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
TOUJ.MIN, .J. The libelant obtained a decree in the district court, which was appealed from by the claimants. On appeal the circuit court also rendered, a decree in favor of libelant, and the appellants were taxed with all The clerk taxed against appellants three proctor's fees, aggregating $45. Among them were two docket fees of $20 each, one of which was taxed as part of the costs in each of said courts, and the fee of $5 was taxed under section 824, Rev. St., for services rendered in the case in removing the same by appeal from the district court to this court. Appellants now move the court to retax the costs to the extent of the docket fee of $20, taxed as part of the costs in the district court, on'the ground that it is illegal and unauthorized. Section 824, Rev. S1., provides that there shall be taxed and allowed to proctors, on a final hearing in admiralty, a docket fee of $20, 1l.tid t4e question now presented for decision is, were there two final in this case, or what is the final hearing? An appeal in admiralty suspends and vacates the decree appealed from, and the decree is nottirial until the case is heard and decided in the appellate court, and there is no final hearing until there is a final decree. Ben. Adm. § 590; 2 Conk. Adm. 385, 394; Hen. Adm, § 138; U. S. v. Preston, 3 Pet. 57; The Viwille, 19 Wall. 73. The statute provides that the proctor shall be allo\'I'eda docket fee "on final heaving," and it is held that final hearing is the last hearing, in admiralty cases, when the case is finally heard as to costs. Goodyear v. Sawyer, 17 Fed. Rep. 7, 8. The court says that the, docket fee is general, and it is taxable on the final hearing in favor of the proctor of the prevailing party as a lump sum for all the services in a case. There has been but one" final hearing" in this case. There is but one final decree, and that is the decree rendered on appeal in this court, the decree in the district court being superseded and vacated by the appeal. My opinion, therefore, is that there can be but one docket fee of $20 allowed,-the docket fee taxed as part of the costs in this court. The motion to retax the costs is granted.
SHIPPING-LIMITING LUBILITy-SUIT BEGUN IN STATE COURT-JURIBDICTION.
, In a,case ,applicatio\1 for limitatwllof liability of the owners of a steam-boa1i whb had been sued in th.estate courts given by the statute of Maryland for 1088.of life ariSing out of a collision in the .harbor ot Baltimore,· held, :that after th6'l1teamer had been appraised, atld'stipulation given in the district court for the payment into court of the amount of··t1he appraisement when ordered, the reduction of the amounts sued for in the state courts 80 as to reduce the aggregate of the amounts claimed in those suits below the amount of the appraisement and stipulation could not take away the jurisdiction of the district court, even concedmg t'hat the claims so reduced were all that the owners of the steam-boat could be made liable for. . .
Held, further, that, the li.ability of the owners of the steam·boat arose out of a maritime tort committed ou water which Was a naVigable highway of commerce,
SAME-TORTS COMMITTED ON NAVIGAIlLE WATERS-HIGRWA.YB-JURIBDICTION Oll' 1l'ED,