362
S4 FEDERAL, REP0,llTER.
tinguish Jb:efirf;!;but the, !3er,vices of the nepox, Ji'llUer" Stevens, and the Tice were rendered in good faith, and they shoull1 comThe value of the boat and cargo saved is about $7,400. The risk of damage from fire to the tugs which first ,went to the assistance the barge was considerable, and much less to those which afterwards came, when the, fire was more or less under control. I think, a fair award for salvage would be $1,000, to be divided between the tugs as follows: Daylight, $200; Millard, $200; Frankie, $200; Lenox, $100; Fuller, $100; Stevens, $100; Tice, $100. In making the award to the Fuller, I make no award for the services rendered after the tire was extinguished. They seem to have been rendered at the request of the owners, and should be borne by them independent of this award for salvage from fire. Let a decree be drawn accordingly.
THE LAURA MADSE:S. HEINRICI et al. v. THE LAURA. MADSEN et aI.
(District Court, S. D. California. 1. ,
November 1, 1897.)
SEAMEN'S WAGES-SHIPPING ARTICLES-COMPI,ETION OF VOYAGE. Shipping articles, describe,d the voyage as "from the IJ{}rt of
San Francisco, Ca!., to l'ort Blakeley, thence to San Francisco, for final discharge, either direct or via one or more ports of the Pacific Coast. Either north or south of the port of discharge. Voyage to be repeated one or more times." The vessel proceeded to Port Blakeley, and thence, with a cargo of lumber, to San Pedro, where, after unloading, the master announced his Intention of returning to Port Blakeley. The crew thereupon demanded their pay, claiming that the voyage ended at San Pedro. Held. that the shipping articles did not permit a return from San Pedro to Port Blakeley before going to San Francisco, and that the seamen were entitled to their wages upon the master's announcement of his intention to return direct to Port Blakeley, and did not forfeit them by leaving the s>hip upon his refusal of their demand. . The filing of a libel for wages, after the master has announced his determination to sail for a port unauthorized by the shipping articles, and after the seamen have, in consequence, demanded their wages, is not premature, although they continue at work for several hours longer, and until the vessel is about to proceed to 'sea.
2.
SAME-TIME OF En,ING t,'IBEL.
This was a libel in rem by Ernest Heinrici and othel"S against the schooner Laura Madsen, B. P. Rasmussen, master, to recover seamen's, wages., <Tones & Newby, for libelants. Calvin Edgerton, for claimants. WELLBORN:, District Judge. The claims of the libelants are for asseam,en on board the schooner Laura Madsen. 'l'he case is sl1l;>mitted on ,an agreed statement of facts, as follows: c,'t\.t San Francil'lcQ,PaI., on the 29th day of March, 1897, each of the said into and duly executed articles of agreement with B. P. then master of the sch()oner Laura Madsen, or whoever migbJ go as master of said schooner, upon the terms and
THE I,AURA MADSEN.
363"
conditions set forth in. the shipping articles, produced in evidence as Exhibit A. Under said shipping articles, libelants, on said 29th day of March, 1897, as seamen, entered upon the voyage described in said articles from the port of San Francisco, and proceeded direct to Port Blakeley in the state of Washington. where she loaded with a cargo of lumber, and from thence sailed direct to the port of San Pedro, in the state of Califomia. Said schooner arrived at said port of San Pedro on the 21st day of May, 1897, and discharged her cargo on the 29th day of May, at 10 o'clock a. m. After said discharge of cargo, the said master announced to libelants his purpose· of sailing with said schooner direct to Port Blakelev. and on the same day took in ballast preparatory to sailing. Said master announced his said intention to sail for Port Blakeley at noon of said day, and the libelants then and there demanded their said wages, but payment was refused. After the said discharge of cargo, said libelants continued on said schooner in the service of the said master until after saidscij.ooner had taken ill ballast, and assisted in taking in the same. Thereafter,at 3:30 o'clock p. m. of .said 29th day of May, said libelants again demanded their pay. The said master refused to pay the wages so demanded, claiming that the voyage had not been ended, and that the libelants were not entitled thereto. At said date and time, to wit, 3 :30 p. m., libelants, and each of them, refused to continue longer in the service of said master under the aforesaid shipping articles, and then and there left the said vessel, against said master's consent, said libelants claiming that their voyage was completed, and they were entitled to their wages. The libel in said cause was verified, filed, and the process of the court placed in the hands of the United States marshal for service at about 1 :25 p. m. on said 29th day of May, 1897, and said process was duly served at about 6 o'clock p. m. of the same day.. It was the intention of the said master (known to the libelants) to clear from the port of San Pedro for Port Blakeley, in the state of Washington, on the afternoon of May 29th, or the 30th at the latest. Said schooner did sail from the port of San Pedro, bound for Port Blakeley, on the 1st day of June, 1897, and libelants each and all refused to sail on said schooner, and remained at San Pedro. The following entry appears in the log book of the said schooner Laura Madsen: May 29-3/30 p. m. "Crew refused duty, and left the vessel, claiming that their voyage was up, and demanded their pay for the time that they had been employed. "B. P. Rasmussen, :Master. ".A. Larson, Second Mate."
