3 F. 650 -

650

FEDERAL BEPORTER.

MOORE v. NEAFIE and others.

RYON

v.

THE TUG MARY

J.

FINN,

etc.

(District Oourt, 8. D. N61JJ York. July 21, 1880.)
1.

SEAMEN WAGES - STEAM-TUG SERVWE-USAGE. - An established usage of a certain port, by which hands employed in the steam-tug service, at a certain rate of wages per month, are authorized to leave at any time, and their employers are permitted to discharge them at any time, and who, in either case, are paid up to the time of their leaving or their discharge, is neither injurious to the interests of commerce, unreasonable, nor contrary to the positive rule of law.

Alexander d; Ash, for libellants. W. R. Beebe, for respondents. CHOATE, D. J. These are suits for wages, brought by seamen who served on the steam-tug Mary J. Finn. They were employed at a certain rate of wages per month, and not for any definite period of time, unless such mode of employment implies a definite time of service. The course of business between the parties was to have a settlement on or up to the last day of each month. The last settlement was up to the end of April, 1880. On the fifteenth of May the respondents discharged the crew without assigning any cause. They now claim their wages up to the end of May. Respondents have tendered them their wages up to and including the day they were discharged. Independently of any usage affecting the question, the libellants would be entitled to recover. The Hudson, Olc. 396. But the testimony in this case is full and conclusive that in this steam-tug service in this port the established usage is that the hands employed in this mode leave at any time, and that their employers discharge them at any time during the month, and in either case are paid up to the time of their leaving or their discharge. It is argued that this usage is injurious to the interests of commerce, unreasonable, and contrary to the positive rule of law, and on these grounds void. It is urged that the seamen may leave at a moment of danger, and so that the interests

KOORE V. NEAFIE.

651

of commerce will be seriously prejudiced by the recognition of the custom. It is not, however, shown, nor does the question arise in this case, whether the custom goes so far as to justify the hands in leaving the tug during a trip or voyage. In this case the voyage was at an end when they were dis... charged; and in its application to such a case I see nothing embarrassing to commerce in giving effect. to the usage·. Nor is it unreasonable. Its advantages are not all on one side. If the employer may the hands at any time, they also have, under the usage, a right which servants ordina. rily do not have. If they can obtain better employment they can leave during the month and still claim their wages up to the last day they serve. The character of the class of per. sons generally employed as hands on steam-tugs has very probably led to the establishment of this usage. They are mostly irresponsible persons, and very many of them have no . fixed or permanent occupation. The further objection, that the usage is contrary to law does not, I think, apply to a usage of this character. The question really is, what is the contract between the parties as to the term of service, the agreement itself not being explicit on the subject? The rule of the common law, requiring a month's notice to terminate the employment, was adopted as being in itself reasonable, and seems to have rested on gen. eral usage. Robinson v. Hindman, 8 Esp. 234, [235;J 2 Parsons on Contr. (6th Ed.) 35, and notes. I see no reason, therefore, why, in case the contrary usage has become established between a particular class of masters and servants, effect should not be given to it. It violates no principle of the common law, and the case does not seem to me to fall within that class of cases in which courts have condemned or discouraged the introduction of usage as being contrary to some well-established principle of the common law, or as mischievous in its effect by reason of its unsettling the law ·or introducing troublesome local exceptions into the law merchant. Thompson v. Riggs, 5 Wall. 663, e78; Hig. gins v. Moore, 34 N. Y. 417, 425, and other cases cited. Libels dismissed, with costs.

REPORTER.
'l

THE AMALIA.

(District Oourt, D. Maine.

September 13, 1880.)

1. JunISDICTION-lfoREIGN VESSEL-NATIONALITY OFCREW.-The nation.
   ality of a foreign vessel, and not that of the crew, should regulate the action of a court of admiralty in assuming jurisdiction over a controversy between the officers and seamen of such vessel. The Nina, 2 L. R. P. C, 39.
   
2. SAME-SAME-WAGEs.-The district court, unless restricted by some
   treaty stipulation, may, in the exercise of its discretion, assume juris. diction of a claim for wages against a foreign" essel. 3. SAME-SAMI£-,FoREIGN (JREw-TREA'ry WITH SWEDEN-8 U. S. ST. 352.-The thirteenth article of the treaty between and the United States, of July4, 1827, (8 U. S. St. 346, 352,) provides" that each country shall have the rig-ht to appoint consuls, vice consuls, etc., in the ports and places of the other country," alld that such conslJls, etc., c'shaH have the right, as such, to sit as judges and arbiters in such differences as may arise between the captain and crews of the vessel belonging to the nation whose interests are committed to ,their,oharge, without the interference of the local 'authorities." HeZd, that the 4istrict court was not thereby debarred from exerCising its authority in a case within the terms of such treaty, where there' was no constl'l, or other officer of Sweden, within the territoJial jurisdiction of the court.
   
3. SEAMEN....;...ORUELTYOF· MASTER-W AGES-DISCHARGl!i.-The master of a Swedish bark sailed from Gibraltar for Portland with an inadequate suppiy of provisions, Whereby the laws of Sweden were violated, and the crew of the vessel compelled to endure great hardships and sicknessforwintof sufficient food.' Held, that the crew were entitled to their disoharge at Portland, before the expiration of the voyage for which they had shipped, and to the payment of the wages due them at the time of leaving the ship.
   

o.

SAME-SAME-DAJlrAGEs.-Held, further, that the seamen were entitled to one month's extra pay, by way of indemnity for the injuries they had sustained.

Bird et Thomas, fOl' libellants. Webb et Haskell, for claimants. Fox, D. J. This libel is instituted by the secona mate, steward, and all the seamen, praying to be discharged from further service in this bark, and for the payment of their wages, on account of a short allowance of provisions on a of 124 days, from Alexandria, Egypt, to this port, and