-HALL V. WITTER.
977
DAVIS v. ADAMS. (District Court, N. D. California. No. 11,829. PLEADING IN ADMIRALTy-ACTION BY SEAMAN-V ARIANC;E.
April 29, 1899.)
A libei for damages, on the alleged ground that ,libelant was induced to visit a vessel by fraudulent pretenses, and there detained, and compelled to go on a voyage, sounds in tort, and a recovery cannot be had thereunder for wages due the libelant for his services as seaman rendered under shipping articles, which he signed.
In Admiralty. Libel for damages. The libel alleges that the libelant was induced by fraudulent pretenses and assurances to go on board the bark Retriever, then lying in the harbor of San Francisco, for the purpose of visiting said vessel, and when on board "was unable to escape from said vessel, and was threatened, under penalty of being placed in irons, if he attempted to escape or make an outcry," and was thus compelled to go upon the voyage referred to in the opinion of the court. P. C. Dormitzer. for libelant. Charles E. Naylor, for respondent. DE HAVEN, District Judge. The evidence in this case shows that the libelant, on or about the 11th day of May. 1895, signed shipping articles by which he agreed to go as a seaman on board the bark Retriever, on a voyage from San Francisco to Port Hadlock and return. In pursuance of this agreement, the libelant proceeded on the bark to Port Hadlock, and there left the vessel. In my opinion, the evidence shows that he was justified in leaving. The evidence also shows that the libelant .has not been paid the wages earned by him. The libel will, however, have to be dismissed, as there is a fatal variance between the case proven and the cause of action alleged in the libel. The cause of action set forth in the libel is for a tort in thenature of false imprisonment, and not upon the contract established by the evidence. Libel diElmissed, the respondent to recover costs.
HALL et al. v. WITTER.
(District Court,
D. New York.
May 8, 1899.)
ADMIRALTY-AcTION FOR REPAIRS AND SUPPLIES-COSTS.
The record owner of a vessel during the time repairs were made and supplies furnished to her is not entitled to recover his costs in an action brought against him to reeover for such repairs and supplies. though he is successful in defeating reeovery b;l' showing that he was not in faet the owner.
In Admiralty. Ingram, Mitchell & vVilliams, for libelants. Josiah Cook, for respondent. 93F.-62
978
93 FEDERAL REPORTER.
COXE, District Judge. This iljl a .libel ip personam, filed November 16, 1898, against the respondent as the owner of the steam canal boat Hugo Keller, tore,eoverifor supplies furnished 'to the said boat and repairs made thereon during tb.e years 1895, 1896, and 1897. It is agreed by both parties that the only question is one of fact, namely, was,t4e respondent- the owner:, of the Keller during the period in question;? " The testimony is exceWingly conflicting and it is difficult to explain some ,of the transactions upon any. rational ,business principle, but after considering the entire evidence, oral and documentary, the court has reached the conclusion that the respondent was not the owner. The respondent testifies that in 1893 he sold the Keller for $!?,OOOto Edward Wil<wy, ,who continued to own and hold the uninterrupted. {K>ssession of her until December, 1897. At the time of the sale Wildey paid the respondent $2,500., The testimony as to this payment.'is not denied by Wildey. ,Wildey had thl2' entire manageboat, made purchases and ordered repairs, including those ment in eontr9versy, and exercised all the rights of ownership. Various made from time to time on account of the sale and statementsdf the amounts paid were rendered by the respondent to Wildey. The latter denies the sale generally, but his testimony is inconsistent with this denial and leadS:' to the conclusion that the respondent's version of the transaction is slibstantiallycorrect. For "He [Witter] instance, be says regarding the salein I would seither [the' :Keller] and I told him I would if hecouhlinak;e arrangements. * '. * Finally I tOld him if he would 'gi'Ve we $2,000 * * lwolild' get off the bOat." Subsequently be testified that although he riever' agreed to pay anythingf()I' the to paya'lIcertain sum," be did actually pay she was transferred to Fisk for her; th'at'when in he received $1,000 and! later $200; that the resp()bdent credited b,im from'time to time with sums paid by him on the purchase money of, 'the boat).\nd that he expected that h'ewould get a bill of sale is noesc;Ipe from the concluwhen be "got the boat paid thatthere"wasa sale; as to this purchaser agree;" Tliere'!waS no recordo! the conveyance and many' of the respondent's 'ictifare entirely incolisistent· With ·his prel'!lent contention, but it is thought that the presumptions arising from these acts are insufficient to overcome the positive and uncontradicted testimony establishing a sale. The libel is dismissed, but as the libelants were justified in bringing the; 'suit against the record owner, the dismissal should be without costs.. .T.8:ECAR,RIER 'DOVE: IDistrlctCourt, D. Massachusetts. May 9, 181:190.) No. 993. SEAMEN-VOYAGE ON LAYs-RIGHT '1'0 LIEN ON VESSEL.
An agreement by seamen to serve on lays on a f1shln'g voyage, made with the master, who had made an oral agreement with the owners of the vessel to ship the crew and to pay to the owners a specified portion of the proceeds of the catch, does not change their character as seamen,