personam, by Thomas Simpson against Daniel Caulkins, master of the ship Sabrina, to recover dam- ages for breach of a shipping contract. Twelve other causes were instituted on the same facts and for the same cause of actioh, by Simpson's fellow sailors in the voyage on the Sabrina, and were consolidated with the 540 CASES IN ADMIRALTY. Simpson v. Caulkins. present. The cause now came before the Court on appeals taken by both parties, from the taxation of costs by the clerk. The facts on which the appeal was based are sufficiently stated in the opinion. Alanson Nash, for the libeUants. E. C. Benedict, for the respondent. Bbtts, J. On January 15, 1848, the libel of .Thomas Simpson in this case, was sworn to by the libeUant. It was filed on the 17th, and the warrant of arrest was issued thereon the 18th, and served during January. • Peter Williams filed his libel on the 18th of January, and the process was issued the same day. Eleven others of the same crew attested to libels on the 17th, and the same were filed the 19th of January. These libeUants were all members of the crew of the ship Sabrina, of which the respondent was master. They all shipped at this port, sailed out together, made the same voy- age, and returned and left the ship at the same time. On the 18th of January, by written consent of the respon- dent's proctors, the thirteen causes were consolidated, and on the 8th of February an answer to the consolidated actions was filed. The libel in the case of Simpson is special, and sets forth the case attempted to be maintained on the hearing. The others are the general printed forms, claiming wages, as upon an ordinary shipping contract. The special libel will, there- fore, be regarded as being the one which has been adopted by the consolidation. The libel alleged a contract for a voyage from New York to St. Johns, and thence to one or more ports in Europe and back to a port of discharge in the United States ; averring that the voyage was only made to Nova Scotia and then di- rectly back to New York, where the libeUants were discharged by the master, without their consent and to their great dam- APRIL, 1849. 541 Simpson o. Caulkins. age. The libel charges that the current wages for the voyage run were higher than those they agreed to receive, and they were retained on wages only two months, whilst the voyage contracted for was one of eight months, whereby a deceit and fraud was practised upon them, and they were subjected to great loss and expenses. Each libellant de- mands f 40 for such special damages. The answer denies the contract set up by the libellants, and avers that, at the option of the ship-owners, they shipped for a voyage from New York to St. Johns, Nova Scotia, thence to Pictou, and back to New York; or from St. Johns to one or more ports in Europe, and back to a port of discharge in the United States, and signed shipping articles therefor ; that ^ the voyage to Nova Scotia and back only was performed ; and that the ship not being able to put into Pictou because of obstructions of the harbor by ice, returned directly from St. Johns to New York. It also alleges a tender to the libellants, in full of their wages for the voyage, of various sums anlount- ing in the whole to $146.45. The case went to hearing upon these pleadings. Two issues were involved in it : 1. Whether the tender was full sat- isfaction of the wages for the voyage performed. 2. Whether the contract entered into was actually for a voyage to Europe, and whether the respondent violated the agreement, to the damage of the libellants. The (decision of the Court upon the hearing on the report of the commissioners, was in favor of the libeEants upon the first issue, and in favor of the respondent on the other. And it was decreed that the libellants recover the diiference between their wages reported due, and the sum tendered, with costs, in- cluding the costs of the reference and on exceptions ; and that the costs of litigating the claim for damages for not perform- ing the alleged voyage to Europe, be taxed against the libel- lants ; and that the respective costs thus created, be set off, VOL. I. 46 542 CASES IN ADMIRALTY. Simpson v. Canlkins. the one against the other, the balance, if any, to be collected of the party against whom it might be found. Under this decree the libellants made up and claimed costs in the suit instituted by Simpson, at $70.87|, at which sum the bill was taxed ; and in the case of Peter Williams alone, to the sum of $148.75, and in the other eleven causes subse- quently united by consolidation with the two others, to about the sum of $23 each. These eleven bills the clerk refused to tax. From that decision the libellants appeal ; and the respondent appeals from the taxations made of the other two bills, both in respect to the items admitted therein, and upon the principle that only one biU could be made up and referred. The respondent presents, also, thirteen distinct bills of costs, and claims to have taxed in his favor $11 in eleven of them, $14.50 in one, and $143.30 in another. The clerk taxed one bill at $14.50, one at $97.43, and refused to tax the other eleven biUs. From these taxations both parties, also, ap- pealed. Two general questions arise under these appeals : — First. — Can either party legally claim more than a single bill of costs in the causes ? Second. — What rule of distribution is to be observed in allotting the successful parties their proper portion of costs created in the progress of the litigation ? 1. If it may be supposed that thirteen distinct suits might in these cases have been carried through to final decrees, each carrying full costs, unless the Court or parties interposed to unite them, it would stiU be a question always open to in- quiry, at what time any particular one of the number was commenced, and must be deemed in prosecution ; because where a particular service enures to the common benefit of other parties, compensation therefor may be allotted to the one first performing it, at his instance, because of 1*ie insuffi- ciency of the fund to satisfy his enlare demand, or upon the APRIL, 1849. 543 Simpson v. Caulkins. equity of the party condemned in costs, not to be burdened with a repetition of payments for a single service. At common law an action is deemed commenced on the issuing of the capias. 5 Cow. 514. The Revised Statutes of New York, however, require the actual arrest of the defend- ant on it, or that the capias be issued in gobd faith with in- tent to arrest him. 2 Rev. Stats. 299, § 38. In Admiralty, .causes are initiated by arrest of the thing, (2 Leol. Jenkins, 775 ; 1 Ha^g. Adm. R. 124,) or of the per- son (Hall's Adm. Pr., tit. 1,) proceeded against. At the time these thirteen cases were consolidated, no more than two suits had been instituted. The filing of libels the day subsequent to the consolidation, could not confer on them the character of pending actions, before process was served or even awarded by the Court. The two cases of Simpson and Williams must, under the proceedings as jilaced before the Court, be regarded as in prosecution, separately and rightfully, up to the stipulation to consolidate them. No doubt the Court might be compelled, under the act of Congress of July 23, 1813, (3 U. S. Stats.19,) to deny several costs, if there was evidence that the actions had been unnecessarily mtiltiplied ; but as the Ubellants had no authority to unite in a common cause, it will not be pre- sumed that any improper motive led to the commencement of suits by each, especially as the respondent might have de- fences to them severally, distinct and independent of each other. Although the causes might not be of a character to admit a direct consolidation, yet on a proper application, the Court would always apply the relief familiar to the English courts and our own, prior to any statutory regulations on the sub- ject, and by order, compel the stay of all the causes but one, and that the residue abide the award of the contestation of that. Coleman's Cas. 62 ; 1 Johns. Cas. 28 ; Tidd's Pr. 645. Only the taxable costs incurred up to the period of such order 544 CASES IN ADMIRALTY. Simpson v. Caulkins. would be allowable, with, perhaps, the addition of such as might become necessary^ subsequently to secure the parties the benefit of the rale of consolidation. Accordingly the costs of the two separate libellants, and of the respondent in those two actions, should be taxed up to the 18th of January, the time of the consolidation. After that period, only one suit is to be recognized, and a single bUl of costs to be allowed to either party as against ♦the opposite one. 2. "The rule of costs prescribed to the State courts by the Revised Statutes, in case of variant judgments upon multifa- rious issues in the same case, is recommended, both by its high authority and the reasonableness of its provisions, and was adopted by both as proper to be applied in the allowance of costs to their respective parties : that is, that the one who succeeds on the essential merits in the case shall obtain full costs, although he fails on incidental branches of it. 2 Rev. Stats. 511, § 17-21. The Courts have interpreted and applied those provisions in various instances, so as to secure costs to a. party who prevails upon a distinct and material cause of action in a suit, although judgment on the whole cause may be in favor of his opponent. No limitation is made to special forms of action. It has effect in actions of ejectment, re- plevin, tort, contracts, dower, &c. 12 Wend. 285 ; 19 lb. 626 ; 20 lb. 666 ; 1 Hill, 359 ; 6 lb. 265, 267, 268 ; 1 Denio, 661 ; 2 lb. 188. Similar principles govern the practice of other State courts. Meacham v. Joneis, 10 N. Hamp. 126 ; Nichols V. Hays, 13 , Conn. 155. The purport of the decision denotes that in these duplicated allowances of costs, each party taxes full costs, throwing out only those items palpably appertain- ing to the bill of his adversary. In- the United States Courts, costs are not rhatters posi- tively appointed by law, but are allowed in the exercise of a sound discretion by the Courts, conformably to the usages gov- erning their proceedings. Canter v. The American and Ocean Insurance Companies, 3 Pet. 319 ; The United States v. The APRIL, 1849. 545 Simpson v. Caulkins. Brig Mabel, 2 How. 237. The statutory directions under which the State courts act, accordingly impart no higher authority to regulate the subject, than is possessed by the United States' tribunals under their general powers. The difference is only that in the one case the rule is stringent and imperative, and in the other obtains and is enforced only because of its reasonableness and adaptation to the rights of the parties, in so far as these objects may be subserved by means of costs. In these eases it is accordingly ordered, that thelibellants and respondent have taxed in their respective bills, the proper taxable items, both in the suits by Simpson and that by Wil- liams, up to the time of the consolidation ; and that thereaf- ter only one bill of costs be taxed in favor of the libeUants and one to the respondent, each party being allowed full costs, with the exception of those particulars shown to the satisfac- tion of the taxing officer to belong with the items allowable to the opposite party.' Order accordingly. 1 The act of Congress of February 26, 1853, (10 U. S. Stats. 161,) ap- ' pointed specific costs to the officers of Courts, in causes of admiralty and mari- time jurisdiction. The items of allowance are no longer left to the discretion of the Courts, and that subject of litigation has ceased to pervade the discussion and decision of causes ; still the leading principles controlling the disposition of those costs between litigant' parties, have application and force under the existing law, and it was, therefore, thought proper to report the above case as one still possessing general interest. 46' 546 CASES IN ADMIRALTY. Miner v. Harbeck. Miner v. Harbeck. • Where a United States consul in a foreign port discharges a seaman withont pay- ment of three months' wages, (under 5 D. S. Stats. 395, 5 1,) the discharge will not avail the owner as a defence to a suit for the two months' wages, which by the provisions of the act accrue to the seaman, unless the consul makes an offi- cial entry of his act both upon the list of the crew and upon the shipping arti- cles. These entries must be made by the consul personally. This was a libel in personam by Lewis Miner, against Wil- liam H. Harbeck to recover wages as seaman. The facts are stated in the opinion of the Court. Bbtts, J. The libellant shipped at this port on July 8, 1848, on board the brig Susan, on a voyage to the south of Europe, thence to one or more ports in South America, and thence to such other ports or places as the master might direct, for a term not exceeding twelve calendar months. The ship went to Lisbon, and thence to Rio Janeiro, when the captain chartered her to the coast of Africa, and back to Rio Janeiro. On December 21, 1848, the libellant (with others of the crew) was there discharged at his own request and by con- sent of the master, and his wages were paid him in full to that day ; and the same day he shipped on board the bark Elvira Harbeck, owned by the same persons, for the United States. There is no ground of claim in the case other than for three months' wages because of the discharge at Rio Janeiro. The libellant left the brig from choice, and the respondent had no agency in his discharge other than the assent of the master to it. It was not procured or suggested by him. The libellant can maintain no claim for wages to the time of his return to the United States, because his term of service had not then JUNE, 1849. 547 liner v. Harbeck. expired, and he would have been bound to offer to remain with the brig to the end of twelve months. The equity of his claim, therefore, clearly rests on the effect of his discharge according to the provisions of the statute. By section 3 of the act of February 28, 1803, (2 U. S. Stats. 203,) the discharge of a seaman abroad by his own consent, subjects the master to the payment of three months' wages, two of which enure to the benefit of the seaman himself. The act of July 20, 1840, (5 U. S. Stats. 395, § 6,) so far varied this regulation as to authorize a discharge, on mutual consent of the master and mariner, by a consul abroad, without pay- ment of the three months' wages, if the consul thinks it expe- dient not to require such payment. But the discharge is of no efficacy unless the consul makes an official entry thereof upon the list of the crew and the ship- ping articles. 5 U. S. Stats. 395, § 7. This formality was not observed in the present case. The master testifies that the discharge was authorized and made by the consul, but only one certificate, that to the crew list, was given, and that was executed by a deputy, and not by the consul personally .^ This is not a compliance with the conditions of the statute, and, therefore, cannot avail the owner as a legal defence io the action. The defect is merely technical, for the proof is uncon- tradicted that the consul acted personally in the matter, that the libellant desired his discharge and accepted his pay, and that the consul fuUy approved the arrangement. StiU, under the circumstances, the libellant is in law enti- tled to recover the two months' wages demanded, the allot- ment of them to seamen on such discharges not being spe- 1 On the eiFect of a formal and valid consular discharge as a protection to the master and owners, see Lamb v. Briard, ante, 367 ; Tingle v. Tucker, ante, 519. For other defects in the form of a consular certificate, see The Atlantic, ante, 451. 