'l'HE EL DORADO.! CAHILL
THE EL DORADO.
(District Oourt, S. D. R!!!IJ) York.
May 27, 1886.)
COLLISION - CANAL-BOAT AND STEAMER'S PROPELLER PROPELLER AT REST-LIABILITY.
While the libelant's canal-boat H. was being warped by her captain into a slip on the North river, her bow came in contact with the propeller of the steam-ship El Dorado, which was lying at the J?ier. For the resulting damage the EI Dorado was libeled. Held, on the eVidence, that the steamer's propeller was not in motion at the time of collision, and the steam-ship consequently was not liable. '
In Admiralty. E. D. McCarthy, for libelant. Charles H. Tweed and R. D. Benedict, for claimants.
BROWN, J. On the twenty-sixth of September, 1885, just prior to' the departure of the steam-ship EI Dorado from the slip between piers 36 and 37, North river, the libelant's canal-boat Humphreys was injured by her bow's coming in contact with the blade of the steamer's propeller. The canal-boat had been brought into the slip a short time before by a tug, and cast off near the side of the steamer. The slip was nearly full of boats. The captain of the canal-boat, after she was CHSt off, pulled up along-side the steamer to another canalboat further up the slip, and outside of a barge that was next to the wharf. While pulling on this line, the bow of his boat came in contact with the propeller. The libelant's witnesses testify that the propeller was in motion; that they saw the commotion of the water made by it; and the libelant's theory is that it was the suction eaused by the propeller's motion that drew the bow of the canalboat against the propeller blade. The testimony on the part of the steamer leaves little doubt that this took place somewhere from 4: 15 to 4: 30 P. M. Her testimony is also to the effect that the steamer's machinery and her propeller were worked, as usual, from an hour to an hour and a half, up to 2: 30 o'clock; that at that time the engine was stopped, the machinery made fast and not moved, nor the propeller blade turned from that time until after the accident, and after the canal·boat had sunk; nor until the steamer had been warped out some 50 feet clear of the canal-boat. The accident is attributed to the forward motion of the boat as she was pulled along, combined with the set of the tide in the slip southward beneath the wharf. I am satisfied that injuries like the present might be produced by either of the causes mentioned. According to the almanac, it was high water on that day at 9: 35 A. M. It would be low water at about
JReported by Edward G. Benedict, Esq., of the New York bal'.
3: 45. In this case, however, it was proved that for upwards of an hour after the water is rising oil the flood·tide there is a downward surface current along the docks, and a similar current within the slips, which has more or less free play through the pile-work upon which this wharf was built. Similar evidence has been given before me in other cases, and there is no doubt of its correctness. The boat was loaded with 275 tons of coal. The canal-boat being of much less draught than the steamer, the effect of such a. southward current in the slip, along the after-part of the steamer, would be to the stern, and there draw along the steamer's side until it sweep round her stern to pass under the wharf. The position of the canal-boat's stern, angling out into the slip at the time her bow struck the propeller blade, agrees with this theory. The evidence further establishes, to my entire satisfaction, that the marks of the blow seen upon the canal·boat could not have been made by the propeller blade when in motion. There was no cut an· to any possible motion of any part of the propeller blade, such as existed in the case of The City of Puebla, Mar. Reg. April 14, 1886. The print of these marks, taken directly from the boat, and used as an exhibit, together with the place of the blow on the side of the boat only, prove it to be impossible that the blow could have been received in any other way than from the side edge of one of the propeller blades while at rest. The libelant's case is therefore reduced to one of two alternatives: Either that the boat was drawn to the propeller blade through the propeller's previous motion, and that the propeller's motion was stopped within a.n interval of a quarter of a revolution, just as the bow was going in between the two adjoining blades; or else that, while the propeller was still in motion, the bow went in between the two propeller blades, and stopped the propeller's motion without receiving any deeper injury than the blow shows. the force of the propeller blade, and its sharp edge, and that there was planking of only two and one-half inches thickness to resist it, and that the boat was loaded with 275 tons of coal, with the momentum of that weight, the second alternative does not seem to me credible. The force of the propeller wheel worked by the engine of so large a steamer would not in any probability have been overcome by such an obstacle without showing any more perpendicular breadth in the mark of the injury, nor without breaking through the boat's ceiling. The first alternative is also so improbable that it could not be admitted except upon a clear and strong preponderance of proof. There is certainly no such preponderance in this case. The evidence that the steamer's engine was not moved at all from 2: 30 until after she was warped out is substantiated by a number of witnesses, and by all the proof that it was possible for ,the steamer to give. This testimony is entitled to at least equal credit with the libelant's testi-
mony. There is no improbability in the steamer's narrative; and the testimony of her witnesses is not weakened by such a number of minor doubts or inconsistencies as attach to the testimony of the witnesses for the libelant. As the propeller was in motion both be. fore and after the collision, the recollection of the witnesses as to the time of seeing the water in commotion might be easily mistaken. Not considering, and possibly not knowing, of the set of the current be. neath the wharf, it was natural to ascribe the swinging of the bows around the stern to the supposed suction of the propeller; and the eddies which would naturally form from such a current around the stern and the rudder of a deep vessel might also be mistaken, in the absence of special attention, for a disturbance of the water supposed to be made by the propeller. On the whole, there is clearly no such preponderance of proof on the part of the libelant as establishes fault in the claimant's vessel, and I am constrained, therefore, to dismiss the libel.
