165 F. 59 | E.D. Pa. | 1908
This is an action in rem brought by James Macintosh and Thomas Williams, each claiming to recover wages as a seaman from the schooner William H. Clifford.
Turning, then, to the questions of fact in dispute, the first of these concerns the validit3r of a clause that the “crew shall load and discharge cargoes,” the libelants averring that-they are not bound b\' this provision, because, although one of them could not read at all and the other could not read English, the ¡existence of the clause was not only not made known to them when the articles were signed,, .but was deliberately concealed by the master. The testimony upon this point is conflicting, but if the rule is borne in mind that such an assault upon a writing by one who has signed it must be supported by clear and convincing evidence (Ramirez v. Steamship Co. [D. C.] 107 Fed. 530), the conclusion can hardly be avoided that the libelants’ averments have not been satisfactorily proved. But, while I am therefore of opinion that the libelants knew they were signing articles that contained the clause in question, I also think it clear that the clause was not understood by the ship to impose upon the crew an unqualified obligation to discharge the cargo; for, when the vessel reached Mayport, the master employed a stevedore to un
A decree may be entered dismissing the libel.