THE.'WILLIAM L. :NORMAN.
and carried inlighters-several of which were too small to be well adapted to the service:-I do not believe, however, that the barge had capacity for 3,000 ties. On the only previous occasions when she is shown to have carried a similar cargo, she had on 2,328 to 2,363. One of her own witnesses, Mr. Dempsey, Rays 2,300 oak ties, such as are made in the neignborhood of King's Creek, is a full load for her, in his judgment. The libelant and his son put her capacity a good deal higher. In view of all the evidence touching this point I do not think it would be safe to her with a capacity to carry'more than 2,400. The libelant will be allowed a decree for the balanoo unpaid, estimating her ,capacity at this rate. If the parties agree on the sum to be paid, in this view of the facts, the expense Of a reference will be avoided. OtherWise 'a commissioner ll.1Ust be appointed.
SMITH tl. THE WILLIAM
(Df8trtct Oourt, E. D. NeJID York.
November 20, 1891.l
BBAJlBN'S WAGES-OANAL-BoATs-REV. ST. § 4251-WHAT IS CANAIrBOAT. Section 4251, Rev. St. U. S.,pr9vides that "no canal-boat * * * shall be sub-
ject to be libeled' in ,any of the' United States courts for the wages of any person who may be employed on board thereof," etc. On suit brought for the value of services rendered by the libelant on board the William L. Norman, form a canllolbl»j.,t,Jwl4, that a vessel engaged in navigating canals is a canal-boat, within the meanlDg91 ,the statute, without reference tQ its form, and a boat not engaged in navigating canals is not a canal-boat, within the meaning of the statute, whatever may be its'tprm.
In Suit against the Stewart Macklin, for libelant. Peter S. Carter, for claimant.
L. Norman to recover wages.
BENEDICT, District Judge. ' This is an action to recover for services rendered by the libelant on board a vessel called the William L.Norman. This vessel was in form a canal-boat, and was employed in navigating the canal until April in the year 1889, when she changed owners. Since,tht:Lt time the vessel has not been engaged in navigating the canal, but has been' employed in the harbor of New York, in transporting grain and other articles about the harbor. The principal question in the case is whether this boat is exempted from liability to be proceeded against for wages by reason of section 4,251 oftha Revised Statutes of the United States, whi<lh prov,ide as follows:
iR&pOtted by Edward G.Benedict; ,Esq., of the New York bar.
FEDERAl"iREPORTER i .voL··49.
IiceJlsed,or.8Jlrolled and subject to .be libele4 jn ,anyo( of anyperspn who may be emplqyed on. boardtbel'egt or lD navlgatIllg the same." .
eanal·boBt. wltb.Qut masts ol'li!team-power·. wbleh 'Is tequired
. No. case is found this has Itis new in this court. IAlokingtothe the tome tba,t it be held t;hat the, wprds as ul;ledjp the statute, refer ,tcqhe emploYlJl.ent in vessel is time of the dition of the service, and. nQt. toAhe form of the. A vessel engllged in navig,j],ting the should, I p,e to be a canalwithin the. meaning of this.llt,atute, . reference to its form · .Aboat not engaged in ns,vigating canals is, in my opinion, not a canalboat, within the meaning,ofthis!,tatute, whateyerInay 1:Ie ,its form. In this view the statute is no obstacle to the present action. As to the defense that the boat has been sold since the rendition of the service, my opinion is that the transfer of the boat disclosed by the evidence does not affect the libelant's lien, nor does the case show laches sufficient to deprive the libelant of the right torecover the wages due him. If the parties doiriot agree upon the amount due, let there be a reference.
THE MARm, (DOMINICX DUPEE,
. (DtBtrict Court, D. Oregon. Februa,y
NOB,'WJICIUN VBSSIlr.:-CRBW OF-'-AMEIUOAN' CITIZEN.
treaty of 1827 between the United States and the kingdom of Norway and Sweden, and the consul of that country has exolusive jurisdiction of any difference arising between him and the .master of such VeSlllll; and it mattera not it such person 18 aJ1 Amerioan oitizen, and shipped at an Amerioan port. (SylLabus by the OOUrt.)