The libelants served the length of time mentioned in the amended libel, and each has been paid only the sums set out in paragraph 4 of said amended libel,and the several sums alleged to be due are correct, provided the respondents are held liable for any amount whatever. That part of the shipping articles, referred to as "Exhibit A" in the foregoing statement of facts, descriptive of the voyage for whichJibelants engaged, is as follows:
84 FEDERAL REPORTER.
··· · · .The. Sch. Laura Madsen, of San Francisco, Gal., · · · now bound. from the port of San Francisco, Oal., to Port Blakeley, thence to San Francisco; for final discharge, either direct or via one or more ports on the Pacific Coast. Either north or south of the port of discharge. Voyage to be repeated one or more times."
Another, material provision of said articles is as follows: not be due, nor any part thereof, nor shall the crew be entitled to receive any portion of their pay, except at the master's option, until the completion of the entire voyage above described; and that, In case anlY' of the crew leave the vessel before the completion of the voyage as aforesaid, the persons so leaving shall forfeit to the owners of the said vessel all the wages due them." "It is especially understood and agreed that the wages of the said crew shall
Libelants contend that they had a right to leave the vessel at the time and place they did, for the reason, among others, that the voyage for which they shipped did not include a return from San Pedro to Port Blakeley; and therefore, when the announcement was made to them by the master of the vessel of his intention to return to Port Blakeley, they were justified in leaving said vessel. Respondents insist that libelants, by leaving the vessel at San Pedro, were guilty of desertion, and therefore forfeited their wages; and, further, that the suit was prematurely brought. The decision in Bradley v. The J. M. Griffith, 71 Fed. 318, with the authorities there cited, I think, determines, in their favor, libelants' contention. If it be conceded (which, however, I do not decide) that the shipping articles allowed the vessel to go from Port Blakeley to San Pedro, no fair construction of the articles would permit the return from San Pedro to Port Blakeley. The voyage is expressly described as being from San Francisco to Port Blakeley, thence to San Francisco, etc. Certainly, this does not imply that the vessel could go from Port Blakeley to some other point, as, for instance, San Pedro and return to Port Blakeley. .Whatever may be the true construction of the shipping articles as to the ports at whicb the vessel could toucb in going from Port Blakeley to San Francisco, it is clear that the articles did not permit a return to Port Blakeley from any intermediate port before San Francisco had been reached. The provision in the shipping articles, to be repeated one or more times," .does not militate against this con. was clusion. San Francisco W3,S the port from which the to commence, and also the port at which the voyage was to end. There could not, of course, be any repetition of this voyage until it was ended, and it could not be ended otherwise than by a return to San Francisco. ,Nor is said conclusion at variance with that clause of the sbipping articles which provides that the duration of the services shall be "for a term of time not exceeding (6) six calendar months." As has been elsewhere said: "The act for the government and regulation of mariners contemplates two species of contract between owners and seamen: (1) For a voyage or voyages; (2) for a term or terms of time. The latter Is undoubtedly the proper form of articles where the destination of a vessel cannot be specifically known, and where the vessel Is on what Is called a 'trading voyage,' or is In search o·f freight. The first, to wit, that in which the voyage or voyages are specified, applies to designated ports, or particular kinds of voyages, known
THE ROCH;ESTER.
365
and understood to be governed in their extent and duratic:m. The term 'voyage,' like the term 'voyage assured,' isa technical phrase, and always imports a definite commencement and end."· Anonymous, 1 Fed. Cas. 1004.
The contract in the case at bar belongs to the first species, and was for a specified voyage, some of the ports designated, others generally described; and therefore the voyage, with the ports so designated and described, must be considered the service to which the libelants bound themselves, and the only effect of the six-months pro· vision was to limit repetitions of the voyage so agreed: upon,-that is to say, the voyage could not be repeated oftener than was possible within six months. The suit, I think, was not prematurely brought. The announcement by the master to the libelants at San Pedro, after the cargo was finally discharged, that he intended to return to Port Blakeley, and the demands thereupon made by the libelants for their wages, were, so far as concerned libelants' rights, a termination of the voyage, or equivalent thereto, and libelants then became entitled to said wages. Rev. St. § 4530. The fact that the vessel was about to proceed to sea before the end of 10 days gave libelants the right to sue immediately. Rev. St. § 4547. The subsequent services of libelants from 10 o'clock a. m. to 3 :30 o'clock n. m. of the same day were gratuitous, and no new contracts nor waivers will be implied therefrom. The foregoing rulings make it unnecessary for me to pass upon any of the other questions raised in the resnective briefs of the parties. A decree for libelants will be entered
THE ROCHESTER. (Circuit Court of Appeals, Seventh Circuit. No. 434. January 3, 1898.)
1.
COLLISION-STEAMER AND SAIL-LOOKOUTS.
Where a schooner, shortly after leaving port, collided with a steamer coming In, held, on conflicting evidence and the probabilities of the case. that thl'! collision was due to the fact that all the schooner's crew, except the master at the wheel, were engaged in setting sail, and that, the master's vision being obstructed by the sails, he several times left the wbeel, and went to the schooner's side, to observe the approacb of tbe steamer, and that the constant yawing of the schooner, whereby sbe displayed different lights to the steamer, misled the latter, and caused her to change her course; and that, if the steamer was in error in not stopping and reversing as provided by rule 21, it was an error in extremis. The master of a sailing vessel has no right to assume the duty of wbeels· man at a point where the commerce of the lakes converges to a port like that of Chicago. It is his duty at such a time to keep a vigilant outlook, and to be on hand on the deck, where be can observe the movements of approaching vessels, and give orders accordingly. 81 Fed. 237, affirmed.
SAME-I)UTY OF MASTER.
On appeal from the District Court of the United States for the Northern District of Dlinois.
