that the lien' of a seaman passed by an assignment of his wages. This decisi.on of Judge LOWELL has been re.peatedly followed here, and is undoubtedly the law of this circuit. Jt1dgment against trustee might therefore have the effect to transfer· to the attaching creditor, by way of subrogation, the seamall's:lienoh the ship and freight. Such complications ought not to be, permitted in suits for seamen's wages. Theseamanishould have his wages settled promptly. If the owner or master does riot 'pay him, a oourt of admiralty should afford him a simple, speedy, and inexpensive remedy. ties of his occupation, his want of friends and llleans, snd the small sums usually coming to him, would, .in i most cases, render him incapable of following his claim through the double proceeding, and compel him to abandon it altogether., This would furnisa an inducement to dishonest owners and masters to instigate or encourage the · bringing of trustee suits to defraud the seamen. I am aware of no law of congress, or rule or praciiceill admiralty, which requires this court to hang up its decree iIi' this case until the attachment suit is disposed of. Ordinarily the sailor's only means of subsistence on shore are his wages earned at sea; If these may be stopped by an attachment suit the instant his ship is llloored to the wharf, a new hardship is added to a vocation already subjeet to of the iJls of life.. Wl1ges earned amidst the perils and its full hardships of the whale fisheries, and· pa,yable only at the end of l't voyage usually lasting for years, should of all others be paid promptly when due. So far as I have any discretion, I shall decline to exercise it to prevent the libelant from recovering his wages. Decree for the libelant for $132.12.
January 6, 1883.)
(Circuit Court N. D.
SERVICEtr-'UPLICATIOl!f OF PAYMENT.
Where services were continuously performed on a vessel by libelant as engl. neer and wheelsman and pilot during a series of rears, there is no distinction existing in the law of maritime liens as to such services;· and the mode of ap- , propriating payments from· tfme to time made to libelant, in the absence of a special agreement, would be to the oldest service performed, and the balance claimed by libelant may be considered as accruing from the service most recently performed.
2. ,BAME-LmN NOT WAIVED., ,.' ., Where the owner had ·repeatedly promised to ,pa.y the claim, and he had gone into was that affected. th,e vl\lidity of his claim, the that the bankrupt had scheduled the claim f1,sa personal demand against himself could rtot prejudice' 'the right 'tlf'iibelan't to enforce his lien against the vessel, nor would the presentment of the claiJ'n'by libelant to the bankrupt court he considered of itselfa' waiver of hisliim.
Where the purchaser of a vessel had information sufficient before or at the time of his purchase, as in this to lj!ut him on inquiry as to any liens thMproceedingil were not inwhich might erist against the vesse1,' stituted EigW,i.»st ,the ;vessel till Jl.fte,r. the IwOuldllot operllte as a wuivor ?,f '" '"
Reynl)lds and Magee ch Adik!insoftJ, for libelant.'!: O. E.'K,.eme,,; for j ,Ji;/j . :, DRUMMON11l,G. J. df-he libel in:tllis case was filed'on the' sixth day
of 'May, ·187<$, agaimltl<1lhe Iste:a;m' tug-boat' Louie Dole, 'to recover oompensati&n for services rendered bytbelioolant'onbdatd Of-the tug from ;ApriL6 to July 4,'1876, a,sengiIieer; :frdmJuly'21 i to'No>tember li, fbf. the 'game year,' aEfwheellniJ:Bin!and' 'amI: also f6r;servio6s 'rettrlR:MiWeh, 1877, onuoard oNhEdug 'a8 \in fitting out. On the lleizureof thetng IUpbtt 1a,IIlonitioo WaSleleased, and a claim, as owners, was put in by Frederiok Medyns'ki arid William G; Drinkwater. A decree was1given in favoro.f the ltbelant by the district, oourt, but holding of Drinkwater were !not liable 'for the 'amount the 'decree, from whiah one of the claimants, Medynski, has' ,The' by the proof, seem to be substantially as follows : ., At the time of' the performance of the services mentiotteff, Jesse COlc was ,the managing owner of the tug, and,a contract of service was made between »>m and thl;} libelant,; 1:)Y whic;:h, th¢first nlWled, the li\:le1ant, as en$110 a month: tOr tAe ;:t.8 wheelsman and gineer, .Wall to month; and, for the last. period $31.77; the" whole balance pilot, claimed to be Me/at the time was flIed, being , It isnotcontrovetted that the seri'iceswete perforrrie'd by the libelant as gtated,and the evidence clearly shoWs' that the cOmpensa.tion named was agreed to. In March, 1$77, Medynski purchased in the tug, .l;loJ,ld in April, the other eleven-sixteenthsj. the Qthellclaimantp\!.:r, In .July, 1876, a verbltl chased the intere\lt, w4ich he qad of made between Cox, all(1the lIbelant, and- a man by the the l1bel'ltn,tand Kibbe were to run the tug for five name 'dollars a day, toi be:paid'for her use. It was und el'stood at the(time a written contract or charter should: be made,' .which, however,. never drawn up. Tlte contract seems not to have l"esulted very profitably for the parties, beoauae
when it came to be terminated it was ascertained that there wei'e several un. paid biils agll.hlst the tug; and· as a result of this it was agreed between the parties, and particularly b'etween Cox and the libelant, that the contract of charter should be considered as abandoned, and that for the services rendered lJy the therunlling of the charter, which was only a few months, compensation should bEl given as wages, the libelant never having received any portion of the profits, if any were made, during the time of the charter.