548 CASES IN ADMIRALTY. Sprague v. West. __^ £ cially for their benefit, but in furtherance of the national policy of deterring masters of vessels from leaving seamen abroad. He is, however, equitably bound to account for his earnings on board the Elvira Harbeck, and if they equal the $36 pay- able at Rio Janeiro, they will extinguish his demand, and must be applied to its satisfaction. He may accordingly, at his option, have a reference to ascertain the amount of wages paid him by the latter vessel, and if it was less than $36, take a decree against the respondent for the balance. Decree accordingly. Sprague v. West. The owner of the vessel takes the risk of working weather during the time required for the unlading of the cargo. The consignee takes the risk of roads and means of transportation from the dock ; and is bound to take the cargo as deliv In an action brought against a master by a seaman found secreted on board and ordered to do duty and punished for refusal, to recover damages for the punish- ment inflicted, it is imperatively incumbent on the master to prove, in order to justify the punishment, that before giving the order he informed himself as to the seaman's experience and capacity, and ascertained that he was able to per- form the work required of him. • This was a libel in personam filed by James Allen against Franklin Hallet, master, and George Gibson, first mate of the packet-ship Queen of the West, to recover damages for iU usage inflicted on the libellant, on board that vessel. The facts are stated in the opinion of the Court. Alcmson Nash, for the libellant. O. Sturtevcmt, for the respondents. Betts, J. This is an action of tort against the master and first mate of the packet-ship Queen of the West, for confin- ing the libellant in irons in a painful position and posture on board the ship, and putting him on insuflJcient allowance of food, on her voyage from Liverpool to New York. The libellant shipped at New York as cook on board. His conduct in that capacity was unexceptionable. At Liverpool he had no duty to perform as cook, and he was ordered by the mate, and the order was confirmed by the master, to go over the side of the ship with others of the crew, and standing on a staging prepared for the 'purpose, or on the dock against 574 CASES IN ADMIRALTY. Allen o. Hallet. which the ship rested, to assist in scrubbing down her sides. This was a necessary service to be performed by the crew. The libellant refused to obey the order, alleging it was not his duty. He stated his willingness to perform any seaman's duty on deck. He was ordered to perform that particular service or that he should not be fed by the ship. He and the sebond cook thereupon went ashore ; the second cook desert- ing the vessel, and the libellant remaining ashore without leave until the ship sailed. Just before the ship sailed a first and second cook were shipped in the places of the others. When the ship got out to sea the libeUaht was found on board. The answer alleges that he entered surreptitiously without the knowledge of the officers. No proof is made of the fact, nor does the libellant show when or how he returned to her. His place was, however, occupied by another cook, and he does not appear to have been at first recognized or admitted by the officers as one of the ship's company. When four or five days out from Liverpool he was ordered with other men to go over the side of the ship, in fine weather, and scrub her. This order is alleged, by the libellant, to have been give^i by way of punishment, and was only applied to him and one other man. On that point the testimony is in disaccord ; some witnesses swearing that only one man was put to the duty, and others, that two or three men were so employed. So the answer asserts, and the fair weight of evi- dence may be regarded as supporting it, although the point is not clear, nor is it of sufficient importance to render its par- ticular examination and discussion necessary. The libellant refused to obey the order. This he did per- emptorily to the captain, and with coarse and insulting lan- guage, and therefore he was gagged for a few moments, and handcuffed, and so kept for several days ; during the daytime, when fair, on the after-deck, and at nights in the wheel-house ; and until, as the answer asserts, he submitted, and consented NOVEMBER, 1849. 575 Allen V. Hallet. to go to duty on board. On the second day after he was handcuffed, a bolt was put in his mouth as a gag. The wit- nesses saw it there for a few minutes, but were unable to say who put it in or for what cause. After his confinement terminated the libellant was restored to his place, and performed the duty of cook to the arrival of the ship here. It seems to me that the case, stripped of the inflamed and reproachful terms in which the parties speak in their plead- ings, is to be disposed of upon these considerations : — Was the libellant, after placing. himself in the ship without the authority of the master, entitled to claim his former posi- tion ? and if so, was he bound to do ordinary ship's duty when not on service in the capacity of cook ? If the order of the master to the libeUant to perform that duty, was a recog- nition of him as one of the crew, was any inexcusable vio- lence or severity applied by his orders, in bringing the libel- lant to obedience ? In respect to the first mate, Gibson, there is no color of evidence implicating him beyond .the act of applying the handcuffs on the libellant, under the orders of the master. This was not done with harshness, or so as to cause needless pain or suffering to the libellant. In that, and in confining the libeUant subsequently, he only pursued the directions and orders of the master, which were a sufficient justification for his acts. Butler v. McLelland, Wa/re, 219. The nbel, therefore, as to him, must be dismissed with costs. Had the master, then, rightful authority to impose those services on the libellant, and compel his submission to them ? I perceive no reason to question his power in respect to the orders given at Liverpool. Z Pet. Adm.R. 368; The Eliz- abeth Fritz,^ {MSS.) 1831. His command is supreme in the 1 Since reported, 1 Blatchf. §■ H. 195. 576 CASES IN ADMIRALTY. Allen V. Hallet. navigation and management of the ship at sea. This necessa- rily includes the employment of the crew, subject only to his responsibility to the men for any tortious or oppressive conduct towards them. A cook ships and rates as a seaman, except as to wages. He signs the articles, and designates himself as such ; he commonly is a saUor, and not unfrequeiitly acts in the double capacity of sailor and cook on the voyage, beings only ■ rated at higher wages because of that quality. He has also the privileges of a seaman, as to remedy against the ship for his cure in case of sickness, and his protection abroad if left by the vessel, (Turner's case, 1 Ware, 83 ; The Louisiana, 2 Pet. Adm. R. 268,) and he may be removed, for reasonable cause, from the particular employment of cook and assigned to the com- mon duties of a sailor. This is so even in respect to sub- officers, (Shermond v. Mcintosh, 1 TFore, 109; Mitchell u. The Rogambo, 1 Pet. Adm. R. 250 ; The Ship Mentor, 4 Mason, 102,) and the cook, if he is entitled to any special designation of rank or privilege distinguishing him from a common sailor, he can be only so upon the terms of his contract, limiting his obligation to perform that particular service. The law will secure him the benefit of such special agreement, so long as he observes it with fidelity and intelligence, subject always to the rightful authority of thie master to regiJate the discipline and service of the ship at his discretion. When the orders were given at Liverpool directing him to do other duty, the libellant was not acting as cook ; there was no duty for him to perform in that capacity ; this employment was not taken from him ; but when idle, and the state of the ship required his assistance, he was directed to aid the crew in a piece of seaman's work about the ship. He did not ques- tion his obligation to obey any order to render services on deck, but puts his refusal on the assumption that he could not be required to go over the ship's side. I see no reason for this distinction. He does not show he would be exposed to risk, in standing on the staging or the dock, nor that he was NOVEMBER, 1849. 577 Allen u. Hallett. to be placed in a situation requiring experience and skill he did not possess. Whether the labor of scrubbing was then to be done on the ddck or sides of the ship, in the dock, cannot, in this case, make any distinction as to his obligation to per- form it. I hold, under the facts in proof, that the libellant was bound to obey the orders given him in Liverpool, and that his refusal was refractory and mutinous, and would have justified I^ punishment by forfeiture of wages, or by personal coercion. The libellant then abandoned the ship. The manner of his getting on board and to sea is not disclosed by the proofs. It is manifest, however, that he did not come back to her with a claim to his place of cook, rendering himself to the officers to, perform that duty. The place had been filled by another per- son. The first time when he appears to have been noticed on , board by the ofiieers, was when the order was given him to go over the side and assist one or more of the men in scrub- bing the ship. The ship was then some days out; according to some of the testimony two days, to others, four or five days. The relationship between the respondent and libellant was never changed. It has been held in this Court, that a seaman who had abandoned his ship in, a foreign port, could not, by joining her clandestinely after his place on board had been supplied) acquire the right to restoration to it or to wages. The Ship Philadelphia,! {MSS.) December, 1845. If any new agreement is to be inferred from his being in the ship and the exercise of authority over him by the master, it is, that he should render such services as might be demanded of him and what he was capable'of performing. The master would have no right to assume from his acting as cook on board that he was an able seaman, and compel 1 Since reported, Olcott, 216. VOL. I. 49 578 CASES IN ADMIRALTY. Allen V. Hallett. . him to go aloft, or take the wheel, or engage in work requir- ing professional skill and involving personal hazard. He must first inform himself of the libellant's capacity, and then most properly he might expect of him any reasonable service within his ability to render. The libellant proves, that when he re- fused to go over the sides of the ship on the staging, he offered to do any work on the ship's deck. The master gives no ^idence that his experience or capacity qualified him to venture safely on a staging at sea whilst the ship was under way. I think it was incumbent on him in order to justify such order and the infliction of punishment by way of close confinement on board for disobedience of it by libellant, to prove the man possessed experience and capacity enabling him to fulfil the order with safety. In my ppinion, the mas- ter in this act transcended his reasonable and rightful powers. He could no more enforce the orders against the libellant, on" the facts in evidence before the Court, than he could have done to any man found on board not shipped as one of the crew. And even if he claimed authority over him under his broken contract, he was bound to inform himself whether a man who shipped as cook, and had only served with him as such, was also competent to perform the duty of a seaman, before ^posing on him any service apparently hazardous, and which might involve danger to his life. The wrongful conduct of the libellant at Liverpool, no doubt conduced to the harsh proceedings adopted by the re- spondent at sea. The libeUant was afterwards restored to his fi,rst position as cook on board, and spoke to his compan- ions of this transaction as of no importance, and said he should take no further notice of it ; and though the Court is compelled to pronounce in his favor that a tort has been committed, yet it cannot be regarded one aggravated by any manifestation of vindictive feelings or cruel purpose on the part of the respondent. In view of the antecedent misconduct of the libellant in the SEPTEMBER, 1850. 579 Martin v. Walker. same particular, and the apparent reconciliation between the parties, in his restoration to his former place, and it is to be assumed the payment of full wages to him out and home, as he claims no balance of wages, I shall decree him damages against the respondent, HaUett, only to the amount of fifty doUars and costs, for the improper imprisonment and treat- ment to which he was subjected. Decree accordingly. Martin v. Walker. The general course of Admiralty procedure in this country requires a sworn libel as the foundation of any process of arrest of person or property. When a libel is verified by an attorney in fact of the libellant, — as in case of the libellant's absence, &c., — it is not necessary that the authority of the attorney to act should be made to appear when he attests the libel or files it ; it is enough if h.e establishes snch authority when it is called in question. A mere general employment as proctor or attorney at law to prosecute a demand in a Court of Admiralty, is not sufficient to authorize the party employed to verify a libel as attorney in fact of the libellant. No action can be maintained in a Court of Admiralty by one ship-owner against another to collect a balance to be determined in favor of the libellant on the settlement of the joint accouq^s of the parties.^ In holding a respondent to bail, a Court of Admiralty will be governed much by the equitable considerations of the case. Accordingly, where a libellant procured the arrest of respondent in a suit brought in a district different from that in which they both resided, upon a stale demand, of small amount, and which was already in litigation between the parties in the Courts of the State in which they dwelt, — Hdd, that the respondent ought to be discharged from the arrest. A motion to set aside an arrest, founded on irregularity in the libellant's proceed- ings, is not within Rule 25 of the Circuit Court, and will not be denied of course, merely because it was not made at the earliest day practicable after the arrest. 1 Compare the case of Duryee v. Elkins, ante, 529, where it is held that Admiralty has not jurisdiction to take an account of the profits of the voyage and determine the share due to a seaman employed on a " lay " or share of the proceeds. 580 CASES IN ADMIRALTY. Martin v. Walker. This was a libel in personam filed by Mulford M. Martin against Lewis M. Walker, to recover for supplies and mate- rials furnished to vessels of the respondent. The cause now came before the Court on a motion to set aside the arrest of the respondent, and discharge the recogni- zance of bail given by him. The facts involved appear in the opinion of the Court. Scales ^ Cooper, .and E. W. Stoughton, for the motion. Beebe ^ Donohue, opposed. Betts, J. The defendant moves to set aside his arrest in this cause, and that the recognizance of bail given by him therein for the limits, be discharged. Both parties are residents of the District of New Jersey, and were such when this suit was instituted. On the 2d of August last, a libel in personam was filed, demanding of the defendant the payment of about $2,'/'00, for supplies and materials furnished by the libellant to two vessels alleged to be owned by the respondent. The account is of long stand- ing, the advances to the schooner Copper having been made more than ten years since, and to the schooner Roanoke be- tween the years 1836 and 1841. The libel alleges that supplies to the amount of $13,000 were furnished to the Roanoke, of which sum there yet re- mains due and unpaid about $2,150, besides interest, and in like manner to the schooner Copper to the amount of $139. The respondent in his affidavit swears that the libellant was part owner with him of the schooner Roanoke, and that what- ever supplies were obtained for her were furnished on account , of the joint owners, and not for him individually. He further asserts that the charges in respect to the Copper, passed into the subsequent account in relation to the Roanoke, and have been adjusted between the parties in that account, and upon the merits of the case avers that he is not indebted to the libel)ant, but that a balance is due him on theii transactions. SEPTEMBER, 1850. 581 Martin v. Walker. It is moreover stated that the whole subject-matter is now in litigation between the parties on cross-bills filed by them respectively, in the Court of Chancery in the State of New Jersey. Five objections to the plaintiff's right to maintain this action are taken. That the libel was not authenticated according to the re- quirement of the rules of this Court, and that the process of attachment issued thereon was irregular. That no such affidavit of debt was made by the libellant as would entitle him to hold the respondent to bail in the suit. That one part owner cannot sue another in Admiralty to recover advances made for their joint benefit. That the demands are staie, and if not actually barred by the statute of limitations, yet the Court of Admiralty wiU not give a party in such case the advantage of an arrest and im- prisonment of the debtor on mesne proofs. That the voluntary selection of a home tribunal by the par- ties, for the litigation of these claims, precludes both from arresting each other out of that jurisdiction on the demands. 1. The attestation to the libel is made in the name of the libellant " by C. Donohue, his attorney" and in the jurat it is stated, that " the libellant is sick, and absent from the district, a/nd could not swear to the libel," and the Commissioner certi- fies that Donohue appeared before him, " who signed the libel as attorney in fact for the libellant." For the respondent it is insisted that no fact is made to appear on this jurat authorizing the authentication of the libel otherwise than by the oath of the party himself, and that no arrest can be made of a party unless a Hbel regularly attested on oath is previously filed. The general course of Admiralty practice here unquestion- ably requires a sworn libel as the foundation of any process of attachment, (Benedict's Pr. § 413 ; Dunlap's Pr., 2d ed., • 49*- 582 CASES IN ADMIRALTY. Martin u. Walker. 