TIlE HUDSON',' "
167
Mo. 289; Gormly v.Vulcan Iron Work8,61 Mo.· 492; ,The Ohando8, 4 FED. REP. 649. Besides, it is alleged in the libel that the incompetence of the master was well known to the owner at the time of his employment, and, if this be the case, the owner is liable for an injury caused by such incompetence, even if the master and fireman were fellow servants in any sense. 2 Thomp. Neg. 970. The defence sought to be made upon these exceptions can be made on the final hearing, on proper allegations and proof. The fourth exception is disallowed: The question raised by it was decided in this court in. Holmes v, O. It O. By. 00. 5 FED. REp. 75,'in which it was held that a marine tort is one that occurs on any navigable water of the United States, and that damages given by a state statute for such a tort may be recovered in the proper district court in admiralty.
'THE HUDSON.
(District (Jourt, W. D. PennsulfJania. --',1881.) 1. SEAlmN-CONTRACT-IMFLmD
TERlIs. Where there arc no shipping articles" and no express understanding to the contrary, it is the that deck hands sllipped on an Ohio river packet engaged in the Pittsburgh and Cincinnati trade are to be returned to their several ports of shipment. A packet in this trade shipplld hands at Cincinnati and other points above, in Ohio, Kentucky, and West Virginia, and proceeded to Pittsburgh, and there ,the hands were put off the boat, the river having then frozen over and navigation, by reason of ice, remainmg suspended for eight days, ' Held, that the boat should either have kept the hands on board and furnished them with food until navigation was resumed, or provided them with means to reach their ports of shipment. Held,!,urther, that the hands were entitled to a decree for traveiing costs and expenses, as of the date of their discharge, from Pittsburgh to their several ports of shipment, by the ordinary routes of travel then open, and also wages at the contract rate during the time required to reach said points.
In Admiralty. George O. Wilson, for libellants. IB(UJ,c S. Van Voorhis, for respondents. ACHESON, D. J. The libellants, who are 16 in number, were hired, some on the 28th and o.thers on the 30th and 31st days of January last, as deck hands upon the steamboat Hudson, a weekly packet in the Pittsburgh and Cincinnati trade. Two of the libellants
168
FEDERAL, REPORTER.
shipped on the Hudson at Cincinnati; four at Maysville, Kentucky; three at Huntingdon, West Virginia; five at Gallipolis, Ohio; and two at Parkersburgh, West Virginia. When running, the Hudson is once a week at Pittsburgh <and Cincinnati, and twice a week at the mediate points above named. The libellants claim that they were respectively hired at the rate of $25 per month for a round trip from and back to their several places of shipment. There is direct evi· dence tending to show that many of them were so hired. The respondents, however, deny that the hiring was for a round trip in tb.e case of any of the libellants, and claim that when the boat was unloaded at Pittsburgh they had the right to payoff and dismiss the crew. But they do not pretend that the libellants' terms of service then expired by express contract. There were no shipping articles, and the respondents' own evidence is that when the libellants were hired nothing was said as to the duration of their service. The boat reached Pittsburgh February 3d, and on that day, after the cargo was unloaded, the libellants were paid off and discharged. The riYer was then frozen over, and navigation between Pittsburgh and Cincinnati remained suspended on account of ice for a period of eight clays.. If there was here no express agreement as to the time of service, what would the law imply under the circumstances? This subjeet is discussed by Judge Treat, of the eastern district of Missouri, in the well-considered case of Worth v. Lioness, 11 Pittsb. Leg. J. ([\T. S.) 181. It is there declared that where there are no shipping articles, and no prescribed voyage stated, the implied contract or legal presumption, when a mariner is shipped, is that he is to be returned to the port of shipment, and that the rule applies as well to internal as to ocean navigation. It is true, tlie Lioness was a tow-boat, engaged in towing coal on the Ohio and Mississippi rivers, while the Hudson is an Ohio river packet, plying between Pittsburgh and Cincinnati. But this difference- in the nature of their employment and character of their voyages is, I think, immaterial. The rule as stated by J ndge Treat is a most reasonable one, and is applicable to the circumstances of the present case. When these libellants respectively shipp'ed on the Hudson, it was undoubtedly in the contemplation of all parties that the boat would return, according to the ordinary course of the trade in which she was engaged, to the various places of shipment, and the libellants had a right to assume, in the absence of express noti· fication to the contrary, that they would be brought back. If they had been informed that they were liable, in case navigation should unexpectedly close, to be put off the Hudson at Pittsburgh without
THE HUDSON.
