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Mr. Fairbanks appeared in person, unaided by Counsel or Solicitor. j John T. Hamerton, Esq., the Queen's Proctor, with Messieurs Elrington, LL. D., and Boyd, Q. C, acted on the part of the Defendant, who is a member of a firm of John W. Cater & Co., of Liverpool. The "Joseph Dexter," a brigantine of 203 tons, owned at I Halifa::, Nova Scotia, in equal shares, by Lewis P. Fairbanks and I the late firm of Salter & Twining, was loaded at Halifax with tim- I ber and deals by the owners on their joint account, and sailed for I Queeiistown, Ireland, on the 28th November, 1868, where she I arrived on December 24th. Soon after her arrival at Queenstown, Mr. Fairbanks ascertain'^d that Salter & Twining had fraudulently made over to the firm ofCater&Co., of Liverpool, all his (Fairbanks') interest in the ship and cargo. They (Salter & Twining) obtaining advances from Cater & Co. The sum drawn by Salter & Twining against the vessel and cargo amounting to £1700 (seventeen hundred pounds) sterling. Mr. Fairbanks would not recognise -T>l -JUr-??"^^ 3 2 any right of Salter & Twining to pledge his property, and there- fore Cater & Co. did not get possession. The vessel and cargo was, however, arrested by a Warrant of the High Court of Admiralty of Ireland for an alleged breach of Contract, in not delivering the cargo to the holder of the Bill of Lading. Mr. Fairbanks then petitioned the Court to order the appraisement and sale of both ship and cargo. This petition was opposed by Cater & Co., who claimed to be the sole owners. But the Court ordered the sale. When the proceeds were paid into Court Mr. Fairbanks, with a view to bring the case to a hearing, instituted this claim for wages. The Judgment of the Court is very important in relation to the rights of masters, and the liability of the ship to answer claims for wages, and is here given in full, having been carefully compared with the Stamped OflScia. copy of the Judgment. After this decree the cause for Breach of Contract was abandon- ed by Cater & Co., they thinking it best to settle ; Mr. Fairbanks receiving the Policies of Insurance, upon which a considerable sum is payable in respect of damage sustained on the voyage ; also the sum of one hundred and ceventy-five pounds in cash. By consent this arrangement was made a Rule of Court at the Four Courts, Dublin, on May 15th, 1869. 6-04 / 1 N f C a u c ii tl it ai iij mb* 8 JUDGMENT. No. 76. HIGH COURT OF ADMIRALTY OF IRELAND. The 12th day of May, 1869. The "JosFPH Dexter," j Fairbanks, Master. > breach of ContLcthy^^^^^^^ '''^'f \ a cause of the Bill of LadiDg. The master V'' '^ ^.^'^p" 1° .*he holder of defence in that cause Rvfn' f ^l^'^ ^' Fairbanks, took Court, a commission was issued brthp'.'''^''?"f*/7 "^^^^ ^^ this .ale, not only of the vissel bntk/ *^,t °"'^°* °1^" P^^^^^^' ^^r the the ship produced IloO and thP f *^"^^i?°; The sale took place, oeeds o'f L sale rmountint t ZTt iS ' ^'''' '''''■ 4 P^^' The pleading.^ i,, the ori Jnaf ca^i.P n,. f i' ?'? /'"^ '" ^^^^t. -^teps have been taken obr '";.,! f °"^.^"^^'-i' i>"t no further ^lotcrminod On I4th Anril Sf V . J'^T'^^' ^""^ '^ '« «till un- olaiming ^196 for wa^es subsk i^nnp^/ ^^Y^"'^« ^'^d a petition who then wa.o„,.e,. of them, to Moss,"taUef& S.^rfS' as Master gratuitous r^secoLlv h„. ™1 '" S'™ '"« ^''"i™^ ccssivo; aud, thivT/becaul Ca,ft»i^ f^k'' '^ .'""; "'""■""' « «" ;.iH.rope,-Iy, i.d i„ i.eachrd„trr„te1t din^r^r"^'''''^' the holder .>f the Bill of Lidinr .'„j • deliver the cargo to it on his own hehalf has oce2'„.H ""P'oPfly claimed to retain and expense," ttt the holdeTof f^ ,.i''r'' T""''^'''^ "''^'''y. institute, and did i-.itute'X°;^n,f 2!d[';h'rv*es::r.t''frtt jS^ cd, and that, by such misccnduct and broach of duty, the Master has forfeited nis right (if any) to wages altogether This answer renders it necessary to ascertain what was the agreement under which Mr. Fairbanks has acted as Master, and what was the effect of his refusal (which he admits) to deh'ver the cargo to the holder of the Bill of Lading as regards his personal There are two facts which are not and cannot be questioned, to which Mr Burchardt 8 answer has not