1. Compensation to a person who had acted for four months (from
16th March to 26th July), both as captain and as one of two pilots
on a Missouri steamer left at $900 per month, at which sum the
circuit court had fixed it, the evidence, which though not so full
as it ought to have been, showing that pilots' wages were at the
time very high, that the person had performed his duty in both
capacities well, and that the owners had charged his services
against the government (which had impressed the vessel during
twenty-six days of the time) at the rate of $1,000 per month.
2. A master not held liable for injury to flour apparently
arising from a bad stowage, the same having occurred from a
necessity to unload and reload in order to get across a bar in the
river, the testimony showing that the captain was not blamable and
there having been some reason to believe that the injury arose from
causes inherent in the flour itself.
This was an appeal in admiralty from the decree of the Circuit
Court for the District of Missouri, in which one Biessel, on the
one side, had filed a libel
in personam, against M. &
W. Mepham, owners of the steamer
Iron City for wages as
master and pilot, and in which they, on the other, sought to set
off against the claim for services at whatever sum these might be
estimated a demand that they made against Biessel for injury to
certain flour which on crossing a bar in the river (in order to
lighten the vessel, and so get over the bar), it had been necessary
to put ashore, and afterwards when the vessel had got over, with
the rest of the cargo (that being unloaded and put ashore below the
bar), to come back
Page 76 U. S. 371
for and reload, and which was ultimately found to be sour --
injured, as the Mephams asserted, by Biessel's carelessness in
stowing it when it was taken on board the second time.
The court below sustained the claim of the libellant, fixing his
wages at $900 a month, and refused to allow the setoff raised by
the other side.
MR. JUSTICE SWAYNE stated the case more particularly and
delivered the opinion of the Court.
The only questions presented for our consideration are the value
of the services of the appellee as master and pilot of the steamer
Iron City during the period of his employment upon her in
those capacities, and whether he can be held liable upon the
principle of recoupment for the damage sustained by a part of the
cargo of the vessel upon her first voyage after he took charge of
her as captain, which was a voyage from St. Louis Fort Benton, upon
the Missouri River. The services commenced on the 16th of March,
1866, and terminated on the 26th of July following -- making a
period of four months and ten days. Four witnesses were examined.
They were Biessel, the appellee; W. G. Mepham, one of the
appellants; Bush the mate, and Stone, the pilot. The leading facts,
as developed in the proofs bearing upon the subject of
compensation, are as follows:
Biessel had been in the employment of the Mephams as mate upon a
steamer at $150 per month. He talked of seeking employment
elsewhere, expecting to receive $300 per month. Captain Hunter,
also in the employment of the Mephams, to whom he made the
communication, requested him to remain until the captain could
consult the owners. An interview took place. Biessel told them he
had never served as captain, and doubted whether he would suit them
in that capacity. They employed him as captain. It was usual to
employ two pilots. Biessel found two who asked jointly $1,600 per
month. Pilots were much in demand at
Page 76 U. S. 372
that time. He proposed to the owners to employ Stone as a pilot
at $800 a month, and to serve himself as the other pilot, besides
performing his duties as master. They assented, and assisted him to
procure a pilot's license. The arrangement was carried out. Biessel
testifies that the told them it would cost less than to employ two
pilots, in addition to the captain. Mepham testifies that he said
it should cost them nothing for pilotage but the wages of Stone.
Here the parties are at issue, and there is no other testimony upon
the subject.
The wages of pilots varied, according to the testimony, from
$200 to $1,000 per month. Biessel says the usual compensation of
captains was $400 per month. Mepham testifies that they paid their
three other captains $200 per month. The proof is satisfactory that
Biessel performed his duty as captain well and faithfully, and
that, in addition, he did full as much service as Stone in
discharging the duties of pilot. The boat was impressed into the
service of the United States, and was thus employed during a period
of twenty-six days. For that time, we are satisfied from the
evidence that the services of Biessel were charged against the
government, and paid for to the appellants, at the rate of a
thousand dollars per month. Both parties agree that there was no
special contract as to the compensation Biessel should receive. It
is to be regretted that the proof is not fuller as to the wages at
that time of both captains and pilots. It could have been easily
made so, and would have relieved us from some embarrassment which
we have felt in coming to a conclusion as to this branch of the
case. The entire testimony of Biessel is characterized by a
fairness and candor which have impressed us favorably in his
behalf. The circuit court fixed his compensation as master and
pilot at $900 per month.
After a careful examination of all the testimony in the record,
we have found no sufficient reason to dissent from this
allowance.
The claim for recoupment cannot be sustained. The flour to which
it relates was in sacks which were enclosed in other sacks.
According to the shipping phrase, it was "double-sacked."
Page 76 U. S. 373
The shipper directed it to be carried upon deck. A part of it
was originally placed in the hold. Upon discovering this, Biessel
caused it to be removed to the deck and directed that no more
should be put in the hold. During the voyage, Bush, the mate, says
it became necessary for the boat to "double trip it" in order to
pass a bar. A part of the cargo was landed below the bar and a part
above it. This flour was landed above. All the passengers, some
fifty in number, assisted in unloading and reloading. Some of them
in reloading put a part of the flour in the hold without the
knowledge of the captain or mate. The mate subsequently saw it
there, but allowed it to remain and did not advise the captain. The
captain knew nothing of it until the vessel reached Fort Benton.
That part of the flour was then found to be soured. Mepham says the
loss to the appellants was $10 a sack upon a hundred sacks,
amounting to $1,000. It was the duty of the mate to see to the
loading. According to the testimony, the captain was not blamable.
There was other flour in the hold during the entire voyage which
arrived at Fort Benton uninjured. There is some reason to believe
that the spoiling of the flour in question arose from inherent
causes, and not from its being kept under the deck.
There is nothing in the record which would warrant us in holding
Biessel responsible.
The decree of the circuit court is
Affirmed.
