THE JENNIE HAYES.
a common occurrence that surf from storms at sea suddenly breakS on the west shore. of Block island with force sufficient to break up vessels lying !lshore. It is stated by witnesses resident on the island that a large proportion of coal vessels which are bilged on the west shore of the island become ultimately a total loss. Taking the whole .circumstances of the case, I am of opinion that no course was open .to the master except to sell the vessel. Had he contracted with th9 wrecking company for the price offered, they would have been able, as the event was, to get off the vessel, and tow her to a harbor, where she might be repaired. But even in that case, so far as I can understand from the testimony, the sum paid to the wreckers, and the cost of repairs so as to make the bark seaworthy, would together have amounted very nearly to the value of the vessel as she was before she struck. But it is not even on this basis, as I apprehend, that the question is to be decided. The peril of the shi p cannot be measured by the ultimate result oUhe efforts to save her. I am to look at the danger in which she was, rather than to the damage which she received. It is· common experience that a ship is in mortal peril for many hours and, in the final result, escapes with no damage whatever. I conclude, therefore, libelant is entitled to recover as for a total loss, with allowance for the savings from the sale.
(Diairict Oourt, No
January 18, 1889.,
The lien of seamen for wages take! priority over claims of tbe United States fOr penalties incurred by the vessel for failure to keep posted the certificate of inspection. to have the name of the vessel painted upon the stern. or to carrysufllcient life-preservers. as required by statute; and it is immaterial that the seamen served with knowledge of such failures on the part of the vessel, as the statutes do not impose upon them any duty with respect thereto.
. In Admiralty. Libels by United States for penalties, and by seamell ior wages. Op. distribution of fund. T. P.Mv,rp"hy, U. S. Dist. Atty ... . UU Bros. & Michel and Henderson, Hurd, & Kiesel, f9crseanlen. _ J .On the 6th day of October, 1887. the surveyor of the port· ,of Dubuque llei.zed the steamer Jennie Hayes, then plying upon the waters of the Mississippi river, for violation of the. provisions of the statutes of the United States requiring the net tonnage of vessel to be deeply -carved or otherwise permanently marked on the main beam thereof, .as required by section 5 oUhe act of June 19, 1886; requiring the naine :and port to which the vessel belongs to be painted on the ste.rn upon a in section 4334 of the Revised Stl:'.tptes; re-
quiringcopies of the original inspection of the vessel to be kept. posted in cOllspicuous places',as"provided for by section 4423 of the Statutes; l'e<:iuiring a life-preserver or float for every cabin and deek paSsenger which the vessel is' authorized to carry ,as provided for by sectioh 4482 of the Revised Statutes. Subsequently a libel, inpro'per forill for the enforcement of the penaIties provided for such infractions ofthe statutes; was filed in this court by the United States district attorney,'ahd also libels on behalf of the seamen who had been employed on the vessel. Upon due application, and by consent of all interested, an order was Ulade'for !the sale of the vessel, and the proceeds :realized therefrom was paid into the registry of the court. The evidence taken in the cause substantiates 'tbe 'violations' of the statutes in the particulars named, thus showing that the United States is entitled to recover against the vessel the penalties provided in the sections above referred to.; It is also shown that certain sums are due to the seamen employed' upon said vessel, which were'li:eris upon said vessel when the same WR!:l seized and libeled on behalf of the United States; the amount due the seamen exceeding the amount realized froihthe 'sale onhe vessel'after paying the costs of ' seizure and :sale,' The question for determination is as to the priority of the'liens; The fact that thegovernrnent has by purchase, forfeiture, or otherwise become the owner of a vessel does not, ipso facto, displace or defeat liens in favor of seamen or material-men, is settled by the decisions of the supreme court in the cases of The St. Jago de Ouba, 9 Wheat. 