488

FEDERAL REPORTER,

vol. 45.

to save the traveling expenses which a personal visit would necessitate. A jbrtinrl; the charge for them cannot be allowed. 3. The 008ts of the Commissioner. The claim was for seamen's wages passed on by the commissioner under sections 4546, 4547. The last of these sections requires that all the seamen having cause of complaint of like kind shall be joined as complainants. 'rhere were four seamen whose cause of complaint was the same. The commissioner charges for issuing, filing, and returning four summonses on the master. Only one summons w,as necessary, and only one can be charged for. So he charges for four certificates that a:dmiralty process. should issue. Only one certificate.canbe charged for. He also charges 25 folios of testimony, at 20 cents, The fee-bm (section 847, Rev. St.) allows 20 cents a folio for taldng and certifying depositions to file. Section 4547 , Rev. St., does not require the filing of any depositions; indeed, does not require the taking of any depositions. The commissioner is authorized to make inquiry, and in his discretion to send up the certificate. His discretion js absolute, and no one has the right to question it. Therefore he need not senlt up any testimony, and cannot charge for it. The exceptions on the above items are sustained. In all other rethe taxation is confirmed.

THE

FRANK AND WILLIE. 1 THE FRANK AND WILLIE.

SWIFT et al. v.

(Dl8trlct OO'Ulrt. S. D. New York. February 9, 1891.)
1.SEAHBN....,W,4.G!lS ON VOY,4.GE BROUN UP-FORElIGN PORT..

When a VOyage is broken up in a foreign port without fault on the part ot the owner Of 8 vessel, seamen shIpped under a time contract which hils not expired are entitled only .towages up to the date of their return hOIIle, and provision for such return,' in,the. absence of prOOf or probability of rurtherdamage. When llo' was brought against a vessel for a claim .lal"gely in elCcess' of her value, and her owner allowed her to be sold without attempting to bond, and thereupon discharged the seamen, it was held not to be a case of wrongful discharge, but a breaking up of the voyage through misfortune.

.

9. SilIE....:111S0H,4.RGEl Oil' SEAMEN-So4.LE Oil' VESSEL BY}lAI(S:B:AL.

In Admiralty. Suit for seamen's wages. Hylaid &- Zabriskie, for libelants. E. G. Benedict, for respondent. BROWN,J. The libelants, seamen on the small British schooner The Frank and Willie, shipped on board at New Brunswick September 15, 1890, for a term of six months, to be returned at St. Johns. Onthe fir..st voyage to New York, upon discharging the schooner, a seaman
. I

Rflported by Edward G. Benedict, Esq., of the New York ba.r.

THE FRANK AND WILLIE.

489

sustained considerable personal injury through alleged negligence in stowage and the manner of discharging the cargo, for which she was libeled and seized in New York upon a claim of $5,000 damages, and sold by the marshal, in consequence of which the voyage was broken up, and the libelant seamen were discharged on the 4th of October. On the saine aay the master offered to pay them their wages up to that day, and to ship them on board an American vessel going to St. Johns under current wages, which after consideration they refused, and sub. sequently filed the present libel, claiming wages for the full period of six months, which has not yet expired. It is unnecessary to refer to the numerous and diverse cases cited by the libelants' counsel in the elaborate brief presented. The observatione of Mr;Justice STORY in the CRse of Emerson v. Howland, 1 Mason, 45, are, I think, applicable to them all, and state the principle that should control'the present case. The apparent contrarieties in the different cases,even of an illegal discharge, he says.. Are easily reconcilable when the circumstances of each case are careflllly examined. 'In all cases a compensation is intended to be allowed which shall be a complete indemnity for the illegal discharge, and this is ordinarily measured by the loss of time and expense incurred by the party. It' is presumed that after his return home, or after the lapse of a reasonable time for that purpOlle, a seaman may without loss engal{e in the service Qthe!' persons; and, where this happens to be the case, wagl3s are allowed only until h18 return, although the voyage may not then have terminated." " ,"

ot

Fee v. Orient, 36 Fed. Rep. 509,44 Fed. Rep. 430.
of the willful neglect of a seaman in a foreign port, as in Farrell v. French, Blatchf. & H. 275, much more should this rule govern in a case like the present, where no personal fault can be imputed to the owners, as between them and the seaman, in respect to the large damage claim for which the vessel was arrested, and the consequent breaking up of the voyage. The claim and the lien here sought to be enforced are mostly not for wages strictly, because, after discharge on the breaking up of the voyage, there is no further service to the ship. Still compensation in damages for the breach of a maritime contract may be given so far as the facts justify it. But even at common law such damages are not allowed to pensate for voluntary' idleness. A shipment by seamen for a time named, instead of for the is moreover by its very nature not aD absolute engagement for the time specified. It differs materially froITl; ordinary time contracts on land. The seaman is bound to the particular ship only. He cannot be transferred to service on another ship with.; out his consent. The loss or disability of the ship. therefore, of itself terminates the contract.. , There is no difference in this respectbetw.een a seaman's time shipment and a shipment for the voyage. Everysuch shipment in either form is legally liable to be broken up before completion by sea perils, or other incidents of commerce and navigation, and whenever the general interests require it, under the special cirIf Eluch is the rule even in the case of an illegal discharge, orin case

