;TJI;E
285
The adjustment, having been based on an No solution of the question c01;lld be had in any other way. The result has been a reduction of the amount due on general average, but has established the fact that it is a caee of general average. I do not perceive any impropriety in bringing the suit, or any conduct on the part of the libelant which would have prevented a settlement if practicable. The main issue was, was alLthiEl claim for general average a fraud? This issue has been decided in favor.of the libelant. The amount of his claim was diminished for want of. evidence which could satisfy the court. There is an atmosphere of suspicion hanging ll.round cases of this character which, resist it as we may, has its influence. The libelant has had the disadvantage of this. I am not disposed to burden him further. Let respondent pay the, costs. ex parte statement, could not bind the parties.
The suit was necessary.
THE GRACE LITTLETON. LYONS
v. THE GRACE LITTLETON. Aprll 28, 1899.)
(District Court, D. South Carolina.
a.AMAN'e WAGES-REFUSAL TOGo ABOARD-INTOXIOATION-CONTRAO'1'.
WlUlre. a seaman, who has signed shipping articles, went to hie vessel, on her sailing,day, intoxicated, and declined to go aboard. and the master, being pressed for time, thereupon shipped. another man, heW that, while theJact that he was dl'unk'W6lil . not a sufficient ground for a rescis6ion of his contract, his refusal to go aboard entitled .the master to supp!y his place, and, when the place was 1lllecl, DO 'SUbsequent appbcation could help hIm.
In Admiralty. Huger Sinkler, for libelant. Bryan Bryan, for respondent. SnwNToN, District Judge. This is a libel for damages for breach of contract of hire of a seaman. Libelant signed shipping articles for the Grace Littleton on 19th March, for a voyage to West Indies, at $20 per month. When he signed he was told to go aboard the next day at 7 o'clock .A. M., as the vessel would sail that afternoon. The vessel was at the Northeastern Railroad wharf, and libelant did go to her the next day about 9 A.M. Now comes the inevitable oonfliot of testimony. He says that he went to the vessel with his duds, ready to enter upon his engagement, and that the master refused· to let him go aboard, alleging that he was drunk; that, although he had taken a glass of beer or so, he was sober; that during the day he sought the master, with his counsel, and offered again to fulfill his contract. Mr. Getty, a clerk at the wharf, says that he saw a sailor at that wharf that morning going towards the schooner, and that, although he evidently had been on a heavy spree, he had sobered up. I will come to his testimony again. Hendrix, the
tbD.t ;thissailorwas staying at: ;bis'houS6 who 'bad! isigned the sanie artioles 'as he: had; g.tit'them ready the of ,the . to tbevesselv'tbat tbEl'other'tlV0'wererellidywlth Couldlbet found his bagwligorl;t thi:fystli't'tedO:fAnd' 'finding libelant on their way, at tbe aomer of they went to the Northeastem Railroltd ; that libelant of a' drunken man, S:Dd,had a pint bottle: of whisky in his pocket, from whi<lh he took drinks on 1bi8 way up; when,they reached the Northeastern Railroad,' the other sailors got off, and went to the schooner;; the Hbelantsworethat he would not go 00 her,'ana; in! despite of tne reiiil onstrances of witness persevered in his'dOOl!lltttions that thetna.stercameup. and asked who he was, and if he was for his schooner; on his reply that he was; the master ordered him to go aboard, and he positively refused to do so. The master confirms all this, and says that the man was drunkj that, finding libelant in this condition and refusing to go aboard, he went to the shipping commissioner and another ID./lnj that he had no time to wait; his vessel was nia'd:y' for sea;: he intended to leave that evening, and that to do so he needed the services of the crew in fixing his deck load; so, this man refusing to go on board, ,he supplied his place at 10 A. M. The sl)ippiqg says that he !Saw libelant the morning of 19th, about 11 A:' iir.;'and that he was then seeking the agents of the schooner.