126-128 ; Betts's Pr. 22, 23 ; Conkling's Pr. 423,) although the affidavit which justifies the arrest need not, it would seem, be made on*the libel, but may be a separate deposition. Sup. Ct. Rules, 7. Such was the practice in the English Admi- ralty, as the warrant of arrest issued previous to filing the libel. Clurke's Pr. tit. 1 and 19 ; 2 Browne's Civ. Sf Adm. L. 410, 411, 432, 434. The rule of this Court requires the verification to be in the libel itself. Rule 3. This oath must be made by the party himself, [RUle 4,) unless the libellant is absent from the United States, or resides out of this district, and more than one hundred miles from the city of New York, {Rule 93,) in which cases it may be made by an attorney in fact or proc- tor, lb. * - In the present instance the libellant's residence was out of the district, but less than the distance of one hundred miles from the city. The case did not accordingly exist as one in which the oath of the party himself could be dispensed with, and the libel must be regarded as insufficiently authenticated without it. It is not necessary that the authority of the attorney in fact to act for the principal should be made to appear when he attests to or files the libel. It is sufficient for him to estab- lish that authority when it is called in question. The affidavit of the libellant himself is read on this motion for that purpose. It is exceedingly loose and ambiguous on this point, and goes no further than to swear that the proctors were authorized and empowered to take all steps, in his ab- sence, for the collection of the debt, and to assert that the suit is brought for his own benefit and with his consent and appro- bation. On a question of rightful authority in the agent, something more than general and loose statements of that kind should be produced to support his acts. If no positive and formal appointment need be shown, at least there should be an e^ SEPTEMBER, 1850. 583 Martin v. Walker. plicit recognition of such agent in the character of an attorney in fact, to uphold his assuming that representation. Mr. Donohne testifies, in his affidavit, that he verified the libel as agent of the plaintifi", and that he had full power and authority to verify the libel, and was fully authorized to file the same. It is to be remarked that the libel was filed* in the name of Mr. Beebe as proctor, and Mr. Donohue as advocate, and that these gentlemen are connected in business in practice at this bar. All that Mr. Donohue states in his affidavit may be satisfied by the general retaining or authorization of these gentlemen as attorneys to prosecute this demand, without there having been any direct and express appointment of Mr. Donohue as attorney in fact or special agent in the niatter. Attorneys in law are agents of the principal, ( Story on Agency, § 23) ; but attorneys in fact are so called in contradistinc- tion to attorneys in law, and may include all other agents employed in any business, or authorized to do any act or acts en pais for another, lb. § 25. Judge Story, however, observes, the appellation sometimes designates persons who act under a special agency or a spe- cial letter of attorney ; so that they are appointed in factum ; for the deed or act to be done. lb. § 25. This position is supported by reference to Bacon's Abridgment, but Bacon clearly regards it as necessary, in order to constitute an attor- ney in fact, that his authority should be delegated by deed. 1 Bac. Abr. 306, tit. Attorney. So Comyn distinguishes between attorneys in Court ( Com. Dig. tit. Attorney, B.) and attorneys for other purposes, {lb. tit. Attorney, C. 1) ; and lays down the principle that, in the latter case, the appointment must be by deed or letter, lb. 5. Admitting, however, that a parol appointment is sufficient, it would seem that the 'nature of the authority delegated, in the fair import of the rule of this Court, would require an ex- press authorization to do the particular act, when done by 584 CASES IN ADMIRALTY. Martin v. Walker. one as agent and not as proctor. One cannot, by virtue of his retainer as attorney in law, assume to act in the cause in the character of attorney in fact. It does not appear, upon the proofs offered in this case, that any other authorization was given by the libellant.than the usual one given to attorneys in Court to prosecute and collect demands. Upon a case standing in that attitude, it is plain that the libellant could not rightfully take an order to hold the defendant to bail. 2. The oath of indebtedness attached to the libel is not sufficiently positive to satisfy the rule on that subject. The evidence of indebtedness must be direct and explicit, and the agent states nothing beyond his information and belief de- duced from the examination of documents. GraliamUs Pr., 1st ed., 130 ; 1 Archb. Pr. 52, 53, 58, 65. The preliminary affidavit being requisite in Admiralty Courts in order to hold to bail, the English rule with regard to the requirements of such affidavit would naturally be adopted as the practice of that Court, especially as it is the guide to the practice of the Circuit Court, and that Court supplies the authority to the District Court in matters of procedure not regulated by spe- cific rules. Dist. Ct. Rules, 260. Supplemental affidavits, to make u^ a case sufficient to justify holding to bail, were not allowed in this State, (Norton v. Barnum, 20 Johns. 337,) upon the English distinction, that affidavits to cure defects in the original one upon which the defendant was held to bail, were not admissible. They could not be allowed to retroact so as to authorize continuing the defendant under bail when he had been arrested by means of a defective affidavit. 3. The libellant, in his affidavit, does not deny the allegation of the respondent's deposition that he was part-owner with the libellant in the Roanoke. He asserts that he made the advances claimed in the character oftship's husband, and that the respondent is responsible to him for them. That may be so upon a due adjustment of the legal and equitable rights SEPTEMBER, 1850. 585 Martin v. "Walker. of the parties, but this is not a competent tribunal through which to enforce such adjustment. The acknowledged fact that both parties are prosecuting suits against each other in New Jersey, in chancery, upon these claims, indicates plainly enough that the subject-matter is not one of simple indebt- edness on the part of the one to the other. A libel cannot be maintained in this Court by one owner against another, to- collect a balance to be determined in his favor on the set- tlement of their joint accounts. The Fairplay,^ (MSS.) 1830. The instance side of the Court exercises in such cases no higher or other functions than a court of, law, and before either tribunal it would be a bar to such action, to show that it was . founded upon a counter and unadjusted responsibility of joint owners, it being insisted upon by each party that his advances to the common concern had been greater that those of his associate. 4. This objection does not apply to the small sum of $139 accruing from supplies furnished to the schooner Copper, and if this arrest of the defendant had been made for that demand alone, it might, perhaps, stand on the footifig of an ordinary action by a material-man against the owner of a vessel. In matters of bail, however, the Court will be governed much by the equitable circumstances of each case. In this instance, the demand is exceedingly stale, and there is no allegation that the respondent could not have been arrested upon it within a reasonable period after the indebtedness had been incurred. Its justness is now denied by the affidavit of the respondent, and it is one of the subjects of litigation between the parties in their chancery suits. Under such circumstknces it would not be reasonable or equitable to com- pel the respondent to give bail to this action in a State foreign J Since reported, 1 Blatchf. §■ H. 138. 586 CASES IN ADMIRALTY. Martin y. Walker. to his domicil, and litigate the matter away from his own residence and that of the libellant, especially when it was already in prosecution between them before a home tribunal. All unwarranted arrests may be vacated, (Rule 36,) and the Court may, at its discretion, mitigate or enhance bail accord- ing to the rights of parties. Beits' s Pr. 40. It appears to me that there is no proper ground in this case for the plaintiff to hold the defendant under arrest for a demand disputed by the latter, and which accrued more than ten years since. 5. I am not disposed to lay out of view the fact that the parties have selected a domestic forum for litigating these matters, which are now on investigation before it. Although I do not say that such fact is a legal bar to an action in this Court on the same matters, it ought nevertheless to have a bearing in determining this question upon the equities be- tween the parties. If the respondent has made his m^on in due time, he is entitled, upon the principles already inmcated, to his discharge, because of the defectiveness or irregularity of the proceeding on his arrest. Should his delay in making the application interfere with such relief as an absolute right, the equitable circumstances may properly be regarded by the Court in determining whether he ought to be longer held in imprisonment in a controversy so circumstanced. It is supposed by the libellant, that Rule 25 of the Circuit Court governs the case, and that the respondent is precluded making any application for relief after four days from his arrest. That rule, it must be remarked, does not in terms cover this case. The prohibition is in respect to orders to show cause of action, to mitigate bail, or for a bill of particu- lars, all of which presuppose regularity in the proceedings, and only provide for relief to the party proceeded against in connection with the continuation of the suit. This application is founded upon irregularity and defective- ness in the proceedings of the libellant, and the respondent SEPTEMBER,' 1850. 587 « Martin v. Walker. may rightfully appeal to the Court for protection against it at any time after it is reasonably presumable he had means of ascertaining such irregularity, and especially when he has done nothing on his part to waive or cure it. The arrest was made early in August last, and the respon- dent was confined in close prison thereon about ten days thereafter. No stated term of the Court has been held since the arrest until the present sitting, nor has the Judge beefi re- siding in the city so that application could have beeimnade to him personally for relief previous to the term now in ses- sion. Although the movement has not been at the very open- ing of the Court, yet it does not appear that there has been any intentional delay or laches on the part of the respondent, and I am of opinion that he should not lose his claim to relief by the omission to bring forward his motion at the earliest day practicable. # The order will accordingly be, that he be discharged from arrest on his stipulating not to bring an action for false im- prisonment against the Ubellant, or his attorney in fact. If it was important to the interests of the libellant that his lemedy should -be sought in an Admiralty Court, he would have had easy access to the one in New Jersey, where both . parties reside, and his arrest of the defendant in New York was needless and vexatious. The defendant is accordingly to be paid his taxed costs on this motion. Order accordingly. 588 CASES IN ADMIRALTY, The Isaac Newton. The Isaac Newton. Where a cause is referred to experts to ascertain and report upon facts appertain- ing to their calling or experience, it is the settled rule, both at law and in Admi- ralty, to adopt the decision of the referees, unless there is a manifest preponder- ance of testimony against it; Where, by the terms of a contract for work and materials, a part of the contract pri tion in the suit, with at least reasonable color of grounds of defence on the part of the claimants. They could not, ac- cordingly, be justly required to recognize the demand or make any tender for its satisfaction until after the decree of the Court had fixed the right of recovery, and the report of the commissioners had liquidated the amount. It is true both parties dissent from the report, and by their exceptions appeal to the Court to set it aside ;— the libelants, DECEMBER, 1850. 595 The Isaac Nevpton. because it awards them greatly less than tbeir just dues, and the claimants, because it undervalues the damages they have sustained, and which were to be deducted from the contract indebtment. Still, according to the ordinary usage of Courts, the report of referees must be regarded as liquidating the un- certain damages so far as to afford primd facie evidence that the libeUants were entitled to that amount, and to put theclaim- ajits to the election of tendering its discharge, or afterwards litigating its recovery at the hazard of interest thereon. I shall, therefore, allow interest on the balance of $6,347.40 so reported by the commissioners, at the rate of six per cent. per annum, from July 3, 1849, the day the report was filed in Court, and thus became legal notice to the claimants. It is not made to appear upon any evidence before the Court, that the very unusual delay in closing this case, which has inter- vened, since the decision upon the merits, is ascribable to any fault of the claimants, and accordingly interest will not be carried back further than the term the report was brought into Court. The libeUants, as actors, had the efficient control of the cause, and might have speeded its decision at their option. Had their efforts to do so been thwarted by acts of the claim- ants, an equity might then have arisen to interest on the bal- ance ultimately adjusted, during the period of such interception or procrastination of their suit. Here the delay was either their own or was acquiesced in by them ; and affords no equitable ground for the allowance of interest during its continuance. I discern in this case no principle distinguishing it from those to which the ordinary rule in respect to costs, applies ; which is, that the successful party recovers with the amount in his faVor, the costs which have accrued in prosecuting his right. The case has been litigated in good faith, no doubt, on both sides. Had the demand been defeated in toto, fuU costs would have been awarded in favor of the claimants, and the converse 596 CASES IN ADMIRALTY. * The Isaac Newton. of the principle is properly applied to them when their adver- saries are the successful party. The defence put. in issue the right of the libellants to any compensation, or to maintain a suit upon the contract. They may be fairly held to take the advantages of a defence so com- prehensive and entire, together with its hazards. K it succeeds, they stand discharged of the suit with their costs ; and if it fails, the balance justly reclaimable from them should be paid with the taxable costs created in enforcing its collection. Decree accordingly. Two cases only, it will be observed, are reported for the whole of the year 1850. During that year, Judge Betts was much interrupted in holding the District Court, in part by & long-continued illness, and afterwards by an un- usual pressure of engagements in the Circuit Court. Not many- decisions rendered during that year by him in the District Court are to be found on file. The few which hare come to the hand of the reporters have been carefully examined, but the two given above are the only ones they have thought best to report. INDEX TO THE CASES REPORTED IN THIS VOLUME. ACCOUNT. 1. A Court of Admiralty in this country may entertain a suit in personam for a balance claimed by a seaman to be due to him on an account of the profits of a voyage, as his share thereof, where the libel avers that a spe- cific sum came to the hands of respondent as the proceeds of the voyage, and that libellant is entitled to a specific share of such sum. Duryee v. Mkins, 523. 2. On such a libel, the Court may inquire into the validity of any charges in account made by the respondent against the libellant, and relied upon as reducing or satisfying his share, lb. 3. A Court of Admiralty cannot entertain a libel in, personam vfhich seeks to bring respondent to a general accounting for the proceeds of the voyage, and to compel an adjustment of the proportion in which libellant is entitled to share in them. lb. i. No action can be maintained in a Court of Admiralty by one ship-owner against another to collect a balance to be determined in favor of the libellant on the settlement of the joint accounts of the parties. Martin v. Walker, 579. ACTION. Where a contract between the owners of a steamboat and other parties for the erection of a steam-engine in the boat, provided that the builders should test and prove the work, when completed, in a certain way ; and before they had so tested and proved it, the owners of the boat took possession of her, and coiiimenced running her, and the builders thereupon com- 598 INDEX. menced an action without ever having applied the stipulated tests : — Held, that the action was not prematurely brought; as the owners, by taking possession of the boat as their own, must be regarded as having admitted their liability to pay whatever was justly due for the work actually per- formed. The Isaac Newton, 11. AccotiNT. Affreightment, 2, 3, 9. Costs, 4, 5. Foreign Attach- ment. Joinder of Actions. Jurisdiction. Lien. Seaman's Wages, 1, 2, 3, 4, 5. ADMINISTRATOR. Costs, 15. ADVOCATE. Fees, 1. AFFREIGHTMENT. 