THE CITY OIl' NtwORLEANS.
THE CITY OF NElW ORLEANS. 1 WALKER
'11. 'fHE CITY OF NElW ORLEANS.
(Oircuit Oourt,E. D. Lotd8iana. January 16, lSSS.)
SEAMEN-EMPLOYMENT OF DEOKHANDS-RoUND TltIp-DISCONTJNUANOE.
Some roustabouts shipped for the round trip from Cairo to New Orleans and batk. When the boat arrived at New Orleans, the voyage 'was broken up by the direction of the owner, on account of ice in the river above Cairo. The river lI'as free below Cairo. and there was no reason, beyond the will of the owner, why the voyage was not cOlnpleted. Held. that on their discPw:ge, under these circumstances, the libelants were entitled to be paid their wages for the voyage or round trip, and for their necessary expenses in returning home.
S, SA.lUll ·,..,. EMPLOYMENT OF, DJj:CKHAND!' .
WAIVER OF CLAIM FOR
W AGlllS. ,. . The .owner paid the wag-esof the roustabouts to date ofclischarge, and ten,dered each a ticket back to Cairo, or cash ill lieu thereof. Held, that the aecep,tanceon the part of .libelants of. wages up to date of. discharge. and of tickets. or money in lieu of passage, did not bar them from claiming the balmoney which was their due. . ance of wages or
In. a .suit in admiX:alty, the case presented was one in which the proof and the allegations did not correspond. Damages on one cause of action were alleged, and the right to damages on a.nother was proved. Held, tbat in admiralty proceedings parties were permitted tointroducEf'new allegations and new and tha.t to do justice CRse, the' libelants must amend.
8. ADMIRALTY-PRACTICE-PLEADING AND PROOF-AMENDMlCNT.
John D. Grace, for libelants.
F. D. King, for claimant.
PARDEE, J. In the month of December, 1886, the libelants, Tom Walker,. Dick Norris, Tom Young, Louis Barlow, and Albert Lee, at Cairo, Illinois, shipped on board the City of New' Orleans, as roustabouts, 'for a round trip to New Orleans !1nd back to Cairo; wages. to be $30 per, montn. The voyage to New Qrhianswas Imide in about nine and Ii. half days, and during the same the libelants performed their ra. spectiveduties, to the satisfaction of the boat's officers. On the arrival at New Orleans, the was broken up by the direction of tpe owner, the boat was laid up,and the crew, including libelants, discharged. The voynge was broken up by direction of owner on account of ice in the river above'Cairo; but the river was fre'¢ below Cairo, and there was no reason beyond the will oftlieowner why the voyage for which libelants shipped waS' not n.'Jade. , On'their discharge, under these circumstances. the libelants wereentitled to be paid their wages for orround trip fot which theyengaged ,and fortheirnecessary ex penses in returning home. See Fland. Mar; Law,§ 492; Curt. Merch.. Seam. 295; Desty, Adm. § 162, and cases cited; The libelants were paid their wages up to the ai'rival in New Orleans and discharge, and Tom Walker and Dick Norris were given! it ticket fot deck on the Paris C. Brown, not inciuding meals; and Tom Young and Louis Barlow were given two dol, , .
by Charles B. Stafford, Esq., of the New Orleans bar.
