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,
THE CARRIER DOVE.
979
their shares being substantially wages, .llor deprive them of their right to a lien therefor against the vessel, where the master, after disposing of the catch, absc'orrded with the proceeds.
In Admiralty. Libel in rem against the fishing schooner Carriel' Dove by Joseph Williams and others, as members of the crew, to recover their lay. J. W. Keith, for libelants. Carver & Blodgett, for respondent. LOWELL, District .Judge. The owners of tbe libeled fulhing scbooner made with one Silva, bel' master, an oral agreement for a fishing voyage. Silva was to ship the crew, and the owners had no connection with the crew except through Silva. The terms agreed upon between Silva and the owners, and between SlIva and the crew, were as follows: From the gross proceeds of the catch, wharfage and scalage were to be deducted. One quarter of the balance was to go to the owners; the remainder, after deducting the cost of groceries, ice, bait, etc., and 10 per cent. paid to the master for use of gear, was to be divided equally among the crew, including the master. A custom was proved that the master sbould sell the catch and collect the price, and that, in his absence, the crew should appoint one or more of their number to take bis place. All supplies were bought by the master or other member of the crew. If the catch was insufficient to discharge the bills incurred for suppliel'l, the same were charged against the next voyage; but there was no evidence how the bill was to be collected if tbe next voyage was made by another master and crew. This, I understand, is called the "quarter clear." The master sold tbe catch, collected the price, and absconded therewith. The other members of the crew bring tbeir libel against the vessel for their lay. This case seems to be covered by Orowell v. Knight, 2 Low. 307, Fed. Oas. No. 3,445. There the circumstances were in some respects more favorable to the claimants than here. The libelants were "sharesmen," of wbom there were four, while seven other seamen were shipped for special wages in money. In that case, there was stronger reason than in this in holding the libelants to be partners and joint charterers. It is true that in Crowell v. Knight it was said that "they [tbe sharesmen] have no voice in the disposal of the catch in any respect," while here it was otherwise; but this difference seems to me not very important. The method of sale is not decisive upon the question of title, and was probably adopted largely for the convenience of all parties. The supreme court of Massachusetts has decided that seamen have no lien upon the catch for their lay. Story v. Russell. 157 Mass. 152, 31 N. E. 753. But that case was made to turn largely upon a construction of Rev. St. §§ 4391-4394, wbich pro· visions are not applicable here. The same court has decided, in a case like this in some respects, that those who furnish supplieB have no lien. Rich v. Jordan, 164 Mass. 127, 41 N. E. 56. This may be true. For the sake of argument, it may be admitted that, if courts of admiralty considered seamen to deal on equal terms with owners, the former might not prevail in a case like that at bar; but, consider-
980,'
98 FEDERAL REPORTER.
ing the favor always shown in admiralty to seamen, I think that the agreenlEmt here:made should not be construed to deprive them of their lien· SUGAR-REFINING CO. T. MADDOCK. (Circuit Court of Appeals, First Circuit. No. 279. SmI'PING-LIABILITY OF CARRIER FOR SHORTAGE OF LADING SIGNED BY MASTER. , OF BILL
May 12, 1899.)
Tbe rule tbat tbe master of a ves,sel bas no autbority by virtue of bis position, either actual or apparent, to sign abll! of lading for cargo not actuallyrecelved,on board, applles' wben tbere Is only Ii deficiency in part tbrougb mistake, and tbe owner cannot be beld Hable, eitber by the original consignee or an indorsee of tile bill of lading, for such a shortage, where the qUll;ntity actually received is delivered.
Appeal from the District Court of the United States for the District of Massachusetts. Charles T. Russell and Arthur n.Rlissell, for appellant. Eugene P. Carver (Edward E. Blodgett, on brief), for appellee. Before ,COLT and Circuit Judges, and WEBB, District Judge. Circuit Judge. In this case, the American Sugar-Refining Company purchased, in Cuba, a quantity of sugar in bags, and paid in full therefor. The parties of whom it purchased shipped the sugar by the steamer Salamanca, anll took a bill of lading for a precise number of bags named, which also gave the weight. The bill ()f lading contained also the following words: "Weight and contents unknown." 'It acknowledged that the sugar was shipped by the parties of whom the cargo was purchased, and it ran in favor of the American'Sugar-Refining Company and its assigns, deliverable at Boston. !tis admitted that the steamer delivered all the sugar which she re<:eived, but the delivery was short of the bill of lading 37 bags. There was no claim that there was any shortage in weight. The American Sugar-Refining Company claims to be allowed the value of 37 bags, estimated at the average weight per bag of the whole cargo, and this is the issue in the case. 'l'he proceeding below was by a libel in personam in the district court, and the decision was in favor of the owner of the vessel. 91 Fed. 166. In The Freeman, 18 How. 182, it was held that neither a vessel nor her owners were liable in that case in favor of a bona fide holder of a bill of lading, it having been shown that none of the gootls called for by it were shipped.. The American Sugar-Refining Company, however, maintains that there is a substantial distinction between a case where a bill of lading is issued fraudulently, or where no merchandise called for by it was in fact ,shipped, and , the ease at bar, where it is claimed that the master erred innocently in his count, and there is only a small shortage in what the l!Vl'lllllents call fOl·. It is not dellie rl that, as towards an,
