of the vessel. The by suffering the owner to remain in possession and employ a master, cannot object to the master having that security against the vessel which the law gives him. The lien of the master for his wages is given in aid of an equity so strong that, even when not supported by lien, it has been held to be superior to the claim of the mortgagee, at least so far as regards the master's wages for the last voyage. The Trimountain, 5 Ben. 246. This disposes of all the questions that have been raised. The fees of the commissioner may be paid out of vessel and freight in the proportion of the two funds. Out of the freight will be paid the claim of Crossman and his COAts, then the seamen, then the master. Out of the proceeds of the vessel, the amounts found due the pilot and undisputed claims of material men, then the balance due the master, and anything remaining of the proceeds of.the vessel to the mortgagee. Decree accordingly.
THIn ZAOK CHANDLER.
(District Oourt, N ·. D. Illinois.
1. June 8,1881.)
CLOSE OF NA'VIGATION-SEAlIfEN'S WAGEs-RETURN TO PORT OF
A vessel was laid up at an intermediate port by the close of naviigation, and the seamen, who had been engaged at a higher rate of wages owing to the lateness of the season, were discharged. Held, under the circumstances of the case, that the seamen were entitled to be paid their wages up to the time of their discharge, together with the expense incuned by them in returning to the port of departure.-[ED. The Lioness, 3 FED. REp. 922.
In Admiralty. C. E. Kremer, for libellants. Wm. H. Condon, for respondents. BLODGETT, D. J. This is a libel in personam, against the master and owners of the schooner Zack Chandler,
THE ZACK CHANDLER.
for wages and damages. The material facts, which are undisputed, are that, on the thirteenth 'day of Novem:1>er last, the libellants were shipped, at the port of Chicago,' as seamen, to serve on said schooner at the rate of four dollars per day, for a voyage from Chicago to the port of Erie, in the state of Pennsylvania. No shipping articles were signed, and no stipulation made as to the rights of the parties in case the voyage should not be completed that season. The schooner left the port of Chicago on the thirteenth of November, on voyage, with It full cargo of grain. She encountered very cold, tempestuous weather, and was finally driven into Green Bay, and, on the twenty-third -of November, made the port of Escanaba, where she was laid up for the winter, and the libellant's discharged,-it being conceded that it was unsafe to prosecute the voyage further that fall.' The master' offered to pay the libet1ants the wages earned, at the contt'll;bt price per day, from the time of their employment: up'to the time of their discharge. They demanded that the expenses of their return to'Chicago should be paid in addition, to the ,*ages,' 'and this, being and the captain 'insistingtha:t he would orily pay the they paid their owl). wages on condition of afuU -expenses to Chicago, and'biooghtthis 'suit. ' ,It is conceded that the men worked faithfully ahd obeyed the commarids of their officers during the time they' were on boardthe'vessel, and in all respects conducted themselves as -obedient and capable seamen. It is now contended, on the part of the respondents, that, as that voyage was abandoned .and no freight was earned, there is nothing due the libellants;while the libellants insist that, as a matter of strict legal right, they were entitled to stay upon the vessel until the completion of the voyage, whether it was that fall or the next spring, and to be paid the wages called for by their contract; that they were not to blame for the interposition ,of winter woather, and therefore had the right to complete their contract the next season, and that their employment .continued until its completion.
the amount invqlved is not large, the principle in question is impor1;ant, especially' upon our northern lakes rivers, wherernap.y voyages in the fall are of navigation, until the liable to be delayeu,by the ensuing spring. This case does no.tcome within the rule applicable to voyages which are abandoned and broken up .by reason of shipwreck" or such marine disaster as makes the completion of the voyage impossible, because the intervention of winter the maater to lay up his vessel at an weather, which intermediate port, only delays the voyage until the opening of navigation in the ensuing season, when it may be resumed and cOlilpleted. It is also that the rate of sea.men's wages, for voyages undertaken late in the fall on our servic,es in the spring. lakes, is much higher than for Under these circumstances it seems to me that the court should hold a ,contract like the one now before us to be made by both parties in "iew that it is liable to terminate, by the closing of navigation from the inclemency of the weather, before the completion of the voyage. It is a contract for the voyage from, the port of departure to the port of destination, if it can be completed that season. If the season closes by the setting in of winter weather, so as to make the, further prosecution of the voyage unsafe for life or property, then the master must have the right to lay up his vessel at any intermediate port of safety, and to discharge his crew, because to be compelled to pay full wages during the entire winter, and until the completion of the voyage in the spring, might not only the entire earnings of the voyage, but even leave the vesselburdened with debt. If the mastel-cannot terminate the contract with his men on some terms when he is compelled to lay' up his yessel, he would be tempted to take too great risks in pursuing and. attempting to complete the voyage, and thereby endanger :pot only the lives of his men, but the prQperty in his chal'ge, merely because he was under so heavy an obligation tOhis men if he must eIther get them to their place of