adverted: one is, chat the ship, of which he claims to be the sole owner, was sold by this Court more than a month before his answer was filed ; another is, that he IS himself a member of the firm of Messrs. Cater & Co of Liverpool who have been prominent actors in the transaction're- iating to the non-delivery of the cargo. It has been proved that Captain Fairbanks was sole owner of the -Joseph Dexter," until the 19th September, 1868, he agreed with Messrs. baiter & Twining to sell to them 32-64ths of' that vessel on the terms that they were to advance the money requisite tor her outfit, Captain Fairbanks being accountable to them for his sfiare of it, and that he was to superintend the outfit, command thevesse, and navigate her to Ireland with a cargo of timber, which baiter & 1 wining were to furnish. The vessel au carffo were to be old in Great Britain, and a certificate of sale was to be given to Messrs. Cater & Co., or one of their firm, to enable them to make title to the purchaser of the ship, the accounts wcio then to be settled by the respective part owners, and the expected profits of the adventure divided accordingly. The 32-64tlis w(!re consequently assigned to Salter & Twining on 21st September last; the vessel was fitted out; they paid pai^ of the expenditure in cash, and gave their notes of hand for the remainder, and they fnrnisi.ed part of the timber for the cargo • the rest of it was furnished by Captain Fairbanks himself, (it does not appear how much,) and it is admitted by Salter & Twining in their letter to Cater & Co. of the 24th November last, (to whi jfi I shall hereafter revert,) that Capt. Fairbanks was jointly interested in it with themselves. The answer asserts that Captain Fairbanks did not commence work in the vessel on the 2l8t September, nor until he joined her on the 10th November, but he has shewn that he superintended the outfit from the former date, and that is the proper duty of a Master. (The Chieftain, Brown, 1 L., p. 104.) So that if entitled to wages at all he will be entitled from the 2l8t September. He states that in order to secure Salter & Twining in his share of the outfit, he executed the mortgage since assigned to Mr. Burchardt But he asserts that the amount of his liability for the outfit has never been ascertained ; that when he signed the mortgage a blank i 3 6 1 t n t ii fi if i ™ left for the sum to be secured ; that when he afterwards asked halter & Twining for the raortgaore, in order to fix his liability thereby, he was told it was destroyed as useless ; and the next he heard of it was /when it was produced to him at Liverpool by Cater & Co. with the blank filled up with the words "two thousand dollars, and this was done without his knowledge or assent ; he therefore repudiates the mortgage as a fraud. Salter & Twining" m^ their letters io Cater & Co , of 10th and 25th February, 1869 re>y .,n the mortgage as a virtual transfer to them of Captain Pair- bank a interest in the vessel. But he is not bound by their state- ments ; nor am I called upon to pronounce either for or against the validity of the mortgage, for it is not even contended that it is a bar to the claim for wages, whatever effect (if any) it may have on Captain Fairbanks' share of the vessel. Before leaving Halifax he executed a Certificate of Sale but that being a mere power to sell the ship, could not afiect his daim (It any) on h\-i co-owner's share of her. Oapta'r. Fav b.'.nks acted as Master not only in the outfit but the Tr"^^ n'r • "'^"^'^ '', ^''* °^ ^''^'"^ f"^ t^»« c-"go as shipped bu buUer ^ Iwimny ana deliverable to order without freiqU, hdna 'owner', propr.ty.'' Though not a professional seaman, he e.ai.ed on ii,:f: ralher p-rilous v ,yage at a dangerous season, and h>id Uw g. j^ frrt .ne and ..kill to navigate the vessel safely to ?