THE CHAS. L. BULIS. l BURNS and others v. THE CHARLES L. BULlS and others.
(District Vowrt, 8. D. New York. December 21, 1885.)
1. ADHIBALTY-8EAMEN's WAGES-LIBEL FOR, BARS SUBSEQUENT CLAIHS-BECTION 4529, REV. ST.
SAME-SECTION 4529-ExTRA PAy-LIEN-RANK.
In Admiralty. Hyland et Zabriskie, for petitioners. Scudder et Carter and Geo. A. Black, opposed. BROWN, J. The three petitioners were seamen on the schooner Charles L. Baylis for different periods during the 10 months prior to her arrival in New York, on the nineteenth of October last. On the twenty-first of October they filed a libel against the schooner to recover their wages, under which the ,schooner was arrested, and upon the decree subsequently obtained was sold by the marshal in November. The petitioners were paid the wages due to them up to the day of filing the libel, and the balanoe of the prooeeds have been paid into court, against whioh petitions have been filed by other claimants, un· der bottomry and other liens subsequent in rank to the lien of sea· men's wages. The seamen having remained upon the vessel during the time that she was in the custody of the marshal, and until the sale, and hav. ing performed some work upon her, but not in the way of disoharging her cargo, they now file a petition to be paid out of the proceeds in court, their wages accruing from the time of filing their libel on the twenty.first of October up to the twenty-seventh of November, when the vessel was sold, which claims the other lienors resist, the prooeeds not being sufficient to pay all. None of the seamen have ever been regularly discharged. They sailed from port to port nnder the articles, but were not able to procure the wages due them. At Bermuda they sought to be discharged, and to obtain their wages, al. leging the unseaworthiness of the vessel; but the oonsul refused to
by Edward G. Benedict, Esq., of the New York bar.
THE aHAB. L. BAYLm.
discharge them, and recommended them to follow the ship to New York, which they did. By the testimony upon which the previous, decree was founded, it appeared that the seamen considered the voyage ended at Bermuda, and that they were not bound to remain with the ship; and it would seem that they continued upon it for the purpose of obtaining their wages. She was arrested in New York at their instance, and under their libels was kept in custody by the marshal until sold under a decree in their favor. The filing 9f the libel by them for their wages on the twenty-first of October was clearly an election by them to treat their engagement with the ship as at an end, and that they were then entitled to a discharge. Until they were entitled to a discharge, their whole wages could not be due to them. Their subsequent claim for wages, as for eontinued services, while the vessel was in the marshal's custody by their own procurement, cannot, therefore, be entertained. They remained on the ship, and had their board from her stores, but. they rendered her no services of any value to the ship or cargo. Upon the evidence, I think it clear that the seamen were entitled to their discharge, and to their pay when their libel was filed. Had they waited 10 days before filing their libel,they would.have been entitled to 20 days' additional pay under section 4529 of the Revised Statutes. I see no reason why they should not still have the benefit of this provision. The statute designed that provision to be enforced in their favor as compensation for delay in paying them their dues. No one has been injured by their failure to wait 10 days. These seamen were not employed by the marshal, and the captain had no authority while the vessel was in the marshal's custody to increase the charges upon the ship to the prejudice of the other lienors. The Grapeshot, 22 Fed. Rep. 123. But the extra pay provided by statute is an inci· dent to their claim of wages proper, and ranks with their wages as a prior lien. The petitioners may be paid from the proceeds, therefore, the extra pay allowed by section 4529, without costs. Their other claims are disallowed, and the exceptions in respect thereto are sustained.
EIGHT HUNDRED AND FORTy-ONE TONS OF IRON ORE.!
(lJistrict Oourt, E. lJ. N(!//) YO'I'k. July 9, 1885.)
ADMIRALTY PRACTICE - SUPPLEMENTAl. LIBEL ARISING AFTER FILING LIBEL.
P ARTY- DEMURRAGE
A libel having been filed claiming freight and demurrage under a charter party, the libelant thereafter filed a supplementaUibel, setting up the same and additional facts, and claiming the same freight and demurrage, and additional demurrage. Held, that, as this addHional demurrage arose from the breach Of the charter party set up in the original libel, there was no reason why such demurrage should not be recovered in this action, although such demurrage occurred after the filing of the original libel; and that the practice pursued, if not strictly. regular, in this case tended to save trouble and expense.
In Admiralty. See opinion in the same case on exceptions to the supplemental libel and motion to strike out the supplemental libel. 15 Fed. Rep. 615. Ulio, Ruebsamen w lIubbe, for libelant, Aniello Basile, master of the bark Giulia. Benediot, Taft wBenedict, for claimant, D. W. R. Read. BENEDICT, J. Considering that. only a part of the cargo was seized at the time 9f issuing process upon the original libel, and that the freight on such cargo was then due the libelant, and considering, also, that subsequent to the filing of the original libel the claimant received cargo under the charter party set up in the libel, and considering also that claimant had paid into court in this cause all that is due for freight under the charter party set out in the libel, leaving due only a balance of demurrage, and that this demurrage may be awarded· as part of the damage arising from the breach of the charter party set forth in the original libel, no reason is discovered why this unpaid 'demurrage may not be recovered·in this action, notwithstanding the fact that the said detention occurred after the filing of the original libel. No injustice can result to the claimant from this course. The practice pursued, if not strictly regular, has in this case wronged no one, but, on the contrary, tended to save trouble and expense. It is concluded, therefore, that the libelant may have a decree in this action for the amount due and unpaid upon the charter party, including therein 12 days' demurrage at the rate of $61.84 per day, and deducting the amount of the freight and six days' demurrage, the whole freight and six days' demurrage having been paid into court herein, and the same drawn out by the libelant, as the evidence is understood.
by oR. D. & Wyllys Benedict. Esgs., olthe New York bar.