79 FEDERAL REPORTER.
that when the value of the property Is less than the claim, such commission shall be allowed only on the appraised value thereof."
In The Russia, 5 Ben. 84, Fed. Cas. No. 12,170; The City of Washington, 13 Blatchf. 410, Fed. Cas. No. 2,772; The Clintonia, 11 Fed. 572; and The Captain John, 41 Fed. 740; The Morgan City, 39 150,-lijuch commissions were allowed on the amount demanded in the libel. In each of these cases, however, the vessel had been seized by the marshal. In The Acadia, 10 Ben. 482, Fed. Cas. No. 23; Robinson v. 15,516 Bags of Sugar, 35 Fed. 603, and 'l'he Scottish Dale, 65 Fed. 811, a commission was allowed, not on the amount demanded, but on the amount paid in the settlement of the claim. As no specific debt or claim was fixed in the libel herein, and as there was no appraisal of the value of the property libeled, the marshal would, in no event, be entitled to a commission other than on the amount paid in settlement. There is considerable force in the suggestion of counsel for claimant that, inasmuch as the marshal has incurred no responsibility, he is not entitled to any commission. I understand that the clerk, in disallowing the charge of the marshal, has followed the prevailing practice in the Southern district of New York. The disallowance is therefore affirmed. Let an order be entered accordingly.
THE MARION. TIBBOL et al. v. THE MARION.
(DIstrict Court, N. D. California. March 5, 1897.) 1.
SEAMEN'S· WAGEs-LIEN ON CARGO BELONGING TO SHIPOWNER.
'Where the owner of the ship is also owner of the cargo, the seamen have a lien on the cargo for wages in the nature of a charge on the freight. Under rules 3 and 5 of the district court for the Southern district of New York, which were adopted by the district court for the Northern district of California, an amended libel to enforce an alleged lien on the cargo for wages need not be verifi.ed, when such cargo has been released on stipulation under the original libel, and libelants are beyond the jurisdiction.
2. ADMIRALTY PI,EADING-VERIFlCATION OF LIBEL.
This was a libel by J. T. Tibbol and others against the barkentine Marion and her cargo of 850 lrarrels of salmon, to enforce a claim for wages. The cause was heard on exceptions to an amended libel filed against the cargo. H. W. Hutton, for libelants. A. P. Van Duzer, for claimants of cargo. MORROW, District Judge. This case comes up on exceptions to the second amended libel. The original libel was filed on October 27,1896, and was brought against the barkentine Marion, her tackle, apparel, furniture, etc., and the cargo of said vessel, consisting of 850 barrels of salmon, to recover for seamen's wages. The libelants shipped on a fishing voyage from the port of San Francisco to Cook's Inlet, Alaska, and other Alaskan ports. They did not ship on a lay, but were to be paid a definite sum per month as
wages. No one appeared to claim the barkentine. The 850 barrels of salmon, the proceeds of the voyage, were claimed by C. Whitney & 00. as their property, and were released upon theIr giving a good and sufficient bond in the sum of $2,000. The vessel, not having been claimed, was sold by the United States marshal. The proceeds of the sale, however, were insufficient to satisfy in full the claims of the libelants for wages, and they now seek, by these supplementary proceedings, to obtain full satisfaction from the cargo-the 850 barrels of salmon caught on the voyage-for the several balances due them. For this purpose an ame,nded libel was filed on November 17, 1896, seeking to reach and subject the cargo to the several deficiencies in favor of the libelants. Exceptions were presented to the amended libel, and, after hearing duly had, these were sustained. A second amended libel was thereupon filed on .January 5, 1897, to which exceptions have again been presented. These exceptions raise two questions: (1) Whether the libel sets out any facts sufficient to entitle the libelants, or any of them, to any lien on the cargo or any portion thereof; (2) whether the libel should have been verified. The second amended libel, after alleging that the libelants shipped as seamen and fishermen on board the barkentine Marion, the nature and extent of the voyage, the rate of wages, and the several amounts due them, less deductions for slops and advances, and the further fact that the vessel was, upon the original libel, sold to satisfy their claims, and that the amount realized was insufficient to pay in full their respective claims for wages, sets forth:
"Seventh. That at said Cook's Inlet, Alaska, the said owners of the said vessel caught, by and through the aid of the libelants, and as the property of the said owners, a large amount of salmon, which were salted, cured, and barreled by the said libelants for the said owners at said Cook's Inlet, and the said vessel proceeded from said Cool,'s Inlet to San Francisco with the said cargo on board, at which place the same was safely brought, libelants, and each of them, assisting to bring the same, as seamen on the said vessel; the total amount of salmon so caught, cured, barreled, and brought into San Prancisco being 850 barrels, and at all of said times being the property of the said owners of said vessel. Eighth. That the said salmon owes freight money to the said vessel, which has not been paid, the freight money so owing being, as libelants are informed and believe, and on information and belief so aver the fact to be, the sum of $1,750, which said amount would be a reasonable sum as freight money for bringing the same into San Francisco as cargo of said vessel; and libelants aver that they further have a lien thereon for their serviees in catching, curing, barreling, and bringing the same into San Francisco as aforesaid."
The only question is whether, under these allegations, the libelants have a lien upon the cargo which will be recognized and enforced in the admiralty. The general rule with respect to the lien of seamen for their wages is that they have a lien upon the ship and freight. Pars. Mar. Law, 579; Brown v. Lull, 2 Sumn. 443, 452, Fed. Cas. No. 2,018. Rule 13 of the general admiralty rules of the supreme court provides that:
"In all suits for mariners' wages the libelant may proceed against the ship, freight and master, or against tile ship and freight, or against the owner or master alone in personam."
