686'
REPORTER,
·vol. 43.
thoritY;r:.be: held to be in its scope,'and not to,affect the war.ranty(oLll_worthiq,ess, at tJhe time of leaving {Jortupori her'V'oyage. Ifapito.ffii 87.1; Steelv. ,Steam-Shi:pCo.,L. R. 3.App.J ,Oasd72jra'he Glenfruitil'10 Prob.- DiV'. Tattersall v.Steam-Ship Co.\12:Q.i:B,-,I,)iv. 297; The,Rovet'; 33F)ed. Rep. 515. The opinion in TheMiranda,L.R. 3,Adm.' & Ecc. 661, so far as to.a different eonclusion,till rOtlDtrary'to';ihe eases;tmd in'The Lames, 12 Prob. Div. 187', ,the bills ,of lading expressly restricted the warranty of seaworthinesS to, eases in' which there had been a want of ordinary and ren80na ble Care." ", It, has been held by ithe- 'highestcotirts or Michigan, Massachusetts, and- New,Yorlt l upon'reasobswhichappear to tlsconclusive, and which it is unneCes811ry. torestare, that acomnll)Dcal'rier, i'eneiv.ing goods for carriage, and by whose faulit :theyare not deliveredat the :tilne and place atwhich;tbey,ought tohnve been ,delivered, butare.deHveredat the same.pIAC8 afterwards, and when their market valueris less,isrespol1sible to:tlie,'owller"o{ difference in value.: SWaDnv. Rail,. rOad (l);, '14 Mich. 489; Outting v,Railwa'!J Co.; 13 Allen, 381; Ward v. Railroa(j. a", 47 N. y" 29.:' The same general rule has been often recognizedaEl'lipplying'to carriers 'by sea in thiseircuit as well as in the second circuit; Oa/ce$v, Richardson, 2 Low. 173, 178; Page v.Munro, Holmes', 232; RotD6V\' '1'heOity ojDubl-in,1, Ben.46jThe SUCCes8\ 7 Blatchf. 551 i The Gitilio, 84: .. ,Rep.. 909. But this! case does' not require us to go so {aI', becliuseit ;at the timeiofcontractingtogether, knew and'contemplated that the cattle were not to'ba sold l1elore arriVllI, *nd) were to!be.soldatth&t1rst possible market'day'after ar,rival;iand, 'under suoh circumstanced, there can be nO'donbtwhattiver that the Itlotbe shipp!!r for the·' fall 'in (;'0,: 'tT. U.'S.444, 456,8 Sup. et. Rep. 577i·7'he·.Parn.nd, ·2'Prob.Div. 118; 121,123.· ,Decree affirmed, with interestand·cosls. ", . f ! :'
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Octo be1'6,181lO,)",:, NOTTe) Sus UNTIL S-FECJl'tl!1>, , :' : .' 'J"" { I,
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"imement;of: II seaJDj1n',no.t: tobl'ing Suiti for JUs' Wllg.OS; i!4fsc'harged, untU .,lilf1;er ,:wbere the. vessel, on wbiQb ne is ew., , '. "'J)lored is h.,Ilrbor. :veSSel, iihttble 'to lea.ve'ttl, e P,o,rt, and wbere there liln,o voyage or Il.,
ot: We'tliJile of
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" him llhd1l1ii l)elpay-able
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his 'employer,' and on being
it
the
due
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,\ . Suit for seaman's' wages·. Ans0'll,:Bcebe,St.ewai-t; ,for libelant. , " . Goodmm,'Deady,&; Goodrich, for clabnant. ,<.".: ::' I: t fl
,687
i,;
,rendered:.bythe ij,belal)tas engineer <m tp,e Columbus, a dredge employed in dredging inthepqrtof !:few-Sork,. The. libelant :was em,plo-yed in AQg14stby ,a ,ve.rbal,agreell;le,nt,; ." On Augpst 27th he apter.ad into a written agreement. On the 10th day of September he \Vas djscharged for drunkenness, and at once commenced this suit to recover ' for the time of his employnientto the lime of his discharge. The defense is that the suit is premature. Upon the case coming on for trial, the validity of the clause ii)rt;he writtlJn::agreement upon which the defense is based was disputed by the libelant, and it was agreed that this point should be disposed of! !p-relitrtiriii.rUyin order to avoid trouble and expense. The written relied on by the claimant is as follows: We 'i>rJagi'ng and Improvement "This Smith"witnesseth: '.fhat said Frederick Company of New Smith agrees to work for said iii the capacity of 2nd engineer on the Jnonthlywa,ges, to. be paid on the dredge COIUlIl,bUS,f atthl'l,rate Saturday following the 15th of each montb, for all work done in tbe preceding !'Aonth..'. It, ta" further'lagreed by said Frederick Smithtbat: in 'case,he ,tbe of,. p't is for ,.Dl¥l8. .Qbey o".d'ep, oLneglect wages then Ilhall.otl due amI pa.yableon the next ensuingmgular-monthly pay..day·of the 'cc'iitltlarit; ,Tile said reserves ,the, rIght the s8idFred'erick Sniith whenever'tlle exigericles of, his services are no longer required or desirable. in which cllse tbey agree to pay ,him office. . ,. .: "THE NOR1'H AMERICAN
J. :'!his action is brollght to recoyer.wages for
Detted Au.qust2?th'. 1890. . ;·.':OIWitneifsed by C. MeMrL'AN.'"
