DARY t1. THE CAROLINE MILLER.
adjusted at the rate of $1:50 per day fat 35 days; that sum, in the absence of other evitlence, being taken to representthe actnal value of the use of the vessel on the basis of her charte,i' rates, including such of the officers and crew as were attached to her while she was undergoing repairs; with a further allowance of $121.40 as three thirty-eighths of the difference b'etween the rates of the two charters upon her cargo of tons, for: the.loss on the remaining thrp,e days of the original charter period, amounting in all to 85,390. A few minor items were also cepted to. 1. Adjustment of Compasses. The testimony shows the liability to a change in the adjustment of the compass from putting new iron plates upon the shrp. In this case 22 new plates were put upon the bows, not far from the compass. Reasonable precaution made the readjustment necessary, and. this item of expense should therefore be allowed. The «overhauling" of the compass, so called; was not made necessary by the collision, and is therefore disallowed. ,2. Rating at Lloyd's. !twas conceded on the argument that a proper rating of the ship, and a certificate thereof, are necessary, in ordmary commercial dealings, to enable the ship to obtain employlilent at the market rateEl. The collision destroyed thA rating she previously had, a,nd therefore rendered a new rating necessary after she was repaired. The expense of th,is new rating was the direct result of the collision; and should therefore be allowed. 3. Master's Protest. The expense of a protest made in the home port as a mere means of collecting the insurance has been held in this court not recoverable, becauseinsurance is a matter of contract wholly between the insurer and the insured, and is no part of the owner's interest in the ship. The Oity of NO'T'UJ'i£h. 118 U. S. 468,,6 Sup. Ct. Rep. 1150. But the master's protest, made in a foreign port, tr;uthfully stating the details of any disaster to this vessel, is important if) many ways to all interested. It is required by ancient, and, I think, almost universal, usage. Dana, Seaman's Manuel, 186; Abb. Shipp. *380; 1 Kay, Shipm. 253; Laws of Oleron, 14; Wisbuy, 55. The expense is small, and when made in foreign ports, as in this case, it should be allowed. The other exceptions, are over,l'uled.
THE CAROLINE MILIJER.
(District Oourt, S. D. Ala,bama. October 15, 18S8.)
thereby save him any loss which he may sustain from the discharA'e, a refusal to accept such offer is a waiver of all damages which might be recovered for the wrongful discharge.
SAME"':"REMEDmS-WAGES NOT DUE.
A seaman discharged before the expiration of his term of servo ice cannot maintam a libel for wages not yet due; but, having filed such libel, may amend it so as to claim damages for a breach of contract.
In Admiralty. Libel by Dary against the Caroline Miller for balance of wages due. On exceptions to libel. Smith & Gaynor, for libelant. R: H. Clarke and Pillan8, Torrey & Hanaw, for vessel. TOULMIN, J. It was conceded on the argument in this case that under the existing law the libelant was 110t entitled to recover one month's extra wages under section 4527 of the Revised Statutes, it being admitted that that section had been repealed so far as vessels engaged in the coastwise trade were concerned. Exceptions 1 and 2 are therefore well taken. The libel shows that the libelant shipped as a seaman on July 28,1888, and was discharged on August 19,1888, and paid up to and including that day. The libel was filed on August 20, 1888, and in it , the libelant sues for the balance of the month's wages which he had begun to earn, but which were not due until the expiration of the month, to-wit, the 28th August, 1888; the wal!cs stipulated for in the articles being $25 per month. Clearly he could not sue for and recover the balance of his wages until they were due. His libel seeking to recover the balance being filed before they were due, cannot be main:. tained. But if he was wrongfully discharged,-that is, was discharged before the expiration of his term of service without cause,-he could maintain a libel for damages for a breach of contract, and he would be allowed now to amend his libel 60 as to claim such damages. Was he wrongfully discharged? It appears by the libel that he was discharged without fault on his part. Then, did the master have the right under the shipping articles to terminate the libelant's connection with the ves;' sel? Could the libelant on the arrival of the vessel at Mobile have quit'ted her without the master's consent, and without rendering himself liable to be treated as a deserter? If, under the contract, he had the right to sever hiE: connection with the ship, the ship possessed the same right. A case like this in principle was decided in the Southern district of New York, (The Edwin,) to be found report in 23 Fed. Rep. 255. There d the libelants shipped as seamen, and signed articles for a voyage from a port in South AmerlCa to Hampton Roads for orders, and to any port or ports in the United States or Canada; the voyage not to exceed eight calendar months. The vessel proceeded to Hampton Roads, and there received orders, and thence sailed to New York; where she discharged her cargo. The. libelants shipped in January, 1884, and arrived in New York in June, 1884.' The libelants thereupon quitted the ship. The master, claiming that the shipping articles bound them to the ship for eight months, entered them in the log as deserters, and refused to pay the balance of wages up to the time they left. They libeled the vesE-el.
FEE 'D. ORmNT FERTII.IZING CO.
The court held that the articles provided for only one voyage, not for one or more voyagee, during eight months; that the one voyage stipulated for ended at New York. The libelants were entitled to their discharge in New York, and could not, therefore. be treated as deserters. They were;decreed their wages up to the time they left. In this case the articles provided for "a voyage from Philadelphia to Galveston and one or more ports in the United States, for a term not exceeding two months." The libel shows that the voyage was made to Galveston, and thence to Mobile, a port in thA United States, where the libelant was discharged. The articles in this case did not stipulate for one or more voyages. but for one voyage only. It ended at the port of Mobile. It does not appear that the vessel had a cargo to be delivered at any other port. It appears she received a cargo at Mobile for New York, and was about t(} proceed to the latter port. But that was d new employment, and a new voyage; a difl'erentonA from that on which libelant shipped. As, in my judgment, the voyage stipulated for was ended at the port of Mobile, either party had the right· under the contract to terminate his relations with the other there. The discharge of the libelant was therefore not wrongful. .But suppose it was wrongful, and he was entitled to recover damages therefor. It appears from the libel he was paid up to August. 20,1888, and that on that very day the master offered to take him back. and to carry him on to New York, as libelant claimed was his right to demand; but libelant declined the offer, and refused to restore his relations with the ship, and thereby save himself any loss which he might otherwise sustain by reason of such wrongful discharge. By such refusal he placed himself in default, and absolved the master from all obligations to him under the alleged contract. Wood. Mast. & Serv. 269. The ex· ceptions to the libel are sustained.
et al, v.
Court, E. D. New YO'I'k.
September 24, 1888.)
SEAMEN-WRONGFUL DrSCHARGE-DAMAGE-FISIDNG VESSEL.
A master and crew wrongfully discharged by the owner of a vessel from employment under a contract for the entire season. wages to be in the· ratio of the 'quantity of fish caught. may recover damages for such discharge, based upon the amount they would have received as wages on the catch of the whole season, less the amount actually paid them, and any wages earned by them during the season after their discharge. A receipt by the master in such case for his wages in full to the time of his discharge is no bar '0 a libel for wages for the residue of the season, the evi· dence tbat it was not intended as a settlement for the wrongful discharge.
SAME-RELEASE AND DISCHARGE.
In Admiralty. Libel by John Fee, the master, and others constituting the crew, of the fishing vessel D. K. Phillips, to recover damages for wrongful dis·. '"