FEDERAL REPORTER.
from the vessel, where expenditures were necessary, was upon the claimants. In that case the charge upon the books of the libelants was against -the owner personally, and still the court held the credit was given to the vessel. The conclusion is that Cosulich & Co. must first be paid the amount adjusted by the general average as the contributory share ofthe vessel's loss and expense, $1,308.40, and for such portion of the expenditures of $346 as were necessary in order to preserve the vessel, (and to ascertain these items there may be a reference.) The balance of the proceeds must go to the holders of the two bottomry obligations pro
rata.
TSE
DORA.. tI.
MOOR'Eet. aZ.
tI.
THE DORA.
HOPE INs. Co. SAME.
SAME.
COSULIcn ".
COirouit Oourt, E. D. Louisiana. February 25,1888.) MARITIME LIlmS-PRIORITIEs-A!>VANClllS TO PAY SEA.l\lEN'S WAGES-BOTTOMRY BONDS.
An Austrian ship boUnd ftom Pensacola, Fla., to Genoa, Italy, deviated from her conrse, and, arriving at New Orleans, was libeled and seized. Two of the libels were for bottomry bonds, and a third for money advanced for the payment of mariners' wages. Held. that the money advanced by third libel· an.t for such payment having been soused, he acquired a lien of equal rank with that extinguished, and his claim ranked above the bottomry bonds.
In Admiralty. On appeal from district court. See The Dora, ante, 343. E. W. Huntington, for J. & -C. Moore & Co. H.Denw,c(oJ; Hope Ins. Co. and claimants. T. J. Semmes, for S. A. Cosulich. PARDEE,J. The elaborate opiniori given in these cases by Judge Bn.. satisfactorily settles all the questions considered. There remains, however, to be disposed of a claim of S. Cosulich & Co., of $1,208.30, alleged to have been paid to the captain of the Dora to pay seamen's wages. In the account attached to the libel made up May 21, 1886, and indorsed, "Approved, M. Premuda, Master," the said item is charged 'as fo]]ows:"P'dcash to captain to payoff the ship's crew for provisions, ete., $1,208.30." The claim is supported by the evidence of Cosulich that he paid !ll1 the sums of money specified in his bill, and by the evidence of Capt. Premuda, "Question. I find an item in Mr. Cosulich's bill for $1,208, for paying provisions and expenses? Answer. Yes,sir. That is right. Q. Did you expend that money for that purpose? A. Yea) sir." On the first submission of the case, this was all in relation to the said item. Subsequently the evidence of the Capt. Pr.emtrda was taken under commission, and he then testifiesthlit LINGS
349
of the item $1,208.30 nothing was for provisions; $1,150 was for wages and $58.30 was for expenses; of the sum for wages $990 accrued before the Dora leftPensacola, and $160 accrued after the ship was condemned, and before the sale. On cross-examination. the captain further says: "The wages were due the crew for about five months'sfJrvices-from November 2, 1885, to March 17, 1886, which is the date on which the ship deviated from her course; also from April 29, 1886, the day when the ship was condemned at New Orleans, to the 29th day of May, 1886, when she was sold. At different times during the month of May, part of the crew was paid and discharged; the aggregate of the wages paid to these men ,were $160, explained this: Mate, $30 per month; boatswain, $25 per month; cook, $22 per month; 14 sailors, together, $206 per month; petty expenses, $58.30." Answered from private memorandum book, which cannot be annexed to answer. "The names of such persons paid out of the said $1,208.30, so far as I can furnish, are as follows: Mate, Giovanni Amandick, Lussinpleolo; boatswain, Oarcich, ofOhimehij cook, Dargonis, Dalmatia. I do not know the names and places of residence of the fourteen sailors. According to custom I took no receipt." There is no conflicting evidence. The showing thus made, while indefinite as to mahy particulars, establishes without contradiction that, when the Dora was in the port of New Orleans, there was owing to her crew for wages the sum of $1,150; $990 of which accrued before the date of , the bottomry bonds sued on, and $160 of which accrued just before and just after the seizure was made in this case. These wages were paid by the moneys advanced for the purpose by Oosulich & 00. By the maritime law seamen's wages constitute a lien on the ship of 'the highest rahk. This lien is preferred to, and ranks, liens arising under bottomry bonds. See Fland. Mar. Law, § 282; The Oharles Carter, 4 Cranch, 328; The Virgin, 8 Pet. 553. Where funds are advanced to the master of and on the credit of a ship, for the purpose of paying off maritime liens, and the funds are so applied, the lender acql1ires a lien of equal'rank and standing to those extinguished with the funds so advanced. See'fhe Emily Souder, 17 Wall. 666; The Lulu, 10 Wall. 192; Insurance 00. v. Baring, 20 Wall. 159; The Guiding Star, 9 Fed. Rep. 521. As it is established in this case that Oosulich &00. advanced these moneys in a foreign port, on the credit of the ship, and they were applied to the extinguishment of mariners' wages, which are proved to have been due, and which, as has been seen, constituted a lien prior to the lien of the bottomry bonds, it seelIlS clear, under the authorities aforesaid, and many,others that could be cited, that Oosulich & 00. 's claim should be declared a lien prior in rank to the botlomry bonds; in fact prior to any and all the claims made in this case. The oilly answer is that the specific amount of wages due each seaman, and his time of service and discharge, do not appear in the evidence, and the absence of such specific evidence throws suspicion and doubt on the claim. I have considered this, and, to that end have quoted herein the entire evidence on the subject, arid the result. to my mind, ilS that too much is proved for the court to on; suspicions
FEDERaL REPORTER.