destination-that fall, 6'r be liable to them for the enth-e ter. But a master ought not to have the right arbitrarily to lay up his vessel and discharge his at a way port, except upon equitable terms to them. From the nature of the case the master must exercise his discretion as to the 3xtent to which he will pursue and attempt the comple.: tion of his voyage, and the men, as a rule, mllst perfotnl their duty by working the -ship under his orders until decides to lay up. To disobey orders and' refuse to work the ship would be, undermost circumstances, mutiny. Bltt when the master decides to lay up and to exercise his rIght to terminate the contract, he should be allowed to do so only on condition of making a just and proper provision for the men. He should certainly pay the wages which have been earned at the stipulated rate up to the time oithe layingup of the vesseL In this case I have no doubt that equity required the 'master to pay the expenses' of his men back to the port of departure. Such may not be the'rule in all cases, and I do not conceive it necessary in' this case to lay down a rule for all cases; possibly casesniay occurwhell it would be more consonant with the rights of all that'tM master should pay the expenses of the men to the port· of destination rather than to the port of departure, espeeially when the vessel is laid up nearer the port of destination than the port of departure; because if, by the contract, the master had a right dischttrge his crew at the port of nation, they could not complain if furnished free' tion to that point. This would leave the men just they would have been left iethe voyage had been completed that fall. Of course the parties can,' bytheireontract,' expressly provide for and settle their respective rights in such a contingency as this, and their contract, and not the rule laid down in this case, would then govern. I only intend to decide what the rights and obligations of the parties to this suit are, and other suits coming within the facts of this case. I am surprised to find there is a great dearth of direct
authority upon the questions involved in this case. The case of The Lioness, d6Cided by Judge Treat, of the eastern district of Missouri, and reported in the third volume of the FEDERAL REPORTER, page 922, is analogous in many of its features to this. The Lioness was a tow-boat engaged upon the Ohio and Mississippi rivers, her home port being Pittsburgh. Her crewiwere shipped in the spring, for the season. The boat was laid up by the ice at a. small landing. about 20 miles below St. Louis. In that case the learned judge allowed the men their wages until the time of their arrival at their home port, as well as their expenses. I do not find any in the authorities cited in case for the payment of wages, as a rule, until the arrival of the crew at .the port of shipment; although that case was undoubtedly rightly decided, in view of its special facts. In the case of an American vessel a foreign port before the completion of her voyage, the master has a right to discharge his seamen; but he must pay them three months' wages and their expenses home, or make some suitable provision, approved by the American consul at the port where the discharge takes place. But this law affords no criterion or rule for the government of the master in a case like this. I am, therefore, of opinion that the report and finding of the commissioner in this should be sustained. The exceptions to the report will be overruled, and a decree entered in conformity with the recommendation of the commissioner, awarding the libellants their wages, and their expenses from Escanaba to Chicago, together with the costs of this suit, to be taxed.
OLIVER v. CUNNINGHAM and others.
(Oircuit Oowrt, E. IJ. Michigan. April 17,1881.)
MORTGAGOR AND MORTGAGE.&-POSSESSION-FRAUD. . .,
The sale of an equity of redemption will be closely $CrutinlZed, when such equity has been purchased by the mortgagee. .
In such case, constructive fraud; or an unoonscionable advantage, will be sutlloient to avoid the sale.
SAME-RES ADJUDICATA. .
The judgment of a court, in a.suit to foreclose a mortgage, is not
res adjudicata as to any matter which the defendant was not entitled, as a matter of right, to have litigated in suchsuit.-[ED. : ' 'i
In Equity. Alfred and Walker and Burton, for complainant. H. M. Duffield and Mr. Lathrop, for defendants. , WITHEY, D. J. This is a bill to set aside a conveyance of the property in question, made by complainant to the defendant Cunningham, which it is claimed was made to enable him, Cunningham, to satisfy from the issues of the estate, by sale or otherwise, a mortgage of $35,000 held by himself and his co-defendants Hunt and Eschelman, together with other indebtedness of Oliver. The bill also asks to have set aside a conveyance of the same lands made by the defendant Cunningham to his co-defendants G. J. Robinson, Haines, and Ranney; and for an accounting by all the defendants for the issues, rents, and profits of the property since the second. named conveyance. It is alleged that the conveyance to Robinson, Haines, and Ranney was made for the benefit of all the defendants, including Cunningham himself, and with full knowledge on their part of all Oliver's rights in the premises. I shall not enter upon an elaborate discussion of the evidence, or give at length the reasons for my conclusions, but content my,self by stating the principal facts, my conclusipns,and bri.eflv the . reasons therefor. In the summer or fall of 1868 Oliver owned about 12,500 acres of pine lands, and held a contract for the purchase of