WALSH '11. STEAM-BHIP LOUISIANA.
tected, not to the injury of respondents, but to secure them , their just wages. It is very easy for officers of vessels to , engage mariners at lit fixed rate, and if they do not do So the courts must allow them the highest rates existing at the time at the port of departure. Under this rule libellant will take his decree for $39, interest, and costs.
WALSH V. THE STEAM-Smp LOUISIANA.
(District Court, 8. D. NeAD York. November 8, 1880.)
SEAMAN- W AGES-DISCHARGE.-Where the officers <If a vessel are entitled to discharge a seaman at pleasure, they are bound to be ready to pay his wages at the time of his discharge. Th6 8clw01U'/1' David Faust, 1 Ben. 187.
2. SAME - SAME - DEMAND. - In such case 8 demand of the officer who employed and discharged the seaman is sUfficient.
In Admiralty. J. A. Hyland, for libellants. J. E. Parsons, for claimants. CHOATE, D. J.' This is a suit for wages.' The libellant was hired to serve on board the steam-ship Louisiana as fire-, man, at the rate of $40 a month. He served from August 4, 1880, to August 24th, inclusive. On August 24th he was discharged, being told by the assistant engineer, by whom also he had been employed, that his services were no longer required. The next day, which was Tuesday, he went to the vessel and demanded his wages of the officer who discharged him, aU'll was told by that officer that he could not pay him; that Thursday was pay-day; that, if he wished to be paid sooner, he must go to the captain and get an order. This the libellant refused to do, and threatened to sue the vessel. Thereupon this suit was brought without further demand. There is no dispute about the amount of the libellant's wages. It does not appear in what service the steam ship
was running, but it is assumed by both counsel that the manner of the libellant's discharge, at the pleasure of his employer, was legal, and there seems to have been no signing of articles. I shall, therefore, assume that the vessel had not been employed upon a foreign voyage, and that the case is not one covered by the acts of Congress relating to the time and of paying the seamen. only point made for the claimants is that the libellant should not have costs, because he made no proper demand for his wages before bringing his suit. I think, however, a case is not made out for refusing costs. If the agreement was such that the officers of the vessel were entitled to discharge the man at pleasure, they were bound to be ready to pay him at the time of his discharge. His wages were due at once and should have been paid without any delay. The Schooner David Faust, 1 Ben. 187; Betts' Adm. Pl'. 61. If any demand was necessary, it was enough to make a demand of the officer who discharged him and who had employed him. No case is cited in which costs, in a suit for wages, have been refused simply upon the ground that the suit was brought after the discharge of the seaman and without a demand. The cases cited by the claimant's counsel as authorities for refusing costs are cases in which the seamen, being entitled to a trifling sum for wages, brought suit, tacking on to their claim for wages, which they had not demanded, some exorbitant and unfounded claim, on which they failed to recover. The Steam-boat Swallow, 1 Ole. 11; The Ship Moslem, ld. 381. I see, therefore, no sufficient reason for refusing costs. Decree for libellant for $25.27, with interest from August 24, 1880, and costs.
PUTNAM II. COMMONWEALTH 1::0<8. CO.
LA CAISSE GENERALE DEB ASSURANCES AGRIOOLES
ET DES ASSURANCES CONTRE L'INCENDRE.
(Ou-cuit Oourt, N. D. Ne1D York.
November 4, 1880.)
L REFEREE-FINDING OF FAcT.-The finding of a referee upon a question of fact will not be disturbed, except in a case where the finding of a jury upon the same question would be disturbed.
!&. IN8URANCE-FRAUD-EvlDENcE.-In order to establish fraud In presenting proofs and claim of loss, under a policy of insurance, it be shown not only that the goods were worth less than set forth, that a fraudulent valuation was made of the same.
3. SAME-POLICy-AGENT-W AIVER.-A policy duly signed and countersigned was delivered to the agent of the assured by the local agent of an insurance company. It provided by a printed provision (hat "if the assured shall have, or shall hereafter make, any other insurance on the property hereby insured, or any part thereof, without the consent of the company written hereon, · .. · this policy shall be void." It also provided that it was a part of the contract "that any person other than the assured who may have procured this insurance to be by this company shall be deemed to be the agent of the assured named in this policy, and not of this company, under any circumstances whatever, or in any transaction relating to this insurance." The policy also contained this clause in writing: ·· $3,000 other concurrent insurance permitted." It was SUbsequently found by a referee that, the time the policy was delivered, the agent of the company knew that the assured had other insurance upon the property to the extent of $6,000. Held, under these circumstances, that a delivery of the policy was a waiver of the implied prohibition contained in the condition in said policy, permitting $3,000 additional insurance. Whited v. Germania Fire Ins. 00. 76 N. Y. 415.
4. SAME-SAME-NAPHTHA.-A policy of insurance provided: "If in saId premises there be kept .. .. .. · .. petroleum, naphtha, gasoline, benzine, benzole, or benzine varnish, or there be kept or used therein camphene, spirit gM, or any burning fluid, or any chemical oils, without written permission in this policy, then, and in every such case, this policy shall become void." Held, such provision did not forbid the use of naphtha upon the insured premises for the purposes of illumination. SAME - SAME - " BURNING FLUID. "-Such policy also provided that "if, during this insurance, the above-mentioned premises shall be used for any trade, business, or vocation, or for storing, using, or