169
means to return to their homes, is it likely that a man of them would have shipped on her? Says Judge Treat, in the case of The Lioness, supra: .. It is very e1tsy for officers to state to a mariner definitely what his employment is to he---whether to be discharj:ted at the port of arrival Qr otherwise-if they wil;h to limit his term of service, or reserve a right to discharge him before his return to the port of shipment."
The huma.nity,of the rule which requires the mariner to be returned to his port of shipment, in the absence of an understal:i.ding to the contrary, is well illustrated by what befel these libellants. When they weretu'rned off the Hudison' into the streets of Pittsburgh the weather was bitter cold. Some of them were insufficien,tlyiclad; none of them had money enough to take them to their distant:homes. They were total strangers in a great city, and Boon penniless. In their extremity some of them were compelled to Beek refuge at night in the city lock"up, where, in charity, they were permitted,to"lodge. It is claimed that, having received their wagesandql1it 'the boat, the libellants thereby waived any further rights they may nave had; but, in view of all the facts, I think no waiver is 'shown. They were virtually expelled from the boat, and ,. this without justification. Clearly, under the circumstances, the officers of the Hudson were bound, either to keep the libellants upon the boat and provide them with food until the boat resumed navigation, or else furnish them with means to return to their several places of shipment. The libellants, therefore, will be allowed, respectively, traveling costs and expenses, as of the date of their discharge, from Pittsburgh to their several places of shipment, by the ordinary routes then open, and also wages at the contract rate for the time required to reach said places; and the case is recommitted to the commissioner to ascertain and report the several amounts coming to the libellants under the, rule of compensation indicated.
170 THE FREDDIE L. PORTER. (Oircuit Oourt, D. Maine. --.1881\ 1. COLLISION-BURDEN OF PROOF.
In case of a collision between a sloop close-hauled and a schooner sailing directly before the wind, the burden is on the schooner to account for it consistently with her innocence.
2.
EVIDENCE-ABSENCE OF WITNESSES.
The absence of important witnesses, whose presence might have been secured by the exercise of reasonable diligence, is open to remark. 3. DAMAGES-NET FREIGHT.
Where a vessel, chartered by a Plli1"Ol contract for a definite time, is sunk in t\ collision caused by the fault of the other colliding vessel, and become.; a total loss, the net freight for the unexpired time of ihe charter may be assessed as damages.
In Admiralty. Wa,shington Gilbert, for libellants. Webb d I!a,skell, for claimants. LOWELL, Cr, J. The decision of this case in the district court is
reported in 5 FED. REP. 822, and 4 FED. REP. 89. The Hope, a small from Cape Ann to sloop loaded verY' deep with stODEl' was Boston on a fine moonlight J;ligpt, and was, close hauled on the starboard tackjwhen,she was struck on the starboard by the stem or bow of the large three-masted schooner FreddieL. Porter, bound from Boston to the Kennebec for a cargo of ice, and sailing with the wind aft.. 1he burden is on the schooner to account for the collision consistently with her innocence; and the defence is that the sloop suddenly tacked undel' thebowe of the schooner immediately before the collision. The mate of the Porter was on deck, forward, assisting the look. out, and there was a the wheel. Only the officer is brought forward as a witness. The libellants comment. very r;leverely on the absence of the other two. It seems that they deserted on the arrival of the vessel at her port of loading; but it would seem that, by rea· Bonable diligence at that time, they might have been found. The libel was served only four days after the damage was done, and the absence of these men is open to remark. The mate testifies that, being forward on the lookout, he saw both lights of the sloop ahead at a distance estimated at one-eighth or one· sixteenth of a mile; that he Oldered his own helm hard a-port, and the order was obeyed, and the change of course brought the port light of the sloop three points on his port bow and shut out the green light;