490
1 LOw·. :168. The British and recognize, apd ,make certain provisions for it. ,. articles ,present case the same prinifthe vessel be laid up in the dominion ciples bY·6Jpressly provid,ipg of the :crew shal,i. off without extra wages;" and yet this suit. ",asiqstituted fOf:, extra wages.. ,The articles also say that,if the crew a discharg,e in the United States r they were to be paid offatt,he Qffive dollars per month, o1'a1;>out one.fifthof the shipping rate.' Thilil is not the case Qf a willful and wrongful discharge, but of a breaking up of the voyage through .accident and misfortune. It is sa.i4tl;1at owners might hl:!-ye bonded the!jchooner when she was SO fulfilled ·. But they were to do so the crew six months' employment; and itis:not creciible tha:t the voluntarily allowed to be sold. for ofgetting ,r;id of the :seamen. In the ahsence of all evidence on the subject, it must be assq.m,e,deither that the foreign owners were unable to get security here,or that the other circumstances inadeasale:necessary.'WhatE;lvElr'the caus,e, the same rule applies as upon a similar breaking up, ,of'tbe voyagE;lbexore completion on an ordillJ'l'Y shipment., . . ThereiB,no evidence of any improper conduct on the part of either the' or the master; and, fiside:·fl'om thepr()visions"of the articles the vessel is not liaWe to seamen for for damages, when the voyage is broken up tinder such circumstances, beyond prothe to their homes, a.nd thlil, payment of vision for the WlLges to thattiDle, in Qf proofqUurther qamage.. Hindman Oder, Id. 262; E'¥}erSDn v. Nowland, supra. See 'J!he4d,olph:,7 Fed. Rep. The RaffaeUuccia,3 5.05. This gives full;indenlnityto thew to ,that time, aD,d there is no evidence of that there was any difficulty in damages, beyond. It is not procuring service for, tpe remainder of the contract term at equally good wages. Wages on American vessels are notoriously higher than on British; and in fact the justify the suspicion that the refusal of the SElamen in case, ito return to,8t. Johns was for the same reason suggested in the caseo! the Italian snip last above cited, namely, because- they wished t9 sbip in 9ther vessels here at a higher rate of "llges than they would get at, St. Johns. A. court·of admiralty will, as !araB seamen tQan eqllift!,plecompensation or indemnity for loss,. But tpemaster's offer in this case fully met this. requirement, and with the spirit ()f. the articles. Tl:J.ere is .neither proof nor probability ohuy fur.therlq!>S,by the seamEl)l, except by voluntary idleness. 'fheirattempt to enforcernorc than was pftered th,em:Wlls, think. ine.quitable, and. anatteD;lpt to profit by the I tpe,refore' allow them .their. wages. up to the day of discharge. :without. i'
!: .-, :..1

· I

MInER et al.

'11',

THE PEERLESS,

at, Intervenors.)

M!lrch 20, 1891.)

(Circuft

court;' S. D. FlaI'/,d,Q.

ADMIRALTY-SURPLUS-BREAOH OF CONTRAqr-RUDlll

41. The mortgagor ofa vessel gave the mortgagee an absolute bill of sale upon condition that the latter should payoff the outstanding indebtedness, and that the retain the use and control of the vessel for II year, within which time' he mIght sell it. and pay the lllortgage debt and interest. , The mortgagee failed to pay tlie debts, and the vessel was sold under maritime liens, leaving a surplus in the registry. Botll mortgagor and intervened pro interesse suo, each olaimiD,gthe surplus. HeW, that the right of, tile mortgagor was in no.sensea jus in'l'e in respect 'of the surplus, but was simply a claim for damages agalDst the mortgagee for failing to pay the vessel's indebtedness, of which admiralty has no juritldiction, even under rule 41, authorizing a distribution of a surplus upon,aaummary hearing, and in accordance with the principles of equity, the fund must be awarded to the mortgagee, leaving the owner to his action at law.

In Admiralty· John C. Williams and William Harding intervenors pro intereB8eBUO, claiming remnant. Barron Philip8, for intervenor Williams. Knight& Wall, fQr intervenor Harding. PARDEE, .J. The libelants on a maritime lien caused the schooner Peerless to.belibeled, condemned, and sold. After paying the amount of their claims and costs, there is a surplus remaining in the registry of the court. John C. Williams iritervenes for this surplus, alleging him.self to be theholdetof a of the said schooner granted by'said William then owner, which mortgage was allerwards by'agree;ment converted into a bill: of sale unconditional in terms. William Harding intervenes, denying the right of the said Williams to the stirplus in the hands of the court either as mortgagee or owner of the said schooner Peerless. He alleges that the said mortgage has never been foreclosed,and the equities under it ;never have been determined; that the bill of saJe was obtained by undue means, amounting to fraud; that the said Williams is, by reason of violation of his agl-eenlents, and of his course in C811sing and procul'ingtbe said schooner Peerless to be libeled and sold, and hi, deprivinghitl'l:, the said owner, of the use and possession of thEl said schooner, in violation of express ,contract thereunto made, indebted to him in sum than the amount in the registry of the court; and praying as follows: "That the petition of said WiIIiilms be dismi!1sed, oocausetbe same is an intervention tiled for the purpose ofobtllining tile money paid into the registry of the court, and blll:led on a mortgage which has not bl'en fOfl'closed, and in which the rights and eqUities of the to said mortgage have not been determined; nor can be legally entertained lind determined by this' Clmrt. But said William Harding.further prays thitt if it be so that ,your honor 'shall hold that it is right and proper in the law, to elltertaj n the claim of said Williams fonaid mortgage indebtedness without It suit for the fOl'ec!osure first being had;:and the equitable ascertainment of the arnputit due saki Williams, if any, by proof, then the said Harding be allowed the sum of one thousand tbreeflundrt'd and dollars due' from' said Jbhn c. Williams to him for detentionanQ'Uile of saidvelisel, the statement