Is a member of the crew of such vessel, wtthinthe purView Of article 18 of the
Any person,\yho, in pursuance of ot ClOntract, for a long or a ellon perloq or v,Gyage, is board of a Norwegian vessel; aiding in ber navigation,
In Admiralty. Suit by Dominick Dupee against the steam-ship Marie·. Exceptions to the libel sustained. Mr. JQhn Ditchburne, fOJl,libelant. Mr. cEdtDard N. Deady, for claimant. DEADY, J. This suit is brought by Dominick .Dupee against the steam-ship Marie to rec()ver a balance of $63.16 which. he claims to be due him. In. the amended libel it .is alleged. that the libelant shipped at San Francisco on October 2,1891, on board the steam-ship, .as cook, at the monthly wages of $35 per month; that he signedtt.rticles written in the Norwegian language, which were not interpreted to him nor understood by him; that libelant is informed that said articles contain a stipulation
that.the port of discharge should be some place in Great Britain, butthe libelant had ·an agreement with the master that he should have the right to leave the vessel at any port· at which she might touch; that the vesspi sailed from San Francisco for Departure Bay, in British Columbia, where she arrived on February 2, when the libelant demanded of the master his discharge and wages, which the latter refused, when, as it is implied' mtber than stated, he left the vessel without permission;<that his wages'during, this period amounted,to$141.16,ofwhich he has received 878, leaving a balance due him of $63.16, for which he prays a decree.. The claimant and master of the vessel, T. A. Schjott, excepts to the libel as follows: The <Malieis a Norwegian vessel, owned wholly by.subjects of NorWay and Sweden. That in and by the treaty. between the United States and kingdomo! Norway and Sweden all differences arising between the captains' and ;cre.ws of vessels' !>elonging to the kingdom shall be settled by theconsnla tlleleof, without the interference of the local authorities. This treaty stipulation is contained in 13 of the treaty olluly 4, 1827. Pub. Treaties,p.740. Counsel for the defendant ·contends that an American citizen, shipping in an An'lencaU port, with aright to leave thevesse1 at any port at which purview of this treaty. she may. touch, is not within Bunt does not appear from the libel that the libelant is an American citizen. ' From his appearance in court,heis evidently 8 "coI61'ed" person of some nationality. However, it, may be taken for granted he is an American citizen. . From an inspection of the articles, which have been exhibited to me, it appears they were signed by the libelant before the Swedish consul in San Francisco. They are a printed formula in the Norwegian language, with blanks filled with a pen, Rnd at the bottom, in the same writing, there is a special' clause in in these words: "This contract is binding for one year on the part of Dominick Dupee, or until the vessel reaches E1'lglartd." The of the libelant is immediately under this clause,' and the master's also. . But this question must be disposed of upon the statement .contained in the libel. '. By the treaty the consuls of either nation have a right "to sit as judges and arbitrators in such differences as may arise between the captains and crews of the vessels belonging to the nation whose interests are committed to their charge, without the interference of the local authorities." The words "crews of the vessels," as here used, include all of the ship's oompany,-all the seamen and officers, except the captain. Rap. & L. Law Diet. verb. "Crew;" U. S. v. Winn, 3 Sum. 209. The crew of a vessel,-the ship's company,-in a general sense comprises all persons who, in pursuance of some contract or arrangement with the owner or master, are on board the same, aiding in the navigation thereof. It matters not whether the contract is verbal or in writing, or for a long or short voyage or period.
FEDERAL, REroRTER. ' vol.
