WILSON fl. THE JOHN RITSON.
:are not in the French play, and all thes'e ,characters are also in the defendants'. One character, D'Aubiere, in the French play has an incognito name, "Lavalier," whereas his incog. name in both complainants' and defendants' play is Grignan. The scenes and situations. in complainants' and defendants' adaptations are alike, and different from the French. Exhibits 3, defendants' operetta, and D, complainants', have ideas expressed in common, not found in the French, and one character in common-the king-not in the French. We are satisfied, notwithstanding their denial, that the defendants must have adapted their play from the complainants', and not from the French. They also advertised as being Genee's work, and not their own, from the French. the They called it "Genee's Nanon, the reigning European and Eastern sensation." We have no dOUbt, also, that the evidence is sufficient to show that Genee and Zell were the authors. The defendants deny, argumentatively, in their answer, the allegation of authorship, but not in such form as to make it evidence. They argue it on the theory that the Frenchman was the author, and not Genee, and do not pretend to have personal knowledge. Besides, in 1111 other parts of the. answer, and in their testiunconsciously, often speak of it as Genee's. Every exhibit · . mony, they put into show a publication both in the German and English represents it as, G.enee's, and there is no ,suggestion anywhere that anybody, else is the authQr. The public aocept it as theirs. Besides, Conried testifies that he was, in Vienna while they were writing it, before it was finished, portions of it were played or rehearsed to him by Genee. Ge:neea.nd Zell assumed to be the authors, and sent the manuscript to New York to them, as anthors. The evidence, in OUT judgment, is sufficient to esta.blish the authorship, and so it was held in one of the pamphlet cMes cited,-Goldmarkvs.Ftench,-where a similar question as to authorship was raised, on less satisfactory testimony ,than there is in this case. The authorship in that case was sustained. We are of opinion,there. fore, that the defendants should be restrained from performing theoper, etta as a whole, and from performing the piano score, or the libretto containing the dialogue, stage business, situations, etc., or any part of the operetta as performed by defendants, and threatened to be performed by .them, except the orchestration, which was their own work; and that they llhould, also, be restrained from performing any operetta under the name .of"Nanon," or as "Genee's Nanon, the reigning European sensation," etc. Let a decree be entered accordingly, with costs.
THE JOHN RITSON.
(DiBtrict O()'IJII:t, D. Soutlt Oarolina. June 25,1888.)
SBAMEN-W AGE8"-FoRlilIGN REGULATION8.
Libelant, a seaman on a British vessel, under articles for the entire voyage, absented himself from the vessel on its arrival in a United States port. and, after his absence had been noted on the log-book for several days, he was marked as a deserter. On that day he returned, but was told to go about bis
own business. Held that, as the court would administer relief by comity, in accordance with British law which forbids the master to dischl;1rge libelant in such port without the consent of the consul, which was refused, and as the master was to receive libelant on board the vessel, claiming that he had never discharged him, /tnd the latter was anxious to secure passage home, an order would be entered securing that result, and the libel for wages be dismissed.
