TBEMIN,NA.
759
POSSESSION BY SALVOP.s. A vessel, in point of fact, for 12 or 14 hours in a condition where her instant destruction is menaced, and the lives of those who might remain on board were greatly jeopardized, may be rightly taken possession of by salvors. The John (lilpin, Olcott, 80; The Dodge Healy, 4 Wash. C. C. 651. Unless a vessel has been utte1'ly abandoned, and is in templation of law a derelict, even bona ftde salvors have no right to the -exclusive possession, and are bound to give up charge to the master on his .appearing and claiming charge. The Creone, 6 FED. REP. 517.-{ED. See TMSantlringham, 10 FED, REP, nnd 'note. 556; Id.&84; TM LMp.tc, Id. ll85, and note; Id;6911 .McConflOchte v. K.rr, 9 FED. REP. 60; :l7I4 Plgmoutll &ck, Id.413; 7'IU Emily B. Soutler, 15 Blatch(. ,185; 7'IU Ellor"" 1 Lush. 6&0.
THE (lh',trkt Oourt. B. :SEAlmNS' WAGES-FISHING
MINNA.
n: MithigfJ1/,.
May 1, 1882.) \
AGAINST VESSEL,
Persons employed upon a. fishing tug, solely for the purpose of catclitng ,and preserving fish, are entitled to proCeed against the vessel for the' Toodvery of their wages, notwithstanding the fact that they take n() part in thenav!gatipli of the vessel. and that an incidental portion of their duties is perforll\ed, on shore. .
In Admiralty. This was a libel for serviO'es performed as fishermen on' boavd the Minna. The testimony showed that the Minna ,was employed solely in fishing, running out from Alpena every morning, from 15. to 25 miles, to the fishing grounds, throwing her nets and making 'a lift or :-catch of fish, and returning the same' evening to port, wherathe fish Her crew e-onsisted simwere discharged and prepared for ply of a master and engineer. Libellant took no part in the tion of the vessel, but was employed solely ail a fisherman. His contract required him to go out with the tug every day, to set and lift the nets, clean the fish, discharging the catch and reeling the nets on -!3hore. He also lodged ashore at nigqt. F. II. Canfield, for libellant. John C. Donnelly, for O'laimant. BROWN, D. J. At first blush,I wasinblined to the opinion that 'libellant's services, not being maritime in charlliO'ter, were :p.ot such as to create a lien upon the The cases coliat6d in2Parsons, Shipping, 185.;indic,ate:that have, no lien -unless their labors contribute to the preservation Qr'nltvigation Qfthe _ship; or to the sustenance or health of the crew. 8ee;'also, Gurne'll
760
FEDERAL REPORTER.
v. Crockett, Abb. Adm. 490; Oox v. Murray, ld. 340. But, upon reflection, I am satisfied the sounder principle is that stated in Ben. Adm. § 241, and The Ocean Spray, 4 Sawy. 105, viz. : that all hands employed upon a vessel, except the master, are entitled to a lien if their services are in furtherance of the main object of the enterprise in which she engaged. Any other rule would put large classes of persons employed upon steam-boats outside the pale of admiralty law. I have never heard it questioned but that the deck handa of a lake propeller,whose duties are simply to load and discharge fuel and freight, as well as the stewards, waiters, cooks, and chambermaids of passenger steamers, are entitled to proceed in rem for their wages, though none of them performed services of a maritime character. So, I take it, if men should engage 1;1von . 0.. whaling voyage solely for their skill in finding or catching whales, or trying out oil, they would be regarded as mariners, and he entitled to the same remedies as the crew, though they took no part in the navigation of the ship. The test is wpether the services are for the benefit of a vessel engaged in 'commerce and navigation. If there be a failure in either respect, viz., in the character or in the nature of the ship's employment,there is no lien. I do not regard the fact that libellant slept upon shore at night, and there reeled out and mended the nets, as qualifying in any way the nature of his