508..
J'EDERAL REPORTER,
vol. 45.
spiles hau been put down by the company, though they afterwards appeared to have been unnecessary. It may possibly be that, as between the New England Terminal Company and the defendant, the former should indeninifythe latter for the delay in the discharge of the Ives; but this, I think, does not debar the libelant's claim directly against the defendant under the terms of the bill of lading, which expressly states that thecoDsignee should pay the freight, and discharge subject to the conditions of the national bill of lading, which provided for demurrage at the rate of $54.20 per day upon such cargoes as this, to be paid by the consignee or his assignee. .The acceptance of a cargo under such a bill Qf lading without objectionimports an agreement to pay demurrage as well as freight according to its terms. Neilsen v. JMUp,.30 Fed. Rep. 138; North German Lloyd v. Heule, 44 Fed. Rep. 100. The express stipulation in the bill of lading, moreover, that 16 feet of water was guarantied, would likewise make the respondents liable for any delay caused by the lack of that water at the berth assigned her. If the consignor had no .authority to insert such a guaranty, it was competent for the consignee on the arrival of the ship to refuse to accept the consignment on those terms by giving prompt notice to the master. This was not done. On the Mr. Olds, as agent of the defend3nt, noted the arrival on the bill of lading, and undertook to receive the cargo for the respondents, as well as to manage the discharge on behalf of the terminal company, without objection.. The SwaUo.,p, 27 Fed. Rep. 316. . ·. It is setup in the answer, but not proved, th&t by the contract between. the consignor and the consignee. the former was tQmake deli very into the. respondent's bin.an the wharfwithout to the. defendant. But.the biUoflading wflS plainly with thi!) agreement, as it imposed the payment of freight, as well as of demurrage, upon the consignee. It. appears that the captain had no knowledge of the agreement t¥leged, relied, as he was entitled to rely, upon the provisions oUhe bill of lading; and, as I have said, no objection to its provisions was lllaqe... I must hold tbe claim for demurrage against the defendant, therefore, legally established, whatever may be the .latter's right, if any, to look to others for indemnity. Decree for libelants for $5.44.20, and costs.
THOMPSON
et al. v. THE SAM BROWN et al. March 17,1891.)
(Dtstr£ct Oourt, W. D. Pennsyltvanm SB.umN-DI8CHARGE-PORT OP SHIPMENT.
. 'Where libelaJlts shipped IIoS deck-hands on a steam-boat at Cincinnati, without IIny agreement as to the duration of the voyage, the port of its termination, or their dis.oharge, the legal presumption is that they are to be returned to the port of shipment, and, if upon their arrival at Pittsburgh they are discharged, they IOro all entitled, except one whose residence is Pittsburgh, to compensation for their Lime and expense in returning' to Cincinnati, irrespective of the fact that Pittsbul"gh is t!:l9 home port of the bOtlot.
Tllo;MrsON
tI. THE SAM BROWN.
509
In Admiralty. ,,:Albert York Smith, ,for libelants. Geurg(j W. Acklin, for respondents. REED, J. The libeUn this ,case was filed· by eight of the ,crew of the steam-boat Bam Brown, alleging that all of th,eir number (except W. P. Green, who'was employed by the captain,) were hired, on January 12, 1891, by the mate, as deck.hands, at Cincinnati, to proceed on the voy.. age of the boat to Pittsburgh, and return to Cincinnati, and were each to of the boat at be paid at the rate of $40 per tponth; that on the Pittsburgh, 0!1 January 19, 1891, the libelants were discharged,and their wages paid only for the time occupied in the trip from Cincinnati to Pittsburgh j that they demanded to be returned to Cincinna,ti, and were willing andrendy to complete,the voyagej that there w:as no written con" tract or shipping article with any one of the libelants. They claim their railway fare from Pittsburgh to Cincinnati, as well as wages the rate of $40 per month for the time required to go to Cincinnati. The answer admits the hiring and date of shipment; denies that there was any understanding that the libelants were to be return"ed to Cincinnatij and avers that it was expressly agreed and understood that they were· to be discharged and paid off wherever the voyage should terminate, without further allowance or compensation; and admits that they were paid only to Pittsburgh, which was the express understanding, fiS they aver. The testimony is exceedingly conflicting. The libelants' and respondents' witnesses agree in nothing essential, except dates and rate of wages to be paid, but differ as to what was said both at the time the libelants were hired and afterwards. ,The .burden of groof, however, is on the respondclaimed to have been made by the mate,and ents to prove the captain with-, those of the libelants they respectively employed; and I helt itatethe lElss, in the application of this rule, because it was entirely ticable to. haye made a written agreement with the libelants in regard to the period and voyage for which they .were employed, about which there dispute. I find, therefore,after a would have; been no unceJ;taillty consideration of the whole testimony, the following to be the facts as supported by,tbe weight of evidence: Pittsburgh, The Sllll1 Brown is a steam tow-boat having its home ,between and engaged at this time in the navigation of the Ohip Pittsburgh and Cincinnati. It had made a voyage from Pittsburgh to Cincinnati ,with a tow of coal, and on the 12th of January was ready to return to Pittsburgh. Seven of the libelants were hired by the mate at differenttixnes during the morning, and were put to work. Nothing was said or agreed upon at the time of their employment as to the duration of the voyage, or the port of its termination, or their discharge. The only thing agreed upon was that their wages would bA at the rate of $40 per month. W. P. Green, one of the libelants, was employed during the morning ,by the captain, and nothing was said or agreed l,lppn as to the the voyage, port of its terminatiop., or his discharge. llawkins, are, or are entitled to be
