618.
to be commenced even by the service of the process. According to Law, 367) it would seem. that in Dr. Brown (2 Browu, Civil & strict,ness the suit is not deemed to beco:rnmenced ,qntil the issues are apd the case ready for transmissionfrorp. thep'I'cetor to the judices {Dr trial. See, also, The Martha, Blatchf. & H. 151. B.ut, in the, absence of aidtrom the advocllite upon this point, I forego the inquiry i'tlluded to, and limit my action on' the present occl1sion to overruling exceptions upon the ground that it does not appear upon of the sqp'pleJl).ental libel that any of the facts commencement of th? suit. there stated occurred subsequent to
THE SULTAN V. THREE THOUSAND EMPTY OIL BARRELS.· (1JiBtriot Court, E.
January SO, 1888.)
.
LIBEL 1I'0R FRErGHT-'-:BrLL 011' LADING":"CONSTRUCTION OF-CUSTOM OF PORTBURDEN OF PROOF, '
The burden of proof rests upon a respondent setting up a custom to return and deliver at Chester oil barrels, which, under a bill of lading, stipulating to deliver the same at the port of Philadelphia, had been carried heyond Chester to the city of Philadelphia, andsuchcustom has not been shown to have existed at the date of this contru.ct. Whether such custom now exists,
Admiralty. Libel, answer, and proofs. On August 20, 1881,' 7,061 empty petroleum barrels were shipped on the Sultan, the.bill of lading stipulating that the same should be delivered at the port Philadelphia, ata wharf to be selected by the consignees. The Chester Oil Company was established in March, 1881, and a large proportion of the barrels afterwards cOl1!;ligned to the port of Philadelphia were discharged at Chester. The I1rrived at the city of Philadelphia on the twentieth of September, IS81, and was requested by Witthof, Marsily & Co. to go back and Chester. This the master refused; aridtherenpon discharged at CathraIl's wharf, Philadelphia, and 'filed this libel for $818.76 freight, attaching 3,000 barrols. The respondent claimed that one-third of.' the, oil bus'iness of the port was dorie' at Chester, and it was a<custom: of the port to discharge at that place.: The libelant contended that' a custom off:1ve months was not sufficient to atIectthis contract; that npto at Chester,and of
of
c
*Itcporlcd by MbertR Guilbert, Esq;, of the Philaclelphiabar.
THE SULTAN V. 'RanEE THOU9A:ND;'EMPTY OIL BARRELS.
f'619
these the respondent had produced only 22 bills of lading not containing a "Chester clause;" .only thtee'ivessels had returned to Chester after arriving at the city of Philadelphia, anil towage expenses had been while no instance was shown a vessel had which the hlld offered to returned without.towage receive. Charles Gibbons, Jr., for libelant. J.W: and Alfred priver, for respondent. :QUTI,.ER, .J.. is not sustained. Upon arrival of the cargo at Philadelphia, where the charter required it brought, the respondent ordered it back to Chester, several miles.below, claiming a right to do so under the Conceding to be out the limits of Philadelphia, t'he respondenf rip.1,\ custom, which he says requires it to be treated' as within, where the particularcommerce to which this contract relates is involved. Without entering upon a discllssion of it' is sufficient to say that no such custom' existed at the date of this contract;--:-whether one exists need not be What is -to the establishment of such a custom is well understooil; the burden of proof is on the party setting it up. In the case under consideration the vessels, under conproof is insufficient. , 'J;'hat tracttocarry oil'fro01 Philade,lphia, had, withintwo or three months preceding the date of this chatter, loaded at. Chester, and inwardbound vessels loaded, with oil" or oil casks, had unloaded there, is unimportant. In each instance Chester was. directly on the way, and a request so to load or unload tended to the carrier's relief, and would, therefore, be favorably received. No instance is. shown of a. vessel carrying her cargo' back' to Chester, under such a contract. The opinions of witnesses cited are of no The libel'is sustained, and a decree will be entered accordingly.
620
FEDERAL REPOBTEB.
THE ALERT.-
(District Court, E. D. NelD .fork. February 10, 1883.) COSTs-DOCKET FEE-" FINAL HEARING" UNDER HEV. ST. §
824.
