; ':FEDl,iJRAL)tEPORTER.
couldnO>tll'ankabov,e the lien of the attaching creditor, ,but should rank the attaohment. It represents nothing more than the ,J:',ight\ of the atta,cQing include in his ,recovery against the ,jpjnt ownerwhose Jl.tta,ched, the expenses of the wharfage as part ofthe<yOfltsor of the suit. If the vessel had been sold on finalproooss in the, suit in which the attachment issued, the right of the mortgagee to take possession and exercise his power of sale under themortg",ge would not' have,:J;>eenimpaired. The purphaser on the ecution sale would have acqtiireQ; an which wotud have permitted upon mortgage debt, but the sale could oot have p:tejudiced the mortgagee, or deprived him of the security of the full extent mortgage dellt. CeIi;ainly gaged$ in no worsepligbt bYJvhich the vesselwas her proceeds the district court, than he would have been, if I'lhe had been sold' an execution in) the suit of the TpEl wharfinger must look to, t4e sheriff personally ;and',the ahetiff ,must look to,the !\ttaching creditor.. for ,ThereiB' no. ,hardship in, the wharfinger,tpJopk for his. wharfage to the person who brought the vessel to his wharf. Althoughthere is an implied license to vessels upon navigable waWI;sto use suchstructures in the manner and for the purposes contemplat\'ld:by their erection, the wharfinger may terminate this general license, or may withhold perP.t1'SPPe" . lieaney v. Heeney, 2 Denio, 625; SW(Jrds v · .&lgar"p{}N., Y. b':' WI, proceeds I " , :. '
,fect,
for
in the were not sufficient lien mortgage"the decreeQf district court, in efthe mortgagee to; the claim pf ,the) :f!ottaching creditor :e;>(,the joint oWl'),arsof the vessel, to of his expenses : ':1'" , .!" Iii district rev.ersed, with, costs of the district to be paid by the appellee" 1:'Ii
',J · .""': 1'(
CARR. :" j :,
,
, "'j ;.
(Distriot t,
No,]).,.Nf/IJ) York. July .; ,.,
t ,
··,
',13oth,Connollyand Carr-claImed wages as mate of the H: C. during the I 'same se8ison:.He1,d" on the i.idence, that the libel of Connolly must be dis'Qlaim of Ca17r ,,' , missed, all,d ARGUltEN'l'. ,
LIJIET,. J:OJf.. WAGES-EvIDENCE.,..
' , ,
'
2.AI>)lIRAJ,',l'Y:.,..-StnllIlTTING CAVSE,
. Thll prMtice of submittin,g a ciLusein admiralty without argument or brief, "'and'\e&'qoi!lg'thecourt'to asoo,rtain and determine the issues upon the plead"I" is, not to be I
d'
'i,. !"
'.
.
of June, 1&86, :Ed,ward Carr filed a against the qarr" to recover.$281.67 t · the alleged palance due to
-fRE HONORA.' CARR.