Inthis'view'of the niatter,and"takingthe veryA,mprobable story of thelibelanta4 to the terms Of his s4ipmentto bertrue l he was one of the crew of the Marie from· the time he: signed the.articles in San Francisco until his arrival. at Departure Bay. Here a'" difference" arose between himself and the captain as to whether he was entitled to his discharge or not. , This is the'very case provided for in the treaty, of which the consul is thereby made the CCjudge aud thiscourt,being a local authority, is prohibited from ,interfering with him. But it is contended that the treaty does not apply to an American citizen shipped at an on a. Norwegianvesse1, and, assuming that the libelant is such citizen, the consul has no jurisdiction and this court has. In the case,of RD88 v.McIntyre, 140,:U. S. 453, 11 Sup. Ct. Rep. 897, it was held thakthe petitioner, aBritish subject, whol while serving asa seaman on an American vessel, iIi. the harbor of Yokohama, committed murder thereon,cif which he was convicted by the consular tribunal for Japan, :was an American: seaman, and' subject to the laws relating thereto. Mr. Justice FIELD', 'speaking for the'court, said: "While he (Ross) was an enlisted seaman,ontha American vessel, which floated the Ameri.c&n ,flag.:he was, withilltl).e meaning of the: statute and the treaty, an American, under the protection' and subject to the laws of the ' United States 'equally with the seaman ,who was natjve born." Of the doctrine of this case applies well. to an American citizen who sh-ipsas a Seaman on a fOl:eign vessel. The libelant was for the time 1:leing a, obedience to the laws of Norway and Sweden. .. The treaty of 1827 is It IllW Of thl,ttkingdom, and by it the consuls of that country are given exclusive jurisdiction of all "difi'erences"-concaptain crew of a Norwegian vessel. This, in effect, libelant from resorting to any. other tribunal for ,the'settleme,nt of The treaty is also a law 9f the United State,s,and forbids this .court .from interfering in a case of a "difference" betwelm,the master and crew of a Norwegian vessel. The libelant voluntarily assumed t4e obligations and restraints of a tleamanupop.a Norwegian vessel, and4e must take the consequences. The exception is sustained and the libel dismissed.
Bmb ·MIN. CO.,
'LARGEY et al.
Whether a certain mine' IS a "vein," "lode," or "ledge," within the meaning of , Re'V. St.' U. S. §§ 2820; 2322, 2825, is a question of facHo be determined from the use of those terms among pract,ical miners, and the decision thereof involveetno , question, within the meaning of the removal of causes acts. A question as to. what is, the'top or apex cit a vein is also one of fact,' which involves,no federal question.
REMOVAL oJ!' CAUSEs-,-FEDEBAL QUESTION-MINING ACTS.
S. QUESTION. , , . A cause is not removable when there is any doubt as to whether a federal ques, ' tiol1 il\ presented. , ,
4.SAllfE-PRIOB DECISION BY SUPREMlI. COURT.. .
When' the apex ofa vein passes through ODe end line and one side line oftbe claim, the owner's rights are determined by Iron Silver Min. 00. v; Elgin ing &: 00., 118 U. S. 196,6 Sup. Ot. Rep. 1177, and the case comes UItdl1r the rule that, when a proposition has been decided by the United States supreme ' , couIti, it no longer involv'es a federal question.
SAME-PATENT BY UNITlID,STATES-QUESTIONS OJ!' FACT.
, The conveyance by patent of a vein or lode whose top or apex is cut by the end ;lines of the claim is a complete· .grant of the vein throughout its entire depth; although it may extend outside tbe vertical lines of the location, and hence any subsequent disJilute as to boundaries is a controversy of fact, wbich involves no federal question. ! . .
At Law; Action in the. s,tate court "by the Blue Bird Mining Company, Limited, against Patrick A. Largeyand Lulu F. Largey,to qlliet title to the Blue Bird vein or lode. 'Fhe eausewas removed to this court by defendants, and is now heard on motion to remand to the state court. Granted. Forbia « ForbiB. for plaintiff., F. T. McBride, (E. W. 1bole; of counsel,) for defendants.
KNOWLES, District Judge. 'this cause was commenced in the district court for Silver Bow county,.'state of M6ntana. Defendants filed their pe.;. titTon for a rem.oval of the cause from tHat court to this. The parties are citizens of Montana. If this court 'hasjnrisdiction of this cause, it must be that its determination involves the decision of a federal question. Plaintiff brought its action in equitytd quiet its title to the BIue Bird vein or lode, which it is alleged departs in its dip from the sidelines of the BIue Bird lode claim into ground called the" Little Darling Lode," which is owned in part by defendants. Both plaintiff and defendants have a patent title to their respective Claims. The petition for removalsets forth that plaintiff claims to have within the limits of its lode claim a certain vein, lode, ledge, or mineral deposit, carrying silver and other precious metals, which has its apex or top within the boundary lines of its said claim; and that said vein or lode ,is such a one as is within the meaning of the Retsof congress mentioned in sections 2320, 2322, and 2325 of the Revised Statutes of the United States. It is further asserted that plaintiff Jelaims that this BIue Bitdvein or lode has its top or lboundaries·()f the Blue Bird claim'J and'that said apex is crossed by the v.49F.no.5-19