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in to the; day of is valId, tne SUIt IS premature as to the wages earned .after the slgmng of the written agreement, they, were not' 'payable until the of September, whereas on the Septe.mbe.r'I' On the part of the lIbelant It IS mSlsted that the stIpulatIOn 1U the '. ,uncqnscionable and void, aJ;Ui should not bEl en&, PbV:rtof admiralty.' .t to dis60ver any just'ground 'feir dec1liriqgthe: questioh a of this to If this ;Were for' the services of"lL seaman . 'board to le'ave tl1epott, alid, from the tIme Of diS. the 19th of'tqe mont1l ,in the. ,OPp?i:tupit>" to' 's'eize t?e · ,rQr ith,e casewQu1fl doubt1ess dIffere))t. But the case pn ,a dredge in, the port of New York, unable to leave the port, and IsM voyage or limitation of the time of service. In sucH a 'case it bow such a stip:ulation,'8$this ;AAQ, 1
688
FEDERAL REPORTER,
vol. 43.
Moreover the contract, while it postpones payment of wages by the employer to a future definite day, also contliinsprovisions to the advantage of the employe; as, for instance, it gives the libelanUheright to demand on the 25tp. of September wages up to the 12th of September, notwithstandingthefact that he had been discharged for drunkenness on the latter date.· To such a contract the decisions made in Javor of seamen upon ships do not seem to me to be applicable. So far as the wages earnedafM:' the writtenco'ntrlict ,are concerned, the suit will be held to be pl'einature. ; '<:
TIn ·ROOlUWAY.: " ; .," THE SEABOA;a.p.
et at.. v.THE BRENNAN' 'd'c4·· 'v. , 'i ""
ROCKAWAY. SEABOARD.
TliE
(Df.8trict OoUh't, ; " , E.D.Ne:Wyork. October I, .1890.) ., :', .l '' .· BACKING.
(lOLLISJOlll.,...STIlIAM-
wasgoiI).gthrOu,gl;1 the. Kill von KUll, bound for New York, ona some 5OO.'feEltofftheNew The propellerS. h'ad been lying at a dock on the New Jersey\!h6re, and started to back out into tlhe'stream, anda6ross the. course,of the R.;8& the latter approached, The S. gave no signal to indicate her iPtent4on, and continuedto;l!89k almost to the,momElntof collision. TheR. backed as ¥QlI. intention tbfjl S. was seen, but the ves.selscame tog'ether. BeliL, that the hollision was thefauttof th.e S; ,' . , J 'i",";,'
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In Admiralty. for damages caused by collision between thElsteam-bdats <Rockawayll.r1d Seaboard.' The steam,poat Rockaway was going th'rough the Kill von KQ1l, bound for New York, some 500 feet from the New Jersey coast.' The tug Seaboard, lying at a pier on the New Jersey shore, attem.pted to back out as but gave no signals of R9ckaway reversed and backed as soon as the intent of the Seaboard was (Uscovered,but a collision. followed . . Gpodrich, Dt:ady &: Good;:{Ph, for the Seaboard. r. WMtehead, Parker&: Dexter, for the Rockaway. 1.1 :i:: '.'. :' ._,' ", '.: ", " .',' I
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The collision whicttgave rise to this snit was, in my : 'Q8.us,ed by the .fault of the directly under the tl)o','Ysof steam-boat, tpen in plain' sight, without any ,having. been given the to show an intention on,. the ,'part' qf the, tug t6 back across her bow,:, ' I see no fault oothe part of the " There was n() time aftef'. the' in tention of the tug to cross .the pows of the was manifes't 'for the steamer to do more than libel agaibst the Rockaway must be dismissed, and in the . the Se,abpard there niust be a decree for the libelant, with aOQrdeiof ' . ' 'l'RepWted"bY Edward G. Benedict, Esqi('Ot the New' York bar.