llERON fl. THE MARCHIONESS.
sum was $623.69. The amount insured is, in each case, subject to a, further deduction for the amounts paid for a previous partial loss on the same risk and policies as are here involved; There will be judgment for the libelant in each case for the amount insured, less these deductions, with interest from March 23, 1889, and the matter is referred to Commissioner Loew to make the proper deductions, upon the principles above stated.
·HERON fl. THE MARCHIONESS.
(Circuit Court, N. D. FZO'1"Ida. March Ill, 18oo.)
WHARVES-LIABILITY POR WHARPAGE-MOORING FOR SAFETY.
A ship compelled by str6l!s ofweatber to moor to a wharf for safety 1s not liable to a cbarge for wharfage where the wharf is a private one, and no fixed rate of chargeis in use.
John a. Avery, for libelant. Blount &: Blount, for claimant.
On appeal from district court.
40 Fed. Rep. 330.
PARDEE, J. The steam-ship Marchioness was at anchor in the port of Pensacola, loading with timber, when a severe gale sprung up, which caused her to drag her anchor and drift towards libelant's wharf. When near the wharf, about 15 to 20 feet away, with timber along-side of her, and with two anchors out, she went aground. To prevent forging ahead, the master put out a side line and chain, and fastened both to a check., post on libelant's wharf. This line and chain remained for about an hour, when they were taken off. Soon after, the gale having abated, a tug towed the Marchiones!:l and timber to a safe anchorage. The libel is brought intbis case to recover wharfage." To maintain the libel, the Gourt must find an implied contract between the libelant and the ship t'o use the wharf, and to pay for such use. Whether such contract can be found depends upon the character, public or private, of the wharf,for what purposes it was built, the use to which it has been applied, 'the place where located, the nature of the structure, and the general circumstalwes of the case. See Dutton v. Strong, 1 Black, 24. If libelant's wharf was a public wharf, in the sense that the owner did not reserve exclusive enjoyment, but was under obligation to concede to others the privilege of landing their goods or mooring their vessels there upon the payment of a reasonable compensation as wharfage, and the said wharf was suitable for the purpose of mooring vessels, and was held out for public use, and was so used, then, as the master and owners of the Marchioness voluntarily used the said wharf to moor their p,hip, it is probable a conmay be inferred. That is to say, if the libelant, tract to pay having a suitable wharf for mooring ships, tendered it to the public, so that he may be presumed to have consented to the mooring of the Mar-
ahidnellll, and the Marchioness ilcceptedand used such wha,l'f,animplied contract to pay wharfage may. be presumed. Looking to the evidence in the case, we find the following: 'Louis Daniel, wharfinger, testifies: "The whart' is a private wharf projecting from a lot ownedbj- Dr. Heron." The libelant, Heron, testifies:
"'The wharf alluded to is my property, and private. I never had a steamer along-side of my wharf since I have been a wharf-owner. I have, therllfore, never made any charges. My charges have always been for vessels lying along-side of my Wharf for the purpose of discharging ballast, and that by special rates. I have before charged other vessels similar to those of the Marchioness; that is, they have drifted into wharf, and made fast to same, one small vessel, and bark;... One,was there a day and a part of a day. The other was there two days. I have made charges for timber rafts laying along-side of. my wharf, being put there without orders, in fair weather. This occurred twice."
This is all the evidence there is with regard to the public character of libeh\pys wharf. It does not. appyar that any fixed charges or rates were had and Dlaintitined for the use of said wharf. It does not appear that the public had a right to use, or did use, the said wharf for the purpose of landtng goods or mooring ships. The Marchioness had no .business to transact with the libelant. The vessel did not go to the pier for freight, nor for mooring purposes. The fact is that the vessel, in emergency, used the wharf for the purpose of putting out a safety line, just as it xnight nave used a pile or, checking-post. ,The owner of the wharf had the rigQttso far as the evidence shows, to compel the removal of the lines of the Marchioness, as put theret,without ·authority. Dutton v. StrO'l1g, supra.· The general scope of the evidence is that the libelant's wharf was not intended to be used for the ,purpose of mooring ships in time of dan. ger.·,· Under these circumstances, it does not appear that the court ought to find an implied contract between the owner of the wharfand the ship for the use of the wharf., Without such contract, ashas.been said be· fore, the libel must1ail., I have aamined the opinion of the district judge in this cause, (40 Fed. Rep. 380,) and consider that we differ onthe facts, and not the Jaw, oMhe case. Whethertheeyidence is the same on this hearing as in the district court' does not appear. A deoreewill be entered dismissing the libel, .witl;l.costs.
WAI1BBOAIRII. rHE. OBAIGlI:tfD.
WAITSHOAIR et oJ.
(District Oourt, D. Washinl1ton,;W. D. April 28, 1890.)
Upon a review of the testiniony in this' case, the oourtfindll that the libelants enter'ed:into a oontract to serve as seamen on board the BritiSh ship Craigend fpra definite period, dllring which time the vessel was to mall;e one or more voyages within specified limits, and to a port of disoharge in Europe; and pursuant to said oontraot they served as seamen' on the vessel until their at 'l'acoma, when, b\liof6 th.eexpiration of tlletllrm Qf service, the. liljlelantsvoluntarily lef.t the vessel, all-d' the contrB9); wastietinillated by mutual consent of the libelants an\lthe .master. , Ii .
I. SAloJB-DISCHARGB...,.Mu'ruALCONfjEN'r. . A contract C?f shipment, after part performance, may be lawfully 8brOgatedas to the. unperformed part.,by .DiUiU.alconsent of the..1Iea.men. and master, aad auch oon$6l1t qlay be implied frOQl the conduct and action.s of the parties. . ..
In Admiralty. , Tay7I:Y!k!Iam1lWnd, for libell,Ults. k ;Abbott, forchiimapt. ,
'HANFolm, J. ThelibelaI1ts,fiftElen in nUIllber, Bet forth their libeltbat they severally signf(d shipping atticlesby whichtq.ey agreed'toBerve,some as ,able seamen, and the others as ordinary ,in the British shipCraig,lltld, for. a periqd not wexceed two and during',tbatperiod to make one ormQr/il voyages, within liIpits, the service to end at any POl1t or place in the United KiIlgdom or the continent of Europe, at the for Which they ;\,Ve!-"e"to receivewages at a fixed I'ate per month. This is an entire contract, I consider it to be valid, notwithstanding the objections urgecl for the libelants on account of indeflniteness in, description of the VClyages to 00; made duringtbe, term of service. ' 'UllQ,er this coutract,sOlne of the libelants served as seamen on the the CraJgen.9 froUl Cardiff to! Montevideo, where the,others.were .sllippedj and . they all so served onthe passage from the latter place tQ,Tacoma,at which they all left the vessel. The suit is ,brought to recover wages, at, the rate specified in the shipping articles, for the tilne elj.ch ma.n, actuailYSlfrvecl, after deducting advances and paymenUl admitted to ha\'e been,received; and also three months' extra wages Sl:ldall1ageS fQrbreach of thecoo.tract , on the part of the master,.ib wrongfully preventing the as they from the allege, from returning, after a temporarlY andJIrw,ful vessel at Tacoma, and completing pedormance of their contrapt. The ,and cha.rges #}e answerd:enies the alleged wl"ongful.actsof the libelant8!with havingunjusti6ably deserted the vessel, for whiCh 'afw-feiture of all wages is claimed.", ,;'. ,, .,'. ,'.