409, and The Siren, 7 Wall. 152. It is, however, argued on behalf of the government that these cases recognize the distinction between legal and illegal voyages or venturljS, and deny the right to a lien on behalf of seamen ,'Yho knowingly engage in such unlawfdl'voyage; ahdthat it was unlawful for the Jennie Hayes waters of the Mississippi without complying with the to ply upon statutory requirements. It may well be that seamen who should knowingly engageas i8ueh upon a vessel used in the'slave trade, as was the fuc,t in ,the The J4go de Ouba, shouldb,e denied relief when they seek to recover wages tor such illegal ventu reo In such case it would appear that they knowingly'and intentionally aided ina violation of the laws of the United States, for which violation they would be liable to punishment, and under such circumstances the servicesl1pon which they would base their right to a lien would be illegal. There is'no provision in the statute of the United States which declares that a seaman shall be liable to punishment for serving upon a vessel which fails to observe the requirements of the statutes in regard to keeping, posted ,. the certificates of inspectiun, 'or to carved upon the'main bearidhe a.mount ofher tonnage; or to }}avethe name painted upon the stern 'of the vessel. The seamen are n6t charged with any duty in these respects, nor made liable if the statutoryrequiremelttsare not observed. lfitshould be held that seamen serving'upou vessels failing to obsen'-e these requirements have no lien upon the vessels'for their wages, this would, in effect,be inflicting a punishment upon them for such violations of the statutes, when' , the statutes do not so provide. If, however, the seamen are entitled to
for ,their wages, then s\leh lien l under the rule recognized and enforced bythesuprelne court jn the cases abovecjted, is superior and parathat of the Upited States. Upon the facts disclosed upon the record inthis cause itntuat be held that the:seamenhave a lien uponthe proceeds .of the vessel fot the wages due thelli, and that such liens are entitled to priority over the claim ,0fthegovernm$1t.
EATON 11. NEUMARK
(Circuit Oourt, S. lJ. New York. October 8, 1888.)
SJnpPJ;NG--CARRIAGE all' GooDs-DELIVERy-DuTY, Oll'
Bills of lading for a consignment of iron rails, of wliich 88 tons were to }Ie delivered' to respondents, and 180 tons to a third person, contained the clatlse. "vessels .1,lpt Iiumberof pieces or weight." It appeared that the entire consignment weighed 20 tons I11SS than the billsrecite4; that respondents rllceived 28tODS less than their bill 'called for, and the .othcr consignee 8'tons more;· that the rails were discharged direct from the wbip :cars. of a railroad company authorized bY tl;111 consignees t6 "ccept dallv,ery; tb"t agents. in was delivllred, accepted it as what they were entItled'to, and shIpped It away by the cars. Helit. that though the IDastermay have bee.nindi1ferent in making the separate 4elivqry, yet. respondents' agents having to d.o his work,tqe burden was on respondents to shoW that the quantIty accepted by the agents wBs'lessthan should have been-delivered' to them, through some fault of the ship.:, ' :
In'j\,.d: Dliralty. On appeal from district court. 33 Fed. Rep. 891. , Libelhy Charles F. Eaton to recover freight on;8 oonsignment of iron l'lfoils. The Julius Neu,mark and others, pleaded as an offset shortage in qUllntity delivered. There ,Wall a decree in the district court in fl:\vor of the libelant, and respondents Ilppeal. , :4, Edgar Ar07tand Goo. E. SibleYI forappeUants. JameBK. Hill and Wing & Slwudy, forappellee.
WALLACE, J.. As the master gave separate bills of lading for the two consignments of old iron which he undertook to transport, it be'came his duty to make delivery to each of the two consignees of their respeotiveparts of the cargo, and to ,keep the· two consignments separate or distinguishable, so far ,as necessary in this behalf. The circumstance whole cargo was received from one shipper did not affect his 1'esponsibility,in this regard. The clause which was written in the bills of lading, "vessel not accountable for the number: of pieces or weight," did»ot,a.bsolve him from making delivery of all the iron he received, qualified the ·effect of the recital in the bill of lading of the number the the iron received,as an admission. It .was valent to a sta;tement by the master that he had not so verified thetmth of the admission as to be willing to adopt it as correct. AecOl'dil'lgto their bill of lading, the appellants, ·who were the consignees