It will be noticed that nothing is· said in this rule about any proceeding against the cargo to enforce the lien. In the case of Sheppard v. Taylor, 5 Pet. 675, where it was sought to enforce the lien for seamen's wages upon the cargo, it was said by the court, through ].\Jr. Justice Story:
"'We thiuk there is no claim whatsoever upon the proceeds of the cargo, as that is not in any manner hypothecated, or sUbjected to the claim for wages."
But it has been decided that where the owner of the ship is also the owner of the cargo, the seamen have a lien on the cargo in the nature of a charge upon the freight. Poland v. The Spartan, 1 Ware, 130, Fed. Cas. No. 11,246; Skolfield v. Potter, 2 Ware, 402, Fed. Cas. No. 12,925; In re Low, 2 Low. 264, Fed. Cas. No. 8,558; The Antelope, 1 Low. 130, Fed. Cas. No. 484; Story v. Russell, 157l\Jass. 157, 31 N. E. 754. The reason for this is clear. The sailor has a paramount lien on the ship and freight. If the owners of the vessel be also the owners of the cargo, no freight eo nomine is earned, unless we assume that the owners of the cargo pay to themselves, as owners of the vessel, the freight which is due. The seamen, therefore, in such a case, would be deprived of any recourse against the freight, upon which, by the general admiralty law, they have a lien. As was said in Sheppard v. Taylor, 5 Pet. 675, "freight is the natural fund out of which seamen's wages are entitled to be paid." To protect the seaman against such a contingency, thereby depriving him virtually of his .lien on the freight, the rule referred to in the cases cited has been evolved; that is to say, his lien upon the cargo is recognized and enforced where the owner of the ship is also the owner of the cargo. It is, in effect, a lien on the cargo for a charge in the nature of freight. Poland v. The Spartan, supra. I find nothing inconsistent with this doctrine in the case of Sheppard v. Taylor, supra, cited by counsel for claimant of the cargo. While it is true that the owners of the ship in that case were also the ewners of the cargo, and no freight eo nomine was earned, still there were three distinct funds, representing respectively the value of the vessel, the cargo, and the freight. It is obvious, therefore, that no recourse could be had against the cargo. Nor can rule 13 be deemed to conflict with the views stated; for, while the rule says nothing about any proceeding against the cargo, yet the distinction must not be overlooked or cenfounded that the proceeding against the cargo, in this and other cases of a similar nature, is really against the freight which the cargo has incurred. As was aptly said by Judge Ware, in Poland v. The Spartan, supra:
"If the seamen can enforce their claim against the goods taken on freight, I see no reason, in principle, why they may not against the goods of the owner or charterer of the ship. The nature of their service is the same, and if it gives them a jus in re-if It creates a lien which adheres to the thing-it adheres to it, whoever may be the owner. Their own labor has been incorporated into the value of the merchandise in one case as it has in the other. The authorities go directly and fully to the point. The merchandise is declarell to be hypothecated for wages, as well as the freight,-that is, as I understand the law, hypothecated to the wages to the amount of freight due upGn it; and the merchant is not entitled to receive his goods until the lien is discharged."
VAN DEN TOORN V. LEEMUiG.
I am of the opinion that the allegations of the second amended libel are sufficient to base a proceeding against the cargo to enforce the lien of the libelants for their balance of wages. With respect to the verification of the libel as amended, rule 3 of the rules of the district court of the United States for the Southern district of New York, which were adopted as the rules of this court, provides:
"Libels (except on behalf of the United States) praying an attachment in personam or in rem, or demanding the answer of any party on oath, shall be verified by oath or affirmation."
Rule 5 provides that:
"Libels, infOl1llations, or petitions, praying a monition or citation only without attachment, need not be sworn to."
The libel, in its amended form, does not pray for any attachment, the cargo having been released upon a stipulation given therefo!' upon the original libel; nor does it require an answer under oath. As I understand that all the libelants are absent from the jurisdiction of the court, and the original libel was sworn to, I shall not require the amended libel to be sworn to in the absence of any special reasons therefor. The exceptions to the second amended libel will therefore be overruled.
VAN DEN TOORN v. LEEMING et at. (Circuit Court ot Appeals, Second Circuit. February 23, 1897.)
GENERAL AVERAGE BREAKDOW:<. ·WHEN ALLOWED REPAIR OF CRACKED SHAFT SUBSEQUE:"T
A steamship bound tor New York discovered a crack in her shaft when about 316 miles from Sandy Hook. The shaft was strengthened by bolts, and she pro-. ceeded at reduced speed until 16 miles trom Sandy Hook, when the shaft broke and greatly damaged the machinery. Contribution was claimed on the ground that the risk to the ship was foreseen, and deliberately undertaken in order to save the ship and cargo the great expense of towage. 'I'he evidence showed, however, that, while the officers recognized the possibility of a new breakdown and turther damage, they confidently believed that it could be avoided. Helit, that there was no such voluntary sacrifice ot the ship to save cargo as was necessary to make a case of general average. 70 Fed. 251, affirmed.
Appeal from the District Oourt of the United States for the Southern District of New York. This was a libel in personam by William H. Van Den Toorn, as agent and trustee, against Thomas Leeming and another, to enforce contribution in general average from defendants as consignees of certain cargo shipped on board the steamship Schiedam. The district court rejected the main item of damage for which contribution was claimed (70 Fed. 251), and the libelant has appealed. Harrington Putnam, for libelant. Olifford A. Hand, for respondent. Before WALLAOE, LAOOMBE, and SHIPMAN, Oircuit Judges. SHIPMAN, Circuit Judge. The libelant, in behalf of the steamship Schiedam, filed a libel to recover from the respondents fl,-