5'10 considered, residents of Cincinnati. Hawkins is a resident!MrPittsburgh, and was working his way home, having'OlJenslck ih oinnati. The men continued their W'ork!until about,noon:, WHel!, ,either just before or just after the boat got under way, they were called to the forecastle, tmd' ware ail there' except John Doyle, one M thelibelarits. The'maw a.ddressed them; is; a conflict as to' what he said; he testifying that he said they would ,be discharged whenever, the 'boat laid up,and' no' fare baok would bA ........inwhich he is corroborated by the captain and two Six: of the libelants testify that he told the men" he did not 'waRt any fussing or wrangling on the boat," and that II they: would give us $40 per month,and do better if they could," and theY'testify that he said nothing about discharge or fares; !'" .' In my opinis not a material matter. The libelants had been.+employed some about theboat,Jnpursuance of hours their employment,and:n'0suhsequent declarations orstlttel11ents of the mate could change' the relations of the parties. Nor is it material whether the mate said, after thelibelan'ts were employed and duting the voyage, that the boat would ,return to Cincinnati if there waS water .enough.He had nocoliltrol over thefuiure movements of the boat, and ,his statements in that respect are notbindiDg or material. Upon the arrival of the boat at Pittsburgh, on January 19th, the Hhelants were paid off and discharged. At that time they demandedtht:ir tine back to Cincinnati, which was l'El-' fused by the captain; and this libel was thereupon filed.; ., . ' Upon this finding of faots, the queStion in the case is whether theBe libelants, having shipped at Cincinnati without any agreement as to the duration of the voyage, or the port of its termination, or their dischargei seven of them ate entitled to be returned at the eipense of the vessel 'the place of from Pittsburgh, the home 'port of the; boat, to shipment, and the home, fo't the purposes of this 'case, of seven of the In any event, the libelant Hawkins cannot rec<wer, burgh was his home, and he cannot 'claim the right to be returned to Cincinnati. Rogers v. Letvia, 1 Low. 297. '. It was held in the case of Worth v. Lione88, 3 Fed. Rep. 923, that "a mariner who ships fora 'voyage cannot be discharged without cause in a foreign port without the known legal results. Where there are no shippingartiClesl111d no preSoribed voyage stated, the implied contract or legal presumption is that he is to be returned to the'port of shipment. The doctrines as to V'essels are well settled;, and the principles 'On which they have beenj)gser1ied apply to internal navigation, in the abseri'ce of any on the subject," and Judge TREAT -adds: "It is very easy officers to state to a mariner,definitely, what bi$employment ie to to be discharged attbe port of arrival otherwise, if they ",1£h, to limit his term of service, or reserve aright to discharge him before histetlifu to the portofrshipment."To which I 'may add that the present' {jilS6 shows the propriety' of a written agreement, would clearly 15how' the understanding of the pa.rties, stead ofverbalstatement8\'asclaimed by the respondents, but which, on uncertain and apt to be misunderthe respondents' own shoWi'ng;
or
THE SARA.H
511
stood. The rule laid down in: WorM. V. 'I.tiunesa was'follow,ed l1ndapproved by Judge ACHESON in this court in the case of TMHudson, 8 Fed,. Rep. " In the present case the respondents have not undertaken to show that the vesSel was from' returning to Cincinnll.ti, or that any real!lOnexisted.which required the discharge of the crew rat Pittsburgh. While even'that might not relieve the resp0ndents, in the, absence of an express ,eontract, from the to return the to. riati, yet it makes the present clJ,sestronger against the respondents than either of the Cases cited. Therespondentsin this case assumed: they had the rightto,terminatethe service at Pittsburgh because they saw fit to do 80., One differeneebetween this case lUld the caSeS cited, is that in this case the boat was about tot begin her return trip from a foreign to her hOIQ.eport at the time the libelants were hired, and they,were discharged at [her home port. lam unable to sea, though, how that ,uters or affects the rule laid, down in the cited cases. As to those of the libelants'whose homes were in Oiacinnati, ,the voyage was to· a;(oreign port. The boo.twlls engaged in the coal trade between Pittsburgh nati,and,was plying back and forth, as the stage of water The libelants bild a tight to assume, in the absence of an :express agreement or statement to thecoritrary, that she would Such being the case', they are entitled to be returned to Oincinnati. ,Tlley are each, with the exception of Michael Hawkins, entitled to be pai9 the cost of tickettoOincinnati, which,as:the undisputed testimony shows,&t the dateoftb'eir discharge, wasiby the cheapest rQute,$8.50; and, as they could have: reached Cincil1nati by rlliI wit1)ju 24 .the time of discharge, they' axe entitled toone day's wages each" the rate of 840 per month, and are entitled to a decree accordingly, with costs. The ,libel must b'e,diSmissed as to Michael Hawkins.
Ta:l!J ,:
SARAH Cml..EN. 1 '
.
STEAM ,rOWAGE Co.'". THE ':,., .
SARAHCULr..EN. "
'," (D£8f:r1,ct
Oo;Jit; S; D. New
York. Marcn 110. iS91.) ,;;\
,
"
LtElt...;.TowAG"':CREDIT' 011' TmRD " iLtbelabtrendered towageeerv,icdo a vessel ,dxpl'essemPloyment by her Illaster,o.J,'ag;r'l;l!lment t,Q Pl}Y, ,Libelant was afterwards ipformedthat tbe R,Ice 'Cdinplfuy'was't6'pay for' 'the and thereafter, for:theabove ;and ,subsequent towage services. rendered bills to such ice company. which were paid in part.. No notice was given to the vessel owner that the ship was expected to pay for the'towage until the failure of the ice company, six months after the first voyage. Hdd, that the service was not rendered on the credit of the vessel, aud, under the circumstances of its dealings with the vessel, libelant was eqUitably estopped from 8ubsequently demanding from her payment of the towage.
lReponed by Edward G. Benedict, Esq., of the New York bar.