freight from port to port, but the peculiar maritime services of this vessel must be taken in consideration in determining the law in reference to the completion of a voyage before wages are due.

The schooner Edwin Post was what is termed a wrecking vessel, whose business was giving assistance to vessels in distress, and the performance of general salvage services, etc. She could in no proper sense be said to be making a voyage from port to port, for the scene of her operations was altogether local, her headquarters being the breakwater, at the entrance of the Delaware bay. She was not engaged, as a usual thing, in carrying freight from port to port.

The court thinks the fair and reasonable construction of the shipping articles is that they constitute an agreement to give employment for the period of six months, at the rate respectively agreed upon between the master and seaman; and, while the master had the right to expect their services for that period of time, they were also entitled, in case of accident or improper discharge by the master, to have a pro rata share of their wages earned by them during their actual stay on the vessel and in his employ. There is no dispute about the time they were in the vessel, and that the full six months' wages were earned. But it is contended that, as there was in the shipping articles a provision, or rather an intimation, that the vessel was to come "back to Philadelphia" after the work was done, that her arrival at Philadelphia was a condition precedent to the right to have wages paid.

The court cannot take this view of the case. As before said, the getting back to Philadelphia was no essential portion of the work for which these men were employed. Its mention was a mere incident, and we think it was not intended that fact should determine the earning of wages in whole or in part. Any other construction would have put it in the power of the master to have kept these seamen for an indefinite length of time, and postponed the payment of their wages to the actual arrival of the vessel at the port of Phila.

delphia-a construction which would be oppressive upon the rights of the seamen.

It appears from the evidence that the seamen served on board the said schooner not only during the period of six months, but also for several months additional, which has been computed and included in the report of the admiralty commissioner in this case. The court is of opinion that they are entitled to this additional amount upon the basis of quantum meruit; and there is no more reasonable method of determining the amount due than by reference to the sum agreed by the master to be paid them for similar services immediately preceding, and which were satisfactory to both parties. These amounts will be accordingly added to the six months' wages earned. The court does not consider that the crew forfeited any part of their wages by the abstraction of a few bottles of beer on a very hot day, for which they offered payment to the captain. It no doubt was an offence against strict discipline on board ship, but was not of such a serious character as to forfeit wages, and particularly as the master exonerated these seamen from any other depredations on the ship's property during their stay on board. The court cannot accede to the proposition that those seamen forfeited their wages by desertion of the vessel in leaving her without assistance in a position of danger. The evidence in the case does not sustain such a conclusion; on the contrary, it shows distinctly that the libellants left her in a place of security for winter quarters selected by the master himself. They left her only for the purpose of obtaining their wages, which were long past due, and under such circumstances as the court thinks justified them in leaving without incurring the charge of desertion.

The report of the commissioner, fixing the amount of wages due each respective libellant, is hereby approved and adopted. Let a decree be entered accordingly. The costs in this case to be taxed are to be paid by the respondent. The court does not think that the amendments were of such a character as to prejudice the respondent to such an extent as to entitle him to costs. Where one party is so misled by

the pleadings of another as to take a course of action which otherwise he would not have taken, and the first party sees fit to amend, thus throwing the other party upon a new line of defence, then costs ought to be imposed upon the party amending; for non constat, if the original pleading had been the same as the amended one, that the defendant might have defended at all, or taken a less troublesome and expensive line of defence. We do not see that the respondent has been damnified by the amendment to the libel to such an extent as to entitle him to costs. All the evidence shows that there was no wrongful presentation of the case as regards its substantial merits in the libel as filed originally.

Leaving out of view minor questions of date and form, to which extent the amendments to the libel only went, nevertheless the master refused to pay the wages of his seamen, which he admitted had been earned by their faithful and continuous labor for a period of over six months, if not forfeited for other causes. Thus it will be seen that the objection to amending the libel is not one going to the merits of the action. He is not entitled to have costs by reason of the amendment, and they must be denied.

THE BEN HOOLEY.*

(District Court, E. D. Pennsylvania. February 21, 1881.)

1. ADMIRALTY-TOWING VESSEL FROM PIER IN ORDER TO MOVE ANOTHER VESSEL-RESPONSIBILITY OF TUG FOR COLLISION CAUSED BY DEFECTIVE HAWSER.

A tug which, in order to move a vessel from a pier, moves another vessel into the stream against the protest of her officers, is responsible for a collision caused by the defective condition of the latter vessel's hawser, with which the towing is done.

2. SAME-EXTENT OF TUG'S DUTY-WHEN NOT RELIEVED BY NEGLECT OF VESSEL IN TOW.

Two schooners were lying at a pier. A tug was employed to tow one of them out, and, in order to do so, undertook to tow the other

*Reported by Frank P. Prichard, Esq., of the Philadelphia bar.

into the stream, against the protest of her mate, who was in charge. In doing this the hawser of the latter vessel broke, the breaking resulting in a collision with and damage to a vessel anchored in the stream. Held, that the tug was bound to have ascertained whether the hawser was sufficient, and was responsible for the damage.

Held, further, that the tug was not relieved, because the schooner might have anchored after the first breaking of the hawser, and thus avoided the collision.

In Admiralty.

Libel for collision, by the schooner Galloway C. Morris against the steam-tug Ben Hooley.. The facts are as follows: On November 3, 1876, the schooners Ella C. Little and Index were lying at a pier in the Delaware river. The Index employed the respondent tug to tow her into the stream, and in order to do so the tug undertook to first tow the Little into the stream. While doing this the hawser parted and the Little collided with and damaged the Galloway C. Morris, which was anchored in the stream. On behalf of the libellant it was alleged that the tug towed the Little into the stream against the protest of the latter's mate, and in doing so used the Little's hawser, after notice of the mate that it was rotten. On behalf of the respondent it was alleged that the mate of the Little refused to move his vessel, and was compelled to do so by the dock-master; that he then furnished a line to the tug, and the Little was towed out into the stream; that the hawser then parted, but it being a convenient place to anchor, those in charge of the tug requested the mate of the Little to let go her anchor; that he did not do this, and the tug then went along-side, again received a line from the Little, and attempted to tow her; that the hawser again parted, and the collision with the Morris resulted; that those in charge of the tug had no notice or knowledge of the defective condition of the hawser, and that if the Little had anchored after the first breaking of the hawser the collision would not have occurred.

Henry R. Edmunds, for libellant.

Alfred Driver and J. Warren Coulston, for respondent. BUTLER, D. J. The liability of the respondent is plain. The loss resulted directly from his negligence. If he did not

know the rotten condition of the hawser, with which he attempted to move the Little, at the outset, (and the complainant's witnesses swear he did,) he became aware of it, according to the testimony produced by himself, immediately after. The result would be the same, however, if he did not know. Undertaking to move the vessel for his own convenience, against her protest, the responsibility for all that was done rested on him. It was his duty to ascertain whether the hawser was sufficient to control her. The failure to do this was the direct cause of the injury which followed. It is of no consequence that those on board the Little, might possibly have averted the catastrophe by dropping her anchor. As respects the libellant, the respondent cannot complain that somebody did not interfere to save him from the consequences of his folly. He took the Little, in charge on his own account, against her will, and as respects the libellant, was responsible for her management. If unfit to go out because of the condition of her anchors, or on any other account, he should not have taken her. The authorities cited by his counsel relate to questions between the owners of tugs and their tows, and have no application to the case in hand. It is doubtful at least whether the ordinary relation of tug and tow existed between the respondent and the Little; but even if it did, and both vessels might be regarded as in fault, the right of the libellant to recover from the respondent would not be affected thereby.

A decree must be entered for the libellant accordingly.