1. By the general law maritime, the vessel is bound to the shipper for the performance of a contract of afiFreightment made with the master, whether by charter-party, by bill of lading, or by .parol. The Flash, 67. 2. The master of a New York vessel contracted, at the port of New York, to transport a cargo across the East River to Brooklyn, — a voyage less than a mile in length, but across tide waters. He took a part of the cargo on board, but (jifterwards refused to take on the residue, or to deliver that already laden. Held, that an action in rem would lie both for the refusal to receive on board and the refusal to deliver; notwithstanding that the contract was made in the home port, and for a voyage of so local a character, and not- withstanding that only a portion of the goods were received on board, lb. 3. The master of a vessel having contracted for the transportation of a cargo, the performance of the contract was interrupted while the lading of the cargo on board was going on, by the death of the master, and by the freez- ing up of the vessel. The owner repudiated the contract, and refused either to take on board the residue of the cargo or to deliver up that already laden. Held, 1. That the contract was binding upon the vessel and owner. 2. That the owner was, under the circumstances, entitled to indulgence for a reasonable time, both to procure a new master and to await the relief of his vessel. 3. That upon the owner's refusal to be bound by the contract, the libel- lant was entitled to proceed against the vessel for his damages. 4. That the libellant could recover damages for the value of the brick INDEX. 599 laden o^ board and withheld ; — for the cost of transporting the residue from his store-house to the dock ; — ^for any injuries received by them while they lay there awaiting the owner's acceptance ; — and for the difference in his disfavor, if any, between the contract price 'of transportation and his actual expenses incurred in obtaining another mode of conveyance. 5. That the libellant could not recover«against the vessel for injuries re- ceived by the property after notice of the. owner's refusal to complete the contract, but that the vessel was chargeable with the costs of transporting the portion of cargo left behind, to its place of destination. The Flash, 119., 4. A variance between the amount of a cargo of grain as stated in the meas- urer's bill in lading it on board, and the amount of such cargo as ascer- tained on delivery at the port of consignment, may be explained by show- ing that the mode of ascertaining the quantity is such that similar variations are necessarily of frequent occurrence. Manning v. Hoover, 188. 5. Consignees are entitled to a reasonable opportunity to ascertain whether goods delivered to them correspond in quantity and condition with the de- scription given in the shipping documents, and the liability of the master and owner remains undischarged during such period. Bradstreet v. Heron, 209. 6. A charter-party," sounding wholly in covenant, contained agreements on the part of the owner that the vessel was fit for the voyage, — that she should take in a cargo to Ipe furnished by the charterer, reserving her cabin and room for her crew, water, provisions, &c., — that the privilege of putting on board steerage passengers should belong solely to the charterer, and that if the ship should be unable to carry cargo and passengers to the stipulated amount, there should be a reduction of freight. On the part of the charterer, it was agreed that he should furnish the cargo — should pay a stipulated freight and demurrage in case of delay in loading, &c. Held, that this charter-party, construed under the presumption of law against a change of ownership, and in the light of the acts of the parties under it, was but an affreightment for the voyage, and not a letting of the entire ship, so as to constitute the charterer owner for the voyage. The •Aberfoyle, 242. 7. As between the original parties to a shipment, it is competent for them to show the actual condition of the goods at the time of the shipment. Baxter V. Leland, 348. 8. As between the owner of the cargo and the ship-owner, the delivery of the cargo at the port of destination is a condition precedent to the right to freight ; and without such delivery the acceptance of the cargo at an inter- mediate place by the owner of the cargo, is necessary to enable the ship- owner to recover either full or pro rata freight. The Ann D. Richardson, 499. 600 INDEX. 9. The laying claim to the proceeds of a sale of a cargo made by the master at an intermediate port, or the bringing suit for such proceeds, does not amount, in law, to a voliaitary acceptance of the cargo, or to a ratification of the act of the master in breaking up the voyage. Ih. 10. The owner of the vessel takes the risk of working weather during the time required for the unlading of the cargo. Sfrague v. West, 548. H. The consignee takes the risk of roads and means of transportation from the dock ; and is bound to take the cargo as delivered to him at the vessel's side, and to remove it as fast as the vessel can be reasonably discharged. Ih. Bill of Lading. Freight. Joinder of Actions, 8. Master, 1, 6. Passenger. Perils of the Seas. AGREEMENT. Contracts. AMENDMENT. After a full hearing, and the decision of the Court that the action is "not sus- tained by the proofs, as the pleadings stand, it is competent to the Court to permit parties to amend their pleadings, so as to embrjtce the merits of the case. Davis v. Leslie, 123. ANSWER. Pleading, 2, 4. APPEAL. Costs, 19. Jurisdiction, 19. Motion, 2. ARREST. 1 . The non-imprisonment act of the State of New York (1 Rev. Stats. 807, § 1,) is made to be within this State the law of the United States also, by force of the acts of Congress of 1839 and 1841 ; (5 U. S. Stats. 321, 410 ;) but it does not embrace arrests upon process issuing out of a maritime court. It is limited to civil process issuing out of courts of law, and executions issuing out of courts of equity. Gardner v. Isaacson, 141. 2. Thd standing Rules of the District Court relating to bail stipulations to be ■ given on the execution of a warrant in personam, and to the method of en- forcing them, are superseded by the Supreme Court Rules of 1845, upon the same subject ; and stipulations muat now be exacted conformably to the Supreme Court Rules. lb. INDEX. 601 3. A respondent, arrested in an Admiralty suit, is not entitled, upon the re- turn day of the warrant, to be discharged from arrest, on giving a stip- ulation for costs, pursuant to the Rule of the District Court, but he must remain in custody until he gives bond or stipulation to satisfy the decree made against him. lb. 4. The Act of Congress of August 23, 1842, (4 U. S. Stats. 518, § 6,) confer- ring upon the Supreme Court power to regulate the practice of the Circuit and District Courts, taken in connection with the rules promulgated by the Supreme Court under that act, in 1845, operates as a suspension of the acts of Congress of 1839 and 1841, abolishing imprisonment for debt on process issuing out of the United States Courts in all cases where, by the local law, it would be abolished. Gaines v. Travis, 422. 5. Since the adoption of the Rules of 1845, parties are liable to arrest and imprisonment on process issuing out of the United States Courts, irrespec- tive of subsequent legislation in the several States abolishing imprisonment on like process. Lb. 6. The general, course of Admiralty procedure in this country requires a sworn libel as the foundation of any process of arrest of person or property. Martin V. Walker, 579. 7. In holding a respondent to bail, a Court of Admiralty will be goveAied much by the equitable considerations of the case. lb. 8. Accordingly, where a libellant procured the arrest of respondent in a suit brought in a district different from that in which they both resided, upon a stale demand, of small amount, and which was already in litigation between the parties in the courts of the State in which they dwelt, — Held, that the respondent ought to be discharged from the arrest. lb. Motion, 1, 3. Pkactice, 9. AUCTION. Damages, 1, 2, 4. AVERAGE. Freight, 2. BAIL. 1. The practice of Courts of Admiralty does not admit of a surrender of the principal in exoneration df bail. Cure v. Bullus, 655. 2. In order to be discharged from a bail bond or stipulation given in Admi- ralty, the party must establish fraud, deceit, duress, illegality of considera- VOL. I. 51 602 INDEX. tion, or other matter such as at law or in equity would avoid a common money bond, or would entitle a party to be relieved from it. lb. Abkest. BILL OF LADING. 1. A variance between the amount of a cargo of coal as stated in the bill of lading, and the amount of such cargo as ascertained on delivery at the port of consignment, may be explained by showing that the mode of ascertsun- ing the quantity is such that similar variations are necessarily of frequent occurrence. Manchester v. Milne, 115. 2. As between the original parties to the bill of lading, its statements respect- ing the condition of the goods at the time they are laden on board, may be explained or rectified by parol proof. Bradstreet v. Heron, 209. 3. But as against assignees of the cargo upon a valuable consideration, the rule is clear that the master and owner are concluded by the representa- tions of the bill of lading, lb. 4. The owners of a vessel are excused from fulfilling the engagement of a bill cS" lading to deliver the cargo at a specified port, by the interposition of sanitary or prohibitory laws controlling them in that respect ; for the con- tract to deliver will be construed as subject to all restraints of government. lb. 5. A usage of consignees at a particular port to receive shipments during the quarantine season, at the quarantine grounds, as being a compliance with the engagement of the bill of lading to deliver at such port, is valid ; and the bill of lading should be construed with reference to it. lb. 6. Under a bill of lading which aoknowled'ges the receipt of goods for trans- portation in good order, the carrier may, notwithstanding, show, in case of injury to the goods, and as against the owner of them, that it was occa- sioned by insufficiency in the cask, case, &c., in which they were packed, and not by any negligence or misfeasance upon his part. Zerega v. Poppe, 397. 7. But the law presumes that the goods were delivered to the carrier in the condition specified in the bill of lading ; and the burden of proof Ues upon the carrier to rebut this presumption. lb. 8. It is not sufficient, in case of damage to goods received under such a bill, for the carrier to show that the goods were delivered to him in sufficient packages, and that the defect was not discoverable by him. He must also show that the loss actualty resulted from such insufficiency, and from no fault of his. lb. Affeeightment, 7. Peril op the Seas, 1. INDEX. 603 BURDEN OF PEOOF. 1. Where the respondent, iii an action for a seaman's wages, relies upon a pay- ment made in advance to the shipping agent by whom the libellant was shipped, the burden of proof is up6n the respondent to show affirmatively, not only that the payment was made, but also that the shipping agent was authorized by the libellant to receive it. Holmes v. Dodge, 60. 2. A shipper of a cargo of grain who takes no bill of lading from the carrier, is botind, in an action brought to recover for short delivery, to prove the amount delivered by him to the carrier to be transported. Manning v. Hoover, 188. 3. In order to prevail in an action for damages occasioned by a collision, more mijst be done by the libellant than to show his vessel clear of blame ; he must make it manifest that the loss was occasioned by the fault of those in charge of the colliding vessel. The Columbus, 385. 4. In an action brought against a master by a seaman found secreted on board and ordered to do duty and punished for refusal, to recover damages for the punishment inflicted, it is imperatively incumbent on the master to prove, in order to justify the punishment, that before giving the order he informed himself as to the seaman's experience and capacity, and ascer- tained that he was able to perform the work required of him. Allen v. Hallet, 573. Bill of Lading, 7, 8. CARGO. Affreightment, 2, 3, 4, 5, 7, 8, 9, 10, 11. Common Carrier, 1, 2, 8. Freight, 1, 2. Master, 6. Money in Court, 1. Perils of the Seas, 2. Wk CHARTER PARTY. Affreightment, 6. COLLISION. 1. An injury received by a vessel at her moorings, in consequence of being violently rubbed or pressed against by a second vessel lying alongside of her, in consequence of a collision against such second vessel by a third one under way, may be compensated for under the general head of collision, as well as an injury which is the direct result of a blow properly so called. The Moxey, 73. 2. But to entitle the injured vessel to recover against her stationary neigh- 604 INDEX. bor, under such circumstances, instead of against her who was the original cause of the accident, such stationary vessel must be proved to have been in fault. lb. 3. Where two vessels are running in the same direction, the one astern of the other, there rests upon the reair vessel an obligation to exercise pre- caution against collision, which is not chargable to the same extent upon the other. The Governor, 108. 4. A vessel in advance is not bound to give way, or to give facilities to enar ble a vessel in her rear to pass her, though she is bound to refrain from any manoeuvres calculated to embarrass the latter in an attempt to pass. lb. 5. A vessel of superior speed, running in the same direction with a slower one, has a right to pass her if she can do so with safety to both ; but the burden of proof is upon her, in case of collision, to show the prudence of her own conduct, and also to prove negligence or misconduct on the part of her rival. lb. 6. A sailing vessel is bound, when navigating in proximity to a steamboat, to take all reasonable precautions to protect herself, and to avoid injury to the steamboat, and she is not entitled to impose upon the steamer the duty to guarantee her against a collision. The New Champion, 202. 7. If injured by collision with a steamboat, the sailing vessel must discharge herself from fault, and show the adverse vessel guilty of culpable neglect, or want of due equipment or skill, which led to the collision. lb. 8. A steam vessel running into harbor, or through the common thoroughfare of other vessels, is bound to take extra precaution against collision with , sailing vessels ; and in the night, or in case of a fog, must move with great circumspection, or even lay-to or anchor, according to the danger of en- countering other vessels. The Bay State, 2.35. 9. A sailing vessel at anchor or lying-to in a dark night or in a dense fog, is so bound to take such precautions as may be in her power, to give warn- Hg of her position to other Vessels, whether steamers or vessels under can- vas, which may be nearing her. lb. 10. Under the usages of navigation upon Long Island Sound, the blowing a horn, the ringing a bell, or the beating upon an empty barrel or upon an anchor, is a reasonable precaution which a sailing vessel lying-to in a fog is bound, as towards a steamer which may come in collision with her, to take, in warning off such steamer. (Since reversed.) lb. 11. Where a collision occurred at night between a steamboat under way and a schooner at anchor in the middle of the Hudson River, opposite Fort Lee, — Held, that the taking up an anchorage in the middle of the river was not an act of culpable conduct on the part of the schooner. The Indiana, 330. 12. When a steamer and sailing vessel, proceeding in opposite directions, are approaching each other on courses which may lead to a collision, the steamer cannot be excused for holding her way, upon the hypothesis and INDEX. 605 belief that the sailing vessel cannot with safety to herself keep her tack, but nlust go about ot come into the wind before they meet. The Washing- ton Irving, 336. 13. The law casts upon the steamer the obligation of using effectively and promptly the extraordinary means she possesses to prevent a collision, lb. 14. A collision occurred in the day time, between a sailing vessel sailing on her starboard tack, on a flood tide, and a steamboat ; for which a libel was . filed on the part of the vessel. Held, 1. That it was incumbent on the steamboat to show some improper act or omission on the part of the sailing vessel, causing the collision, or it would be presumed that the steamboat neglected to use those precautions to avoid collision which the law required her to exercise. 