In Admiralty. Libel for seaman's wages. C. B. Northrop, for libelant. . J. N. Nathans, for respondent. SIMONTON, J. The libelant, a seaman on a British vessel, brings his libel for wages. The shipping articles signed by him in Glasgow were for a voyage from that port to ports in South America, thence to ports in the United and back to Glasgow. Arriving in this port on the 14th instant, he absented himself from the ship. His absence was noted on the log June 18th, 19th, 21st, and Oll 23d he was marked as a .deserter. On that day he went to the vessel, saw the master, and asked fodHO. The master refustld him the rrioney, and told him to go about his own business, as he had been doing little else since he was in port. ' Thinking that this was a discharge, the libelant began the suit. We have a case of a controversy betweel]. master and seaman ofa foreign vessel, under a foreign flag, growing out of a contract made in their own country. There can be no question that, in the absence of treaty regulations to the contrary, this court has jurisdiction of the question, and that the exercise of the jurisdiction is wholly within its own discretion. The Maggie Hammond, 9 Wall. 451; The Belgenland, 114 U. S. 365, .s Sup. Ct. Rep. 860. But when this jUl'isdiction is exercised, the court will administer relief by comity, in accordance with the law of the flag of the vessel. The Olga, 32 !i'ed. Rep. 330; The Brantjord City,29 Fed. Rep. 373. "Whoever engages voluntarily to serve on board a foreign ship necessarily undertakes to be b(;mnd by toe law of the country to which the ship belongs." The Belgenland, supra. The questions then are: Are the shipping articles rescinded as to this libelant? Has he .been discharged, and must his wages be paid to him? The master could not discharge him in this port without the concurrence of the consul. The shipping articles contain' an extract from the British statutes on this point. He appears in court and says he did not discharge him. H. B. M. consul is also ill court. He has testified as to the statutory regulations and adds that not only does he not consent to the discharge, but that he forbids it. The note on the log that the seaman has deserted does not discharge him. It exposes him to certain penalties when the voyage is ended. These can be adjudicated in the ho l8 tribunal. The master expresses his willingness to receive the seaman on board his ship. The libelant is anxious to secUre a passage home. Let an order be prepared securing this result arid let the libel be dismissed.
AMOS D. CARVER.
CARVER. l LEHIGH COAL & NAV. CO. tI. SMITH'll. SAME. ENDICOTT'll.
HARBINGER'll. THE AMOS D. CARVER. SAME. HEIPERSHAUSEN 'V. SAME. SAME.
(District Court, S. D. New YO'l'k. June 23, 1888.)
2. SAME-STATUTORY AND MARITIME LIENS.
Under the circumstances. a delay of less than nine months after midsummer repairs before instituting proceedings to enforce a lien therefor, held, not to be laches; a year's delay, held laches. and the lien postponed. &. SAME - MARSHALING REMEDIES-LIMITATION ON LIABILITY- ACT JUNE 26, 1884, § 18. Though contract lienors, in case of insufficiency, may sometimes be turned over to their personal remedy against the owners, in favor of a damage lienor, this is not to be applied when the oWller is insolvent, or not by law liable. The act of June 26, 1884, § 18, in limiting the owner's liability "on account of the sbip" to the value of ship and freight, does not affect contracts made by the owuer personally, but applies only to the liability for the master's acts and contracts imposed by law on the owner, as principal, and on account of his ownersbip.
In considering questions of priority of liens, a statutory lien for domestic supplies stands on the same footing as liens that are strictly maritime; and liens for ordinary repairs or supplies in harbor navigation, if furnished within the same season and within a period of reasonable, diligence, are treated as contemporaneo 'Js, and, in case of deficiency, share pro rata.
Libels for wages and for damages.
Alexander &- Ash, for B:eipershausen. Jas. W. Osborne, for Harbinger. Wing, Shoudy &- Putnam, for Lehigh Coal & Navigation Company. A. J. Heath, for the Kate. Carpenter &, Mosher, for the Skidmore.
BROWN, J. The first above libel was filed for seaman's wages for services on the steam-tug Amos D. Carver. The report of the commissioner in favor of the petitioner Bradley for $146.57 is sustained. This amount must have accrued during the six months after July, 1886, and ilhould not be held lost through laches. The Carver was sold under a decree in Harbinger's suit; and, after paying the marshal's costs, as well also as the claim and costs in that suit, the remaining net proceeds, amounting to $528.86, are now in the registry of the court. The controversy arises among the other Henurs in respect to these proceeds, which are insufficient to pay all. The libel of the Lehigh Coal & Navigation Company was for damages by collision to the barge Kaska Williams, belonging to that company, and to a cargo of coal laden thereon, which was in, tow of the steam-tug Skidmore, which, on the 21st of FebI
Reported by Edward G. Benedict, Esq., of the New York bar.