T,HE SHAWNEE;

769

inal, leaving nothing to the libelants beyond the vindication of the law after the expenses of the litigation other than taxable costs are paid. This is substantially right, for the evidence shows that the main damages actually suffered wer& voluntarily incurred by libelants, and did DOt necessarily follow from the blleach of contract; in short, that libelants rather insisted on enhancing damages, Let decrees'go for the libelants in the same terms and for the same amounts as in the decrees given by the district court.

THE SHAWNEE. McKENNA et ala v. THE SHAW.NEE.
(D18trict Oourt, Iil. D. Wisconsin. April 13, 1891.)
SJUJI'lm-WAGES-MUTINY.

LibelaJ1ts were seamen on the schooner S., which while at !!-nchor during a heavy head-Wind had her windlass carried away. The crew then refused to goet the vessel'under way, demanding that the vessel be taken to the nearest port for repairs, or, bL lieu thereof, that they be paid, $50 each adcilitional wages. Her ses-going quallties had not been seriously impaired. But one of her two large anchors was lost. and the windlass, though a convenience, was not essential to her safety. After urging the men to do their duty without .success, moved by the lateness of tbe season, and. the diffi.culty of another crew in that locality; ,he made the promise, and entered it on the shipping articles. 'Upon arrival in port, their wages asoriginally,epntracted fol' wElre,offered to them, but were ref1j.sed, and a libel brought.to recover them with the additional compensation. Beld, that tjlere was no such unseaworthi.n.ess as to absolve li.belants from the Oh.ligationtoserv.e, and their under the circumstances, amounted to:inutiny, for which all wages must be decreeQ. to be f()rfeited. ' ' ,.

In Admiralty. Libel for wages. J .. W. Wegner andM. O.Krause, for libelants. George O. Markham, for respondeI,lt. , JENKINS, J; The libelants at the port of Detroit on the 13th day of November, 1890, shipped as seamen on board the schooner Shawnee on a voyage to Huron, Ohio, for cargo, and thence to the port of Milwaukee, at the stated wages of$2.50 per day and Jare hoine. On receiving cargo,the'Shawnee proceeded on her voyage in tow of the steamer Spinner, with the Godfrey in ·tow astern of the Shawnee. The vessels arrived off Mackinac on the22d of November, and on account of a heavy head-wind came to anchor. The Shawnee cast her large anchor and took in her tow-line from. the Spinner, the' Godfrey still hanging on to the Shawnee. The windlass of the Shawnee proved insufficient to hold the two the head-wind, and was carried away, the Godfrey then coming to anchor. In the forenoon of the next day the master of the Shawnee went ashore, wired the owners of the accident, and reeeivedinstructions to proceed. Returning on board,the masterdiHcted the mate to call the men from ,the forecastle to get the vessel under way. Upon delivery of the order the men stated t1\at tbeV;'W0l11.l v,45F.no.11-49

770

FEDERAD'REPORTERc,vol.

45.

not! turn to until they. had seen. the mastei'. Updlll go1'mg forward, according to the statement of the captain, the men stated,thatit was w<>rth a little extra to risk their lives at,that season of; thej+eal'., .' ;The captain replied that neither he nor the mate was paitlany.thingextra, and that the crew should not Q.skit, and returned aft.. In a,short time he again went forward, and asked if they would turn to. '1.'hey replied' they wished something. extraj they wished $50 apiece. The captainrefused to pay it, and,-they. said, ,they "would not turn to, but.would:go ashore first." The captain returned aft, and, finding the Spinner with steam up, again applied to the men to resume their duty, but they refused unless they were granted $50 apiece extra, and they then said "the vessel was not fit to go in." The master then, in consideration of his position, the lateness of the season, hit:! inability there to obtain men, and the consequences of delay, agreed to their demand, and the agreement was entt-red, at the <demand' of:the men, upon the shipping articles. of the libelants, they said to the captain According to the that their lives were in danger, that they could not risk' their lives for $2.50 a day, but, if he would agree to pay $50 apiece more, they go' with the vessel,?r 61s6they deBired the "essel to go to Cheboygan, away.,forrepaits.. The Shawnee having slipped her anproceeded in tow of the Spinner on 23d, and arrived chor, at .withoqt difficulty o,n the 25i},l.. The offered', but refused, their wages. under the originalcontrlict, and theresuch' each,. and $50 each upon filed' theIr libel to, for·additiorlal compenSati911.· . The respondent pleads duress and compulsioh 'Q(ihe captain,;with respect to the,ijlaking of for extra compensation;·concedes thatthe i libelants, provided they had performed their duties, were entitled to the sum of $35 each, and $7.15 each for fare to Detroit; and with the.. filing of the answer:QOvers' the.reqto 'be disposed of as the uisite amount into court may d i r e c t . ' , Undoubtedly seamen are absolved from the obligation to serve if the vessel be proved.: unseaworthy at the commencement of the voyage. But, undertaking service inalleaworthy vessel, theycatinot during the voyage impl!lseanew 'contract upon. the master, save in Elx.treme ceptionalcilses. TheoonditiollS>mustbe such that the crew are not bound to :proceed upon the 'voyage, and are freed from the obligations of the agTeement .of service. In such case continuance of duty is to be yegarded'as' a new: service. and a,new and voluntary' assumption of risks. If, through perils "Of the sea',or ·o-therwise, the vessel becomes so unsea.'worthy tbatthe voyage cannotl be prosecuted except at imminent haz· am of life, the crew are not bound to proceed upon the voyage merely because the. masterm· rashness of jUdgment may choose to ;proceed. S. v.ABhtqr'l!" 2,Sum.13., In.such'case,!if at sea, they may mand that be t8'ken tbthe ,nearest port; U in harbor,they may lawfully service; To, justify auch' action l ' nowever; the peril of life must be imminent,"aI1d:the anUBis upon the seamen·to establish the justification.,· ." ; ." ," . . r