'nisapparent thli.tthe :wages'ofthel;leamen t 8,fJ'61mmecl,were due and owing, unless they werElpaidfrom the moneys on bottomry at' Pensacola; ,and. if they:were paid from those mone,sl' then" it' was a' fact" which, the libelant could and 'should have shown ·by e""idence. ,'It is propsr, to 'notice that the ,advance of moneys on' bottdnuy'bonas. and the application ofthe same to ,the necessities of theship,'isionly established by,the evidence of the captain, and that onlyhiaigeneral way, and without:naming a single creditor, or giving a single 'voucher. There isinoll'eaeon that the master's undisputed evidence should be taken in. the one' cn,se, and wholly rejected in the other. Thedooree to be entered,wnlconforrn to the opinion of Judge BIt... LINGS' on all the questions diMusseli by him, and with this opinion' on the claim. of 'Cosulich & Co. for moneys lidvanced to pay wages.
,THE"THOMAS METNILJ,E. 1 /
,WINDMULLER8t
ala v.
THE THOMAS MELVILLE.
LEVY' ,et ,all v.' «()ircJit Oourt, S. D.
New
York.
March
16, 1888.)
1.
ADMIRALTY-Al'PEAL-REVIEW., '
The, Qf t,he COl'lr.t In refusing to consider damage to a cargo of prunes 1rom coal·dust, because not properly pleaded, is subject to review on appeal to thfil circuit court "
aSAME-'-AMENDMENT ON ApPEAL,
The libel to recover for damage tl) 8 shipment of, prunes charged an unsafe and condition of the vessel, so that her decks leaked, and also want of'j>roper care, insufficient dunnage, and Improper stowage. The main 'damage was caused by sea water, but, some of the cases had been penetrated This last element of damage was not referred to in the libel. , by , It came up. hQwever, in dealing wit)l insurers, and, some few questions were asked about it in libelant's depositions, but itwas,not insisted upon until the trial. more/than three years aftl'rthe arrival of the ship. and long after respondent's depositions hadbeen COncluded. and the goods had been sold and taken away beyond the reach of examination. Held, that libelant was not entitled to file a new dr amended libel in the circuit court on appeal, under rules of the circuit court, Southern district of New York, No. 131, providing for the exhibitJon,withoutieave, of "new allegations," etc. Rules or the circuit court, Southern district of New York, No. 130, provides that if the, ;a,p,P,elleeshall ha,ve a,D,y caus,e to Show,w,hy newallegati,ons, (filed without leave, under rule No. 131) or proofs should not be offered, or new relief prayed on the appeal, he shan give four daYIl' notice thereof, '*. * * and such cause shall be shown within the first two days of the term; otherwise the appeal shall be allowed according to -its terms." Held. that the circuit the rule to strike the" new allegation II " from the court h!1d ,I?qwq on motion. ' , , I . ",
8.
SAME-S'l'RUUNG NEW ALLEGATIOlQ"S FROM THE FILES.
AppelU from district court. I
A1Ilrming 8111'00, Rep. 486.
;
'.1
