5 F. Cas. 94 | S.D.N.Y. | 1868
By rule 44 of this court, no process in rem can be issued unless a stipulation for costs in $250 is first given by the libellant. But, by rule 45, ‘‘seamen suing in rem for wages in their own right, and for their own benefit, for services on board American vessels,” are not required to give such security in the first instance, although the court may, for adequate cause, on motion, with notice to the libellant, after the arrest of the property, order the usual stipulation to be given in such case, or that the property arrested be discharged.
In the present case the libellants are seamen, and sue in rem an American vessel, but the suit is not one for wages, within the meaning of rule 45. It is a suit for compensation for special damages for the breaking up of a voyage before it began, and for an alleged breach of contract to employ them on a voyage. They never signed shipping articles. They served a few days in the port of New York, on board of the vessel, and were paid in full their wages for those days, and were then discharged, without objection on their part. They did not leave port in the vessel, or enter on any voyage on board of her. The distinction between wages and a claim for compensation for special damages, under circumstances like those in the present case, is well settled (2 I‘ars. Mar. Law, 573j; and rale 45 confines the excop. tion in favor of seamen to those suing in rem for wages for “services on board” an American vessel. Here the seamen were paid in full for all services on board of the vessel, and they sue now for an alleged breach of contract, because they were not allowed to render further services on board. The motion that the libellants enter into the usual stipulation under rule 44, is granted.