<" I haveno,do\lbt. tha,tthe libelant cUd, about 1 o'c!oc:\t, try tofee'lllUe -his engagement. . I agree with the proctor for libelant that the f:JQ{,l,#i'a,f ;ljbelant .wQ.sdrunk, when he. went to .the vessel, aSBumwas would not be sufficient ground for rescission of this contract.' .Duncan v. Shaw, 19 Fed. Rep; 521. The difficulty in his way is his refusal to go aboard, spoken of by the master and the man Hendrix. The latter is in some measure corroborated by Mr. Getty at the railroad. He says that he heard a violent altercation between the sailor and the boarding house keeper after the wagon came up. To be sure, the witnesses are not free from suspicion. Neither is libel8,nt.' ·Utifeirlttria:tely foi him,· he is alone. It is not improbable that the sailor wasdrunk,andthat he did carryon as stated, and, if the master had had and patience, he mllyhave gotten him aboard all right. But the master was pressed for time. He was compelled to fill up his crew at once; , He did so. It would be unreasonable to compel him to wait on recovery 'of the sailor from the condition in which he put himself. When the place was filled,no subsequent application of libelant could help him.. . His own conduct forced the master to go for some ODe else, and, if he loethis place, libelant can only blame himself. The libel ie dismissed.' i
THE J4\MES H' SRRIGLEY:.;
287
THE
R.
,SHRIGIcEY.
,LAWSON C/o THE ,JAMES H.,'SHRIGLEYo (DfstrWt; Oour.t, N.' V.New" Yor1G.: " AprlI22i 1899.)
SBUUN1S
' O n tlxe:eVidence, held, 'th!'t the libelant, who W'aHhe wlfebf tbe cook 011 ','steam ba.Ege."'ad\:leenengagedby'tbe m.ter of ,the barge. second cook, and w. ento reco,ver wages for hel' term ohervice.
COOK-WIPl! OF FmSTCOOK.",
"
1.n Ad,n:iiraftY,.Spit, to;
Cook,
,« JngraJw,m,
wages. ·' for respondents.
CoXJj:, Distript Jv,dge. "I.quisaA. Lawson brings this libel against the wages assaCQnd cook, at the steam ,;barge :James ,H. Shrigley rate: month from ¥ay 3,1891, to August18, 1891, in all $54, qnqer made)Yith the: master of the barge. That the libellU!t. tl).e Quties of!lecond cookfaithfuUy and well and that her ,reasonably the sum demanded is not disputed. The that no agreement wllsmade with the libelant, but that an defense agreementB;as made with her llUsband bY'whichheagl'eed to do the cooking for tIle barge, wi,th hiE;! wife, as ,assistant, fQI the sum of $60 a month. 1 The only question .oimct is whether the contract was ,wade as alleged the libel. The libelant and her QUEjpand both swear in unqualified terpla,that the agreed to pay Iter $11;> per month. This agreement iadenied by, the Wl\ster. Thr4:\e witnesses were called Jorthe wlwtestified, ofthelibelant, and her ,hlUlband their The shipping articles of the barge weTe introduced in which, after the name of the libelant's husband, appear tpe worp.s "cook and, wife" and On the three payrolls signed by her ,appear,notinbis pandwriting, however, the words "L. wife, cooks.", The libelantdiil not draw her wages when her husband drew his and npthing was said on the subject by either of t\1em were leav.e the barge. facts, certainly, that the contract was as tend, ,'i'Q,r:t;<:>porate' the testip::10XlY of stated by him. In an ordinary action between llltln and -man the presumptions arising from facts like these would be persuasive and, perhaps, controlling, but in a case of mariners' wages, and that, too, where the libelant is a woman, a somewhat different rule obtains. It should be remembered that there are few claims so highly favored and studiously protected as the claims of mariners for their wages. They are regarded as the wards of the court and every shield and safeguard which the law can give is thrown around them, both by legislative enactment and judicial decision. Their usefulness and importance on the one hand and their proverbial improvidence and recklessness on the other have made them the objects of solicitude in all commercial nations. They