BOLDEN V. JENSEN.
statute. That statute provides as follows: "All actions against a boat or vessel under the provisions of this title shall be commenced within one year after the cause of action shall have accrued." Hill's. Ann. Laws Or. § 3706. This limitation applies to the procedure provided for by the state statute. It relates to the remedial provisions of the statute. It does not qualify the right of lien, nor eonstitute a condition of the lien. The statute provides for actions to enforce the liens it creates, and it limits the time within which such actions shall be brought. All these provisions which undertake to confer upon the state courts this right to bring actions to enforce the lien thus created are void. The Hine v. Trevor, 4 Wall. 555. And the limitation of such actions is therefore necessarily ineffectual and void. It is contended that the assignee of the fireman's claim for wages for services on the Resolute cannot enforce the assigned claim; that the lien of a claim for mariners' wages is a personal privilege in the mariner, and for the mariner's protection, and is not assignable. The authorities are not in harmony upon this point. The assignment (')f a shipwright's lien for repairs is upheld in Park v. Hull of the Edgar Baxter, 37 Fed. 219, and that of a mariner's lien for wages is upheld in The New Idea, 60 Fed. 294. I am of the opinion that the lien of mariners for wages should stand upon the same footing with those of other laborers upon vessels and of material men. When the servo ices are rendered, and the right is perfected, the assignability of a thing enhances its value, and a nonassignable character given to a mariner's lien is more likely to injure than protect the owner. When the services are rendered, and the right is perfected, there is no more reason to deny the mariner's right to dispose of this property than there is of·any other belonging to him. The law guards him against imposition without imposing disabilities upon him in the enjoyment of his property and rights. Unless the assignee is a speculator, or there is other reason to question or suspect the fairness of the transaction, the lien for wages in the hands of the assignee should be enforced. The exceptions to the libels are overruled.
BOLDEN v. JENSEN et al. (District Court, D. Washington, N. D. August 27, 1895.)
IMPRISONMENT FOR DEBT- ACTION FOR UNLIQUIDATED DAMAGES PROCESS. ADMIRALTY
The statute abolishing imprisonment "for debt" on process from the federal courts in states where imprisonment for debt bas been abolished (Rev. St. § 990), and the amended forty-seventh admiralty rule, which abolishes imprisonment "for debt," under admiralty process, in like cases, are inapplicable to cases involving demands for unliquidated damages, and hence do not affect the power of the federal courts, sitting in admiralty, to issue a warrant of arrest as process for compelling defendants to respond to a claim for damages for personal injuries and cruelty inflicted on a seaman. Hanson v. Fowle, Fed. Cas. No. 6,042, followed. The Carolina, 14 Fed. 424, Chiesa v. Conover, 36 Fed. 334, and The Bremena, 38 Fed. 144, disapproved.
This was a libel in personam by Louis Bolden, a citizen of the United States, against A. Jensen and I. M. McLean, the master and
owner of the Chilean ship Atacama, to recover damages for personal injury and cruelty inflicted on the libelant while serving on board said vessel as a seaman.
Pursuant to admiralty rule 2, 'promulgated by the supreme court, a simple warrant of arrest was issued, and the defendants were taken into custody, and admitted to bail. Upon entering a special appearance by counsel, for the purpose of the motion only, the defendants moved the court to quash the warrant of arrest, and to discharge them and exonerate their sureties, for the reason that said writ was improvidently issued, and the same is contrary to law and the admiralty rules. 'l'he court refused to entertain said Illotion unless the defendant would first enter a general appearance, which was done, and thereupon, after argument, said motion was submitted to the court for its decision thereon.
This exposition of the rule by one of its authors may well be regarded as authoritative and controlling. Counsel for the defendants have cited The Carolina, 14 Fed. 424, Chiesa v. Conover, 36 Fed. 334, The Bremena, 38 Fed. 144, in which courts entitled to very high resp.ect have sustained his position on this motion, but apparently without givh:g consideration to the proper definition of the word "debt" as used in the statute and the admiralty rules under con· sideration. Notwithstanding these authorities, my judgment is not in accord with the defendants' contention. On the contrary, I prefer to follow the decision made, in this circuit, by Judge Deady, in the case of Hanson v. Fowle, Fed. Cas. No. 6,042, in which the subject is learnedly and exhaustively treated. The motion is denied.
BURRILL et al. v. CROSSMAN et at <cIrcuit Court of Appeals, Second Circuit. JUly 30, 1895.)
SHIPPING-CHARTER PARTY-CESSER OF CHARTERER'S
A charter party provided that the vessel should be discharged at a specIfied rate per day; that for each day of detention a specified demurrage should be paid; that bills of lading should be signed as presented. without prejudice to the charter; that the vessel should have an absolute lien upon the cargo for freight and demurrage; and that the charterers' Iin.blllty should cease when the vessel was loaded, and bills of lading signed. The chartere'rs presented, and the master signed, bills of lading providing for paying freight, but ma.king no reference to the provisions of the charter in regard to demurrage, and these bills were at once transferred. The discharge of the cargo was delayed, without fault of the consignees, and the owners filed a libel against the charterers for the stipulated demurrage. Held, that the provision in the charter f9r cesser of the charterers' liability applied only so far as the lien pTovided by the charter was commensurate with the charterers' original liability, and they, having, under the clause providing for signing bills of lading, presentp.d bills which Imposed no liability on the transferees fo,r the demurrage stipulated in the charter, remained liable to the owners for such demurrage.
Held, further, that, the charter, by stipulating the rate of discharge, bavlng fixed definitely the time for its completion, the charterers were liable for delay beyond that time, though caused by the acts of the public eneconsignees. my, and without fault of the charterers
SAME-DEMURRAGE-FIXED TIME FOR DISCHARGE.
Where the charter party provides that demurrage should be payable "for each day of detention by default of the charterers or their agents," the word "default" means an omission or neglect to perform the contract.
ADMIRALTY-PLEADING-DENIAI, OF ANTICIPATORY
A denial in the answer of an anticipatory averment in the libel, that the agents of the libelants were without authority to make a certain agreement, is equivalent to an averment that they had sucb authority, and raises an issue as to its existence.
Appeal from the District Court of the United States for the Southern District of New York. This was a libel by William Burrill and others, owners of the bark Kate Burrill, against William H. Crossman and others, to recover demurrage under a charter party. Libelants appeal. Geo. A. Black, for appellants. Wheeler & Cortis, for appellees. lJflfo...eW AL:LACE, LAOOMBE, and SHIPMAN, Circuit Judges.