843
him for servi6esasseaman and fi'rst'mate from May'1,i885: to arid including November 10, 1885, at ,the 'rate of $$O:pei",month.' On the twenty-fourth of June, 1886,Edward RCol1nblly'tiled 'it libel against the schooner to recover $135, the alleged halance'due him for services as seaman and mate from June 10 to October 6, 1885, at the rate of per month. The parties have stipulated that each of ,these libels may be regarded as an answer to the other. The proceeds of the sule of the , vessel now in the registry of the court are not sufficient to pay all of the claims filed. Josiah Cook, for Carr. Williams &:- Potter, for Connolly., CoxE,J., Al?this cause is submitted without brief, the the issues, and determine them upon theUpleadcourt is 'left ings and proofs, 86 best it may, without the assistance of counsel. Such practice is not to be encouraged, and, could it be done without subjecting the parties to a long delay. I ,should, even now, require counsel' at least to sUbmit their vieW's in writing. ' only dispute seems to be between Connolly and yarras \\illich was the mate of the schooner during the season oC'1885, and, as incidental the amount of wages which the master agreed to p;ty, and did pay, to each. Connolly enters this contest heavily handicapped. He signed no shipping articles; he kept no books:or memoranda; he is not corroborated by a single witness or a solitary' extraneous circumstance;, 'He atandsupon his own unsupported asSertion. His statement, even though uncontradicted, is entitled to but little weight. His memory is utterly unreliable upon all material points. It was with difficulty that he recalled the name l'>f the vessel in question. JIe ,does not J;'ecolor ended his employment,or when he was paid, or the amounts, except in one'or two instances. .' Resays he charged $40 per month. He does not sa.y tnat tll'e master ag'feM to pay him sum. Add to this, the admission that his health and habits of intemperance were sU,ch that he was frequently incapacitated from performing services as seaman, and it is quite apparent that it'would' be impossible t,o base an accurate upon his testimony, even if it stood. alone. But Connolly is contradicted by four witnesses, three of whom are, perhaps, ir:terested, but all of them ate apparently respect": able. Michael Carr, who was the master of the schooner, testifies that his son Edward Carr acted as first mate during the Season of 1885; that Connolly was not employed as mate, but as seamlin, at $20 per 'month, which was the going rate of wages at that time; that he was intoxicated he abandoned l,ler at Detroit, and whenever the vessel was in port; that he was paid $82, which was $10 more thanheJils entitled to under the contract. This testimony is fully corroborated in manyimportant particulars by Edward Carr, Henry B: Carr,and Allen Palmer. It is clear that the libel filed by Connolly must be dismissed. ' It follows from the foregoing considerations that Edward Carr is entitled to a decree for the amount claimed by him. No one butConnoHy
REPORTER.
<!isputes his right to recover. There is no disagreeJ:llen.t as to the terms of the contract by which he was employed to act as mate, or as to the amount already received by ,him. His testimony in), this regard is sustained by the master and aU of the other witnesses in the case, Connolly excepted. There should . ' decree in accordance with these views. be a . .. ,
TIm
JOSEPH FARWELL.
and others' 'II.
'FHJi:
JOSEPH F
and Cargo.
(Di8trict Oourt, B .. D. Alabama. 1.. SJtIl?PlNG...,.,.GENER<\.L AVERAGE-c-+REPAIRS. When a vessel, disabled at sea, puts Into a port of ref.uge 'for repairs, the towage, quaraI!tine dockIng, Wharfage; surveys on the ShIp and cargo, cost ofunloadmg, storIng, and reloading cargo, and an allowance for wages of the crew, and provisions from departure f,romJthe'course of the voyage until its renewal, or so its renewal remains in' expeC)tancy, are chargeable to general ' . " ' '
2. SAME-CARGO.
Where the interests are temporarily separated, as by unloading and storing ,the cargo in order to repair tile vessel, and it is expected to, reload the cargo, and complete the voyage, then, even though by reason of unforeseen circumstances, as the inability to re'palr the vessel and make her seaworthy again, this expectation is not realized, the entire expenses of saving and protecting ,the q.ifferev,t interests, until hope of reuniting them is abandOned, are general average. 3. SAME-'-ABANDONMENT OF VOYAGE. The'cost and expenses incident to'repairs to the vessel, Incun:ed in the expectation of continuing the voyage, are not chargeable to general average, when the voyage is subsequently abandoned. ,. SAME-FRlllloHT.
,Freight pro rata itineri8 is not earned where, from necessity. cargo is accepted before .arrival at the port of destination; accordingly there is no contributioJl on freight.,
',In ,. for general'average. The facts sufficiently appear opinion. " , ,J. L. &- T. H. Smith, for libelants Edwards and others. Smith & a'aynor, for master and crew and material-men. L. l!.F,:dth;for material-Ulen. ' Peter &; Tko8 . A. }[arr-ilton, for claimants of cargo. TOULMIN:, 'J., When a vessel is disabled at sea, .and puts into a port Qfrefuge fOI:repail', the, ordinary expenses incurred are regarded as gen'eral A general average contribution is a division of the 10s6 or expense among those benefited, and has its foundation in equity and natural jU'8ltlce. General average expenses include the charges of entering the harPor, as pilotage, to\yage, quarantine dues, docking,