
    David Waling v. The Sloop Christina.
    
      United States District Court for the District of Oregon.— Cause, Civil and Maritime, for the Subtraction of Wages.
    
    Special Term,
    February 8, 1862.
   Deadv, J.

The libel in this cause alleges, that the libellant shipped as a seaman on the sloop Christina, at Port Townsend, in W. T., on the 28th of October, 1861, on a voyage from said port to Bellingham Bay; thence to Portland, in Oregon, and back to the port of departure. That the contract of shipment between the libellant and the master, George Thompson, was, that the schooner should proceed to Portland, and that there the said master should purchase a cargo of apples, and return with the same to Port Townsend, and that libellant should have one-third of the profits of said cargo of apples for his wages. That no shipping articles were signed. That the vessel proceeded to Bellingham Bay and Portland, in ballast, and arrived at the last-named port about the 20th of November, 1861. That the master did not purchase the cargo of apples, but kept the sloop lying at Portland until the 17th of December, 1861, when she left on a voyage to Shoalwater and elsewhere, without notice to the libellant, and without the payment of his wages. That the libellant remained on the sloop from the 28th of October aforesaid, until the 17th of December, 1861, and during that time was obedient to the orders of the master, and performed his duty as a seaman.

The answer of the master, intervening for the owner, J. K. Thorndyke, alleges, that it is not true that the sloop, at the time of her departure, was bound on a voyage to the ports mentioned in the libel, or either of them. That it is not true that the master agreed with libellant to purchase a cargo of apples at Portland, and return with them to Port Townsend, and give libellant one-third of the profits for his wages. That the sloop left the port of Portland, as alleged by libellant, for Shoalwater Bay; but that the master gave libellant notice of such sailing, and libellant refused to go. That the sloop sailed from Port Townsend, on a general coasting voyage, to go wherever the interest of trade might require. That libellant was to have one-third of the profits for his wages, and that it was not stipulated between the master and libellant otherwise than this. That up to the time the libellant left the sloop, the freight had not paid the expenses, and the libellant is not entitled to any thing. That the sloop is a coasting vessel, of thirteen and f | tons burden.

The master and two seamen of the sloop, Quaile and Fisher, were examined on behalf of the libellant. No witnesses were examined on behalf of the claimant. Quaile sailed in the sloop from Port Townsend, and Fisher was shipped just before the sloop left Portland for Shoalwater Bay. The master is the principal witness. His statements, on the stand, do not liarmonize, in some material respects, with the allegations of his answer. Besides, the transaction involves Ms own conduct, and the motives therefor, to that extent, that the court is inclined to take his statements more strongly against himself, where they admit of doubt. In the answer, he denies, unequivocally, that the libellant shipped for a voyage to Bellingham Bay; thence to Portland; and thence back to the port of departure, or either of them. On the stand, he admits that the sloop sailed-for Portland, to touch at Bellingham Bay, and that he expected -to load with coal, at the latter port, for Portland; but did not obtain it, and proceeded in ballast to Portland. Also, that he expected to meet a draft at Portland, with which he intended to buy a cargo of apples,-or something else, and return with -them-to Port Townsend or Yictoria. That the draft was not sent to Mm at Portland, or he would have done so. It appears from the testimony of the master and Quaile, that when the sloop was -about to sail, the libellant was at Port Townsend, and the master-asked him if-he would go with him on the sloop to Portland. The libellant replied in the affirmative, and went aboard, as far as appears, without stipulation, as to the terminus of the voyage, other than that implied in the engagement to go to Portland, and without any stipulation as to the rate or mode of payment of his wages. The master further says, that after-being at sea four or five days, he told Waling that he expected money at Portland, to buy a cargo of apples; that he expected to take them to Port Townsend; and that lie was to have one-third of the profits of the voyage; and that he would give Waling the same; which was assented to; but insists that, this understanding was subject to his own discretion to go anywhere else upon a general trading voyage on the coast, and that there was no understanding how long libellant should remain on board. Quaile says, that after the- first hiring at Port Townsend, he heard the master tell Waling that he would give him the same wages that he got himself. That he heard nothing about apples; but did hear the draft mentioned. When this took place he does not state; but it is fair to presume that, so far as it goes, it refers to the conversation mentioned by the master four or five days at sea.