Where a vessel was in custody of the court under process issued against her, and the case was entered in the admiralty docket, a consent was given that the case be discontinued on payment of the amount claimed and libelant's costs. Held, that the granting of a motion fol' an order discharging the vessel from custody and canceling stipulations, was a final hearing under Rev. St. § 824, and the libelant was entitled to a docket fee of $20.
In Admiralty. Goodrich, Deady If Platt, for libelant. L. B. Bunnell, for claimant. BENEDICT, J. This was a proceeding in rem. The libel was filed, process issued, the vessel taken into cllstody, and the case entered in the admiralty .docket. Subsequently, an order dismissing the case and discharging the vessel from custod.y on payment of costs, founded upon a consent of the libelant that the cause be discontinued on payment of the amount claimed and the libelant's costs, was applied for and obtain ed. The costs are presented for taxation, and the question is raised whether the libelant can tax a docket fee of $20. The fee-bill allows on a flnal hearing in admiralty a clqcket fee of $20, where the amount recovered is over $50. Rev. St. § 824. A distinction is drawn by the statute between admiralty causes and cases at law. In the latter case a docket fee of five dollars only where the case is discontinued. .A. docket fee of $20 is a1l9wed in all admiralty cases where there is a final hearing. In Hayford v. Griffith, 3 Blatchf. 79, it was held by .the circuit court that a dismissal of a cause upon the calendar, ·up'on amotion before hearing, for an omission to file security for costs, was a final hearing within the meaning of the statute. The ground of this decision would seem to be that granting an order which disposed of the cause was a final hearing. In accordance with this decision, the practice of this district has been to allow a docket fee in admiralty causes in rem, like the present. In this case the court has possession of the vessel. An order of court is necessary to obtain her release and to effect the cancellation of the libelant's stipulations. A discharge of the vessel does not follow of course. It may be' that the pendency of other proceedings -1l'j(cl'u:tcd bj· it. D. & \Vyllj's Benedict.
THE: SAMUEL OBER.
621
against the same vessel win prevent a release of the vessel upon such a motion. Such a motion, whSn granted, terminates the cause, so far as the vessel is concerned, and the hearing thereon is deemed a final hearing within the principle of the case_ of Hayford v. Griffith, above referred to. The clerk's taxation of a docket fee of $20 is affirmed. Go.
See Goy v. Perkins, 13 FED. REP. 111, and note; also YaZe Lock Manufg v. GoZvin, 141fED. REP. 269.
'fHE
SAMUEL
OBER.
(District Court. D. Mas8achu8ett8. Fl1bruary 23, 1883.) 1. SEAMEN's WAGES.
A vessel under charter IS naOle lor tne wages ofseamfln hired by the char. terers, although the owner may not personally be liable therefor. 2. SHIPPING CONTRACTS.
1\. seaman is not bound by 8. clause in his shipping contract unfavorable to his interest if it was concealed from him, or its meaning and if, from any cause, he is UMble to read the contract, he may show tha.t it (jU. fers from his oral engagement, upon clear proof that the written contract was not read or explained to him.. '. .
In Admiralty. F. Cunningham, for libelants. H. P. Harriman, for claimant. NELSON, J. The claimant, EdwardE. Small, of Provincetown, chartered the schooner Samuel. Ober for a cod.fishing voyage of seven months from May 1, 1882, on the coast of Maine. The libelants; Manuel Francisco, John Francisco, and Manuel,Caton,areI'orttlgt,es9 fishermen, living in Provinoetown, unable to read or write. They allege tha.tthey shipped as fishing hands on.the. schooner for this voyage, under an oral agreement by which they were to sene for five months from May 1st, and weratoreceiveas wages for suoh SentiMj respectively,' $250, $240,and The.y left th6 vessel OoMber 2d, wtSouth.west Harbor, M"ountiDesert, after having.sened;five months; and now sue for their wages according to the verbal: contract. The shipping articles fixtheinvagesatthe BUlliS stated:; and contain this elause written in below the printed -part,above: thesignat'tl'r6sof the men: ,;