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17 FEDERAL REPO,RTER.
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THE ST. PAUL. OLARK et al. Y.
THE ST. PAUL.
(District Court, S. D. New York. January 28;: 1897.) SIIlAMES-SHIPPISG ARTICLEs-'-DrsCHARGE BEFORE VOYAGB BBG.A.N-RBV. ST. WAGIJiS ALLOWED.
§ 4537-
Seamen who have signed shipping articles for a foreign voyage on a steamship, in pursuance articles have presented themselves tor the service' of the ship several times, and lire finally discharged before the commencement of the voyage in consequence of an accident to the steam pipe which renders their discharge proper, may recover compensation in rem under section 4527 of the Revised Statutes for the period of the voyage, not exceeding the one month specified iA the statute.
This was a libel by Henry Clark and others'against the steamer St. Paul to recover seamen's wages. . Griffin & Fitzgerald, for libelants. RobinsoIll Biddle & Ward, for claimants. BROWN, District Judge. On the 14th of December, 1895, the libelants were shipped by the master of the steamship St. Paul, as firelllen for a voyage from New York to Southampton and back, at various rates of wages. Shipping articles were signed by all. In accordance with the provisions of the articles, the libelants, on the 18th of December, presenrtJed themselves at the dock where the ship lay, prepared to enter uporn their work. A break, however, had. occurred in the main steam pipe leading to the port - engine of the steamship, rendering that engine useless, but not interfering with the working of the starboard engine, under which might have made the voyage, though much more slowly than her customary passage. On the 18th the libelants were notified of the accident to the steam pipe, and that they were not then wanted, but were told to present themselves again on the 19th, which they did, and were then told to present themsel ves again oil tlle following day. Ooming again on the'20th, they were told that the steamship could not be repaired in time to make her voyage; and they were thereupon discharged from the service of the vessel and told to apply to the shipping commissioner for their wages. Through the shipping commissioner they received three days' wages, protesting, however, that they were entitled to wages for the voyalld that the. receipt of three days' wages should not prejudice any of their rights or remedies. " I think the- -discharge of the libelants under the circumstances was reasonable and justifiable (see The Elizabeth, 2 Dod. 403), and except for the statute, probably no further wages or compensation could have been recovered by them. Section 4527 of the Revised Statutes, however, provides as follows: "Any seaman who has signed an agreement and is thereafter discharged before the commencement of the voyage, or before one month's wages are earned'; without fault on his part justifying his discharge, and without his consent, shall be entitled to receive from the master or owner in addition to any wages he may have
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earned a sum equal in amount to one month's wages as compensation, and may on adducing evidence satisfactory to the court hearing the case, of having been improperly discharged recover such compensation as if it were wages dul1 earned,"
i. e., for a month's compensation; but only for 15 days, the residue
The' claim presented is not according to the letter of the statute,
of 18 days, which is the ordinary period of the voyage of the St. Paul out and back. Several objections have been raised to a recovery under the above statute. Upon consideration, however, I must overrule them, upon what I think was the clear intent of the statute, to make provision for seamen who are certain to suffer loss through a discharge with· out their fault. The statute provides expressly for this very case, viz., a discharge "before the commencement of the voyage," after an agreement has been signed. The seamen in this case had bound themselyes from the 14th of December. They had to maintain them· selves from that time until the 20th, and then, after discharge, they must suffer some additional delay before other employment could be got by a shipment for,some other voyage. Seamen, as a class, are dependent and necessitous; and needed protection is in various ways provided for them, not only in courts of admiralty, but by statutory provisions. The wages for the voy· age being in this case less than the statutory provision for a month's wages, the claim presented seems to me very clearly within the equity and the intent of the statute; and the same also as respects the right to proceed in rem. This is clearly the meaning of the last clause of the statute. I see no reason for making any dif· ference, as regards the remedy, between the last clause and the first; and I do not think the statute intended any difference. See The Acorn, 32 Fed. 638. Aside from thi's, however, the shipping articles made a binding contract between the seamen and the ship. Upon three different days, in performance of the contract, the seamen presented them· selves aIt the ship to enter upon the voyage. This was not only a part performance of the contract on their part, but they were un· del' the direction and control of the master or other representative of the ship upon those three different occasions, and acted under and in conformity with their orders. The analogy to cargo deliv· ered on the dock to the ship's officers, or under their control, seems to be complete and pertinent. In the leading case on this subject (Pollard v. Vinton, 105 U. S.7, 11) :Mr. Justice :Miller said:
"We do not mean that the goods must have been actually placed on the deck of the vessel. If they came within the control and custody of the officers of the boat for the purpose of shipment, the contract of carriage had commenced, and the evidence of it in the form of the biII of lading, would be binding."
In the case of The Ira Chaffee, 2 Fed. 401, :Mr. Justice Brown, then district judge, says: "It must now be considered as settled that if the ship enters upon the perform· ance of its work or any step has been taken towards such performance, the ship becomes pledged to the complete execution of the contract and may be proceeded against in rem for a nonperformance,"
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77 FEDERAL REPORTER.
The .l,'epafr of the men to the. dock on three different days after the shipping articles were signed, and the exercise of control over them by the master or other representative of the ship, brings them within this rule. See The Caroline Miller, 53 Fed. 136; Crenshawe v. Pearce, 37 Fed. 432, 435. , for the libelants for the amounts claimed, with costs.
THE GOVERNOR. HASTORF v. THE GOVERNOR. (District Court, S. D. New York. December 11, 1896.) TUG AND IN EXPOSED PLACE-DUTY TO WATCH FOR CHANGES OF WIND.
The tug G., having in tow a scow to be taken to sea, and being obliged to put back on the approach of a southeast gale, moored the tow outside of Atlantic Basin, which was safe from a southeasterly gale, but unsafe in high westerly winds.. During the night the wind ,Ilhifted to the westward, and the libelant's boat was damaged bypounqing:HWI" that the tug was in fault either for not taking the tow inside the basin; or else for not maintaining a sufficient watch'dliring the night, with help at hand sufficient to remove the tow ill time to prevent damage, upon any ilhange of wind to the westward, which was a change to be reasonably anticipated.
Goodrich, Deady & Goodrich, ,for libelant. Macklin, Cushman & Adams, for claimant. BROWN, District Judge. In the evening of December 30, 1895, the libelant's scow Aurora, loaded with garbage, was taken in tow in the East'. riVer by the steamtng Governor, with other boats to be taken out to sea for the purpoSe of dumping. After getting round Gove:rnor's Island the weather and water was so rough in a southeast' gale, that the Governor turned about and landed her tow along the bulkhead forming the outside of the Atlantic Basin. During the night the wind shifte<!' to the westward, and the libelant's boat was damaged by pounding in that pOlSition before the boats weretn'oved to the interior of the basin; and the abO'Ve libel was fHedfdr ;this ,' The place where the tow. was moored was shelter.ed from a sontheasterly gale; but it was exposed to the effects of westerly or northwesterly winds} and in any wind to the west of south, the place was not a safe place for such a tow. There would have been no difficulty in" taking the scows inside of the Atlantic Basin at the time.they were,moored outside;, nor during several hours succeeding. The SCOW waS without any fault; and it was at the risk of the tug that she moored tlle tow in a place exposed to westerly winds. After mooring them in that situation, it was specially the tug's duty to takenote of any changes of wind that might prove injurious. Southwesterly gales are usually shorter than the northeasterly gales; and it is a very c{)mmon thing for a southeasterly gale to shift through the southward to the westward. In the present case the testimony shows that this change was not sudden, but quite gradual, and that the wind after shifting to the southward