lars each,.alleged to be the cost of such ticket. Walker and Young applied for such transportation home as would give them meals during the passage home, and were refused. The evidence is that by the river the passage froni New Orleans to Cairo requires seven days; the CQst appears to be three dollars for passage and fifty cents per day for meals, making six dollarsanda half for transportation. Wages for the seven days estimated for the trip, at $30 per lll()llth,would amount to seven'dollars. Each of these libelants, then, on his "discharge was entitled to thirteen dollars and a half, or seven dollars and necessary expenses home; this latter worth six and ,a half dollnrain addition. ,toihe wages. lrithis state of the case libelants, through their proctor, filed a libel against the said steam-boat, in the district court of this district, denominated a libel for damages in a cause of wages, civil and maritirn,e,in,:which it ,is Propounded at leJ;lgth thatthe libelants wh,ohad,.b.een as laborers to put freight aboard were kidnapped i:n Cairo by being enticed; into the'1l1l:!ssl rodtti of the boat' under the pretense' 'dfgh'ing them sljpper, ,ap.d,were then10cked iIi and guarded until the boat started on her voyage; that the ,boat did notland for 40 miles, and 'then in the night and cold weather, and' that libelants, fearing that boat would perish of cold' and 'exto New,Orleans, helieving, they would be carried back heme on the return-trip of the' boat, as' was' promised them by the head mate. The laying up of the boat in this port is alleged, but no averment is made as to discharge or the payment of any wages. The unjustifiable conduct of the officers in carrying away libelants without their consent, the large wages that libelants were getting at home, arid could have earned, the comforts of their home life, their loss of time and pain of mind, are all as a basis on which libelants should be decreed, as prayed for, compensatory and exemplary damages. On the hearing, the libelant's actual case, as hereinbefore stated, is proved; while; their case, as set forth in their libel, is not proved, but is shown to be, if not wholly imaginary, grossly exaggerated, and largely f).ctitious. As the evidence developed, the claimant filed his answer denying thekidnapping,setting out the shipment of the libelants for a round trip from Cairo to New Orleans and back to St. Louis, the laying up of the boat at this port because of ice, above Cairo, the discharge of libelants,at this port, the payment of wages to date of discharge, and the tender to of a op the Paris C. Brown back to Cairo, or cash, in !jim t;hereof; that the libelants, except Albert Lee, received one or the other, and, we.nt away satisfied, and that the libel was the first intimation of and tpereupon tender is made in court of $5 to Albeit Lee (of'passage harPe,'and to TOlll:walker oU3, which it is said (ill the evidence shqwsthap claims for ,meals. The acceptance on the part of the libelants of wages up to the, date Clf and of tickets or money in of passage, does not bFtr, theJIl frqm c4imihg the balance which was their due. Desty, Shipp. & Adm. § 161; Satin v. 'The Jwno, 1 Woods, 300. The case presented is one where the allegations and the proof do not correspond, damages on one cause of ac-
PROVIDENCE W ASHINGTh,N INS. CO. 'V. BRADLEY FERTILIZER CO.
tion are alleged, and the right to damages on another are provedj and, In admiralty proceedings amendments both in matters of form and substance are very liberally allowed and parties are permitted, whenever the substantial merits and justice require it, to introduce new allegations and new proof. Dunl. Adm. Pro 211, et seq. Admiralty rule 24 provides for amendments in matters of substance, upon such terms as the court shall impose. See The Charlesllforgan, 115 U. S. 69, 5 Sup. Ct. Rep. 1172. Considering that the case as presented in the libel, may have some foundation in fact, so far as means were resorted to to keep libelants aboard after they had shipped, (and on this point the failure to produce or account for the aggressive mate is the main circumstancej) and that the fault in stating the case may not be wholly libelants', I am disposed to allow, an amendment showing the actual facts, before entering a final in: the case. On proper amendment, a decree will be entered giving'judgment in favor of the libelants, as follows: Tom Walker, $13.50; hiss $3, teqderedincourtj Albert Lee, $13.50, lessS,5, tendered in courtj Dick Norris, $13.50j Louis Barlow, $l1.50j Tom Young; $l1.50jand condemning libelants to pay all costs, after applying thereto the $8 heretofQre, tendered in court. ' , .,
to do justice on the ease made, the libelants must amend.
PROVIDENCE WASHINGTON INS.
'V. BRADLEY FERTILIZER
(District Court, D. Rnode I8land. February 18,1888.)
An under-deck cargo of fish-scrap, on a coasting voyage, is not .liable to contribute in general average for the jettison of a deck-load of oil in barrels, although there is a custom in the trade to carry oil in barrels on deck: wilen the under-deck cargo consists of fish-scrap, and the oWller of the under·deQk cargo is chargeable with notice of such custom. .
In Admiralty. . Libel in admiralty brought to recover, by subro?;ation. for a geueral average loss claimed to have been sustained by the jettison of a deck-load of of oil, loaded on board schooner John H. Perry. The evidence at Tiverton an under-deck cargo of fishshowed tha,t the, !3qhooner to and insured by the Insurance C()mpauy of North America, and gave a bill of lading for its delivery in Weymouth, Massachusetts. The s-1hooner also loaded a deck-load of barrels of oil belonging to Joseph Churlilh & Co., insured by libelant, and billed to Gloucester 1 Massachusetts. For ,the purpose of showing that the defendant is chargeable with knowledge of the deck-load shipment, .the libelant introduced evidence ,tending to show that Joseph Church & Co. were the agents of the defendant company to attend to the chartering of the vessel, and the shipping of the fish-scrap. There was also evidence tending to show that there is a custom, in the fish-oil and guano trade,