The Portland daily press. [volume] (Portland, Me.) 1862-1921, 1876-02-01
A pLEMsOLL CASE.
Important Opinion by Jadge Fox.

John Nicol, mate, and Joseph Stanton,
steward, of the brig Wenonah, brought their
libels against the owners of the vessel to re-
cover their wages for the voyage, and the al
lowance of three months extra wages provided
for by the statute when an American seaman
is discharged in foreign port. The crcum-
stances of the case and the history of the voy-
age were these:
Sometime in the month Of August, 1875, they
shipped in this port on board the brig for a
voyage to the port of Savannah with cargo of
ice, then to where freight might offer, and
home to a northern port.
The vessel performed her voyage to Savan-
nah, delivered her cargo, and took charter for
Philadelphia with cargo of pine lumber.
When off Hatteras, the vessel encountered a
storm with wind from the northwest, which
destroyed a number of her sails, and she was
obliged to run before the wind for several days.
After she was struck by the gale, she began
leaking badly in her top works aud her crew
was kept constantly at the pumps for some
days. After caulking the vessel to some es-
TENT the leak was diminished, but the mas
ter found himself at distance of 500 miles
from any port, and, owing to the condition of
her sails, decided to put into the port of Mas
sau. AT this port, survey was called by the
American Consul, and report was made that
it would require more than $500 to put the YES
sci in STATE of repairs which the surveyors
did not recommend. Communication was had
with the owners in Maine, who consigned the
vessel to 7. Darling & Co. with orders to sell
and she was accordingly sold at the Port
OF Nassau for $50. The lbellants were sent
to the port of Savannah by the Consul and
from there made their way home at their own
expense.
The evidence and the report Of the surveyors
showed that the condition of the vessel when
she was surveyed at Nassau, was not in conse-
quence of the storm by which she was over
taken off Hatteras, but was the result of the
decayed and unseawortby condition of the
vessel when she LETT her port of departure in
Portland.
1t was claimed by the respondents that un-
der the 1883 section of the Revised Statutes of
the United States which provides mo pay
ment OF extra wages shall be required upon
the discharge of any seaman in cases where
vessels are wrecked or stranded or conde nned
as unit for services" the seaman could not
recover the extra amount of wages claimed in
their libel Upon this point it was contended
by the libellants that when the owners had sent
their vessel TO sea in an unseaworthy condition,
and the condemnation was the result of such
unseaworthy condition, existing at the incep-
ton of the voyage, the owners could not claim
exemption from the liability to the three
months allowance by reason of their own neg
lect or fault IN allowing the vessel to proceed
to sea in such condition.
Upon this point a very able and exhaustive
opinion was delivered by Judge Fox in the
District Court yesterday morning, embracing
an analysis of all the statutes of this country
upon the subject, and al exposition of all the
cases adiudcated upon them.
Founded upon the maxim that no one can
take advantage of his own wrong, the court
held that the libellants were entitled to recover
their three months extra allowance and full
wages with costs. Where vessels proceed to
sea in an unseaworthy condition and such con-
dition was, or, with proper care on the part OF
the owners, might have been within their
knowledge, and the vessel is condemned in a
foreign port, and the condemnation is based
upon such facts as to show that the vessel was
unfit for service when she left her home port,
then the mariners are entitled to the Statute
allowance. Suppose the vessel were stranded,
say the court. and the stranding were inten-
tional and collusive in order to gain the insur.
ance, surely no one would say that such fraud
ulent stranding of the vessel by her owners or
the agents would deprive the mariners of the
three months extra wages if they were in con-
sequence discharged in foreign port
AT the close of the opinion Judge Fox made
a most appropriate alusion to the late act of
the British Parliament, rendering it penal to
send crews to sea in old, decayed and unsea-
worthy bulks.
Messrs. Clifford & Clifford ably argued
the case for the lbelants, and Messrs. Strout
& Gage and Hixon appeared for the respon-
dents.
The Importance of the questions involved in
this decision will render the case leading one
in our admiralty law. 1t is the first in which
this ISSUE as far as we are aware, was directly
presented under the shipping act