, LAWLESSV. MEYNIER.
(Circuit Court Of Appeals, Fifth Circuit. December 5, 1893.)
BEAMEN-WAGES-CONTRACT OF HnuNG-PILOT-TERM.
Where the contract under which libelant entered the service of the respondents as a steamboat pilot specified nothing as to the term for which he was employed, it is a hiring for an indefinite period, so long as it shall be satisfactory to both parties, notwithstanding that respondents stated that the work of the steamboat was expected to be continuous, varying in kind with the season; and libelant, on being discharged, is only entitled to wages for the timetbat he served.
Appeal from the District Court of the United States for the Eastern District of Louisiana. In Admiralty. This was a libel by Oharles Meynier against T; O. Lawless and William Kyle for wages. There was a decree for libelant, and respondents appeal. J. D. Grace, for appellants. Richard De Gray, for appellee. Before PARDEE and McOORMIOK, Circuit Judges, and LOCKE, District JUdge. McOORMIOK, Circuit Judge, The libelant had quit the steamer Barmore, and wrote the appellaIlts, who were then building a small steamer to work "on and about the Teche,"; with a view to making arrangements with them as pilot on their boat. Some time after this they wrote him:
"Franklin, La., September 26, 1891. "Mr. Chas. Meynier, Patterson, La.-8ir: We wlll need the services of a steamboat pilot about Oct. 15th. Our boat will be employed in towing syrup barges, &c., but the job will be permanent, as 'we intend to use the boat jobbing in the bayou. As you once offered us your services, we now write to learn what salary you Will come for. An early answer will oblige, ' "Yours, truly, Lawless & KYle," "Patterson, September 27th, 1891. "Messrs. Lawless & Kyle, Franklin, Louisiana-Dear Sir: Your welcome epistle is at hand, in which you informed me that you will be in need of a pilot for your boat In about October 15th, and you wished to know my terms. In answer, I will inform you that I am idle at present, and am open for employment. I have a few places in view, but not very positive so far. Should you wish my services as pilot on your boat, I would be glad to accept your offer at the rate of sixty dollars per month. I am a competent master and pilot, and therefore will offer you first-class work in every respect. I am a sober man, and steady habits, and hope to give you satisfaction, should you give me a fair trial. Hoping to hear from you soon, I am, "Yours, obediently, Chas. Meynier."
To which he replied:
The parties were not personally known to each other. About three weeks after the date of these letters, they met at Franklin and were introduced. The libelant, in his testimony, says:
"I commenced at once speaking to him about my letter I wrote to him, and in refereJlCe to.his letter, which I told him I had accepted, and asked him if it would be all right,. and he told me, 'Yef:j,' that it would be all right; and he
FEDERkL'REPORTER', voL 60.
told me to take charge, 9f, .tJml: boa,t. ,;tIe 'I :WIlDt you to tow syrup tanks barges, and you to go and deliver my lumber to the sawmill! '!w.lcl thep ;rou cap. a,l1 ,fan find l»,·the 1 then satd:'Ho'w 18" it about tlieengineer of the boat? Should he be wIthout work for the engineer at the sawwork?' And he said: '1 can mill at any time the boat will be idle.' I said: '1 accept this I?lace at sixty dollars a month, because I(prefer tbworktbis·way, and be sure to support my, . It was better than to, run chanCElS' at one bundred dollars, and probabl;y, ge.tJout of work in .. .;: : i hired by me, verbally at October 4th. wall. said or don,e In:l,'egllrd to of Charles Meynier. I saw Charles Me;V'nier personally; and, as we [Lawless & Kyle] maste!,' /lDd ,pi1otfor0Pr steam towlJoat, I told htin[Me;friier] so. 1 sald to hIm that the towboat Onida wc;ml4 be employed during the sugar season to tow: barges of, syrup and taiIks to Alice C. and 1!'ratilUin, retb;1eries, and that proposed to 'use the Ouida asa regular towboat in;fpd about l;layou that wei were just then in need of a good then otl'ered to furnish us master and pilot for the Ouida. He his services as master and pilot of the towboat Ouida, saying that he would give us satisfaction, as he was ilrst class in eV'ery respect. I,requested him to state what wages he would come for",·ntlU he said h.e would furnish us first-cIa,.ss,service as an4. pilot of ,tp,wboat Ouida at -wa¥es at the rate of StttYl,ciollallspermonth," -I' then! said toCbarles Meynier that unless be [Meynier] snited us, and could do the work for which he would bire to us, that I would not have his services at any price. He still claimed to be a firstclass and pilot 9f !i0jfP.GlfLtll. satisfactory, I, as business managE\tof the firm of 'Huwless'&Kyle, Meynier to serve us aCs muter and pilot of steatil't6wbl>at ·Ouida; and informed bim tbat 1 would ,, notify, him when we .would netCi biin."