The master testifies that he did not get the draft at Portland, and in consequence did not purchase the cargo of apples, and sail with them to Port Townsend, as he contemplated, or might have done. That after remaining at Portland until the 17th of December, 1861, he took a cargo on freight for Shoalwater Bay, with the intention to return to Portland with a cargo of oysters. That on that day, in the afternoon, he told Waling of the intended voyage, and that he might sail in ten minutes, or three days, and that when the sloop was ready he intended to sail, if he went alone. That Waling might go if he wanted to, but that Waling refused to make the voyage. In the course of the evening of that day, it appears that a conversation occurred at Shelly’s store, between the libellant, his proctor, the master and Mr. Shelly’s clerk; from which, although it does not distinctly appear, it is pretty evident that the libellant contemplated arresting the sloop for his wages, and that the master and Mr. Shelly’s clerk were aware of it, or suspected it. At that time the master said, in the presence of the libellant, that he would sail in the morning. Afterwards, he says, that the clerk advised him to sail that night, and he did sail about eight o’clock in the evening. The wind was very light, and they sailed and drifted down that night to Sauvie’s Island, a distance of about eight miles, and there laid by until the forenoon of the next day, when they proceeded down the Columbia Diver to sea, with a light wind, and pulling and drifting part of the way. There was a strong current in the river, and no perceptible tide. The libellant’s clothes were on board the sloop at the time of sailing, and were left with some one on a steamboat alongside. The libellant was not aboard the sloop that afternoon.

Prom all the evidence—the nature of the circumstances considered—I think the fact is, that while it appears to be true that the sloop left in the night, without wind or tide, or other ordinary inducement for such time of sailing, it was not to prevent Waling from going on the contemplated voyage to Shoalwater, but to avoid being arrested at tbe suit of Waling for his wages from Port Townsend to Portland. I think it appears sufficiently that Waling had already declined to make the particular voyage. Assuming this to be the fact, what effect does it have upon the libellant’s claim for wages ? This depends upon the nature of the hiring. It appears that the first contract, on shore, at Port Townsend, was simply a shipping as a sailor, to go to Portland, without any agreement as to the mode of payment, or the amount of the wages.

TJpon this state of facts alone, the libellant was not bound to proceed with the sloop any further than Portland, and was entitled to the customary wages for the voyage performed. The maxim, “ that freight is the mother of wages,” would not apply, because having sailed in ballast for Portland, no freight could have been expected to be earned. It is true that the sloop touched at Bellingham Bay, with the intention of taking on coal for Portland, if to be had ; but I think this was a mere incident of the voyage, without changing substantially its general direction or character. It is most reasonable and just, in the application of this rigid maxim, to regard the voyage as one to Portland in ballast.

The only remaining question to consider, is the agreement, said to have been at sea, by which the libellant was to have one-third of the profits of the voyage to Portland and back to Port Townsend, in lieu of wages. It is very evident that whatever might have been the ultimate intention of the master, as to the nature- and limit of the voyage, that the impression made on the mind of Waling by his representations was, that he, Waling, would make and receive one-third of the profits of a specific voyage, after reaching Portland; that is, from that port to Port Townsend, with a cargo of apples, to be purchased by the master on account of the sloop ; and in this sense it must be understood and taken against the master. And notwithstanding the statements of the master, in his evidence, it is hardly probable that he had any other intention at the time.

Such being the case, the voyage and the venture were alike broken up, by the failure to purchase the cargo of apples, and carry them to Port Townsend. The libellant was not bound to proceed on the new voyage, or take a share in the new venture to Shoalwater Bay. Neither does the maxim, that freight is the mother of wages,” apply to this aspect of the case; because, although no wages were earned up to the time that libellant left the sloop, there might have been, had the agreement been carried out by the master, and the cargo of apples purchased. The master also says, that the libellant was at liberty to leave when he pleased. This statement is hard to reconcile with the statement that he (Waling) agreed to go on a specific voyage, on shares.

But, if this contract at sea was really made, as claimed to have been intended by the master, then it may be said, that it is a very indefinite edition of a class of shipping contracts, which have been severely animadverted upon by the English and American courts of admiralty. Eor instance, where the shipping articles specify a voyage from a certain port to another, “ and elsewhere.” In some instances, where justice to the sailor required it, such a provision has been held to be void. The master, in this ease, says, that notwithstanding the designation of certain ports, and the representations of specific arrangements for cargo, he was at liberty to go where-ever the interests of trade might require. If this be so, and valid, then the libellant was tied to the deck of this particular vessel, as long as she remained above water, if the master saw proper to keep on coasting wherever the general interests of trade might require, unless he should desert, and thereby forfeit his earnings. Besides, this contract is open to another objection. It does not appear to be regular or proper for a master to enter into new and special contracts with his seamen, after the voyage has been commenced, and while at sea. The relation between master and seamen, on board ship at sea, is such, that the parties do not deal upon equal terms. Such contracts, if not absolutely void, should be closely scrutinized, and if seriously prejudicial to the interests of the mariner, be disregarded.

McGraw, for libellant.

Mitchel, for claimant.

The libellant, then, in any view of the ease, is entitled to recover the customary wages, from the time of sailing from Port Townsend, the 28th of October, 1861, until the sloop departed on the new voyage to Shoalwater Bay, on the 17th of December, 1861. The customary wages, as shown by the proof, is thirty dollars per month. For a period of one month, and two-thirds, this would be fifty dollars.

Decree accordingly.  