m

::

1il
I am herewl1s no conditi0n 'of afl'aitsJusHfyingrefusal to serve. Both the Spinner atld the Shawnee, at theconunencement of the voyage, were: fully equipped, and in aU respects seaworthy. The Spinner was supplied with two condensing' engiries,a:nd was abundantly able to ha.ndle hEir tow. The Shawnee carded a 'niizzen and mainsail, foresail, andjiband'staysail; 'hild pounds, res'pectively, the latter having:75 fathoms of aMiD. 'She was quite able to take dare of herself, if thtotigh stress of weather the Spinner had been' obliged to let go her tow. The changed situation,as the result of the accident, was'simply this: Thattbe Shawnee one anchorfot' use instead oftwo, and was without the service ofa'windlass, in case Of an emergency requiring the use of both anchors, or the speedier actIon of the windll1Ssin Weighing anehor. -Here was no' imminent- or proba-: ble danger to life; bo rash peril to be assumed; no interposition of the tria of the vessel, or refusal to serve. The accident was too trivial; theadditioil'al danger which -might result from 100remoteandspMuiative. I do not believe these men stoodiri any fear of life from further. prosecution of the voyage. I consider the claim ill' that behalf merely pretentious. No other person anticipated danger from the accident. The female <look, even, was not disquieted. By their 6Wn showing, their demand was in the alternative,-either repairs or extra competlSationj the formt>r suggested as'inducement to the latter, the principal burdt:n of their song. The fact of their willingness to serve for extra compensation, without repairs to the vessel, goes far to discredit their claim that they Eltood in jeopardy from further prosecUtion of the voyage in the then condition "of'the vessel. Men standing in fear of life do not ordinarily so act. I am convinced that the libelants took advantage of the accident to coerce the mailter to an unjust demand. The attendant circumstances-known to· relied upon by the libelants-compelled acquiescence. The lateness of the'sel,lson; the inability to obtain seamen at Mackinac; the delay attending the procuring of a crew from below; the improbability that the Spinner would wait upon such detention; the great expense attending delay; the probability that the Shawnee might, through waiting for a crew, be compelled to winter in the straits,-all combined to makeefl'ective their demand, so far as the consent of the master could make it effective; It is a grave matter for a court of justice to give effect to a.n agreement extorted through the necessities of the vessel, and by refu8alto serve; To sanction such a demand would be subversive of all discipline on board ship; destructivCt of the authority of the master; putting at hazard the ship and its cargo. the safety and. lives of all on board; disastrous to the interests of com merce. It would be intolerable to allow the crew to sit in upon the command of the master, or to determine the effect of aC, cidentor pel'il incurred. TJ'1'e primary and paramount duty of the saHo" is implicit obedience toeV'erylawfulcornmand. He cannot be permitted to deba:W 'thepropriefyof· the· master's" orders, and courts ofadmi raIty will any hesitation iripromptand active obedience. The Elizab'ethPrif}", 1 Blatbhf. & H; 195. ' It is only the extremity of danger that will justify resiStance- tb "even. tOO ram and improper exer·

772

J'EDERAL REPORTER,

vol. 45.