2. That in order to protect the steamboat, such excuse must be set forth clearly in the answer of the claimants, and must be proved as laid. lb. 15. Where a steamer and sailing vessel are approaching each other in dan- gerous proximity, it is not, in ordinary circumstances, the duty of the sail- ing vessel to give way to the steamer ; but it is her right and her duty to maintain her course. The Cornelius C. Vanderbilt, 361. 16. But if there are special circumstances from which it clearly appears that the sailing vessel can prevent a collision otherwise inevitable, by a depar- ture from her course, she is bound to make it. lb. 17. A sailing vessel on the wind, meeting or converging toward a common point with a steamer, has no right to persist in her course in such a man- ner as to make a collision probable, or so as to drive, the steamboat into danger or exposure in order to avoid her, particularly after being hailed to change her course, lb. 18. This principle is especially applicable to sailing vessels and steamers meet- ing in the harbor of New York. li. 19. A ferry-boat plying across a navigable river is bound to remain in her slip, notwithstanding her appointed time of departure has arrived, if any vessel is seen or is in a position to be seen from on board her, with which she will be in danger of coming in collision if she goes out. The Columbus, 385. 20. But she is not compelled to lie waiting the expected arrival of another vessel, lb. 21. Where a vessel comes suddenly and without warning into imminent peril of a collision, — e. g. where two vessels approaching are concealed from ^ach other by intermediate objects until they are close upon each other, — ■ the necessary uncertainty and confusion created by the surprise is to be taken into account in determining whether the management of the respec- tive vessels is proper or blameworthy, lb. Damages, 3, 5, 6, 7, 8. Negligence. Usage. Witness, 1. 51* 606 INDEX. COMMON CARRIEK. 1 . Where there is no provision in the contract of aifreightment varying the liability of the common carrier, he can only relieve himself from liability for injury to goods intrusted to him, by proving that it vfas the result of some natural and inevitable necessity superior 'to all human agency or con- trol, or of a force exerted by a public enemy. The Zenobia, 80. 2. A vessel having on board a cargo of flour for transportation, capsized at her -wharf before sailing, and the cargo was much damaged. The carriers might easily have communicated ■with the owners of the cargo, and sought instructions as to the disposal of if; but they neglected to do so, and sold the cargo upon their own authority, at auction ; after which the vessel sailed, and in due time arrived at the port of delivery. Held, 1. That the sale of the flour, under these circumstances, was an unlawful conversion by the carrier. 2. That the owners of the cargo were entitled to recover the value of the cargo at the port of delivery, deducting freight and charges, and add- ing interest on the balance. 3. That the value of the cargo should be computed by the market price at the port of delivery, at the time of the arrival of the vessel, it appearing that except for the accident, the cargo would at that time, in the ordinary course of things, have been delivered ; with a privilege, however, to the owner to claim the amount realized upon the sale of the goods at auction. The Joshua Barker, 215. 3. Where there is a notorious custom in a particular branch of commerce, of stowing goods of a particular description on board ship in a certain way, shippers, who consider such mode of stowage hazardous, must notify carriers of their wish to have a different one adopted, or they will not be entitled to charge the latter with injuries received in consequence of its adoption. Baxter v. Leland, 848. 4. The propriety of the common-law rule respecting the liability of common carriers considered, lb. Affreightment. Bill of Lading. Perils op the Seas. CONSIGNOR AND CONSIGNEE. Affreightment, 5, 11. Damages, 4. Demurrage, 1. CONSULAR DISCHARGE. 1. The certificate of a consul of the United States in a foreign port, (under INDEX. 607 the Act of July, 1840,) that the discharge of a seaman was granted upon the seaman's consent, is conclusive upoh that fact, unless it is shown that the conduct of the consul was corrupt or fraudulent. Lamb v. Briarcl, 367. 2. The discharge of a seaman in a foreign port (under the Acts of February 28, 1803, and July 20, 1840,) can be ordered by the consul, only upon the consent of the seaman, given, or proved before him. The Atlantic, 451. 3. The party relying upon such discharge in defence to an action for subse- quent wages, must show the fact that such consent was given, lb. 4. Where a master procures a seaman to be discharged by a United States consul in. a foreign port, if any deceit or collusion has been practised by the master in obtaining the discharge, he can claim no benefit or immunity under it. Tingle v. Tucker, 519. 5. When there is no evidence of improper conduct on the part of the mas- ter in obtaining a seaman's discharge by a consul, and it appears that the consul has proceeded fairly, and on clear prima facie proofs has ordered the seaman to be discharged for criminal conduct, such discharge itself is a bar to any continuing claim for wages which might be enforced if the seaman's connection with the vessel still subsisted. lb. 6. The propriety of the consul's interference is to be determined upon the facts before him, and not by the case which may be afterwards shown upon a trial. lb. 7. Where a United States consul in a foreign port discharges a seaman with- out payment of three months' wages, (under 5 U. S. Stats. 395, § 1,) the dis- charge will not avail the owner as a defence to a suit for the two months' wages, which by the provisions of the act accrue to the seaman, unless the consul makes an official entry of his act both upon the list of the crew and upon the shipping articles. Miner v. Harbeck, 546. 8. These entries must b6 made by the consul personally. lb. CONTRACT. 1. The libellants, manufacturers of steam-engines, had contracted with the claimants to build for a boat owned by the latter, a steam-engine, with the main cylinder eighty inches diameter of bore, and twelve feet stroke of piston, of the best materials and workmanship, and of sufficient and suit- able size and strength in all its parts, and to include all modern improve- ments ; the boilers to be of the best Pennsylvania wrought iron, and of the most approved construction for generating steam with economy of fuel, and of size to supply the cylinder with steam at as many pounds pressure to the square inch on the piston, when working with the throttle wide open, 608 INDEX. as are used by the fastest steamlsoats on the Hudson Eiver when going at their greatest speed. Held, upon this agreement and upon the evidence in the cause, that the intention of the parties was that the boDers should be so constructed as to furnish the engine with at least forty pounds pressure of steam to the square inch on the piston (or boiler) when working with the throttle valve wide open, using such length of cut-ofF to the piston as was customary with the class of boats referred to. The Isaac Newton, 11. 2. Where, by the terms of a contract for the construction of a steam-engine, in a boat owned by the employing party, the consideration-money was to be paid by instalments as the work advanced, so that a large portion of it - would be payable before the time for the full performance of the conti-aot : Held, that the perfect fulfilment of the agreement by the party employed was not a condition precedent to the obligation of it upon the employer ; nor flould the latter take possession again of the boat without compensating the former for the benefit actually -received, although the work was not done in entire conformity with the specifications, lb. 3." Where a writing, although embodying an agreement, is manifestly incom- plete, and not intended by the parties to exhibit the whole agreement, but only to define some of its terms, the writing is conclusive as far as it goes ; but such parts of the actual contract as are not embraced within its scope,' may be established by parol evidence. The Alida, 173. 4. The owner of a steamboat, and a corporation engaged in the business of supplying coal to steamboats, had for some months been accustomed to deal with each other for the supply of coal required by the boat ; the requisite supply for her wants upon each trip being furnished her on each arrival. Under these circumstances the owner executed a written memo- randum, acknowledging that he had purchased 1500 tons of coal at a speci- fied price per ton ; which was, however, silent as to tune and mode of delivery and payment. Held, 1. That the previous course of dealing between the parties might be shown to establish their intention in regard to these points. 2. That upon this evidence the contract must be construed as intending a delivery of the coal from time to time as it might be ordered to meet the wants of the boat, and as creating an obligation to pay for each parcel of coal as delivered. lb. Affreightment. Bill op Labing. Interest. Lien, 1, 2, 3, 7, 8. Passenger, 1. Pilotage, 1, 2. Presumption, 1. Salvage, 2. Shipping Articles. COOK. Seamen, 10. INDEX. 609 COSTS. 1. As a general rule, a reference to a commissioner, in a suit for wages, is a regular and necessary step on the part of the libellant, incidental to the prosecution of the action, and cannot be the subject of an independent charge in a bill of costs. Holmes v. Dodge, 60. 2. Where, however, the reference is solely for the benefit of. the respondent, the Court will modify the order of reference so as to require the extra costs incurred to be defrayed by him. Ih. 3. Such modification must be asked for on obtaining the order of reference. lb: 4. It is inequitable for a seaman, knowing that the papers are ready for the immediate commencement of a suit by his shipmates for the recovery of wages earned on the same voyage, — or by a bottomry holder, who sues also for a portion of the wages of the voyage, previously paid by him, — to endeavor to supplant such action, by urging out in his individual name, process in advance of it, so as to subject the ship or her proceeds to need- less expenses. The Cabot, 150. 5. Costs will not be allowed the seaman in such case, nor to others who unite in the proceeding instead of joining in the prior suit in progress, lb. 6. Costs are not taxable for the preparation of written arguments, except upon a stipulation in writing to that efiiect. Manchester v. Milne, 158. 7. In what cases costs may be taxed upon motions to enlarge time to answer, upon motions for final deoreCj motions for costs, for a reference, &c. lb. 8. In what cases costs may be taxed for motions to postpone the hearing of a cause called in its order on the calendar, lb. 9. Where a libel demaaled the recovery of $6.75, wages due to each of two libellants, and $75 to each for salvage services, and the claim for wages was allowed, but that for salvage service was disallowed, and the decree was generally for the wages due, " with costs," — Held, that plenary costs were taxable in favor of libellants. The Remnants of the CaithnesMre, 163. 10. The discretionary power of the Court over the award%f costs cannot be exercised on an appeal from taxation, especially after the expiration ot the term in which the decree is rendered, lb. 11. Costs of a suit for seaman's wages imposed on libellants, where the crew had taken possession of the vessel while on her voyage and brought her home, under reasonable grounds of suspicion that she was to be engaged in the slave-trade. - The Mary Ann, 207. 12. Of the alUowance of costs upon exceptions to a commissioner's report made in the alternative. The Joshua Barker, 215. 13. A mere attempt to negotiate a compromise of a claim at an amount speci- 610 INDEX. fied, unaccompanied with a tender or direct offer to pay sueh amount, does not operate as an equitable bar to costs. The H. B. Foster, 222. 14. It is the course of Admiralty Courts not to impose costs upon seamen when they establish probable cause for instituting suits for redress. How- land V. Conway, 281. 15. Three causes, brought on the same facts, by different libellants, being at issue, it was stipulated that two should abide the decision of the third. Before the third was brought to hearing, the libellant died ; and his ad- ministratrix continued the cause. A decree was rendered in favor of the claimants ; but without costs, for the reason that the action was prosecuted by an administratrix. Held, that in the other causes, the claimants were entitled to dlecrees dismissing the libels, with costs. The Buffalo, 483. 16. A libel was filed by each of two members of a ship's crew to recover damages for breach of a shipping contract ; and subsequently eleven other libels were sworn to by eleven other members of the crew, upon the same state of facts and upon the same cause of action. Before answer was filed to either of these libels, and before the eleven libels were filed, a stipula- tion was entered into that the thirteen causes should be consolidated. An answer, presenting two issues, was then put in, and the cause having been brought on for hearing, the libellants prevailed upon the first issue, but the respondent succeeded upon the second. Held, on appeal from taxation of costs, 1. That the costs of the two sepa- rate libellants and of the respondent were to be taxed in both the two suits first commenced, up to the date of the consolidation ; but fii'om that date libellants' costs were to be taxed only in the suit which was thereafter prosecuted. 2. That fuU costs of the issue on which the libeHants prevailed should be taxed in their favor, and full costs of the issue on which the respondent succeeded should be taxed to him ; and that these two biUs should be set off the one against the other, and the balance paid by the party from whom it might be due. Simpson v. Caulldns, 539. 1 7. This Court does not tax plenary costs when the sum in dispute does not exceed $50, alfcough the proceedings are plenary. McCfinnis v. Carlton, 570. 18. Although the libellant, in his libel, claims a sum exceeding $50, yet if upon the hearing he admits that an amount less than that sum is all that is due to him, and claims to recover only such lesser sum, he can recover only summary costs on a decree in his favor. lb. 19. The cause would not be appealable to the Circuit Court in that condition of the demand. lb. Stipulation. INDEX. 611 COURTS. Jurisdiction. DAMAGES. 1. A cargo of goods, being in part' damaged and in part sound, was sold at auction by the consignees, ■without separation of the sound from the un- sound. Hel(l, that it was the duty of the master not of the consignees to make such separation, if requisite to obtain a favorable sale ; and that the want of it did not prevent the consignees from relying upon the auction price as showing the value of the goods as damaged. The Columbus, 37. 2. How far sales at auction are sanctioned in such cases, lb. 3. The rule of mutual contribution is not applied to cases of accidental col- lision from physical causes for which neither vessel is to blame ; but each vessel in such case mu«t bear her own loss. The Moxey, 73. 4. Where goods were damaged during transportation on board ship, and were received by consignees upon an understanding that the depreciation was to be made good to them, and they were sold by auction by the con- signees, but with the assent of the master, — Held, that for the purpose of making "adjustment of the amount djje from the vessel for the injury, the sum realized at the sale should be regarded as the value of the goods in their damaged state. The Columbus, 97. 5. The general rule of damages applicable to collisions which are not wilful is, that the owner of the ipjured vessel is to receive a remuneration which will place him in the situation in which' he would have been but for the collision. The Rhode Island, 100. 6. The owner of a vessel showing himself entitled to damages for collision, is entitled to compensation for the loss of the use of -his vessel during the time consumed in making repairs, lb, 7. In the absence of direct evidence of the amount of this item of loss, inter- est upon the value of the vessel for the time occupied in making repairs may be awarded as a fair compensation in this respect, lb. 8. The rule of equal contribution should be applied in cases of damage caused by a collision /or which both colliding vessels are mutually in fault. The Bay State, 235. Affreightment, B. Collision. Common Carrier, 2. Demurrage. DECREE. Interest. Practice, 2, 3, 4, 12, 13. 612 INDEX. DEFAULT. Where a warrant of arrest, although containing a foreign attachment clause, gives no direction to bring the garnishee before the Court, nor any citation to him to answer the libel, a default entered against him /or non-appear- ance on the return of the process is irregular. Smith v. Mun, 373. Waiver, 1. DEMURRAGE. 1. It seems that the consignee cannot be made liable for demurrage where there is in the charter-party or bill of lading no express agreement or stip- ulation in respect to it, or in respect to lay days. Sprague v. West, 548. 