The defendants claim, under this state of facts, that the action of the libelant was stale, because the was not filed until May, 1878, more than two years from the time that the service commenced; and, because, for a portion of the time when the serviee was rendered, it was under tbe charter which .has been already referred to; and it is claimed by the defendants that they had,no notice of the. account at the time they made the purchase, of the libela.nt against the apd that during all the time from the spring of' 1876 until the spring the tug was here in the port of Chicago, subject to seizure at l!ony,.tima, if amaritittle lien her on the part of the .libelant. It is admitted by the defendants that there, was a.small b,ala:nae due tp.e libelant for the services ,performed in fittingoilt,the tug in Match. 1877, which,it,iaalleged, has been tendered to the libelant. 'rheeviilenoe from the boo;ks of account, which were kept by.Koehler, one of the witnesses, and in which the entries were made crediting libelant with the services· performed, and with the money that was pai<l. to him from time to time, does, not appear to be in the record in this court, though referred to by Bomeof the witnesses; but it is a fair inference, from the made by several of the witnesses, that the account was a continuous account. The libelant seems to have thought that there was a distinction in the ·kind of service that he performed; as constituting a lien against the tug, an'd that the service as engineer was superior to that which he rendered in other capacities; but under the circumstances of the case there does not seem to be any just distinction existing in the law as to the service performed; and the fair mode of appropriating the payments which were from made to the libelant would be to the oldest service pertime to formed, unless there was an agreement betweeenthe parties as to the appropriation, which does nbt seem to have been the case. Then the balance which was claimed to be due by the libelant, in that view of the case, might be considered: as accruing from the service most recently performed.
There can be no doubt but that in July, 1876, a contract of charter was duly made, although not in writing, between the managing owner and the libelant, and that the tug was run under that contract during a portion of the season of 1876; but it is equally certain, there having been no writing on the subject, that it was competeni for the parties to treat this contract of charter as having been abandoned, and to replace or rehabilitate the libelant in the position which he occupied prior to the. existence of the charter, provided the rights of third parties were riot ·affected by the arrangement·made. The evidence clearly shows that this was all done prior to any interest acquired by the defendants in the tug, and so·they would have no right to complain of the arrangement, and I cannot doubt but that it was competent for the parties in interest, by mutual consent, position which they respectively occu-. to restore themselves to pied prior to the contract of charter. There remains the question whether the claim of the libelant was BO far stale as to prevent the lien from operating upon the tug. The libelant has stated the reason why the claim was not put in litigation sooner. It was because, as he alleges, Cox, the owner, had repeatedly promised to pay' the claim, and because he had gone into bankruptcy; and the libelant was informed that that fact affected the validity of his claim. The bankrupt scheduled the claim as 'a personal demand against himself, which it no doubt was, as the owner and captain of the tug; but, clearly, that could not prejudice the right of the libelant to enforce his claim by any proper proceedings. It did not thereby waive his lien, if any existed, and the manner in which the libelant presented his claim to the bankrupt court..could hardly be considered of itself a waiver of the lien. Medynski admits that when he purchased five-sixteenths of the tug, in the spring of 1877, Cox told him that there were Bomebills against her, although there was enough due outstanding to pay all, but he denies that Cox mentioned that there was any bill due to Cartel'. There is a good deal of conflict in the evidence upon this subject, but the fair inference is that information sufficient was communicated to Medynski in the spring of 1877, before or at the time of his purchase, and certainly in the summer of that year, to put him upon full and rigid inquiry a s to any' liens which might exist against the tug. One of the witnesses refers to a conversation which took place between Carter and Medynski in the latter part of April, 1877, where Carter's claim was particularly referred to, and in v.14,no.14-55
'wlriehMedynski assured hitnthat he need have no am:iety abOut the payment'of his claim. And Koehler states he told Mtldynski Of Carsuppose there be a doubs 'ter'slclaim' before he upon-this point, ,then would the fact that no proceedings were insti'tuted by the libelant against the Doat during the season of 1877, and not until May 8;'18'18, waive ot destroy the lien' which originall, ensted? I do not think it would. In March, 1817, Medynski purchased five-sixteenths ·of the tug; he did not purchase the remaining elewn.isixteenthsunti1:April, 1878; and such delay as this has never .bee'l'1' considered as depriving who'had rendered service on .board, of a vesselof'the lien which the maritime law gives him· .The decree of the district court will therefore be a.ffirmed.
f '. '., . ,
«(JirtJultOourt,N.: D. lllmoi,.
November 18, 1882,)
When an appeal is taken from a decree in admiralty, it suspends the decree oUhe district.court, and the case proceedscU novo in the circuit court, and the , libelant is the actor baving the affirmative, and n).ust mak ll out the allegations of his libel, and the court may allow amendments to, the pleadings.
Additional testimony may be take on both sides in the circuit court, and the court may protect the rights of the parties where amendments' are allowed. Where the claimant became the purchaser of a vessel while she was in the custody of the marshal for the very bill of supplies in controversy in this . case, furnished at 8 foreign port on her credit, to render her seaworthy and competent to proceed on her voyage, he is not entitled tc> the protection sometimes accorded to a purchaser for value and without notice of maritime liens thereon.
,. VESSELS-ill CUSTODY OF MARSHAL-PURCHASER.
In Admiralty. Appeal from the district court. M'r. Kremer, for libelant. Mr. Oondon, for defendant. DRUMMOND, C. J. The libel was filed in the district conrt on the wentieth day of January, 1882, which alleged that in July, 1880, the Ii belant had furnished to the schooner, while lying at the port of Buffalo, certain supplies, in order to render her seaworthy and competent to proceed on her voyage,these supplies being furnished at the reqnest of the schooner and on her credit, the master not having money or oredit to purchase them. The libelant further alleges there was a