JOHNSON V. BLANOHARD.
(DutNa C011rt, S.D. New York.
Where the libellant overstayed his leave of absence on shore in a foreign port, and the ship left him and returned to New York, after waiting for him, at an increased expense, beyond the time when the libellant knew she was to sail, and six years after wages were claimed for the whole voyage back to New York, and $145 for personal effects left on board, the libellant alleging that he did not exceed his leave of absence, and that the vessel sailed without notice to him: Held, on the evidence, that the libellant went ashore on leave of a1.Jsencefor one hour only, a.nd so understood it j that he was left by the vessel his own fault, and is not entitled to wages for the rest of the voyage; that his lac·hes in not sooner making his claim known creates a strong presumotion that he knew he was not entitled to such wages; FurtMr held, that not having been treated as a deserter he could recover $11.09 for unpaid wages up to the time when he left, and t4 proceeds received by the vessel for his clothing j that having, hi addi. tion to a small claim for wages, claimed a large sum to which he was. not entitled, costs would be refused to the libellant. The Loui8iana, . 4 FED. REP. 751, and cases cited.
J. J. Maclin, for libellant. J. A. Deady, for defendant.
CHOATE, D. J. This is a suit in personam for wages against the owners of the bark American Lloyd's. '.
The libellant shipped in New York in July, 1874, on a voyage to Stet. tin and back to New York, as second mate. The libel alleges that while the vessel was in the port of Stettin, with the permission of the master, he went ashore at about 6 o'clock in the evening, to return the next morn. ing, and that while he was so absent on leave, and without notice to him, the vessel left the port, taking all his clothing and personal effects, ar. riving in New York about November 15,1874 j that the libellant, being left entirely destitute, was obliged to seek other employment, and only arrived in New York within a few days before filing his libel, which was on the seventh day of June, 1880. The libellant claims four months' wages up to the return of the vessel to New York, amounting to $150; and also, for his clothing and personal effects, $145. The defence is that the libellant was allowed to go ashore for an hour; that he knew the vessel was expected to sail the next morning at 4 o'clock; that the vessel was ready to sail at that time, but the master waited for the libellant, who had
not returned, until 8 o'clock in the morning, the master having in the mean time gone ashore in search of libellant, without success; and that the libellant's effects on board were not worth over .10.
The weight of the evidence is, I think, that the libellant. knew that the vessel was to sail early in the morning, and that he had leave of absence only for an hour; that he was left behind by his own fault in not returning to the vessel, and the vessel waited for him several hours, at an increased expense for towage of $40; that the libellant had no such clothing and effects on board, either in amount or value, as represented in his libel; that one pair of boots belonging to him was taken by the mate on the return voyage, and account.ed for to the ship at four dollars, which was theirfa1r value; that as to the reet of the articles they were of little or no value, and were delivered at New York to a relative of libellllJlt, whom he authorized to l'eceive them. It also appeared that the libellant, though not in New York again till shortly before filing the libel, had been in BOl!!ton, Baltimore, and other American ports, and had a relative here with whom he corresponded about his clothing, but that he never made any claim for his wages until shortly hefore filing his libel. There was due to the libellant up to the time he left the vessel $11.09 for wages. I am satisfied by the proof that he is not entitled to any wages after that time, and that he knew it. His laohes creates a strong presumption agllinst him, which is confirmed by the evidence. He was not treated as as a deserter, not entered as such in the log; therefore his wages up to the time he left are not forfeited. He is entitled to $11.09 wages, and $4 received by the vessel for his boots; in all, $15.09. Ordinarily, costs are not denied in a case of wages, but where the seaman tacks on to a small claim for wages a large olaim to which he is not entitled, the court will sometimes refuse costs. The Louisana, 4 FED. REP. 751, and cases oited. This libellant was not an ignorant seaman, but a person of considerable intelligence, and 1 think the case is a proper one in which to refuse costs. Decree for libellant for $15.09, without costs to either party.
B. D. N61D York. May 10,1881.)
W AGES-FI8HING VESSEL-LIEN-EvIDENCE. Where a cook and a seaman employed on a fishing veS8el each libelled her for wages, and it appeared that the owners were to have one-third of the menhaden caught, and the master and crew the other two-thirds in lieu of wages, hM, that clear proof of an agreement to rely upon personal credit alone is required to defeat the lien of seamen upon the vessel for their pay. Upon slight or contradictory proofs of Buch waiver the preaumption of the maritime law must control.
Samuel B. CaldweU, for libellants.
F. P. BeUamy, for claimant. D. J. These actions are brought to recover for services performed on board the :fishing sloop Sirocco. The libellant Billard was cook, and the libellant Biggs was So seaman. The servioe is not denied, and there is no dispute &s to the amount due. The only question is whether the the boat by reason of their libellants acquired a lien services performed on board thereof, The presumption of the maritime law is that services performed by seamen on board a vessel are rendered upon the credit of the vessel, as well as that of the master and owners, and by that law seamen acquire a lien for their wages in all cases, unless it be made to appear that a waiver of the lien and an exclusively personal credit formed part of the contract of hiring. In respect to a lien the services of a cook performed on board a vessel are placed upon the same footing as those of a mariner. The same is true of the services of one employed at monthly wages to discharge the duties ordinarily performed by the crew of a :fishing-boat, although such services do not pertain exolusively to the navigation of the vessel. The proofs show that this vessel was employed in menhaden :fishing, under an agreement between the owners and the master that the owners should receive one-third of the proceeds of the :fish caught, the master and crew to receive the otner two-thirds