Northern Pacific R. R. Co. v. Burlington & Missouri R. R. Co.

The affidavits of the president and secretary of the company and of the general manager, denying any consent to the intended crossing, are read in reply, and a copy of a letter written by one of the defendants, Stickney, superintendent of construction of the Barnesville & Moorhead Railroad, dated September 3, 1880, and addressed to H. E. Sargent, general manager of the Northern Pacific Railroad, is also produced, purporting to inclose a tracing of the proposed crossing, with a request that the crossing frogs should be made at the plaintiff's shops and charged to the Barnesville & Moorhead Railroad Company; also a copy of a letter, dated September 9, 1880, addressed to J. J. Hill, general manager of the St. Paul, Minneapolis & Manitoba Railway, and one of the principal officers of the Barnesville & Moorhead Railroad Company, by Sargent, stating that in the matter of the Barnesville & Moorhead line crossing the Northern Pacific near Moorhead, "I am directed to forbid your doing so, or entering the Northern Pacific Railroad Company's right of way, which is a strip two hundred feet wide on each side of the main track."

This was certainly a formal revocation of any parol license to enter upon the Northern Pacific track or right of way, conceding that consent or license was given, which is very doubtful. Again, the power of the general manager of the Northern Pacific Railroad to bind the company in a matter of this kind. is not clear, but if he could grant such license, as is claimed by defendants, still the law is well settled that a parol license can be revoked before acted upon, which is the case here. Bigelow on Estoppel, 227-8; 28 N. Y. 297; 1 Selden, 568.

I am satisfied upon consideration of the case, after the full and able argument of counsel on both sides, that the motion to dissolve the injunction must be denied, and it is so ordered.

Worth v. Steam-Boat Lioness No. 2.

WORTH and others v. STEAM-BOAT LIONESS No. 2.

(Eastern District of Missouri. June, 1880.)

1. MARINER-IMPLIED CONTRACT. In the absence of shipping articles, there is an implied contract that the mariner will be returned to the port of shipment.

2. SAME INTERNAL NAVIGATION-RETURN BY RAIL.- A mariner will not be justified in waiting until spring for a vessel to take him back to the port of shipment, where internal navigation has been closed by ice, and he has been discharged at a port whence he could return by rail.

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3. SAME COMPENSATION. In such case, where the mariner has not been employed for a specific period of time, he is entitled, by way of compensation, to the amount of his necessary transportation and expenses, together with his rate of wages from the date of his discharge to the date of his arrival at the port of shipment.

In admiralty.

H. E. Mills and J. P. Dawson, for libelants.

H. A. & A. C. Clover, for claimants.

TREAT, District Judge.-The demands are by mariners, under shipping contracts. The libelants shipped respectively at Pittsburg and Louisville, without shipping articles or any express statement as to the proposed voyage. All parties knew that the vessel was engaged in towing claimant's barges from one point on the Ohio river to another point on the same river, and also to different points on the Mississippi river. The vessel, in the course of her voyaging, encountered ice in the Mississippi river and laid up at Bushburg, about twenty miles below St. Louis. As it was uncertain how long she might be detained, the voyage was broken up and the libelants were discharged, receiving the wages earned to that time. They insisted upon a sum additional, sufficient to return them to their respective ports of shipment, which request was refused. The libels are to recover the necessary expenses of their return, and for the additional sum of $30 each.

Worth v. Steam-Boat Lioness No. 2.

It is obvious that the detention of the crew on full pay until the winter season ended, or the river was clear of ice, might have been very expensive to the vessel; yet their right to be transported to their port of shipment is well settled. A mariner who ships for a voyage cannot be discharged without cause in a foreign port without the known legal results. When there are no shipping articles, and no prescribed voyage stated, the implied contract or legal presumption is that he is to be returned to the port of shipment. Were this otherwise, most disastrous consequences might often result. The doctrines as to sea-going vessels are well settled, and the principles on which they have been asserted apply to internal navigation, in the absence of any congressional legislation upon the subject. If a mariner shipped on a vessel bound to Fort Benton, Montana, it could not be fairly urged that, in the absence of an express agreement, he could quit the vessel at Fort Benton, and with impunity disable her from returning; nor, on the other hand, that he could be left in that distant region without. means of returning. The duties are reciprocal.

This court had occasion years ago to pass upon a like question, occurring upon the upper Missouri. Reported cases seem not to be fully in accord; yet, when carefully considered, are not different in principle. A mariner wrongfully discharged may work his passage home in the same capacity as that for which he was originally engaged, and thus save the cost of transportation to the owners of the vessel. In the absence of such an opportunity he may return as a passenger. In sea-going voyages, where the destination is to a foreign port specified, and a direct return to the port of shipment, it has been decided that his wages should be paid up to the time of the vessel's return, and it has also been decided that his wages. should run to the date of his return in another vessel. Circumstances may make one or the other of these rulings applicable as to foreign voyages.

