878 in the transaction. From his statement it appears that the settleAfter some negotiation ment was made at the requQst of he offered to take $300 and clear the ship and owners. This offer was accepted by the owners, and ripon being paid that sum he signed the release. If any deception was practiced upon him, or any fact affecting the ,voyage was concealed from him or he ought not to be .held tobis settlement. But I am satistied that this was not the case. The accounts of the ship were explained to him, and he was put in possession of every fact concerning the voyage which was known to the owners. The settlement was made voluntarily at his own request and for his benefit, and no undue advantage was taken of his necessities. A seaman .in the whaling service, when discharged during the voyage at his own request, is not disqualified .from making a. settlement of his wages upon tbe payment of a sum fairly agrel;ld upon, when the amount to become due him is uncertain and' depends upon the future success of the voyage. This vOYll.ge might have terminated unfortunately, and the owners have been the losers. The libelant ought not to be permitted to go back olhis bargain merely because the voyage was successful. I see no reason to disturb the settlement. Libel dismissed.
ONE
OF COAL.
(Circuit Court, N. D. Illinoia. .January 6, 1883.) SHIPPING-DEMURRAGE.
Where the shipper oIcoal on a schouner expressed some doubt!! as to the depth of water at a certain dock at' the port of delivery being sufficient to admit of thedeIiveryof the coal at that dock oh account of the size of the schooner, but the captain took the chances of there being sufficient depth of water there. and on arrival it was discovered that delivery cOT,lld not be made at such dock, the captain can lay no Ciaim for demurrage for delay caused by the necessity to proceed to another dock, or for expenses inconsequence of the delay.
In Admiralty. Appeal from district court· .Mr. Condon,for libelant·. Mr. K1'fimer,for:respondent. DRUMMONP,C. J. In September, 1880, Henry. P. Card, of Cleveland, Ohio, chacle'redtbe scboonerld$ Reith, of which the libelant. was ownera.nd .captain, to take·1\, cargo oJ coal from Cleveland to Chicago; and the .libelwas. filed by tbe captain folthe renson, as al-
leged, that necessary dispatch was not given to the schooner after her arrival in Chicago. The district court ,dismissed the libel, and I think that decree was right. . At the timeth'e contract Was made in Chive1and'for the charter of the vessel, which seems to have been Card sugge,sted to the captain that he had some fears lest' the schoonelT was too large to deliver the cargo of coal at the dO(lk of P.O'Coll116r, near Rlish street bridge, in Chicago, on account of drawing too much water,to' which the captain replied that the water was a foot deeper there than it had been in the spring,and be would take the chances of there being sufficient depth of water there if the catgo of coal were delivered to him. This fact, upon which the case must substantially. turn,seems to be established by a clear preponderance of evidence. The coal had been sold to P. O'Connor, to be delivered at d{)Ck. 'J;'he, shipPl:lr seems to have been doubtful as to whether the schooner coulit.deliver the coal there on account of'ber size, declaring tAtl.t.:qe :wou!{l·,p;refer. to ship on a smaller vessel. That doubt was removed by ment of the captain .himself, who professed to be. f&miliar. with the depth of the water, and took the chltD(lel'l of i.ts being tp enable him to land the cargo thereon bis ar.rival in Chicag9 ,the schooner. It seems that she. drew too much water, as hebimsel£· admits, for him to land the cargo at O:Connor's dock, the result of which was that it was necessary fQr the shipper,Card j to.4ir,ecthia, agent to sell the coal to SOD;le other persoll, and the coal :was accord· ingly sold to J. D. Stone, at a loss to Card, as he. says, of.. mO,rethan $200; and this involved tbe.necessityof theschoonerbelng1tQ-wedup the river to Stone's wharf, where there. was .d,elltY in consequence of the delivery not being by three hatohes instead of two, as was the fact. It followed, from this condition. of that there were more or less delay RQll expense in consequ,e'nlle 9f the coal not having been delivered at butitaeem.s, to me that this grew out of theconduet and of himself, and he can lay .no. claim to demurrage,or · .quence of the delay:and delivf)-ry qf the co.al at another wharf.; : The decree of the district court will, therefore, be affirmed. c.:
880
FEDERAL REPORTER,
THE HATTIE Low. IDistrict Court,8. D. New York. December 21,188".) 1. SEAMAN'S WAGES-MINOR SON OF MAln'ER.
A father is entitled to the earnings of a minor child who lives with him, and is under his governance, protection, and support. 2. BAMEr-J.,IEN DOES NOT ATTACH. .
Where a father agreed to run a vessel on shares, and to pay all the expenses of rnnriing her, and his minor son, being a member of his household and Jiving on board as a member of the father's family, l\,cted as mate, held, no lien against the vessel could, under such circumstlljllces, be acquired by either the father or son, and the libel, therefore, was dismissed. .
In Admiralty. Beebe,Wilcox d; Hobbs, for libelant. Sarnttel B . Caldwell, for claimant.. . BRoWN, D. J. The libelant is shown by the evidence to have been
a minor about 18 years of age, and during all the time he rendered the services as mate, for which this libel was filed, to have been a member of his father"s household, who was master of the vessel and lived with all his family on board, and as such member was under his futher's governance, protection, and support. The libelant was never employed by the owners, but by the father only. Whatever his father paid him in money, then or previously, under such circumstances, were voluntary payments; the father was legally entitled to his earnings, (Plummer v. Webb, 4 Mason, 382; Luscom v. Osgood, 1 Spr. 82; Cutting v. Seabury, Id. 522; The David Faust, 1 Ben. 183; 2 Pars. Shipp. & Adm. 371,) and' no suit at law could have been maintained by the libelant against his father therefor. The father being, therefore, entitled to these services, and under his agreement with the owners being bound to pay all expenses in running the vessel on shares, no lien could arise against the vessel for the son's services so rendered. Action like that of the father in this case, in endeavoring to assist in fastening a lien upon the vessel under such circumstances, has been declared to be "committing a virtual fraud upon the owners!' The Columbus, 5 Sawy. 487, 492; and see 'l'he William 'Cook, 12 FED. REP.
919. '
For these reaSODS, in addition to those stated by the commissioner, the exceptions are overruled, and judgment ordered for the claimant.