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.", ,;'. ,, .,'. ,'.
From the evidence, it is plainly apparent to me that the master and the libelants are about equally in fault and blameworthy for the termination of this contract. The important facts leading me to this conclusion, as disclosed in the evidence, are, in' brief, as follows: The Craigend, on her way to Tacoma, called and anchored at Port Townsend; and was at anchor tpere the second boatswain became violent and abusive towards the crew. After making a violent and unprovoked assault up\>n one man, and striking him upon the head with a stick of cord-wood, and making threatening demonstrations towards anothe'l! with a. razor, another with a broken oar, he armed himself with a. hatchet, and threatened to use it indiscriminately in cutting .down every member of the crew whom he should come in reach of. This misconduct of the second boatswain was by the libelants properly reported to the master, who utterly failed to do his duty by punishing ,this petty officer for·his v.6"(y grave offeJ;llle, or in. any way assuring the crew of protection fromsq,ch acts of abuse. Thelibelants at the same .time committed,a wrohg they would not thereafter do any work in the ship, except what should be necessary in actual navigation, unless the second boatswain should be either kept locked up, if he remained on board, or discharged and sent ashore. There is a conflict in the testimony as to whether the libelants did or did not act this time ask permission to go ashore for the purpose of complaining to the British consul, and whether the master did or did not refuse them such This conflict of testimony relates to a question which is ·material only' as to the claim of libelants to extra wages. They make the charge, and theretorethe onus probandi is on them to prove it; and, ·as I do not find any decided preponderance of the evidence in their favor, 1 cannot say as a fact that the master did violate his contract with them, and offend against the laws of his country, by refusing them an inter.view with the British consul at Port Townsend. After anchoring at Tacoma thelibelants refused to perform their duties until they should first be permitted to make a complaint to the British consul; and, upon beinginformed that there was no consul at Tacoma, they demanded to go ashore for the purpose of consulting a justice of the peace. , It was unnecessary' and unreasonable for them to leave the ship in a body;' but the tnaster gave his consent to their going after they, 'at his request, hung an nnchorover the bow, in readiness to be dropped if the ship's safety should require it. The master not only consented to their leaving the vessel, but he also gave them forty-eight hours as the limit ·of time dnringwhich they could remain absent; and by his direction they were taken ashore in a boatibelonging to the ship. He gave them no money for any expenses they might have to incur, and made no arrangements whatever to enablethetn to return to the ship, which was anchored "sdistance of mile from shore. On shore the men made'no attempt to execlite their purpose of consulting a justice of the peace; but, afterwl\nderingover the town for some time, they begged: a postage-stamp, having rio tn6ney to buy one, and used it to send a letter to the British consul at Port Townsend. They next madQ
WAITSHOAIR 11. THE CRAIGEND.
the acquaintance of Mr. Moore, who provided them with their meals and next day or two, and with small sums of spending money, lodging for and also provided a boat and secured a lawyer to go on board the vessel the evening of the very day the libelants came ashore for the purpose of trying to make a settlement with the master for the wages. What Mr. Moore did for the comfort of these men was not done from disinterested motives.. To use his own expression, he "was not doing it for fun." It is apparent from his rapid movements in taking a lawyer on board the vessel to collect the wages, and all the circumstances of his connection with this case, that he is one of the land-sharks of a seaport town who prey upon sailors. Mr. 'Moore has testified as a witness in the case, being called by claimant. In his testimony, he claims that the libelants consulted with the lawyer before he went to the vessel" and authorized him to proceed to collect their wages. In this he is contradicted by the libelants, and also by the lawyer, Mr. Leo, who was called as a witness. 'His testimony is to the effect that he had no conversation with the men, but he thinks they knew of his employment, and the object of it, from being informed in regard to it by Mr. Moore. He impressed me as being a candid witness, and I credit his statement as being true; but I think very little time was lost in consulting with the libelants, or mak'ing explanations to them, by anyone. In the interview between Mr. Leo and the master, the latter, after learning that the call upon him was to collect the wages of the libelants, and while he must have supposed Leo to be authorized to represent them, declared that he would not again receive' them on the vessel. This was long before their leave of absence had expired, and before the men had done anything to furnish a pretext for a charge of desertion against them, or justify their discharge. I regard this declaration of the master to Leo, that he would not take the men back in the ship, as important only as showing an intent in the mind of the master to get rid of this crew. I would probably regard it as an actual discharge of the men from the service of the ship if it had been made to the men or to one authorized to represent them; but, as the libelants all deny having commissioned Mr. Leo to go to the master as their agent or attorney, I cannot give it any greater effect than a remark or declaration made to any stranger. It was mid-day, on a Saturday, when the men left the ship. On the next Monday morning, and before expiration of their leave of absence, they went as near as they could go to the ship, and attempted to hail her, to call a boat ashore, so they could go on hoard, and resume their duties; but Mr. Moore appeared and objected, on the ground that, if they went on board without him, he would not be able to collect their wages, and would lose what he had invested, as well as the profits he had hoped to realize, and the men suffered him to lead them away, and for a tinie desisted from their efforts to return to the ship. Later, and yet before the expiration of their 48 hours' leave of absence, they saw the captain come ashore, and endeavored to speak to him; and he saw them, and knew that they were endeavoring to get within speaking distance, but he evaded them by dodging into a private office, and rev.42F.ll0.2-12