t'." _ "" "
,Some 'time after the
interview, the appellliUltswrote libel·
. ,' , La., October 24th,. 1891. "Mr.tJilAs.Meynier-Dear:, sir:: ,As we wb,! commence toWJ.ngsyrup to Alice C. ¥Qnday, Oct6be:r26, will like llave YOl:\ come up on Sunday, and of per our agre,E¢lent witl\ you some time ago. We did 'not succeed ingettln,g .the Onida but wllI use the tug L. W. weeks, untif we get the machinery'fitted on our boat. Mr. Lawlel!lB'wlll accommodate you with board and lodging for us until the Ouida is ready. Therefore please call on him on Sunday when you come. Hoping that you,Wlll cause us no we are, ."Yours" truly, Lawless & Kyle."
commenceQ.rwork as. on and work for· t1}.eperiod of on:e month and twenty:two days,when he was " He alleges that he was discharged He paid salary"and, on his discharge; ')Vas "in ills serviceB,which he decliQed,tq"take as teno,ered, but aftellWardsdid receive, protestwas due ing that the balance of a. 'year'ssalal'Yf'at'$60 him,'beeansebf bis discharge without cause. To recover that balance, !thisJibel is exhibited.;, From'a careful consideration of all ,the testimony in the record, we conclude ,that it does nQtshow ariemployment of the libelant fur any, defipite period. i"The worJr, )VlJ,$' to be permanent or contlDuQUS through the year, differing in; ltind with the season. This was a feature natural audproperto!Jbe :considered' and mentioned
in their course, have made an express for a year·or other definite period. It is evident to us that they didn:ot.make such an agreement; that the employment'was to continue indefinitely, as long as it was satisfactory to both parties. In thil!l view of the proof, the libelant having been paid for the time he worked, his libel should have been dismissed. The judgment of the district court inust be reversed, and the libel dismissed, at the cost of the libelant. .,
AKTIESELSKABET BANAN v. HOADLEY et (CIrcuit Court of Appeals, SecoIJd Circuit. February 27, 1894.) No. 67.
The owner of the steamship Banan claimed that, when her charterer had .become unable to fulfill the terms of the charter, respondents entered personally into a verbal charter of the ship from month to month, in substitution of the orilrtnal charter. The respondents asserted that they had subchartered the vessel from the original charterer for one month only, for which time. they had used her, and the hire for which they had paid, and that theiJ,' connection with the ship had therenpon ceased. The shipowner presented a bill for charter money for the succeeding .month, which remained unpaid, and on which this suit was founded. 'Held, on the evidence, that the verbal charter alleged by the ship had not been proved, and that the libel should be dismissed.
Appeal from the District Court of the nnited States for the Southern District of New York. This was a libel by the Aktieselskabet Banan against Russell H. Hoadley and others to recover charter money under a charter of the steamship Banan. The district court dismissed the libel" and the libelant appeals. In the court below, Brown, District Judge, delivered the following opinion:
The libelant contends that when the Honduras Company became unable, after two months, to continue to fulfill the terms of its charter of the steamship Banan, by paying the monthly hire in advance, the respondents agreed to take the vessel by.a substitution of themselves in place of the charterers, except that the hire should. continue .from month to month only, with a further agreement to give Mr. Holmes, the owners' agent here, a reasonable notice before stopping the hire; 1. e. about a week, as Mr. HolmeS! states his understanding to have beeu. The respondents deny any such contract. The defendant Monroe, thougA adwitting much of the alleged conversation with Mr. Holmes, testified tha:the made no agreement to hire the vessel at all from Mr. Holmes, that he refused to take any charter from him, but that be proposed only to take a subcharter from the Honduras Company. This accords precisely with what was actually done, and Mr. Bowron confirms Mr. 'Monroe in his statement that he refused to sign any charter from Mr. Holmes; and Mr. Spitzer sayS, in one passage of his testimony, that Mr. Monroe d,id speak of a subclla,rter. The evideo\..e leavesuo doubt that the respondents, on the next day, March 11th, by their house in New Orleans, where the ship then was, took from the Honduras Company a 8ubcharter for one month; and on notice thereof,by telegraph from New Orleans, Mr. Monroe. on the following day, March 12th, paid to Mr. Holmes the hire of the ship for one month from March 11th. The .receipt of the bill for' th8.t. tponth'll p!1yment was signed by Mr. Holmes in