contract. These services were merely iucidental and subsidiary to his main contract. The Oanton, 1 Spr. 437; The Mary, ld. 204. Upon the facts I think that libellant is entitled to recover. The testimony of both himself and the master shows that he was hired at $35 per month. The burden of showing that he was hired for the entire season, and that he deserted the ship, is upon the claimant, and I do not think he has established,these facts by a preponderance of testimony. A decree will therefore be entered in favor of the libellant. NOTE. All persons employed on a vessel to assist in the main purpose of the voyage are mariners, and are included under the name of seamen, (The Louisiana,2 Pet. Adm. 268; Turner's Case, 1 'Ware, 88; The Brandywine, Newb. 5; The Highlander, 1 Spr. 588; Wolverton v. Lacey, 18 Law Rep. 672; Wh,eelm' v. Thompson,2 Stra.nge, 701; The Jane and Matilda, 1 Hagg. Adm. 187; The Prince ffeorge, 8 Hagg. Adm. 376;) and have a lien wr their wages, (The Ocean Spray, 4 Sawy.l05.) It was not limited to acts done for the benefit of the ship, or in the actual performance of seamen's duties. Ringold v. Orocker, Abb. Adm. 846; Reed v. Oanfield, 1 Sumn. 195. Any service is maritime if Bubstantially to be performed on water within the ebb and flow of
THE CELESTIAL EMPIRE.
761
tbe tide. The D. C. Salisbury, Olcott, 73. So the clerk of a steamboat is a seaman, (The Sultana, 1 Brown, Adm. 18: The Snperior, Gilp. 514; The Prince George, 3 Hagg. Adm. 376; Mills v. Lon.g, 2 Dods. 105: Wil$on v. Ohio, Gilp. 505; Ross v. Walke1',2 Wils. 264;) so cabin boys, cooks, (Allen Halldt, Abl!. Adm. 576: The lI-Ientor, 4 Mason, 84; The Orozimbo, Abb. Adm. 576; Thf ChClJ lea F. Perry, 1 Low. 475; The Thomas, Bee, 86,) carpenters, (The Louisa, 2 Wood. & M. 53; The Lord Hobart, 2 Dods. 103,) pilots, (The ..Eolian, 1 Bond, 267;) stewards, chambermaids, (Gnrney v. Crockett, Abb. Adm. 459;) and female cooks are mariners, (Gurney v. Crockett, Abb. Adm. The maxim that freight is the mother of wages does not apply to a fishing voyage. l'ke Ocean Spray, 4Sawy. 105.-[ED.
THE CELESTIAl. EMPIRE.·
(District Court, E. D. New York. April 28, 1882.) COLI.JSION-DAMAGEB-INTEltEST-DEMURRAGE-COBTS.
Where an action, which was brought for damages resuJting from collision between a ship and a schooner lying at the end of a pier, was not moved to trial by the libellant for 12 years, and the ship was then found guilty of negligence' in regard to the position of her fenders when the vessels came together, and upon report of .a commissioner as to the damages exceptions were filed, held, that it was proper to allow as damages the ,whole cost of repairing the schooner, instead of only the cost of repairing the sail broken by the ship's fender; that interest on the disbursements was properly allowed, it having been within the power of the claimant at any time to obtain a hearing and claimed was not properly proved and decision of the'cause; that the should be disallowed; that the delay of the libellant to bring his action to hearing for 12 years justified the refusal of costs.
Benedict, Taft d: Benedict, for libellant. S. M. Parsons, for respondent. BENEDICT, D. J. This case comes before the court upon exceptions to the commissioner's report of the amount to which the libellant is entitled by virtue of an interlocutory decree rendered herein, June, 1880. A difference of opinion between the advocates as to the effect of the interlocutory decree makes necessary some restatement of the grounds of the court's decision upon the merits. The action is to recover damages !mstained by reason of an injury done by the ship Celestial Empire to the schooner William Henry while the latter was lying at a pier. It was proved at the trial, and found by the court, that the ship was guilty of negligence in coming along-side the schooner. This negligence consisted in coming against the schooner, -See 2 FED. HEP.
651.