2. The freighter is liable to the vessel for any unnecessary detention in load- ing or unloading, although no express contract is made on the subject ; and compensation for such detention may be recovered under the name of demurrage. Jb. « 3. Upon what principles demurrage for the unnecessary detention of a vessel while unloading, should be computed. Jb. DEPUT":^ MARSHAL. The deputy marshal is an officer of the District Court, amenable to its juris- diction for malfeasance in office ; and this jurisdiction may be exercised by summary order or attachment for contempt. The Bark Laurens and $20,000 in Specie, 508. Marshal. DISCHARGE. Consular Discharge. ESTOPPEL. 1. A party cannot be allowed, after receiving a pleading and replying to it, to treat it, upon any ground of defect afterwards discovered, as a nullity, and proceed as if none had been served. Qaines v. Travis, 297. 2. Where the owner of property places it in the hands of another person, solely that the latter may make repairs, improvements, additions, &c., to it, and afterwards demands and I'eceives the re-delivery of it, this is not an admission on the part of such owner that the services agreed for have been INDEX. 613 performed, nor does it estop him from contesting the fact of tjie fulfilment of the agrecmenW The Isaac Newlon, 11. . It seems, howe-^^that such acceptance of the redelivery of the property- may be regarded at law as an admission that the owner has received some benefit, and that the other contracting party is entitled to some remunera- tion for the work done. lb. . Where, by the terms of a contract for building a steam-engine, the work was to be done under the superintendence of the employers, and to be paid for in instalments as it proceeded, and was to be finished at a specified time ; and the work was protracted beyond that time, but the employers continued their superintendence, and made payments on account there- after: — Held, that by so doing they acquiesced in the delay and estopped themselves from claiming damage therefor. lb. ' AcTi^. Bill of Lading, 3. EVIDENCE. 1. A deed of assignment executed in another State, and attested by two sub- scribing witnesses, was offered in evidence, accompanied by proof , of the signatures of one of the witnesses, and of both the assignors. Held, 1. That the witnesses were presumed to reside at the place of exe- cution and to be without the jurisdiction of the Court. 2. That the prodf of the assignors' signatures was admissible as secondary evidence of the execution. Manchester v. JBne, 115. . 2. In an action for wages brought since the Act of 7 & 8 Vict. ch. 112, the production of the certificate mentioned in the act is not required as an absolute condition precedent to a right of recovery by seamen, but is directed as a mode of proof which shall- be suflScient, other legal means of evidence to show the fidelity of the seamen, and their title to wages, not beitg excluded. Davis v. Leslie, 123. 3. The testimony of the master of a foreign vessel that he had discharged a seaman in this port, will not be allowed, in a suit by the seaman, in this Court, against the vessel for wages, to countervail his official report to the consul of his nation, that the seaman deserted the ship. The Infanta, 263. 4. A report that a ship is^ seaworthy, made by marine surveyors, upon occa- sion of the crew demanding to leave her for unseaworthiness, is not conclu- sive against the crew, in a subsequent action for wages, after leaving. Bucker v. Klorkgeler, 402. 5. It seems, that where original shipping articles are proved before a commis- sioner, and redelivered to the vessel, who thereupon pursues her voyage, a copy certified by the commissioner is competent evidence upon the hear- ing. Henry v. Curry, 433. VOL. I. 52 614 INDEX. 6. To entitle an instrument to tUe respect accorded to documents under official signature and seal, the signature must be legibl^^nd the impression of the seal sufficiently distinct to allow the vignette an^notto to be distin- guished. The Atlantic, 451. Contracts, 3, 4. Estoppel. Presumption. EXECUTION. 1. Under Rule 3 of the Supreme Court, the principal and his surety on the bond or stipulation given upon an arrest in personam, stand upon the same footing. Holmes v. Dodge, 60. 2. The award which grants execution upon a final decree, authorizes it against all parties embraced in the decree ; and there is no necessity of special notice to the surety of respondent of an appUcation for an execu- tion against him. lb. 3. Under the Rules promulgated by the Supreme Court, execution properly issues against stipulators, summarily upon the decree rendered against their principals ; the giving the stipulation being regarded as a submission by the stipulator to such decree as may be rendered against the party for whom he is bound. Gaines v. Travis, 422. PEES. 1. Since the adoption of thaJCircuit Court Rules of 1845, Rule 96 of the District Court of 1838, refiSng to a proctor in a suit fees as advocate, is abrogated in respect to all fees other than those specifically introduced and appointed by the District Court ; and fees for services as proctor and as advocate are taxable to the same person. Manchester v. Milne, 158. 2. K the former Rules of the District Court respecting security to be given for costs may be considered as still in force for the purpose of protectiftn to the officers of the Court for the recovery of their fees, this is not a matter which afiects the libellant, and he is not entitled to ground any proceeding on the omission of the respondent to give the security prescribed by those rules. Oaines v. Travis, 297. FOREIGN ATTACHMENT. . In order to authorize proceedings in a suit prosecuted in a Court of Admi- ralty by foreign attachment, to be carried on against the garnishee person- ally, it is necessary that the warrant or process served upon him should contain a summons or notice, warning him of the claim in suit, and citing him to appear and answer. Smith v. Miln, 373. INDEX. 615 2. The primary purpose of the attachment is to effect the appearance of the defendant in the action, and not that of the garnishee, lb. FOKEIGNEES. Jurisdiction, 1, 2, 3, 4, 5, 6, 7, 8, 9, 10, 13, 14, 1'5, 16. FORFEITURE. Seaman's Wages, 7, 8, 9, 10, 11. FREIGHT. 1. Where a vessel puts in at an intermediate port in distress, and it is there found that a portion of the cargo has been rendered worthless by perils of the sea, while the residue is not of sufficient value to warrant continuing the voyage, and such portion is therefore sold by the master and the voy- age broken up, no claim for freight, either in full or pro rata, or upon a quantum meruit, can be maintained by the ship-owner against the shipper. The Ann D. Richardson, 499. 2. Upon what principles the general average should be adjusted in such a case, as respects the contribution due from the cargo. lb. Affreightment, 8, 9. GARNISHEE. Foreign Attachment. GUARDIAN AD LITEM. In an action by a minor to recover wages as seaman, the respondent is not entitled to require the appointment of a guardian ad litem or next friend for the libellant. Wicks v. Ellis, 444. HUSBAND AND WIFE. Witness, 5. INTEREST. 1. Where, by the terms of a contract for work and materials, a part of the contract price is to be paid in instalments as the work advances, the em- 616 INDEX, ployer is not entitled on the adjustment of a decree for a balance remain- ing due on the work, to be credited with interest on the payments made by him while it was advancing. The Isaac Newton, 588. 2. Where a party contracting to furnish labor and materials has completely fulfilled the contract on his part in due time, he is entitled to recover in a suit for the compensation stipulated by the contract, interest on the amount due him, at least from the commencement of the suit. lb. 3. But where, in such case, the right of the party to recover his compensa- tion under the contract is doubtful and contested on reasonable grounds, and the amount due him requires to be adjusted by the proceedings in the suit, interest is only recoverable after the right of the party to recover, and the amount of his recovery have been determined, lb. 4. If in such case the report of referees fixing the amount due to libellant is ultimately confirmed, he will be entitled to interest from the filing the re- port, although both, parties lave excepted to the report, and prosecuted their exceptions to a hearing with a view to have it set aside. lb. JOINDER OF ACTIONS. 1. A seaman who claims to recover both for wages and for moneys advanced to the ship's use, may join in a libel in rem with a co-libellant claiming wages only. The Sloop Merchant, 1. 2. A claim for seamen's wages and a claim for moneys advanced to the use of the ship may be united in one action against the ship. lb. 3. Where the vessel is liable to two UbeUants for wages, for which, under the practice of the Court in respect to the consolidation of suits, they may be compelled to sue in common, they may join in one action in rem, not only in suing for the common demands, but also in respect to other claims which are peculiar to each. lb. 4 Where both the vessel and the master or owner are conjointly liable, the personal remedy, and the remedy against the vessel, maybe sought in one and the same action. lb. 5. Rule 13 of the Supreme Court interdicts the blending of an action against the owner personally, with one against the vessel, for the recovery of wages, lb. 6. A claim for wages, and for moneys advanced to the use of a vessel on the part of one libellant, cannot be joined, in an action in personam, with a separate claim for wages alone, on the part of another, lb. 7. There is no abstract incompatibility between proceedings in rem and pro- ceedings in personam, which forbids them to be joined in one action where such joinder is calculated to advance the ends of substantial justice. The Zenobia, 48, INDEX. 617 8, Where both the vessel and the master or owner are conjointly liable upon a contract of affreightment, the personal remedy, and the remedy against the vessel, may be sought in one and the same action, lb. JURISDICTION. 1. The maritime courts of this country and of England are not without juris- diction over actions, whether in rem or in personam, between foreigners. Davis V. Leslie, 123. 2. But as a general rule, both the American and the English courts will de- cline to entertain such actions, excepting where it is manifestly necessary that they should do so, to prevent a failure of justice, lb. 3. The Admiralty Courts of the United States will decline jurisdiction of con- troversies arising between foreign masters and crews, unless the voyage has been broken up or the seamen unlawfully discharged. The Infanta, 263. 4. It is expected that a foreign seaman, seeking to prosecute an action of this description in the courts of this country, will procure the official sanction of the commercial or political representative of the country to which he belongs ; or that good reasons will be shown for allowing his suit in the absence of such approval. lb. 5. There is no authority of weight which imposes on the courts of our own country the necessity of determining controversies between foreigners resi- dent abroad, either in common-law proceedings, transitory in their nature, or in maritime suits prosecuted in rem. One Hundred and Ninety-four Shawls, 317. 6. It rests in the discretion of a Court of Admiralty whose aid is invoked to the settlement of a controversy between foreigners, to hear and determine it, or to remit the parties to their home forum, lb. 7. What considerations wiU govern a Court of Admiralty in determining to exercise or decUne.juris^ction of a suit between foreigners ? lb. 8. As a general rule, where the only question in a salvage suit is as to the rate of reward, and the salved property is within the jurisdiction of the Court, a Court of Admiralty, in this country, will entertain the suit, not- withstanding that all the parties are foreigners, lb. 9. li seems, that when in a salvage suit between foreigners, the answer charges the libellant with wanton misconduct in obtaining possession of the property, and prays the privilege to contest the claim of the Ubellant be- fore the courts of their common country, the case should be dismissed to the home forum, lb. 10. A Court of Admiralty has no jurisdiction to afford a remedy, either in rem or in personam, for the breach of an executory contract for personal 52* 618 INDEX. services to be rendered to a vessel in port, in lading or unlading her cargo. Cox V. Murray, 340. 11. In order to clothe a contract with the privilege of a remedy in the Admi- ralty Courts, the subject-matter of the contract must be maritime in its nature.- This is the case only when the matter done, or begun to be done under the contract, regards the fitment of the vessel herself for the voy- age,-^aid and assistance rendered on board her in prosecuting the voyage, — or the employment of her as the "vehicle of a voyage. lb. 12. The maritime courts of this country and of England are not without juris- diction over actions, whether in rem of in personam, between foreigners. Bucker v. Klorkgeier, 402. 13. But as a general rule, both the American and English courts will decline to entertain such actions, excepting where it is manifestly necessary that they should do so, to prevent a failure of justice, lb. ,14. It seems that a deviation from the voyage for which foreign seamen shipped, is not a ground upon which our courts should entertain jurisdic- tion of a suit for wages, where, by the articles, the libellants have stipulated to sue in their own country only. lb. 15. Unseaworthiness of a vessel releases the crew from obligation to sail with her, and on showing such condition of the vessel, and that they left her on that account, they may maintain an action in personam for wages here, although all parties are foreigners, and are under agreement not to sue while abroad, lb. 16. Under the practice in this country, the approval of the consul, or other representative of the nation to which foreign seamen belong, is not abso- lutely necessary to the maintaining of a suit between them. Ih. 11. K Court of Admiralty has not jurisdiction of an action to recover wages for services in a voyage upon a canal not connecting navigable lakes or different States or Territories. McCormick v. Ives, 418. 18. Nor will the fact that a small portion of the voyage is through public navigable waters, give jurisdiction, if the main end contemplated by the contract was a service upon such canal, lb. 19. The authority of the District Court, in cases pending on appeal, ex- tends only to the protection of parties against unreasonable delay. The Josephine, 481. 20. To impart a maritime character to personal services rendered in or upon a vessel, they must be connected with the reparation or betterment of the vessel, or be rendered in aid of her navigation directly by labor on the ves- sel, or in sustenance and relief of those who conduct her operations at sea. Gurney v. Crockett, 490. 21. A person employed to visit a vessel at anchor, from time to time, to see to her safety, ventilate her, try her pumps, and the like, cannot maintain a suit in Admiralty to recover his Compensation for such services, lb. IIg)EX. 619 22. But if, in the course of such employment, a necessity arises that such keeper should get the ship under way, and navigate her from one anchor- age to another, this.is a maritime service for which libellant may recover in a Court of Admiralty. lb. 23. The resignation of office by an officer of the Court, does not oust the Court of jurisdiction to proceed against him by attachment for contempt for any acts of misconduct committed by him while in office. The Bark Laurens and $20,000 in Specie, 508. 24. Work done upon a vessel in the dry dock, in scraping her bottom pre- paratory to coppering her, is not of a maritime character ; and compensa- tion for such labor cannot be recovered in a Court of Admiralty. Bradley V. BoUes, 569. Account. Shipping Articlbs, 1, 2. LIBEL. Pleading. Verification. LIEN. 1. Where an agreement is entered into between the Blaster of a vessel and a passenger, for the transportation of the latter, with his baggage, and pas- sage money is paid in advance, and the agreement is unperformed through the fault of the master, the ship is liable, in specie, to refund the advance passage-money, and to pay damages for any failure to deliver the goods shipped. The Zenobia, 48, 2. In respect to the liability of the ship for contracts made with the master for transportation for hire in the regular course of the vessel's occupation, the law makes no distinction between the transportation of passengers and of merchandise. lb. 3. The libellant, a blacksmith, solicited the engineer of a domestic steamboat running daily between New York and Albany, to employ him in making such repairs as should be required during the season by the boat, in the line of his trade. The engineer promised this, and the libellant was called upon to inake,,and did make repairs upon the boat at various distinct times, sending in his bills monthly. Held, 1. That these facts did not constitute an employment for the sea- son, but that the libellant had a right of action for each distinct job when it was completed. 