,maining there a long time, while he knew that they were respectfully ,waiting outside. The libelants did not return to the. VElssel,and have Devernlade other ,attempt to do so than what, I have mentioned. ,8everaldays after their attempt to the captain,theysent a man to/him to request permission to reroov:e their clothing and effects from the vessel, which request was readily and unconditionally granted; and they then on b.oardand broughtawa;yalltheir belongings.' This was doneiwhile the vessel was lying nloored .tl) tl1e dock, and whiletme master was on deck, but no remarks were, between him and the men. The ,master, in his.testimony, attewpts to account for hispoouliar conduct.in eluding the, libelantS when they tried"to speak to him,on Monday morning, when their Jlurposewas merely to ask tp have ,the: ship's boat to .take them on board again, and also for his failureio speak to them when they ca.me on board to remove their effects, by pretend.ing .that he was in fear of being ill-treatlldby these men. I was astounded to read in the deposition of the master of au ship such as is contained in, ,that of Capt. on file in this case,' in which MBalyS, "I was a .bit scared," especially so as there :isabsolutely nothingln the evidenQe,to ,afford thesligptest ground for him at that timeto,have .regardedthese men, or eit.J;1er of them, as beiqg .d:ongerous. The reaSons he states. (or, his thnidnea,s:!'l!re. that he had heard of threats being made by the mep, and th,at theY,had used vio. lencetowards a man whom he had; employed as a watchman gn the ship; but itds ,clear, from the evidence, Jhat the threats, ifany, were not made, and th e difficulty with the watchman didnot, until, after ,the tiJ.UeOf the captain's strange :cQndupt. I entirely this part of the captain's I do not. believe ever afraid of .this· crew. He has heen master of vessels for fourteen years. This IS sufficient to prove ,that he could not ha:ve been frightenep. so easily as he pretellds to have been; for, he would not wish to devote his life to a professio:n exposing .him to almost C()Dstant danger, and,. lihe, would, he could not maintain the position of a cOlD:mandeI;. 1 believe ,that· his motive. for the actions I hav.e commented. on was not fear.,bUit rather a wish to avoid the men, and thus escape the necessity of either assisting them to return to the ship, or consenting to have themquit;the servioe, and that itWllS his desire.tbat they should desert, so· that their wages might be forfeited. The .did not prevent. the from returning to the vessel, nor use any force whatever to prevent ,them from fulfilling their contract; and I am satisfied that if they had returned to the veSSEll, and offered to resume their stations as seamen, he would have placed no obslltc1es in their way. The libelants claiin, h:owever that, because they had no money to hire a boat, they werenot;able to return, to the vessel, b,ut the, evjdeIlc;le shows that they have managed to live, in Tacoma very well to tbepresel1t tin;lewithout doing any work; and Lam satisfied that they l}re shrewd eno'Ugh, and determined enough, .00 have found away of returning to the vessel, if ;they wished to do so· . From.cobsiderationofall the facts and circumstances in the case,. and especially the voluntary removal of their effect13 from the vessj:ll by the
libelants, and the master's consent thereto; SO freely given, it is plain that the contract of service on the part of the libelants was, by the mutual consent of the libelants and the master, terminated from the time the libelants left the vessel, on the 25th day 01 Jannary, 1890. The parties had a right thus to terminate the contract by mutual consent; and, although such consent was not actually expressed in words, it may be implied from the conduct and nctionsof the parties ,above narrated. The contracthavil1g been partly performed, and then abrogated as to the part not performed by mutual (X.nsent, I hold that the libelants are not entitled to recover any sum whatever as damages or as .extra wages, as they would be if the master had discharged them beforl!' the termination of the period or voyage for which they had shipped, but are entitled to receive their wages, at the rate specified in the shipping articles, for the time during which they actually served, after deducting the sums advanced,aIid for which they were chargeable for articles furnished from the shipls slop-ehest. The master having voluntarily .consented to their leaving the vessel, he cannot rightfully be allowed to charge them as de,. serters, nOl'cIaim a forfeiture of their wages earned by actual service. I make as to Lawrence Silva, Antonio Pedro, and Antonio Fortes, as to the rate of wages to be allowed them, .on the ground they shipped at Montevideo as able seamen, but were incapable of performing the duties of able seamen. Therefore, instead of allowing them wages at the rate specified in their contract of shipping, they will only be allowed wages at the rate of $15 per month, which sum seems to me to be in proportion to the value of their services. A decree will be entered in favor of the libelants for the amount of wages during the time of their .service as alleged in the libel, less the amounts which in the libel they admit; as credits proper to be allowed the ship.
CROSBY 11. THE .LILLIE
OircuitOourt, S. D. Alabama. Aprll 21, 1soo.
ADIlIIRAr.'l'T....APPJIlAL-.-CosTs-PROOTOR'S DOCKBT FEB. ,As an appeal in admiralty suspends the original
decree, and there Is no final hearing until that in the appellate. court, the proctor's dOj:lket fee of $2O,allowed (Rev. St 5 &24) on final hearing in admiralty, accrues .In ease of appeal onlf in the circuit court, and should be charged but once·.
In Admiralty. On motion to retax costs. W.E. RiChn':rdson, for the motion. W. D.McKinstry, contra.
lReported bl.J?eter J. BamiltoD,ofthe MobUe, Ala., bar