cise of the master's authority. Such exceptional cases can be fouIld; but there resistance was for the of' life, compelling unsea· worthy vessels to return to port. lam. referred to no case like the pres. ent, where the court is enforce an agreement tor exorbitant wages, extorted from dQriIlg the voyage through mutiny of the crew and compulsion of the circumstances. It is to the honor of the American,sailor that nO,such case can be found. Acto the perils of the sea, fearlesB in the. presence of <ianger, reckof his life, prodigal of his his conduct is seldom influenced by: sordid motive of illegal gain. This, the first, should prove the last and only Case of such killd. The extorted agreement was illegal, and will D,ot be enforced. , I rest this decisiqnhere. I should, as I conceive, be derelict in of duty, if the court failed by judgment to properly characterize the conduct of the libelants, and to staJinp it with the seal, ()f disapprobation. Here was high and aggravated insubordination to lawful command, challenging the existence of authority; a conspiracyof extortion; gross breach of duty; mutinous conduct. Such acts entail forfeiture of wages of the offending seamen. 1 have sought to deal with this matter in an indulgent spirit, having regard as well to the condition of the class with we have to deal .to the serious mis.chief flowing from mutinous conduct. I have sought for proper reason ,t() mitigate the forfeiture which the law imposes. I can find none. 'l,'here was here, no provocation to disobedience; no of the The con!1U9t of the creW was withoutexc,u!,e or apology; cowardlyltnd There has been manifested no or con· trition. Subsequent good behavior may purge the forfeiture, 9ut sequellt Service here wa/!.jn respect of the extorted agreement. . They wereotrere,d, butrefus6.d, ,properwages. They come to thiscollrt to seek enforcement of :tJ1eilleglll ;compact, coerced through their insnb.,. ordinatioll .. They bflr,e that they be ,rewarqed for obedienQe.· al'lk the ;declare that servant is greater and the command ofthe ship shall ,be than lodged \VitA, has be!ln no condonement of ,their offense by the or OWneJ;'S: :' The into court o( amount of the to the iqf th.e libe1Jl,nts, but subject to disposition by: wages the cou):'t. The. Uliscond,ucthere was so. aggravlltted. the mischief resulting from q.isol>edience so serious J that the. mere to enforce the illegal and extorted agreement would fall sport ofadequate 'punishment. The judgment ;Should be such as shall, effectual to the maintenance of discipline on shipboard., the upholding of the autl;lOrity of the mas, ter, and ,the discouragement of. mut'inous and extortionll.te conduct. It is ,within the. province of t11e court tp impose forfeiture .of wages. That forfeitu:t:e, however inadequllte is the exten.t of the aut;hority as for one J;1igbest offenses kJ;low:n to the maritime law, will, ,qedecl!'J.red he,re;asfitting w/l-rning tootl;lers .wqomay be disposed to and dereJ,iction of duty. libel will be dismissed, amount depos.ited by the in tll1' registry :v.viM be returIl,ed to ,them.

WHITE V. THE RANIER.

7.7.3

WHITE

'11.

THE RANIER.

(Dl.31ir1Ct Oourt, D. Washington, N. D. March SO, 1891.)
LmBL

In a proceeding in rem for wages'for services as engineer of a steam-tug, where it appears that the wages were earned, a defense in the nature of a counter-olaim, based on evidence that libelant and another undertook to make certain repairs upon the boat while laid up, and had been overpaid certain sums beyond the work and materials done and furnished, cannot be sustained if not specially pleaded, aDd because it does not constitute a cause of aotion against the libelant singly.

W AGES-COl1NTBR-CUIH.

.

In Admiralty. Libel for wages. Edgar Lemmon, for libelant. W. Lair Hill and M. GiUiam,· for claiIllant.
HANFORD, J. . This is a snit to recover wages for services as engineer in chief on the steam-tug Ranier. The owners of the vessel in theirap-swer, besides denying that thereis any balance due the libelant,' plea'd payment in full of the wages earned by him, and also plead a setoff for moneys advanced and loaoed to the libelant at different times prior to the commencement of this suit. The evidence shows beyond all question that the libelant earned the wages which he claims, and ill'the testimony of Capt. Scoland, the principal witness in behalfof the claimants,he squarely admits that the sums which he has charged againstthe libelant were neither payments on account of his wages, nor advances made to him as loans, and there is no testimony whatever to sustain the affirmative defenses pleaded in the answer. The only defense basedup6h testimony is that, While the libelant was employed as engineer, the bOllit was laid up for repairs, and that the libelant and another man entered into a cQntrlliCt to do part ofthe work and furnish materials necessary in the boat for a specified price; that the owners actc ually paid for·the work and done and furnished by the libelant and his co-coptractor sumsaggregltting several hundred dollars in excesB .of the Contrl'lctpricejand it is contended.thp.t the money so paid in excess of the contract price should, upon principles of equity, be applied .payment tothe plaintiff of the wages for which he has sued. Iconsider, howe,ver, that it would be unfair and entirely irregular for: claimants to pr,evail in this contention. Upon familiar rules of pleading and practice, to eptitle them to recover in !;tny form of action, the contract referred· to should have been specially pleaded. It is obvious that there are to the libelant in any proceeding against him alone. If an independent suit were being made against him, based upon the facts alleged in this defense, ae the contract is not his contract, but a joint cont;ract. of himself and another, and as the testimonyshowB that both the c{)ntracting parties participated in the performance of the contract, and each received payments of money from the claimants on at:Qount of said 4:lontract, a demurrer for non-joinder olthe other contraQtirlg party or a plea in abatement could be successfully interposedj aud t