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·. '"
for FJuartB, Ohoau, & Beaman, for' claimant.
BENEDICT J. This is an action on the part of:the master and crew of the fishing steamer D. K. Phillips to recover damages of the owner of that steamer for a wrongfuldischa.rge; The demand of the master,; John Fee, will,first be considered'::·'l'he master was hired on the 12th of May to run the steamer D.K. Phillips on: the following terms: cents per thousand for the first two millions of fish caught; thirty cents per thousand on two millions to two millions five hundred fish caught; thirty-five cents per thousand on two'million five hundred thousand to three million fish caught; forty cents per thousand fisp caught in excess of three The master entered into the service of the defendant under this contract, took charge of its vessel, received for it a license as a fishii1g vessel, hired a crew, as usual, and engaged in the busiriess of fishing for menhaden. The contract entered into with the master was it contract for the season. Its terms show that by necessary implication. The usage, as proved in the case, confhms that construrtion. Under such a contract the mast0r was entitled to run the for the season, unless discharged meanwhile for prop cause. After a few weeks of service he was dis.r charged, and the question of the case is whether he was discharged for a sufficient cause. The answer set8 llP drunkenness as one cause. The testimony wholly fails to prove this charge. Drunkenness is not proved, and no facts are proved to justify a reasonable suspicion of such misconduct on the part of the master. The second ground pleaded is that, in the year before, this master, while in command of the same steamer, tren owned by a different corporation from the corporation here defendant, without the authority of the owner used the vessel on one Sunday to take a pleasure excursion with 15 or 20 of his own friends. If it be deemed proved that the master made an unauthorized use of the vessel on the former season,tl::utt violation of his duty to other defendants afforded the defendant no ground for rescinding its contract with the libelant. The only other ground on which the discharge issought to be justified is incompetency, and of this thereis:'no proof. It must therefore be held that the discharge of the libelant at the time it was made was wrongful, and a violation of the contract, which gave him a right of action for the damages !lustained by reason thereof. A further ground of defense is that at the'time of his discharge the libelant was paid for his services up to the day of his discharge, and he then gave them a receipt in full. But the evidence makes it plain that this was not intended to be a settlement of the demand for the wrongful discharge, and the receipt of the wages earned up to that time does 'not prevent him from recovering the damages arising from the refusal to permit him to earn wages for the I'eason. As to the amount of the damageS, the evidence shows that the'actual catch of this steamer during that season was three millions of fish, and the amount that would have been earned by the master must be calculated on this basis. He must allow
THE W. A. LEVERING.
credit for the amount received of the defendant by him, and the amount earned by hini. during the season subsequent to his discharge. As to the demand of the crew, there seems to be no defensell.t all. They were employed by the master for the defendant. They were engaged for the season, and they were discharged without any cause whatever. They are each entitled to receive the amount they would have earned during a service of six months, less the amount of their actual earnings during that period, and any sums that have been paid them. If the parties cannot agree upon these amounts, let there be a reference to compute the amounts'due the respective libelants upon the basis above indicated.
DARROW '11. THE
8. 7J. New York. October 22, 1888.)
TOWAGE-NEGLIGENO:m--STRANDING-HoISTING BAIL ON Tow.
The schoonerM.· which was lasbed on the port side of the tugW.· and bound through the East River into Long Island sound, when about abalf a mile from the passage between The Brothers islands, hoisted her foresail. ,The testimony was conflicting as to whether this was contrary to the orders from tug or not. The view of tbe pilot of the tug to hisporthand was thereby somewhat obscured. !nentering the passage between tbe Brothers. the M. struck on a reef projecting from the North Brother. Held, thatt,b.e scl;lOoner was in fault for obstructing the view of the pilot of the tug by hoisting her foresail, that the master of the tug was in fault for continuin#t his course with his view obstructed. when he could have insisted upon the lowering of the foresail. or could have taken the passage to the north of the island. an,d that the damages should therefore be divided.
In Admiralty. Libel for damages. R. D. Benedict, for libelant. Edwin, G. Davis, for claimant.
BROWN, J. The libelant's small two-masted schooner F.H. Miller, while in tow along-side the tug W. A. Levering, bound through Hell Gate to Long Island sound, wasrunupofi the shoal that makes out from the south-west side of the North Brother island. The Miller was on the port side of the tug, and between them was another two-masted schooner, the Cheseborough. 'l'here was a good breeze from the south-west, and the tide was flood. As the schooners were to be left by the tow a short distance beyond the North Brother, the Cheseborough, about half a mile before reaching those islands, hoisted her mainsail and foresail. Hercapbl.in testifies that he understood by signal that he had the consent of the pilot in charge of the tow) although such assent is denied by the pilot. The