(District Oourt, D. New Jersey. 1.
DlSRATING (JoOK-REsCISSION OF CONTRACT.
By disrating the cook and steward, and placing him before the mast, the master rescinds his contract; and, if the rescission is accepted by the steward, he is entitled to his discharge.
Libel in rem.
Beebe, Wilcox et Hobbs, for libellant. Goodrich, Deady et Platt, for claimant. NIXON, D. J. This case turns upon the legal effect of disrating a cook and steward, and putting him before the mast asa common sea.
man. The libel alleges and the answer admitsThat the libellant shipped on board the brig Mary C. Conery, at the port of Fernandina, as cook and steward, on the first day of .June, 1880, at the rate of wages of $30 per month, for a voyage, not 10 months, to Rio de Grande de Natal; thence to the West Indies, and to a port in the United States, where the voyage was to terminate j that he entered upon his dutie.'l and the vessel proceeded to Natal, where she arrived on or about the sixth day of August, and remained there until and after the thirtieth day of August, 1880.
The libel further allegesThat while lying at the port of Natal the libellant was discharged on tbe thirtieth of August without any cause or provocation, and was left in a foreign port; that there was due to him at the time of the discharge the sum of $74 for wages; that he was also entitled, under the statute, to three months' extra pay, to-wit, $90: and that he has suffered damage, on account of loss ()f time and expenses in returning to the United States, in the Bum of about $50.
The claimants, in their answer, set up as a defenceThat the libellant shipped as cook and steward, and represented that he was able and competent to perform the duties thereof; that he was not able to properly perform said duties, but was unskilful and incompetent, as cook and steward; that he repeatedly refused to obey the lawful orders of the master, and was so insulting and mutinous that on the said thirtieth day of August the master was compelled to and did disrate him, and ordered him into the forecastle to perform duty as an ordinary seaman; that upon being sent forward the libellant refused to do duty or to obey the commands of the master, and on the same day, without the permission of any of the officers, left and deserted the vessel at Natal, and never afterwards returned.
By the general maritime law, as well as by statute, (Rev. St. § 4596,) desertion is followed by the forfeiture of all wages earned. But a.
THE MARY OdlONEllY.
s6aman's leaving· the vessel. without ) ,is 1lt>t necessarily desertion. In order to constitute in the sense of the law, he must quit the ship and her service, not only without leave, but without justifiablecausel and with intent not again to return to the the libellant :went without leave, ship's duty. It is but. the question remail;ls, had· he justifiable cause for going? A.mastel',doubtless, may disrate a ,c9,ok, and steward, if it turns Oll.t that' he is inco:p1petent to pl'0pCildy the duties of t4epositionl and when this ocours at sea he may assign, the disrated person, to the performance ,.of 'euchservicelil aE! are reaso,nable under the, circumstances, until they re;wh a port. .But ,1 regard euch ,al;l act by the master as an abrogation of the contract with the cook and steward, and leaves hjII).j when apot:t if the disrating takes place in port, to the option of accepting ;it as a discharge, or of remaining ,On bo.ard in his position. If he elects the forp;l,er, he is entitled to the payment, of wages, accordiag to the contract, up to the date of the disrathig: ,'1 do not find this question discussed in the books, nor did the proctors,. on 'the "a'rgurpent refer me to any touching it. But since I have reached the above conclusion on principle, I have its bJ, observing the case of The been, Hotspur, 3., Sa:wy. 194, in whi(lhJudge Deady takes the same view, and holds that the disrating of the cook and steward, and placing him before the mast, aII).oilllts in law to the 'rescission of the contract by the rp.aster) and the steward, accepting such rescission,may claim his discharge. , '
".Admitting," says the learned jUdge, "that the libellant was properly distilted, I think he is entitled to his discharge. By disrating him the master abrogated the contract to serve' as cook and steward, as far as he is concerned. This contract being thus' terminated, the master ought not to be allowed t() hold the libellant to other service against his will. * * * Where the perBon disrat611 is unwilling to remain longer on board, I do. not the master has any powerto compel him to remain and serve in a capacity totally different from that in which he engaged."