(Di8trict Oou1't, D. Massachusetts. 1.
June 8, 1886.)
SEAMEN-WAGES-ADVANCE WAGES-AcT TWENTY' SIXTH JUNE, 1884. (23 ST. 53) - DINGLEY ACT CONSTRUED-PROVINCE OF COURT IN CONSTRUCTION OF STATUTES.
The crew of the bark S., on shipment, signed articles made out in the usual way. and containing. inter alia, the rate of wages, but withont any provision for the payment of any portion of the same in advance. Contemporaneously therewith they made a parol agreement with the shipping master, both as to the rate of wages and the payment of an advance. The difference between the rate of wages named in the shipping articles and that verbally agreed upon was the precise amount of the advance wages. Both agreements were made with the consent of the owners of the vessel, and were fully understood by the crew, and the amounts agreed to be advanced were paid to them upon shipment. At the termination of the voyage the crew were tendered payment of their wages as due by the shipping articles without any deduction on account of payments made in advance. All of the crew, with the exception of the second mate, accepted this offer. and signed a release of all claims against vessel, master, and owners. They, together with the second mate, shortly afterwards filed a libel for the recovery of the amount of wages stip· ulated for by the verbal agreement, without any deduction for the amounts paid to them in advance, Held, that the act of twenty-sixth June, 1884. (23 St. 53,) declares in express terms that the payment of advance wages shall, in no case, absolve the owner, master, or vessel from full payment of wages, or be a defense to a suit for their recovery after they are earned; that it would be an absurd, as well as a palpable disregard of legislative intent, to hold that the law can be evaded by merely having seamen sign fictitious shipping articles, which do not express the rate of wages actually agreed upon and intended to be paid. The second mate is entitled to recover the full amount of his wages as verbally agreed upon, without any deduction for the advance paid to him at the time of shipment. As to the rest of the crew, the
Reported by Theodore M. Etting, E"'l., oithe Philadelphia bar.
THE SAMUEL E. SPRING.
libel must be dismissed, there being nothing in the nature of the claim to render it incapable of being released, and it appearing evident that the parties when they signed the release intended to be bound by it.
The rule undoubtedly is that statutes are to receive a reason'lble construction, and doubtful words and phrases are to be so construed, if possible, as not to produce mischievous results. But when the words used are plain and unambiguous, there is no room forconstruction.-nothing is left for the court but to give them their full effect.
In Admiralty. T. J. Mvrrison, for libelants. J. M. Browne, for claimants.
NELSON, J. The questions in this case arise under section 10 of the act of June 26, 1884, (23 St. 53,) known as the" Dingley Act," which enacts "that it shall be, and is hereby, made unlawful in any case to pay any seaman wages before leaving the port at which such seaman may be engaged, in advance of the time when he has actually earned the same, or to pay such advance wages to any other person. '" '" '" The payment of such advance wages '" '" lit shall in no case, except as hereinafter provided, absolve the vessel, or the master or owner thereof, from full payment of wages after the same shall have been actually earned, and shall be no defense to a libel, suit, or action for the recovery of such wages." The section contains other provisions allowing allotments of wages to the wife, mother, or other relative of a seaman; excepting whaling voyages from its operation, but including foreign vessels; and making the paying of advance wages, or the falsely relationship to a seaman in order to obtain allotted wages, a misdemeanor punishable by fine and imprisonment. The case is a libel by the second mate, two able seamen, and two ordinary seamen of the bark Samuel E. Spring, for wages earned on a two-months voyage from New York to Havana and Matanzas, and thence to Boston. The libelants were shipped at New York through a shipping master employed by the owners of the bark, in March, 1886, and signed shipping articles, which were produced at the hearing, by which it appeared that the second mate was to receive for the per month, the two able seamen $10 per month voyage as wages each, and the two ordinary seamen $8 per month each. The libel· ants gave evidence that at the time of their shipment a verbal agreement, differing from that expressed in the shipping articles, was made by them with the shipping agent, by which the monthly rate of wages of the second mate was to be $25, of the able seamen $20, and of the ordinary seamen $16, and each man was to receive one month's pay in advanclil; and that one month's wages was paid to each man before sailing. On the discharge of the crew in Boston the four seamen were paid their wages as due by the shipping articles, without deduction on acollnt of the payments made in New York, and signed receipts discharging the vessel, owners, and master from all claims on ac-