19 F. Cas. 636 | E.D. Pa. | 1833
The payment of the wages, in this case, is resisted on two grounds. 1. An alleged desertion of the libellant, by leaving the ship before she was discharged, and her cargo delivered.
There is a charge of two dollars and sixty-nine cents, of which no exact proof is given, but the mate of the brig, the only witness examined, says that the captain advanced some money to Pierce at St. Jago, but he cannot say to what amount. The wages, from 15th Hay to 5th November, at fourteen dollars a month, will amount to seventy-nine dollars and seventy-eight cents. The charges made by respondent are seventy-eight dollars and seventy cents, exclusive of the two dollars and sixty-nine cents. This would leave a balance of but one dollar and eight cents due to libellant; but as the mate swears to an advance of some money at St. Jago, and the captain has charged two dollars and sixty-nine cents, we may reasonably consider this small balance to be absorbed in that payment; provided the other charges against the libellant are admissible.
Of the first ground of defence, the alleged desertion of the libellant before the brig was discharged, I shall say nothing; it is not necessary. The decision of the case will turn on the legality of the charge of fifty-two dollars and twenty-five cents for medicine, medical attendance, and boarding the libel-lant while sick on shore at St. Jago. It is clearly proved that the brig had a medicine chest fully supplied with the requisite and usual medicines. It is also fully proved that the libellant was taken on shore by his own desire and request; and that he seemed to consider that it was to be at his own charge. The bill was charged to him, and not to the captain or ship, and when shown to him he made no objection to it or to his liability, but that it was too high. Being told that these charges absorbed all his wages, he made no demand of them, but acquiesced from the 5th of November, when the voyage ended, until the 20th of February, when he commenced this suit. These are strong circumstances to show that he knew or believed that the extraordinary expenses of his going on shore to be nursed and attended by a physician, were to be charged to himself. I shall not, however, rest my decision upon this point. The circumstances in which a ship is liable for curing a sick seaman, have frequently come under the consideration of courts of admiralty. Although some judges have inclined to be a little more liberal to mariners than others, the main principles are well settled, and generally adopted. Certainly on one point there is no doubt or difference, and that is, that when a seaman has contracted the disease by his own vices or fault, the ship is not chargeable with his cure. This then is the question in this case; a question of fact. We have no evidence but that of Mr. Thomas, the mate of the brig, who has not been impeached, and seems to be worthy of full credit From his testimony it is undeniable that the libellant contracted the sickness in question by the indulgence of his vices; by gross negligence in opposition to repeated warnings; and by a determined obstinacy which resisted at once counsel and command.
Decree: That the libel be dismissed.
