the decree. The facts agreed to took the place of formal testimony, and the decree, which was properly based thereon, finally determined the relief to which the intervener was entitled by reason of such facts and the matters alleged in .his petition of intervention. The exception to the taxation of costs will be overruled.
THE DIOCHET v. THE OCCIDENTAL. (District Court, D. Washington, N. D. 1.
May 2, 1898.)
The mere failure of the master to punish a seaman for neglect of duty, and unauthorized absences in port for purposes of dissipation, Implies no consent to a subsequent termination of the contract by the act of the seaman in leaving the vessel without permission, and filing a Hbel for wages. Shipping articles described the voyage as follows: "From the port of San Francisco, CaL, to any port or ports on Puget Sound or British Columbia for orders. At Puget Sound or British Columbia, vessel may be ordered to load cargo for any port or ports In Alaska, as the master may direct. If the vessel Is ordered· to Alaska, the trips between Puget Sound or British Columbia and Alaska to be repeated one or more times; thence to San Francisco for final discharge, either direct, or via one or more ports on the Pacific coast,-for a term of time not exceeding six months." Held, that the articles set forth the nature, duration, and termination of the vOj'age with sufficient certainty to satisfy Rev. St. § 4511.
SAME-SHIPPING ARTICLEs-INDEF'INITE VOYAGE.
This was a libel in rem by Charles Diochet against the steamship Occidental to recover seaman's wages. P. P. Carroll, for libelant. J. B. Metcalfe, for claimant. HANFORD, District Judge. On February 1, 1898, at the port of San Francisco, the libelant signed shipping articles whereby he engaged himself to go as an able seaman on the American ship Occidental for a term and voyage described as follows:
"From .the port of San Francisco, Cal., to any port or ports on Puget Sound or British Columbia for orders. At Puget Sound <;It: ,British Columbia, vessel may be ordered to load cargo for any port or ports in Alaska, asth!:! master may direct. If the vessel is ordered to Alaska, the trips between Puget Sound or British Columbia and Alaska to be repeated one or more times: thence to San Francisco for final discharge, either direct, or via one or more ports on the Pacific coast,-for a term of time not exceeding six months."
The vessel having proceeded to Seattle, and being there detained a number of weeks, the libelant was assigned to duty as watchman; but he became negligent of his duties, devoting his time principally to the occupation of getting drunk. On a number of 'occasions he demanded payment of his wages, and was insolent to the captain. The only response made to his demand for w,ages by the captain was an emphatic refusal, coupled with a cOlllmandto the libelant to go to his place in the ship, and attend'to'his duties. Having left the ship without permission of the captain, the libelant 'commenced this suit in rem to recover wages; a,nd, in presenting his case, his counsel
87 FEDERAL REPORTER.
restsliis claim for wages without having fulfilled his contract on two :grounds: First, the failure of the captain to punish him for his neglect of and for leaving the vessel' from time to time for the purpose of diSsipation, gives rise to an implication of consent on the part of the master to the termination of the contract; second, the contract is totally void, because no particular voyage is described in the shipping articles. As to the first point, it is notp.ing less than effrontery for the libelant to claim that he has gained any legal advantage by reason of mere forbearance on the partof,the captain, when he might, with justice, have s/l,bjected the libelant to punishment for his dissolute con· . .. duct. . of his second Pctint, counsel has cited the case of Snow v. WoM, Fed. Cas. No. :which Mr. Justice Curtis held that a descdption of a voyage in. shipping articles as being "from the. port of Boston to, Valparaiso, and other ports in the Pacific Ocean, at and from thence home direct, or'via ports in the East Indies or Europe," with the requirements of thefirst section of the is n,qt;a a.ct of July 20;' 1790 (1 Stat. J31); and the learned justice, in commenting upon the shipping articles, said:
> > '
