t1. THE LUD KEEFED.
WERLING et al.
Third OWcuit. .Tune 8, 1899.)
is to be assumed that a pilot of a steam vessel, who is a licensed and sworll ilS a" seaman, to within the meaning of sectioDs 4520; 4521, Rev. St., and that his hiring in consequence must be by shipping articles, yet he oannot, under these statutes, ':reoover the highest rate of wagesl?aid to any seaman for a similar voyags dUring the three months preceding his hlrinK, unless his libel avers or his proofs shOw. that the vessel on which he was employed was of the burden of 50 tons or 49 Fed. Rep. 650, modified.,
Appeal from the District Court of the United States District of Pennsylvania. Decree modified. rf.elrrse a. WilBon, (David S. McCann, on the brief,) for appellants. M. A.Woodward, forappellee'3. ACHESON and DALLAS, Circuit Judges, and BUTLER, District Judge.' Circuit Judge. This was a suit in admiralty, brought by J,?hn and William S. Reno, pilots, against the steam tow,!:>oat forthe recovery of wages due them, respectively, for s.erviees !lB. pilots on said vessel on a trip from Pittsburgh to Louisville and back, Jl}ade in the month of June, 1891. The libel avers that the libelantS were hired by the master, who was also a part owner of the for a voyage on her from Pittsburgh, Pa., to Louisville, Ky., and PittsbUrgh, and that they performed their duties in that capacity on the boat on said voyage "without agreement as to wages and payment of services, but upon the implied understanding that they (these libelants) would ask, charge, be paid, and receive the rate of wages and compensation of the most expert and capable, as they were, of steamboat pilots" upon the rivers Monongahela and Ohio, for such trip, and that, having performed the trip, they" were entitled to, and have claimed and demanded, wages and compensation for said services of two hundred and fifty dollars each." The libel, it is to be noted, does not at all suggest that there was any express understanding with respect to the rate of compensation to be paid to the libelants, or either of them, but the contrary is distinctly averred. The libel is really framed as upon a quantum meruit. That there was no specific stipulation as to the rate of wages to be paid to either of the libelants is plain upon the proofs. Now, the evidence establishes that the sum of $150 was the highest ordinery rate of wages paid competent and skillful pilots on such a boat as the Lud Keefer for such a trip as the libelants made on her, and that at the time the voyage here in question was made it was the usual rate of wa-
THE LUD KEi'i:FEB.
ges paid to such pilots as the libelants for such a trip; and we are entirely satisfied from the eVidence that that sum was a fair rate of compensation to the libelants, respectively, for the services so rendered by them. But it appearsfr()m the proofs that in a single instance, and under peculiar circumstances, the sum of $250 was paid to a pilot for services on another steam towboat on a voyage from Pittsburgh to Louisville and back, during the rise in the rivers in the month of .J une, 1891; and the court below held that by virtue of the provisions of sections 4520, 4521, Rev. St. U. S., this exceptional payment fixed the standard of compensation for each of the libelants; and, accordingly, the court decreed that they each recover the sum of $250. The fourth assignment of error is to the effect that the court erred in holding that said sections were applicable to and controlled this case;. and, in the view we take of the case, this is the only assignment we need consider. Sec-' tion 4520 enacts: !
"Every master of any vessel of the burden of fifty tons or upwards, bound, from a port in one state to a port in any other than an adjoining state, * * * I shall, before he proceeds on such voyage, make an agreement in writing or in print with every seaman on board such vessel. except such as shall be apprentice or servant to himself or owners. declaring the vo,}'age or term of time for which such seamen shall be shipped."
And section 4521 provides:
"If any master of such vessel of the burden of fifty tons or upward shall carry out any seaman or mariner, except apprentices or servants, without such contract or agreement being I1rst made and signed by the seaman, such master shall pay to every such seaman the highest price or wages which shall ha ve beengiven at the port or place where such seaman was shipped, for a similar voyage, within three months next before the time of such shipping."
-And also shall be liable to a prescribed penalty. Now, if it be assumed that a pilot of a steam vessel, who is a licensed and sworn officer, is a within the meaning of sections 4.520, 4521, Rev. St., whose hiring must be by shipping articles, stilI, the fourth assignment of error must be sustained, for clearly, upon the case presented by this record, those sections had no application to the steamboat Lud Keefer. The libel here did not allege, nOr was. any proof adduced tending to show, t:\lafthe L ll d Keefer was a" vessel of the burden of fifty tons or upwards." The libelants, therefore, were in no position to claim the benefit of the provisions of the statute relied on. Neither their allegations nor tlieir proofs brought them within the terms of sections 4520, 4521. We then modify the decree of the court below by reducing it in the caRe of eacll libelant to the sum of $150; and it is ordered that the costs of the ap. peal be paid by the libelants, (the appellees.) . '
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(Dtstr'l'CtCourt,D. MarylWnd. June 18, 18119.:
usage in the port of by In case of Jettison, of lumber carried on deck, the vessel and freight are exfrom contribl1tingill general average, (Siillimmby the Oourt.) !,
'. lie/q" tbatthere is
,in Admiralty. Libel for contribution in of'decldoad of lumber;' Decree forcontriLulion. Brown &; Brune, for libelants. Rohm H.'Smith, for cllUmllnts.
a"erage of jettison
MORtU8. District J \ldg!'l. This s,uit ie brought by the owner of a deck loadofrlnmber shipped:Qn the schooner John H. Cannon, 200 tons, to recover from the vessel a contribution in general average on account of the jettison of part of the deck load for the benefit of the vessel and the resto(th(ilQargo. chartered the schooner to carry a cargo of lumber from South Carolina to Baltimore,and she received on board from hirn574,050 shingles, and 35,147 feet oflumber, of which, as stated in oflnding,about 179.950 of the shingles were to be carried on deck; , is a, genernl ueage of the lumber shipping trade betWeen Baltinlore southt:rn ports to carry part of the cargo on deck,Rnd that in this ea,se the deck cargo was lawfully carried there, both by the usage and by the express agreement of the parties contained in thebi1ldf lading and the charter party. By stress of weather thE} schoonehvusdriven into Hatteras inlet,where she grounded, and it became necessary to jettisontbe' deck cargo,in order to lighten the ship, and save het ,and the rest of the cargo. It that.it is the general Rnd uniform usage of all vessels in the luinbertrade between Baltimore and southern ports to carry a portion schoonerwae built with a of their luniber cargo on deck, and that view to that usage, and cou'ld not be' profitably em ployed in that trade unless she carried a considerable deck load. On behalf of the schooner His nvtdenied thatordinilrily, whenever there is anesta blished usage on any claseoi' vessels to carry cargo on deck, the vessel in and freight are liable to contribute in geneml average if sU'eh deck cargoisjettisoned; but the defense to this libel is put solely upon the contention stated in the answer, that "it isa well-established, unLorm, general, and notorious custom in the lumber trade in the port of Baltimore that in no case does the vessel or freight contrihute in general average where the in deck load is jettisoned; and that the libelant, being largely