THE: SAMUEL OBER.
621
against the same vessel win prevent a release of the vessel upon such a motion. Such a motion, whSn granted, terminates the cause, so far as the vessel is concerned, and the hearing thereon is deemed a final hearing within the principle of the case_ of Hayford v. Griffith, above referred to. The clerk's taxation of a docket fee of $20 is affirmed. Go.
See Goy v. Perkins, 13 FED. REP. 111, and note; also YaZe Lock Manufg v. GoZvin, 141fED. REP. 269.
'fHE
SAMUEL
OBER.
(District Court. D. Mas8achu8ett8. Fl1bruary 23, 1883.) 1. SEAMEN's WAGES.
A vessel under charter IS naOle lor tne wages ofseamfln hired by the char. terers, although the owner may not personally be liable therefor. 2. SHIPPING CONTRACTS.
1\. seaman is not bound by 8. clause in his shipping contract unfavorable to his interest if it was concealed from him, or its meaning and if, from any cause, he is UMble to read the contract, he may show tha.t it (jU. fers from his oral engagement, upon clear proof that the written contract was not read or explained to him.. '. .
In Admiralty. F. Cunningham, for libelants. H. P. Harriman, for claimant. NELSON, J. The claimant, EdwardE. Small, of Provincetown, chartered the schooner Samuel. Ober for a cod.fishing voyage of seven months from May 1, 1882, on the coast of Maine. The libelants; Manuel Francisco, John Francisco, and Manuel,Caton,areI'orttlgt,es9 fishermen, living in Provinoetown, unable to read or write. They allege tha.tthey shipped as fishing hands on.the. schooner for this voyage, under an oral agreement by which they were to sene for five months from May 1st, and weratoreceiveas wages for suoh SentiMj respectively,' $250, $240,and The.y left th6 vessel OoMber 2d, wtSouth.west Harbor, M"ountiDesert, after having.sened;five months; and now sue for their wages according to the verbal: contract. The shipping articles fixtheinvagesatthe BUlliS stated:; and contain this elause written in below the printed -part,above: thesignat'tl'r6sof the men: ,;
822
FEDERAL
"And it isfurtqer,agroocl that the fisb,ermen, whose names are to this agree· continue in said schooner Samuel Oper during the time for which, she is chartenid, viz., seven tnonths from May I, 1882, and shall receive the foll<Hving'w,ages or lay; providing, however, that if they should leave the vessel for any otheli reason, excepting sickness; before the expiration of seven months from :May I, 1882, this contract shall be null and void. and they shall receive a, pr(J'l'ata, amount of wages at the ritteaa follows.",
BEllow the signatures is a memorandum, written in after the men had signed, as follows: . " Now, providing the above-named crew shall continue in the said vessel for seven months, they shall receive the above wages for five months. and onehalf for what they make in the other two months, less their proportionate part of the whole expense of the voyage; but, as before agreed, should they leave the vessel before the expiration of seven months, they shall receive oneseventh of the amount for which they have shipped for every month engaged."
The libelants allege that they signed the shipping articles, supposing that they contained the verbal agreement; that the written parts were not read to them; and that they were induced to sign them as they now appear by the fraud of the claimant. . A veasel under charter is liable for the wageso{ seamen hired by the charterer, although the owner may not personally be liable therefor. Flaherty v. Doane, 1 Low. 148; The Adelphi, an unre,ported de· cisionof Judge SPRAGUE, cited by Judge LOWEI,L in Flaherty v. Dnane. A seaman is not bound by a clause in his shipping contract unfa. vorable to his interest, if it was concealed from him or its meaning misrepresented; and if from any cause he is unable to read the contract, be may show that it differs from his oral engagement upon clear proof that the written contract was not read or explained t(} him. W{)pe v. Hemmemva.y, 1 Spr. 300; The Qltintero, 1 Low. 38. But I am convinced, after a careful examination of the conflicting evidence, that the. shipping articles correctly state the contract made by the lihelants with the charterer. The evidence wholly fails to show- that he was guilty of any unfair or dishonest conduct towards. these men. The whole contract, including the written parts, was reaq and' carefully explained to them. The clause inserted after the· signatures was written in their presence, and was read to them. It. was intended asan.additional inducement for them to remain with the vessel after the expiration of .the five months·.. It certainly was. for theirbenefit t since it gave them a half.line share in the catchings. for tbe last:tWQ months of their .servic.e, in addition to their round wages. The had hired the vessel for a seven months' voy·'
THE"SAMUEL OIER,
623,