In the internal navigation of this country, it is evident that no arbitrary rule can obtain in justice to the interests involved,

VOL. II.-14

Worth v. Steam-Boat Lioness No. 2.

for, as in the case under consideration, the return could not be made in a reasonable time on a vessel, because navigation was closed by ice. The mariners, being discharged at a port whence by railroad they could return home in a few days, would not have been justified in waiting until spring for a vessel to take them to their port of shipment. Hence, the rule for their compensation is the amount of their necessary transportation and expenses, together with their rate of wages from date of discharge to their arrival at the port of shipment; for the contracts were not for a specified time of employment.

It might have been that their term of service would have ended sooner than it did; for the voyage might have been made only to Cincinnati or Louisville and back to Pittsburg. It must, however, be always considered that mariners stand in the relation of wards of court, and that, inasmuch as it is in the power of the master and owners to make their contracts definite by shipping articles or otherwise, the legal presumption arises, if they do not specify in their agreements to the contrary. The differences in river navigation from sea-going voyages have been often considered in this court, and this case furnishes an apt illustration of what maritime principles require. From various causes a steam-boat may have to procure additional mariners in different stages of her route, instead of an entire crew for the whole voyage; yet the same rule must apply to each.

It is very easy for officers to state to a mariner definitely what his employment is to be, whether to be discharged at the port of arrival or otherwise, if they wish to limit his term of service or reserve a right to discharge him before his return to the port of shipment. Brown v. Lull, 2 Sum. 441, 449; In re Glocester, 2 Pet. Adm. 403, 405; In re Rovena, 1 Ware, 309; The Exeter, 2 Rob. Adm. 261; Beaver, 3 Rob. Adm. 92; Sullivan v. Morgan, 11 Johns. (66) 67; Hoyt v. Wildfire, 3 Johns. 518, 520; 28 Mo. 280; id. 338; Rice v. Polly & Kitty, 2 Pet. Adm. 420, 423; The Union, Blatchf. & H. 568; Farrell v. French, id. 275; Emerson v. Howland, 1 Mason, 45;

Mack & Co. v. Lancashire Ins. Co.

Nevitt v. Clarke, Olc. 316; Jones v. Sears, 2 Sprague, 43; Brunent v. Taber, 1 Sprague, 243; Hutchinson v. Coombs, 1 Ware, 65; Sheffield v. Page, 1 Sprague, 285, 288; Sheffield v. Page, 2 Curt. C. C. 377; Hunt v. Colburn, 1 Sprague, 215; Nimrod, 1 Ware, 9; Anderson v. Solon, Crabbe, Adm. 17; The Gazelle, 1 Sprague, 378; Burke v. Buttmann, 1 Lowell, 191; The Elizabeth, 2 Dodson, 402, 412; Brooks v. Dorr, 2 Mass. 39; The John Martin, 2 Abb. U. S. Rep. 172, 181; The B. F. Bruce, Newberry, 539; The Crusader, 1 Ware, 437; White v. Atkins, 8 Cush. 367; Rossiter v. Cooper, 23 Vt. 522; Heim v. Wolf, 1 E. D. Smith, 70.

MACK & Co. v. LANCASHIRE INS. Co. and others.

(Eastern District of Missouri.

1880.)

1. FIRE INSURANCE- ACTION ON POLICY - EVIDENCE.- In an action upon an insurance policy the plaintiff is bound, in the absence of any admission by the defendant, to establish, by a preponderance of the evidence, (1) the execution of the policy; (2) the total or partial destruction of the insured property; (3) the amount of the loss or value of the insured property destroyed; (4) and such notice and preliminary proof of loss as the policy requires.

2. SAME-ACTUAL CASH VALUE."-In such case the term "actual cash value" means the sum of money the insured goods would have brought for cash, at the market price, at the time when, and place where they were destroyed.

3. SAME-FRAUdulent Claim.—In order to establish the fact of a fraudulent claim, it must appear (1) that there was a false statement in the preliminary proof as to the value of the goods destroyed, and (2) that such false statement was made with knowledge that it was false, and with the intent to defraud the defendant by deceiving him as to the value of the goods.

4. SAME-SAME.-The mere fact that the loss is less than that stated in the preliminary proof would not be sufficient to establish fraud, though if the discrepancy between the true value and that stated by the insured is large, it would be some evidence bearing upon the issue of fraud.

5. SAME-ARSON - EVIDENCE.- In a civil case the fact of arson need not