HEYNSOHN ". MERRIMAN.
ashore, and the bark sailed from that port, leaving him sick on shore. He was not discharged, nor paid his wages. The bark went from Buenos Ayres to Valparaiso, and the States consul there, being informed that the libellant had been left sick at Buenos Ayres, without being discharged; and without payment of his wages, refused to clear th.e vessel until the sum of $85.97 was paid to him, that amount being claimed by the consul as the wages actually due to libellant, and three months' extra wages. The master paid this sum to the consul, who credited it to the sailors' relief fund of the Valparaiso consulate, but no part of the money was paid to the libellant. The libellant remained in the hospital till November 24, 1875, when he was discharged therefrom as cured. On the fifteenth of February, 1876, he shipped on another vessel for the United States. This was the first berth he was able to obtain in order to get home after leaving the hospital. The libellant claims his wages up to January 15, 1876. The defendant claims that the payment at Valparaiso discharges him from all liability, or, if not, that he should be credited with that payment. The libellant is clearly entitled to his wages for' the time claimed. A seaman, though sick, who is left by the master in a foreign port, without his consent and without being discharged, is entitled to his wages up to the end of the voyage, or until he can get back to his home port. N emtt v. Clarke, Ole. Adm. 320. The defendant claims that the payment at Valparaiso works a satisfaction of the libellant's 'claim for wages, under Rev. St. § 4582. But I do not perceive that that section has any bearing on the case. By it a master is required, on discharging a seaman, who is a citiz.en of the United States, with his own consent, in a foreign country, to proauce to the eonsu] the certified list of his ship's company, and to pay to the consul the wages due, and three months' extra wages. That is, if the defendant had, with the consent of the libellant, discharged him at Buenos Ayres, he must have paid to the COlllml there the wages due up to that time, and three months'
extra wages, and this would have released him and the vessel from further liability under the contract. Of the extra wages so pa,id two-thirds would have gone by the statute to the seaman himself, and one-third to a fund for the relief of destitute seamen. But there is no pretence that the libellant was discharged with his own consent, and therefore the statute can have no possible application to effect the release of the vessel or the master: Nor can the libel· lant's rights be in any way affected by the act of the consul at Valparaiso, which appears to have been unauthorized, in exacting this payment from the master. Decree for libellant, with costs.
THE STEAMBOAT SARATOGA.
(Di8trict Oourt, 8. D. New York.
March 13, ]880.)
INJURY TO Tow-BoAT-DUTY OF STEAMBOAT I1i PASSING Tow.-If a
steamboat cannot safely passon either side of a tow, traveling in the Bame direction, it is her duty to wait until they have reached a point where she can thus pass in safety.
8AME-SAME-Tow ON TO WRONG 8mB OF THE OHANNEL.-The mere
fact that the tow was on the wrong side of the channel would not justify the steamboat in violating her plain duty to keep out of the way of the tow, when she had such tow in plain si):\'ht, and was able to do so.
In Admiralty. F. A. Wilcox, for libellant. S. Fl. Valentine, for CHOATE, J. This is a libel by the owner of the canal-boat Belle Andus for injuries sustained while on a voyage from Troy to New York, in tow of the tug James McMahon, on the twenty-first day of September, 1877. There were 11 boats in the tow, in four tiers, each tier having three boats, except the last, which had two. Libellant's boat was the starboard boat in the third tier, and directly astern of her was one of the boats in the last tier. The tow was proceeding down the river at a rate of about three miles an hour, and when she had reached the upper end of the long dike, about half a mila
ANDUS V. STEAMBOAT SARATOGA.
below the lower bridge at Albany, the steamboat Saratoga, a. large passenger boat, about 300 feet long and 66 feet wide, bound from Troy to New York, was following nearly astern of the tow, being just below the bridge, but having the tow a little on her port bow. The speed of the Saratoga was about six and a half miles an hour, so that she was rapidly overtaking the tow. When she got within about 300 yards of the stern of the tow her pilot determined to pass on the eastward side of the tow-that is, between the tow and the dike, along which the tow was still passing-and he blew two whistles, to indicate to the pilot of the tow that such was his intention. To this signal he got no reply from the tow, but he kept on, putting his wheel to starboard. . The principal question of fact in the case is whether there was room between the tow and the dike, when the Saratoga. made this movement, to justify her in attempting to pass on that side of the tow. The witnesses from the tow, except the pilot of the tug, put the distance at 20 to 30 feet, the pilot of the tug at 50 to 75 feet,and the captain, pilot and wheelsman, ·of the Saratoga at 80 to 100 feet. I am satisfied that the witnesses from the canal boats have underestimated the distance, and that the Saratoga would not have attempted this maneuver if the tow had been within 20 to 30 feet, for it was evident that her pilot could not have expected the tow to get out of the way after he gave the signal and starboarded to get on the eastward side of her; but, on the other hand, it is evident from the testimony of those from the Saratoga that when she got up as she did, lapping the stern boat in the tow by about 40 feet, they found it impossible to clear the tow and pass between her and the dike. The starboard guard of the Saratoga actually came in contact with the stern boat of the tow, while she was thus lapping and backing her engine to get herself out of the way. The witnesses from the Saratoga attempt to explain this by testifying that while she was tpus lyiug still in the water,'with her engine reversed, the tow sagged down with the wind some 40 feet against the Saratoga. This theory has no support except in the imagination of these witnesses. The .proof is