As the proctor for libellant, at the hearing, waived all claims for extra compensation, or for the expenses of getting back to the United States, the _above view renders it unnecessary for me to consider djsrated or not. The testimony whether i the' libellant was turned upon that question, and to justify the course of the master, a purporting to be his official'log-book, was brought forward, which bears upon its face and internally so much proof that it was manufactured for the occasion that I ought not to let it pass without
observation. The book produced was an old printed official log of the brig, which seems to have closed in June, 1877. To the end of this three sheets of foolscap paper had been stitched, and the master had headed them with the title, of brig Mary C. Conery from Fernandina towards Natal." The first entry and date in the :r;ecord is June I, 1880, when they sailed from Fernandina, and the latest is August 30, 1880, at Natal, when the libellant left the vessel; although there are a number of entries subsequent to this, purporting to record transactions of an earlier date. The writing has the appearance upon its face of being a record made up at one time, and not at the different dates assigned, and the nature and contents of the entries themselves strikingly confirm the impression. For instance, the libellant shipped on board on the first day of June, 1880. The following is the entry of the fact: " 1880. June 1. Louis Kriete shipped as cook and steward. He recommended himself as being a first-class cook and steward. Demanded first-class wages-$30 per month. He has proved to be entirely incompetent; almost worthless; wasteful, careless, dirty, and disobedient. Will not obey my orders. Cannot make bread, nor do any kind of cooking, except boil beef and pork. Neither does he know how much or how little to COOk, thereby causing a great waste of stores." To make the log of any value as evidence in cases of this sor!, the entries should be made at the time of the .transactions referred to. They should, at least, have the appearance of being the result of the master's observation and knowledge at the time of the entry. Is it not quite remarkable that on the day and hour of the libellant's entrance upon the vessel the master should have learned all these facts in regard to his incompetency? Bu t the second entry exhibits a still more wonderful prescience on the part of the master. It was made under the date of June 7th,-six days after the cook went on board, -and it had reference to his dilatory or lazy habits. The statement is that "it was seven days before he (the cook) could spare 20 minutes' time to scrub the cabin floor." But I will not pursue the subject further. I have adverted to it that the claimants may learn that I have not overlooked it, and that no court should have confidence in official logs thus made up. As there seemed to be no dispute that the libellant was entitled, if to anything, to the sum of $74 for wages earned, a decree may be entered for that sum, unless the parties should desire a reference.
THE CORTES CO. (Three Cases.)
THANNHAUSER v. THE CORTES CO.
(Circuit Court,8. D. New YO'I'k.
Bettens eX Lilienthal, for plaintiffs. L. E. Chittenden, for defendants. BROWN, D. J. The plaintiffs, who are now residents of this state, have brought these suits to recover their alleged claims growing out of a sale of mining property to the defendants. No security for costs having been filed, the defendants, before answer, now move upon affidavits for an order requiring the plaintiffs to file security for costs in the sum of $1,500 to $2,000 in each case. The defendants' affidavits tend to show, that the transaction was fraudulent on the plaintiffs' part, but they do not show any item of taxable costs or disbursements yet incurred by them in either case, nor any steps yet taken which involved any disbursements whatever. The averments in this regard are entirely general, and in substance state only that large disbursements will be incurred in taking necessary testimony in Mexico, where the fees of commissioners, interpreters, and witnesses are alleged to be heavy. This is too general and too indefinite to warrant or to enable the court to fix any sum to be given as extraordinary security; nor do I think any order of that character should be made until after answer put in and the determination thereby of the precise issues to be tried, nor except upon a statement in detail of the items of extraordinary disbursements which either have been already incurred, or are immediately and necessarily impending, in proceedings already taken in the causes. I have examined the papers in the Emma Mine Cases, and the orders made thereon by Johnson, J., in 1875, referred to by the defendant's counsel, and find that where he granted an order for $2,000 in one of these cases the moving affidavits specified in detail large disbursements already incurred sufficient to call for the order made, while in another of the cases specifying such details, but not. in excess of the bond already filed, he refused to order furthel v.9,no.5-15