"If wouid have been within this description, after leaving Valparaiso, to .sail to' any number of ports on the Pacific Ocean, then to visit In succession .\'lvery port In the :East Indies. orin Europe, and to occupy such time In their passages,. and in staying ill the several ports, as' the master, under the direction of the owner of the. ship, might think fit. It Is manifest that no definite and speCific voyage,'uoreverl any limited' number of voyages, Is here described; but liberty exists to carryon lilly number of voyages, during such time as the vessel may last, at the discretion of the master,provided that the first port to which the vessel goes Is. Valparaiso, and her ultimate port of destination Is Boston." ·
The act of 1790, referred to,'prescribed that shipping articles should declare "the voyage or voyages, term or terms of time, for which seamen or m:arinerlfshouldJ:>e;snipped." By the acts of August 19, 1890, and February 18; !}895 (2 Sllpp.Rev. St. p' 377), sections' 4511, 4512, Rev. St., are;'extended and made 'applicable to contracts for the shipping of crews for American vessels engaged in the coastwise trade, and in trade between ports of the United States and of the dominion the question as to the validity of this contract of Canada. is td by reference tq"section 4511, St., whiCh pre-, flcr,ibes that everi agreement of seamen to serve in American vessels shall fl1etforth deftnitely, among other things, "the nature and so far as practicable the' duration of the intended voyage or engagement, .aJild the port at the voyage is to terminate." Both law and the contract which govern the decision of Snow ,v. Wope are. 8Q different tlJ:at there can be no application of the poctrhW,Qftl;J.atdecision to the case now \Jnder T,he.libel;lllt's :cQU1:l'ilct :fixes definitely the maximum duration, of the time for, to serve in the Occidental. It ,1pdicateflwi!t4! the nature of the different voyages to be mad-e dpppgsaid. time, the port of final discharge. It is my opjnion ground for this suit. Let ;ditl.1;l11!lSing thl;! cll!5e, with costs. a deeree<be
THE HAVANA. WOODALL et al. v. TIlE HAV:A.NA.
(DIstrict Court, E. D. Pennsylvania.
May 16, 1898.)
H.UtITIME LIENS-REPAIRS IN FOREIGN PORT-PRESUMPTIONS.
When repairs are made In a foreign port on the order of the ownen, the presumption Is against the existence of a maritime lien; and the burden is on the repairers to clearly show a contract or mutual understanding for a lien. 'Where the owners are solvellt. and do not understand that there Is to be a lien, the mere fact that the repairers understood tbe contrary, and that they charged the work on their books In the name of the vessel, is not
was a libel in rem by W. E. Woodall & Co. against the steamship Havana to recover a balance due for repairs. John F. Lewis, for libelants. Matthew Dittman and Henry R. Edmunds, for respondents. BU'fLER, District Judge... The suit is for $3,513, a balance due for repairs. 'l'he work was done at Baltimore, costing $16,000. The home port of the vessel was Philadelphia, the owners being Patrick Dempse'yand Henry Hess, who reside hereJ-the former having four· fifths and the latter one. Dempsey, as managing owner, ordered and superintended the repairs. Mr. Woodall sought the work for his company and came to Philadelphia to obtain it. At that time it was supposed $5,500 would cover the cost. The vessel was subsequently taken to the libelants' place at Baltimore, and the work commenced in pursuance of. the arrangement made here. It was afterwards found that much more must be done than had originally been contemplated, and a much larger bill be incurred." On the completion of the work notes were given for the $3,513 unpaid, and the vessel was delivered to the owners. About six months later-after she had passed into other hands-those of a stock company, of which Dempsey and Hess were members, (the notes then being due and unpaid) the vessel was attached under an alleged admiralty lien. The presents no legal question. The libelants cO:ncede that to entitle them to recover, the proofs must show a contractual lien-not an facts, as in the case of repairs on a implied lien, resting on master's brder, but one resting on contract, as in cases of bottomry. A contract must therefore be proved. It need not however, be proved by writing, or other direct evidence; but may be established by inference from facts which show its existence. As is pointed out in The Mary Morgan, 28 Fed. 196, this doctrine (the admissibility of such inferences to establish contractual liens) is modern; and as it tends to uncertainty (the inferences depending largely on the disposition of the particular mind that draws them) it may be doubted whether the modern doctrine is wiser than the old, whether it would not have been safer to a4here to the rule which required direct evi1 For a very tull discussion as to maritime llens tor supplies and serVices, presumption as to credit to vessel, see note to The George Dumols, 16 C. C. A.. 679. .