209 F. 264 | N.D. Cal. | 1913
Libelant shipped as chief- steward, on respondent’s steamship City of Sydney, in July, for round trip voyage from San Francisco to Balboa. The voyage ended in September, and on September 24th libelant received from the shipping commissioner -all of his wages therefor.
The rule is well settled that in the admiralty court a set-off, to be allowed, must grow out of the same transaction as that which must be proven to support the libel. But it seems to me that, as there was but one contract of hiring here, that is to say, the contract entered into in July, when libelant shipped as chief steward, and as he would have to prove this contract in order to claim that he continued in the employ of respondent after receiving his wages and signing off on September 24th, by reason of the custom before mentioned, the matters set up are sufficiently connected with the contract upon which he relies to constitute, if sustained, a proper set-off, and for that reason the exceptions to the special defense are overruled.
The other serious reason militating against the allowance of the set-off claimed is that it would make the chief steward under an ordinary contract of employment an insurer of all articles intrusted to him. There is no suggestion or proof here of negligence, and I am not prepared to concede that, even were it clearly shown that the articles were intrusted to the libelant, the mere fact that they were not on the vessel after a two months voyage would render, him responsible for their loss. Nor do I believe that such a cla'ipi, where respondent did not check up the articles intrusted to the libelant before the voyage, and offered no suggestion or proof of negligence on his part, but undertook to hold him to the responsibility of an insurer, furnishes the sufficient cause required by section 4529 (U. S. Comp. St. 1901, p. 3077) to relieve respondent from the penalties in that section- provided.
A decree will therefore be entered for libelant as prayed for.