2. That libellant's lien upon the boat, if any, under the provisions of 2 Kevis'ed Statutes, 405, § 2, for each item of service rendered by him, was discharged on the lapse of twelve days after the departure of the boat from 620 INDEX. Albany for New York next foUomng the rendering of such service. The Alida, 165. 4. The Court aflfords a remedy against domestic vessels for labor; supplies, &c., furnished, only where the vessel is subject by the local law to a lien there- for ; and the privilege is enforced subject to every qualification or limita- tion attached to it by that law. lb. 5. A steamboat is subject to a lien under 2 Revised Statutes, 493, for fiiel furnished her for the purposes of her navigation, lb. 6. THe lien for labor, supplies, &c.,' furnished to vessels, given by 2 B«vised Statutes, 493, takes eflfect from the time when the benefit is actually con- ferred, not from the date when it is engaged or contracted for. lb. 7. Ships carrying passengers for hire stand upon the same footing in respect to their responsibility in rem for the performance of the passage contract, with those carrying merchandise on freight. The Aberfoyle, 242. 8. When a lien is claimed for labor and materials furnished in fitting out a vessel for sea, the Admiralty Courts of the United States observe the lex loci contraclus, and grant or refuse the remedy sought, according as it is allowed or denied by that law. The Infanta, 263. Mastbk, 1. Passenger, 1, 2. Seamen, 4, 5, 6, 7, 8, 9. ' MARSHAL. Ti;ie marshal is personally answerable (under Sup. Ct. Rules, 41, and Dist. Ct. Rules, 158) for any failure to pay moneys attached by him, into Court forthwith ; and the responsibility of the deputy is no less stringent than that of the marshal. The Bark Laurens and S20,000 in Specie, 508. MASTER. 1. A delay of the master to present to the custom-house officers at the port of consignment a proper manifest, by which delay the owner of goods shipped on board is unable to pass them through the custom-house, is a neglect of his duty as a master, for which the vessel is responsible. Hie Zenobia, 80. 2. It is well settled in this country, that the master, as such, has authority to sell a wrecked vessel, when he proceeds in good faith, exercising his best discretion for the benefit of all concerned ; and this whether the sale is made in view of a peril then involving the vessel, or of one likely to ensue, from which, in the opinion of persons competent to judge, she cannot be rescued. The Lucinda Snow, 305. 8. The employment of a master to take command of a vessel for a foreign voyage, is usually a circumstance so notorious that there can seldom be INDEX. 621 wanting definite and decisive evidence by which the fact of such employ- ment may be established. Jones v. Davis, 446. 4. There is, moreover, no incompatibility between the employment of one person as master to superintend the loading and preparing a vessel for sea, and the engagement of another person to take the command of her upon the voyage. Jh. 5. When, therefore^ one claiming under an alleged employment as master for a foreign voyage seeks to establish such employment, merely by infer- ence from services ;rendered and acts performed by him, under author- ity of the owners, in making the vessel ready for sea, the Court will require that the evidence shall be so strong as to exclude all reasonable doubt that an employment for the voyage was intended. lb. 6. The master, although agent for the ship and cargo to the extent of being empowered, in a case of extreme urgency, to sell either or both, is not authorized to accept the cargo on behalf of its owner short of the port of delivery. The Ann D. Richardson, 499. Damages, 1, 2. Evidence, 3. Lien, 1, 2. Passenger. Sale. Salvage, 8. Seamen, 10, 11. MISNOMER. Maritime courts will not lay much stress on an objection of misnomer unsup- ^ ported by evidence that the party was in fact not known by the name ascribed to him. Henry v. Curry, 433. MONEY IN COURT. 1. Where specie, although consisting of foreign coin, is attached under proc- ess of the Court, the officer is bound to pay it into Court as money ; and it is not to be considered as cargo merely. The Bark Laurens and $20,000 in Specie, 508. 2. Under the Act of April 18, 1814, (8 U. S. Stats. 127,)— which directs that moneys received by officers of the United States Courts shall be deposited in bank, &c.,— the Court is authorized to require its officeVs to pay moneys received by them into Court, to be deposited in bank by the clerks of the Court. lb. MOTION. 1. A motion to discharge respondent from arrest, on the ground that the libellant has no legal cause of action against him, will not be granted where the affidavits read upon the motion in behalf of the respective parties, are contradictory as to the merits of the eause. Hicks v. Ellis, 444. 622 INDEX. 2. A motion to dismiss an appeal taken from a decree in the District Court to the Circuit Court, must be made in the Circuit Court. The Josephine, 481. 3. A motion to set aside an arrest, founded on irregularity in the libellanf s proceedings, is not within Rule 25 of the Circuit Court, and will not be denied of course, merely because it was not made at the earliest day prac- ticable after the arrest. Martin v. Walker, 579. Costs, 7, 8. NEGLIG-ENCE. The failure to keep out a good light during the night, and the &ilure to maintain a sufficient watch on deck, are either of them acts of culpable negligence, which will prevent a vessel from recovering damages for a col- lision. The Indiana, 330. NOTICE. 1. Under the Act of Congress of March 2, 1 799, (1 U. S. Stats. 696, § 90,) the notice of sale in cases of condemnation under the act must be published every day for fifteen days, in the newspapers directed by the act. The Hornet, 57. 2. Under Rules 47 and 48 of the District Court, notice of sale under venditi- oni exponas, (except on condemnation of property on seizure by the United States,) must be published for six days ; and the sale will be set aside if this full number of publications is not made. lb. Pbaotice, 13. OFFICER. Deputy Marshal. Fees, 2. Jtjkisdiction, 23. Marshal. Master. Seamen, 2, 3. PARTIES TO ACTION. 1. Where an attorney in fact of an absent owner of property, intervened on his behalf by claim and answer, and the owner afterwards came within the United States, and moved to be allowed to defend in his own name, Held, that he was entitled to do so on payment of costs of opposing the motion, and on entering into a new stipulation for costs. The Bark Lau- rens and $20,000 in Specie, 302. , INDEX. 623 2. Ori^nal proceedings taken in a Court of Admiralty against vessels cap- tured in war by a public vessel, to divest the former ownership and to confiscate the captured property, should be taken in the name of the gov- ernment under whose authority the capture was made, and npt in the names of the individual captors, unless express authority is given to the latter to sue in their own names. Proceeds of Prizes of War, 495. 3. But where the proceeds of prizes have been brought into Court, the parties entitled to distributive shares therein may file their libel in their individual names. lb. PARTNERSHIP. Account. ^ PASSENGER. 1. Where libellant contracted with the master in a foreign port for a passage to this country, and, paid a part of his passage-money in advance, but the master failed to fulfil his contract, and libellant Was obliged in consequence to take passage in another vessel, — Held, that the vessel was responsible for the fulfilment of the agreement ; and that the libellant was entitled to recover from her the passage-money paid in advance, the expenses incur- red by him in awaiting the sailing of another ship, and the sum paid by him to such second vessel for his passage in her. The Zenohia, 80. 2. Ships carrying passengers for hire are liable in rem for wrongful acts of the master in his capacity as such ; but not, it seem's, for acts of mere per- sonal private malice or ill-will. The Aberfoyle, 242. 3. Where a passenger is put on short allowance by the master, the latter will not be presumed to have acted from personal malice ; and if such short allowance be a violation of the passage contract, the ship wUl be held liable unless it is shown that the master's conduct was malicious and wrongful. Ih. Lien, 1, 2, 7. PAYMENT. Money in Cotjbt. Sf-ambn's Wages, 6. PERILS OF THE SEAS. 1. The phrases " the dangers of the seas," " the dangers of navigation,'' and " the perils of the seas," employed in bills of lading, are convertible terms. Baxter v. Leland, 348. 2. Wherever a cause of injury to a cargo lies very near the line which sepa- rates excusable perils of the seas from those dangers for which carriers are 624 INDEX. responsible, regard is to be had to the custom of the trade in determining ■whether it is to be classed with perils of the seas or not. lb. 3. A dampness or sweating of the hold of a vessel, shown to be the ordinary- accompaniment of a voyage from southern to northern ports, and to result not from tempestuous weather, but from occult atmospheric causes, is not a " peril of the seas." lb. PILOTAGE. 1. Whether, under the established usage among steamboats plying upon the Hudson River, the mere hiring of a pilot at monthly wages, eflfected prior to the commencement of the season of navigation, carries with it an im- plied engagement that the employment shall continue throughout the entire season, — Query? Truesdale v. Young, 391. 2. Whether such engagement could be implied wMtre the hiring was eflfected after the season was partly over, — doubted. lb. 3. There is no statute in force regulating the compensation payable for pilot- age service rendered through Sandy Hook channel. Love v. Hinckley, 436. 4. The former laws upon this subject reviewed. lb. 5. The libellants piloted a vessel partially crippled, but not in immediate peril, nor unnavigable, through the Sandy Hook channel, and claimed extra fees, as for a vessel in distress, on the ground of usage of the port. Held, 1. That the proofs in the cause did not authorize the Court to say, that the term distress was by the usage of the port appUcable to the condition of the vessel in question. 2. That the proofs did not show a usage of charging and paying double fees as a legal right, even for services rendered to a vessel in distress. 3. That the libellants were entitled to a reasonable extra compensation to be fixed by the Court, for the increased responsibility and eflfort pre- sumably incurred in consequence of the crippled condition of the vessel. lb. PLEADING. 1. In Admiralty no decree can be rendered upon proofs merely, when the subject-matter of those proofs is not embraced within the pleadings. The decree must conform to the allegations of the parties. Davis v. Leslie, 123. 2. Where a sworn answer is not demanded by the libel, the libellant may contradict its allegations, by proofs, without filing a replication thereto, or notice of such proof The Infanta, 263. 3. In answer to a libel for wages, the claimants set up a stipulation in the shipping articles in bar of the recovery. The libellant served a replication INDEX. 625 in the usual form, but contended, upon the trial, that the stipulation relied upon was void. Held, 1. That so far as the claim to treat the stipulation as void might rest upon any matters of fact outside the stipulation itself, the question was not raised by the general replication ; but the libellant ought, either by an amendment of the libel or by a special replication, to have introduced into the pleadings averments contesting or avoiding the apparent bar contained in the stipulation. 2. That the question, whether the stipulation was not void in point of law in itself considered, and apart from any extraneous facts, might be raised on the general replication, and should be considered as if it had arisen upon demurrer or exception to the answer. The Atlantic, 451. 4. Where, in answer to a libel for wages, the claimants set up a discharge of libellant in a foreign port by order of the consul, it is incumbent on them to set forth in their answer a state of facts justifying the discharge relied on, and to support the allegations by adequate proof Ih. Amendment. PRACTICE. 1. The history of the distinction between proceedings in rem ^nd in perso- nam, reviewed. The Sloop Merchant, 1. 2. To entitle the claimant or respondent, in Admiralty, to claim judgment against the libelant preliminarily, on the ground that his right of action " did not mature until after the suit was commenced, the objection must be raised by plea in abatement or demurrer. The Isaac Newton, 11. 3. And where such plea has not been interposed, the Court will not pro- nounce against the action merely on the ground that it was prematurely brought, if the right of action is perfected before the final hearing. lb. , 4. In such cases parties wUl be protected, in the adjustment of costs, from any injustice arising from a too early commencement of the suit. lb. 5. An objection to the regularity of a commissioner's report cannot be brought forward by exception to the report ; but should be raised by motion founded upon the irregularity. The Columbus, 37. S. An exception to a commissioner's report draws in question only the rea- sons upon which the report is founded. Ih. 7. Where a libel is filed for a cause of action upon which both vessel and master may be together liable, the Court will not make an order that the libellant elect between the remedy in rem and that in personam, nor that he submit to have either the'^'arrest of the respondent or the attachment against the vessel vacated. The Zenohia, 48. VOL. I. 53 62B INDEX. 8. The legality or propriety of an order of reference cannot be impeached upon exception to the report. The Rhode Island, 100. 9. The practice of the English Admiralty and the former practice of the District Court, in respect to the security required to b^given by a respond- ent arrested upon bailable warrant, in order to authorize his discharge from the arrest, — stated. Gardner v. Isaacson, 141. 10. An irregularity of practice must be objected to by the party affected by it, within the term of the Court next subsequent to its becoming known to him. The Infanta, 327. 11. TTie practice 'of Courts of Admiralty in respect to the process of foreign attachments, — defined. Smith y. MUn, 37S. 1 2. There is no rule of practice governing proceedings in Admiralty suits in the District Court which requires either party to give the other notice of a final decree, otherwise than by adopting the proper means for enforcing it. Gaines v. Trams, 422. 13. A decree from which an appeal may be taken, cannot be executed within ten days after it has been rendered ; but the delay is for no other purpose than to favor the right of appeal, and the mere entry of the decree is no- tice to all parties. lb. 14. Where the United States District Attorney authorizes a suit for the con- demnation of a prize to be filed in the names of the individual captors, the Court will allow the proceedings to be so conducted, instead of requiring that the suit be instituted on behalf of the goventment. Proceeds of Prizes of War, 495. Action. Amendment. Arrest. Bail. Costs. Default. Estoppel. Foreign Attachment. Guardian ad Litem. Interest. Joinder OF Actions. Jukisdiction. Misnomer. Money in Court. Motion. Notice. Parties to Actions. Pleading. Keference. Sal- vage, 4. Stipulation. Variance. Verification. Waiver. Witness. PRESUMPTION. 1. Where, in the case of a contract for services in which no definite term of service is expressed, there is proof that the party claiming to have been hired as pilot represented the engagement was terminable at his option, this affords a strong presumption that it was terminable, also, at the option of the other party. Truesdale v. Young, 891. 2. In defence to a libel for wages as cook and steward by one William Henry, respondent put in shipping articles executed by William Henderson as cook and steward. Held, that the presumption was that the libellant was the person who had entered into the articles. Henry v. Curry, 433. Bill of Lading, 7. Master, 3, 4, 5. INDEX. 627 PRINCIPAL AND SURETY. Bail. Execution. PROCEEDS. ' Money in Court. Parties to Actions, 2, 3. PROCTOR. Fees, 1. REFERENCE. . Where a cause is referred to experts to ascertain and report upon facts appertaining to their calling or experience, it is the settled rule, both at law and in Admiralty, to adopt the decision of the referees, unless there is a manifest preponderance of testimony eigainst it. The Isaac Newton, 588. . Where, upon reference to a commissioner, there is a conflict of testimony upon a question of fact, the Court will adopt the conclusion of the commis- sioner, unless there' is a palpable preponderance of evidence against it. Holmes v. Dodge, 60. Costs, 1, 2, 3. Practice, 5, 6, 8. REPLICATION. Pleading, 3. SALE. 1. The purchaser of a wrecked vessel from the master is not bound, in order to maintain his title, to furnish direct and positive evidencaof the honesty of the master's conduct and of the necessity of the sale ; but presumptive proof of those facts is sufficient. The Lminda ,Snow, 305. 