age, and she was not to return to Provincetown until the end of the voyage. Under such circumstances, it.is highly improbable that he would have elfgaged a crew for round wages months only. As it was, owing to the advanced state of the season when the ants left, the skipper was una1:l1l:l,to procure I1lenat South-west Hrirbor to take their. places, al1d .In consequence the voyage was broken up. The amount of the stipulated wages also inditlates that seven months was the agreed length of the service. ,The evidenc9showectthat from $30 to $40 a is ,what is usually earne,d by fi;sherrnen on voyages such as this. The libelants, although illiterate, are not unintelUgent. They converse readily in English. They have lived fo; manyyeara, in Provincetown, and are familiar with its peculiar usages. They as well as their neighbors what a fishing contract means, When they heard this contract read, they must have comprehended: its terms, and must have known that it took the of. any p,revipus verbal arrangement which they may have made with theiremplo¥er. I think it is quite clear that they understood their contract to be that expressed in the shipping The amolitits due, them, after deducting the sums advanced during the voyage, correctly st80ted in the answer. As these sums 'were tendered and, refused before suit brought, the libelants are not to recover costs. One other matter should be adverted to! This is a proceeding against the vessel. A warra1;lt {)f arrest was Issued', and 'she was seized and held by the marshal until released,uponthe olaimant's giving the usual stipulation, with sureties, to abide' the' final decree. A very considerable expense was thus incurred.' The amounts involved in the suit are small. The claimant lives in this district, and is of ample pecuniary responsibility; and this was known to the libelants and their proctor. ,/ The libelants ,shoUld h'ave proceeded against the claimant in personam. There was 000c08lsion to immr the expense of the arrest and detention of the .vesseL' This expense was wholly unnecessary. If I had given costs to the libelants, I should have allowed for the service of the warrant of.'a,.rLlestonly the (lost of serving the claimant with fl, simple monition to appeal'Qnd answer the suit. ,Decrees are to be entered for the libelants, without costs, ,as fbI· lows: For Manuel Erancisco, $111.75; for John Francisco, $140.60'j for Manuel Catoll,$57.32.· Ordered accordingly. ' (" ",
624
FEDERAL REPORTER.
THE 1.
CITY OF NEW YORK.
(District Court, S. D. N6'IJJ York.
March 5, 1883.)
CoLLISION-RuLES OF NAVIGATION-FAULT BY NON-OBSERVANCE.
The non-observance of the statutory rules of navigation is itself a fault which charges the vessel with damages, where it appears that but for this fault the collision would have been avoided. 2. STEAMER IN SPEED-RULE 17. Where a steamer in a fog does not go at " moderate" speed nor" slacken," as soon as there is perceptible danger of collision, as required by rule 17, and a collision ensues, which would have been avoided had the rule been observed, held, that the Ilteamer ischargcable with fault, and responsible, notwithstanding the fault of the othel' vessel, also without which the collision would not have' happened. 3. tinTED. Where the steamer," C. of N. Y.," in a fog, kept on her usual speed- of 10 knots, and heard the fog;horn from the bark H. about a point on her starboard bow, and starboarded her helm, without either moderating or slackening her speed until she saw the bark coming across her bows about an eighth of a mile distant, alid a collision 'afterwards ensued by which the H. was sunk, held, that the steamer was in fault both in going at too great a rate of speed, and also in not slackening her speed when the fog.horn was heard: it appearing that if she had done either the collision would have been avoided. 4. CONTRmuToR'r CAUSE-MUTUAL FAULT-DAMAGES DIVIDED. The bark being, at the time of the collision, headed about E., four points to the eastward of N. E., the usual course of vessels under similar circumstances, and the witnesses from the steamer testifying that when first observed the bark was heading N. E., but changed her course across the steamer's bow, while the mate of the bark testified that the only change auout the time of the collision was a slight. luff a few moments preceding it, and alleged a prior change from the course of N. E. nearly three hours previous, and it appearing that the latter change alleged by the mate involved extreme improlJabilities as to the previous navigation, and was not in harmony with other parts of his testimony as to the bearing of lights,' held, that the mate's testimony as to this ch&nge should be rejected, and the change of four points held to have been made near the time of the collison, notwithstanding the usual rule giVing superior credit to a vessel's own ollicers as to her navigation, and the difficul. ties of observation from the steamer in the fog; and as this change of course contributed to the collision, the bark was also in fault and the dama!Zes should be divided.
In Admiralty. Scudder x Garter, for libelants. A. O. Salter and R. D. Benedict, for claimants. BROWN, J. The libel in this case was filed by the owners of the iron bark Helen, a British vessel of about 450 tons burden, bound from Havana to New York, against the steamer City of New York, bound from New York to Havana, to recover for the loss of the bark and her C:1rgo, valued at $52,0:>0, which were sunk by a collision with