6 F. 206 | D. Del. | 1881
The libellants in this cause Tiled their libel against said vessel, etc., for wages, alleging their shipment for six months by the master on April 26, 1880, at the wages of $18 a month, and the expiration of their term of service under said contract upon October 26, 1880, and the failure of the master to pay the wages which they had earned and which were due upon the expiration of said contract, upon October 26, 1880, and that they had left said vessel on
Whatever defect there may have been upon the face of the libel which arose from not disclosing the .period of time between the earning of the wages and the filing of the libel, has been corrected by the filing of the amendment rectifying that omission, which the court always allows with great liberality in admiralty proceedings. So that the objection to the court exercising jurisdiction in this suit, because it did not appear that 10 days had elapsed between the earning of said wages and the time of filing the libel, is thus disposed of by the amendment.
It remains only to consider the other proposition of the respondent, going to the full length of requiring the proceedings to be taken under said sections 4546, 4547, U. S. Rev. St., as a prerequisite before this court takes jurisdiction of the causo. We cannot assent to the correctness of this proposition. The practice in this district, and we may say generally, is against it, and the decisions, as opposed to the speculations of eminent law-writers, are against it. This question has been examined at some length by Mr. Sprague, an eminent admiralty judge, who arrives at the conclusion that the acts of congress do not, in all cases, impose a duty on the sailor of proceeding to recover his wages in the manner pointed out in the scctious of the Revised Statutes. In fact, he thinks that the statutes did not alter or restrain the
The other cases cited — by Judge Acheson, of the western district of Pennsylvania, Murray v. Ferryboat Nimick, 2 Fed. Rep. 86; another by Judge Dyer, The Waverly, 7 Biss. 465; and another by Judge Rongyear, The M. W. Wright, 1 Brown’s Adm. 290 — make no fine distinctions in the matter, but take the ground broadly, that the whole proceedings, as laid down in the Revised Statutes, are merely cumulative, and can be substituted for the old admiralty remedies before the statutes of 1790, or not, as the libellant chooses. We feel disposed to follow these decisions, especially as the uniform practice, as I am informed, has been to proceed in either way the sailor might deem most available to procure the payment of his wages.
As the libel has been amended so as to show the lapse of 10 days after the earning of wages before suit brought, I shall order the case to be referred to United States Commissioner S. Rodmond Smith, to take testimony as to the amount of wages due, and report the same to this court.