2. The circumstance that the master who has sold a stranded vessel believed at the time that he could get her off, would be pertinent to show bad faith avoiding the sale ; but proof that the purchaser believed himself able to rescue the veSel, can have no such effect. Ih. 3. The degree o{ necessity which justifies the sale of a wrecked vessel by the master, — defined. lb. 628 INDEX. SALVAGE. 1. Salvage service is such service as is rendered in rescue or relief of prop- erty at sea, in imminent peril of loss or deterioration. The H. B. Foster, 222. 2. Where there is a hiring or bargain bond fide, and free from fraud or mis- take, for aid to be rendered by one vessel to another in distress, the terms of such agreement are adhered to as the rule of compensation ; but where no agreement is made, the rate of remuneration for such services is to be governed by the considerations applicable to salvage cases. lb. 3. A vessel laden with a valuable cargo, being overtaken by a storm while entering the harbor of her port of destination, was left by her crew, wholly crippled and unnavigable, and in a situation where a recurrence of severe weather might have produced a total loss, yet lying in the mouth of the harbor and within ready reach of assistance. A steamer, engaged in the business of towing vessels to and fro in the harbor, went. out to her relief, reaching her just as another steamer of like occupation was approaching, with a view to render similar assistance, and took her in tow and brought her up to the wharf; the entire time consumed being five hours, and the severity of the storm having abated. ' Held, 1. That this was a case for salvage compensation, and not one of mere towage service. 2. That it was not a case of legal derelict, nor one entitling the salvors to extraordinary compensation. 3. That $250 was a reasonable compensation for the service rendered. lb. 4. A Court of Admiralty will not order a salvage suit to be set aside or to be stayed because there is pending in a court of law an action of replevin for the salved property, brought by the owner against the salvor, and in which the validity of the salvor's lien upon the property may be determined. A Raft of Spars, 291. 6. The rescuing a raft of timber found adrift in harbor, and floating out to sea unaccompanied by any person, is in its nature a maritime salvage ser- vice, for whiA salvage compensation may be awarded, lb. 6. The law governing such cases in England, — considered. lb. 7. The considerations which should govern the Court in adjusting the amount 6f salvage compensation, and its distribution amongst the salvors, in case of timber found adrift and rescued, stated. lb. 8. An action for compensation for salvage services, rendere^to a vessel, can- not be maintained in personam against the master, imless it was performed for his benefit. Mille)- v. Kelly, 564. 9. No claim for salvage can be maintained by the crew of a vessel upon the INDEX. 629 ground that by their services she is brought through a storm into port, sound in hull. 76. JuKiBDicTioN, 10. Towage. SEAMEN. 1. The right of seamen to leave the vessel on the ground of her being char- tered for a voyage in gross deviation from that for which they shipped, will not justify them in taking possession of the vessel while at sea. The Mary Ann, 270. 2. Seamen are authorized under the general maritime law to prevent or restrain their officers from the commission of open and flagrant crimes in the ship, attempted in the presence of the seamen. lb. 3. But the crew are not justified, by circumstances affording reasonable . ground of suspicion merely that the master is about to engage the vessel in the slave-trade, in taking possession of her at Sea, or in a foreign port, and bringing her back to her home port ; and their undertaking so to do, for- feits both the wages already earned and those for the residue of the voy- age. Ih. t 4. A seaman is entitled to be cured at the expense of the ship, of sickness, hurts, wounds, &c., incurred in the service of the ship. Ringold v. Crocker, 344. 5. The phrase " service of the ship " is not confined in meaning to acts done for the benefit of the ship, or in the actual performance of the seaman's duty. lb. 6. A sailor must, in judgment of law, be deemed in the service of the ship while under the power and authority of its officers ; and he is entitled to be cured at the expense of the ship of any injury received by him in exe- cuting an improper order, or inflicted upon him directly by the wrongful violence of an officer of the ship in the exercise of his authority as officer to punish him. lb. 7. A mariner receiving injury in the performance of his duty is entitled to be treated and cured at the expense of the ship ; and this is equally true, whether his compensation is by specific money wages, or by a share in the earnings of, the vessel. The Allantic, 451. 8. As a general principle, the liability of the ship in this regard is limited to the reconveyance of the disabled mariner to the United States, or to such period of time as may be reasonable, to enable him to return thither ; but this rule is liable to variations, lb. 9. Where a seaman ships " by the run " or " by the voyage," the vessel, although detained at an intermediate port by stress of weather, is bound to maintain him while he remains attached to her, whether his services are useful to her or not. Miller v. Kelly, 564. 53* 630 INDEX. 10. The master of a vessel is entitled to call upon the ship's cook to perform service as a seaman, so far as he possesses the requisite experience and ability. Allen v. Hallei, 573. 11. Where a seaman deserts from the vessel whil? in port, and another hand is shipped in his place, and he afterwards returns and secretes himself on board, and is discovered by the master after the ship has left port, the mas- ter is entitled to call upon him to perform any service as seaman which may be within his ability ; but is not entitled to assume that he is an able seaman, and to require him to do duty as such. 11. CoNSULAK Discharge. Gdaedian ad Litem. Salvage, 9. Shipping Akticles. SEAMEN'S WAGES. 1. The Act of 7 & 8 Vict, c. 112, § 17 — authorizing the recovery of seamen's wages notwithstanding the loss of the ship before earning freight, provided the seaman shall produce a certificate to th« &ct that he exerted himself to save the ship, cargo, &c., — does not operate to create a new right of action formerly unknotyn, but only by way of ra«noving a disability which the rules of maritime courts previously imposed. Davis v. Leslie, 123. 2. Hence the action, in such cases, is not upon the statute, nor upon any right created thereby, but upon the contract to pay wages. lb. 3. A bottomry creditor may, bj' payment of the seamen's wages, entitle him- self to a novation in their place for recovery of their demands against the vessel. The Cabot, 150. 4. But he has no right to exact of them a formal assignment of their wages, nor the payment of his proctor's fees ; nor, on an offer to satisfy their wages, can he require them to defer the prosecution of their demands until he chooses to institute a suit on the bottomry. lb. 5. On the discharge of a seaman, his wages become immediately payable ; and the Act of Congress of July 20, 1 790, does not compel seamen dis- charged from their ship to wait until the expiration of ten days after the discharge of the cargo before bringing a suit. lb. 6. When payment of wages is made to an American seaman at a foreign port, in foreign coin, on the sale of the ship, the breaking up of the voyage or the discharge of the seaman by the master, such coin is to be valued at its rate in the home port, under the laws of the United States ; but foreign coin is to be estimated at its value at the place of payment, if the payment is a voluntary advance on the part of the master, made with the assent of the seaman, lb. 7. For a seaman wilfully to do any act which puts the vessel in jeopardy, e. g. for one to violate a notorious excise law, by smuggling, — is a breach of the duty which he owes to the ship. Scott v. RuiseU, 258. INDEX. 631 8. Such ■breach of duty may be considered in diminution or in bar of the seaman's wages ; it being an offence in the nature of barratry, causing loss and" delay to the vessel, for which he would justly be subject to make amends, by forfeiture or subtraction of wages. lb. 9. The theft of a portion of a cargo, by a mariner, works an absolute forfeit- ure of wages. Alexander -v. Galloway, 261. 10. The fact that the seaman has been acquitted on a criminal trial for the larceny of a part of the cargo, is not conclusive to rebut the charge when set up as a defence against his suit for wages, lb. 11. It seems that seamen employed on board a vessel forfeited under the Act of 1800, (2 U. S. Stats. 70,) as fitted out for the slave-trade, are entitled to wages, notwithstanding the forfeiture, if they were not knowingly or willingly connected with the criminal purpose of the voyage. The Mary Ann, 270. Consular Discharge. Costs, 9, 11, 14, 16. Evidence, 2, 3, 4. Guardian ad Litem. Joinder op Actions, 1, 2, 3, 4, 5, 6. Ju- risdiction, 10, 14, 15, 17, 18, 20, 21, 22, 24. Seamen, 3. Shipping Articles. SEAWORTHINESS. Evidence, 4. Jurisdiction, 15, SHIP-KEEPEB. Jurisdiction, 21, 22. SHIPPING ARTICLES. 1. A stipulation in shipping articles, by which the master and crew of a for- eign vessel, about to sail to this country, agree that they will not sue in any courts abroad, but will refer all disputes to the courts of their own country for adjudication, is lawful and binding, and will, in general, be respected and enforced by the American courts. Bucker v. Klorkgeier, 402. 2. But where the interests of justice require it to be disregarded— e. jr., where the voyage is broken up in an American port, by some other cause than the wreck of the vessel, or where the man is discharged or becomes enti- tled to a discharge by reason of improper treatment— the American courts will entertain a suit by a foreign seaman for his wages, notwithstanding his stipulation in the articles not to sue until his return home. lb. 3. As a general rule, seamen are competent to bind themselves by a contract with the master and owners ; and in the ordinary case of a luring for 632 INDEX. money wages at a specific ratej the contract of the seaman in respect to the rate will be upheld. The Atlantic, 451. 4. The contract of a seaman in respect to his compensation will likewise be upheld where the mode of compensation contemplated is by a proportional division of the earnings of the vessel among the owners, officers, and crew. lb. 5. Shipping articles entered into for a whaling voyage, and contemplating the payment of the officers and crew by " lays " or shares in the vessel's earnings, contained a stipulation that either of the officers or crew who might be prevented by any cause from performing their duty during the whole of the voyage, should receive of his lay only in proportion as the time served by him should be to the whole time of the voyage. Held, that this stipulation would be sustained; even without evidence that special explanation of it was made to the seaman. lb. 6. A mariner who ships " by the run," takes the risk of adverse weather and of other kindred accidents attendant upon maritime cinterprise ; and if the vessel be driven out of her course by stress of weather, and obliged to take shelter in an intermediate port, and is there detained, the seaman has no claim for additional compensation for extra services thus required. Miller V. Kelly, 364. Evidence, 5. STATUTORY CONSTRUCTION. Doubtful words in a general, statute may be expounded with reference to a general usage ; and when a statute is aplplicable to a particular place only, such words may be construed by usage at that place. Love v. Hinckley, 436. Arkest, 1, 2, 4, 5. STEAMBOAT. COLLisioij, 6, 7, 8, 9, 10, 11, 12, 13, 14, 15, 16, 17, 18, 19, 20. Contract, 1, 2, 4. LiEK, 3, 5. STIPULATION. 1. After a bond has been given by a respondent to the marshal, in compli- ance with the rules of the Supreme Court, the libellant cannot exact any additional stipulation. Gaines v. Travis, 297. 2. An increased stipulation for costs should not be required from the claim- INDEX. 633 ants on account of a delay in the progress of the action, occasioned or obtained by the libellants. The Bark Laurens and $20,000 in Specie, 302. S. The requisites of a valid stipulation in Admiralty— considered. The I Infanta, 327. Akrest, 2, 3. Bail, 2. Execution. Waiver, 2, 3. , TOWAGE. 1. Towage service is aid rendered in the propulsion of a vessel, &c., irrespec- tive of any circumstances of peril. The H. B. Foster, 222. 2. There is no determinate rule of law absolutely distinguishing towage ser- vice from salvage service. lb. 3. Towage may be a salvage service, when performed in aid of a vessel in distress. ' 26. USAGE. It seems that there is no settled usage among those navigating the Hudson River, which requires vessels anchoring over night to take up a position within any particular limits as respects the shore ; nor any usage justifying a steamboat making a night trip, in dispensing, while running in the mid- dle of the river, with any care or precautions to avoid collision, which she would be bound to take if running near the shore. The Indiana, 330. Bill or Lading, 5. Pilotage, 1, 5. Statutort Construction. VARIANCE. Where the defence in the answer, in a cause of collision between a schooner and a steamboat, rested on faults imputed to the schooner in holding her course across the bows of the steamer under circumstances in which it was her duty to have gone about ; and the defence set up by the proofs rested upon faults committed on the part of the schooner in an attempt to come about abruptly, and falling off or drifting in the attempt, against the steamer, — Held, that the latter defence was a deviation from the answer ; and that- under the pleadings the claimants were not entitled to the bene- fit of it. The Washington Irving, 336. Affreightment, 4. Bill of Lading, 1. ♦ VERIFICATION. 1. When a libel is verified by an attorney in fact of the libellant, — as in case of the libellant's absence, &c., — it is not necessary that the authority of the 634 INDEX. attorney to act should be made to appear when he attests the libel or files it ; it is enough if he establishes such authority when it is called in ques- tion. Martin v. Walker, 579. 2. A mere general employment as proctor or attorney at law to prosecute a demand in a Court of Admiralty, is not sufficient to authorize the party employed to verify a libel as attorney in fact of the libellant. lb. WAIVER. 1. The libellant entered»an irregular default against re.spondent, and moved the cause on for hearing on a reference to a commissioner. The respond- ent appeared, took no objection, but consented to adjournments. Held, 1. That his appearance, &c., before the referee, constituted a vol- untary consetit on his part to waive the irregularities committed, and to submit the case to the determination of the commissioner. 2. That the Court had power, however, to set aside the proceedings, and would do so, on terms, inasmuch as it was necessary to do so in order to enable the respondent to have the benefit of his real defence. Qaines v. Travis, 297. 2. A defective execution of a stipulation will be deemed waived unless ex- cepted to before the close of the term next after the opposite party has notice of the defect. The Infanla, 327. 3. This rule is strictly observed in the case of stipulations given in behalf of seamen. Ih. WHALING VOYAGE. Account, 1, 2, 3. Shipping Articles, 3, 4, 5. WITNESS. 1. In collision cases, the Court will attach a greater weight to the testimony of witnesses to facts which occurred'within their own knowledge, on board their own vessel, than to any opinions or judgments formed by those upon one vessel respecting the management of the other. The Governor, 108. 2. The testimony of witnesses may be taken on a commission sent abroad, whose names are not inserted in it, on satisfactory proof furnished after its return that their names or materiality were unknown when the commission was sued out or transmitted. The Infanta, 263. % 3. The rule more recently introduced into the English practice, and adopted in many of the State courts of the United States, which prohibits the im- peaching of a witness by proving declarations of his contradictory to his testimony, unless he has been previously questioned in respect to such INDEX. 635 declarations, and afforded the opportunity to explain them, — disapproved. Howland y.'Conway, 281. 4. The practice formerly prevailing in this Court and in the Circuit Court, allowing the impeachment of a witness by proof declarations made by him out of Court, contradictory to his testimony, without requiring that he should be first examined with respect to them, — commended. lb. 5. A female offered as a witness and objected to, upon the ground that she is the wife of the party calling her, cannot be examined to disprove the marriage when there is sufficient evidence aliunde before the Court to raise a presumption of marriage. Hose v. NSes, 411. Evidence, 1, 3. i ■ 1 •I i : 'I