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
a.nd pay all expenses. The libellants were each of them hired by the master of the boat on monthly wages, and, it may be fairly inferred, were aware of the arrangement between the master and owners under which the boat was employed. These facts are not sufficient, however, to deprive the libellants of a lien. The Sloop Ca.nton, 1 Sprague, 440; The Galloway C. Morris, 2 Abb. 168: Flaherty v. Doane, 2 Low. 150. It was necessary for the claimant to go further, and show that the libellants agreed to waive a lien upon the vessel and rely upon a personal credit alone. In regard to the libellant Biggs, I find no testimony other than what is above stated. In regard to the libellant Billard, the master testifies that when he was hired Billard was told he WI1S to look to the captain and crew for his pay. The libellant denies this,-not in so many words, it is true, for he was examined by deposi- . tion before the master was examined, and was not recalled; but, in substance, his testimony is to the contrary of that of the master in regard to being told that he wal:l to look to the captain and crew for his pay. It also appears that when Billard was discharged he asserted his right to a lien on the vessel, and, according to his testimony, the master then con· ceded that he had such a right. But the master denies this, and says that the existence of such a right was denied. In this state of the evidence I am unable to say that an agreement to rely upon personal credit has been proved. The presumption of the law must, therefore, control, and the libellant Billard, as well as the libellant Biggs, be awarded a decree for the wages due them respectively. 0plyone bill of costs will be allowed, unless good reason be shown for bringing two suits. .
(OlreuU OoW't, D. MalBacAuIIff8. May 2,1881.)
DAHAGB TO CABGO-NBGLBOT TO
POKP 00'l' BmP-DJIll'JJCTIft LnmERS. A vessel is bound to make good any damage to a cargo of sugar which may have occurred through a neglect to pump out the ship, or through a clogging of the linlbers by cpal dust, or by sugar, or bl both coal dust and sugar.
BAlm- PAYMENT BY UNDBBWRITBBS-AGRBBHBNT TO REPAY SUM RECOVERED.
The payment of the 1088 by the underwriters, after a libel had been filed by the ownel'li! of the cargo, under an agreement that the libel·, Ianta should repay to the underwriters any sum or sums which theT might recover by decree or settlement, in virtue of the unseaworthi. ness of the vessel, or the negligence of her officers or crew, does BO*, afford a defence to the action.-r:&;.. .
In Admiralty. Appeal. O. T. Russell and O. T. RusseU, Jr., for claimant. E. D. Sohier and H. M. Rogers, for libellant. LOWELL, C. J. The duty of ascertaining the facts of this case is a difficult and delicate one. That a great loss has happened is certain, but its causes are so obscure that every possible theory offered to' account for it is open to' most plausible objections.
The three-masted schooner Centennial sailed from Cardenas, bound to Boston, on the twenty-eighth of May, 1879, with 800 hogsheads of muecovado sugar, of which the greater part was the property of the libellants. The cargo was properly stowed and well dunnaged. According to the log-book, and all the evidence of the officers and crew, the pump. were tried every four hours, and the vessel made no water of any conse. quence until June 3d. On that day, at 4 o'clock in the afternoon, there was no water in the hold; at 8 o'clock of the same evening there were seven feet and a half of water there, and the ship was apparently in immediate danger of foundering. Both sets of pumps were worked all that night by all hands, and in 11 hours the water had been lowered two feet. After this, the crew being exhausted, they kept watch and watch, and the forward pumps alone were kept in operation, and were able to prevent any increase above the five feet and a half until the vessel arrived at Philadel. phia, a port of necessity, on the sixth of June. Here the schooner waa pumped out, and her cargo was discharged, and it was found that some of her seams and butts were slack. No extraordinary injury w.. dill-