^^.8e.. -lovr; n. 13? u(JTn:ts Ihut rxo specific agreement was ever made about hiB ^ragca, that thoy weie not even mentioned, and that had the adventure turned out prosperously, he would not have de- manded them. Both parties have referred to a letter dated 2tth November, 1868, written by Salter & Twining to Cater & Co which was read by Captain Fairbanks before he left Halifax and to which he assented. That letter is as follows :~ Halifax, 24th November, 186«. Messrs. J. W. Cater & Co., Liverpool, G. B. Dear Sirs, — We have instructed Captain Fairbanks, who will hand this to you, to proceed to Queenstown in the "Joseph Dexter," and as soon as the ship is safely moored, to go on to Liverpool, and call vpon you and consult as to the best course to pursue to reaHze both vessel and cargo to the utmost advantage. It is perfectly understood between Captain Fairbanks and ourselves that both are to be sold without reserve at the same time, as Capt. F. is iointlv interested in the result. We are desirous that he should be as tuUy and as freely consulted as we would be if present ; and this 18 the more desirable as Capt. F. is well posted in such matters. iw,. it. 6 having sold similar vessels on your side before, and being a thor- oughly practical man, can give every irrf>)rrnation as td baild, charac- ter and equipment of vessel and cargo. NVe have .Idvanced the amount necessary to fit out the "Joseph Dexter." Everything is new and good. The proceeds, therefore, after the nccesHury dis- bursements are paid, and also wliiit rai)tain Fairbanks may wish to have for strictly personal expenses, are to be held subject to our order. We are yours, fathfully, (Signed) vS^u-eu k Twininv. It is plain the statements of Salt(.'r k Twining, in their .subse- quent letters to Cater k Co., caiiiiot i)in(l (:a|)tai.i Fairhanks, namely, that he was bound to give his time to fit out the vessel fn-e of eharge. They refer, in those lotter.x, to the above men- tioned letter of 2ttli November, as containing their understanding with him ; and, as a matter of evidence, I give more credit to his stiite- mcntsonoath, tlian tlicir assertions tu.i'Ie after tlu; dispute ha(il arisen. But Mr Hnrchanit contends that by tliis agreement Capi. Fairbanks precluded himseli' from claiming tiny sum beyond his strictly personal expenses and disbuisements,' If a prole.ssional man, or one whose services are ucCep'ed as siuh, perfoiMis profes- sional work, he 'm jjiima facie entith<(] to w fnir remiineiation for them ; but if the ;,rima facie, presumption lie disputed, he is bound to make out his rase, and it is then a (pi stion vvlielher, taking all the evidence together, he has done so. (Jlnrgeston & Kelly, Lib. Ex. 360.) If he has declared or adnn'tted that he gave them on the understanding that he was not to be paid for them, he certainly cannot recover, but the expectation of his being otiierwise remu- nerated will not prevent his recovering the fairValue of his work and labor if that expectation had failed him Thus, in Baxter vs. Gray, 3 Man & 0. 761, a surgeon was allowed t(^ recover for his professional services and medieines against the executors of his patient during wliose life the plaintiff had made no claim for them, hoping to be re-i)aid by a legacy, in which expectation he was dis- appointed. Now, looking to the language of the letter of the 24th November, it surely could not be successfully contended that the wages of a niere stranger, if employed as master, would not be necessary disbursements ; and when I am asked to inii.-ly that Captain Fairbanks' wages should be excluded irom the category of necessary disbursements, merely because nothing had been spe- cially said about them, I should expect some authority for such a strained construction. It was likely enough that they should nnt have been specially mentioned, as he was a part owner, and the parties appear to have been long on very intimate and conlidential terms, and all expected w-ia^^^"" 'WY^ 1 a profit, mtt u loss, (»n tlio ii.Ivonttiro. On tlio \v'liul((, T do not think that tlioru ia evidoijco (liut tlin pliiiiitifT iindci-took't'o ^iv6 his HtM'vices ill any ovtMit grutiiilonsly, >m<\ as ]}\h former (^xpeotafions hiivo h<;oii (lisaf)p(tiMto(l, I hold that hois n?ii»ittod t() his oiii'inal rrn^htH But it is further contended, that oven if thiit l)e so, liis miscon- duct haH f\)rfcitod his chiim Now, the facts are th(fse : He arrived on the 21(h December at Qiieenstown, when; \w left the ship, and travelled on to liiverpool where he was told by Mr liurrhiirdt, on the 'i8tli, th;if nothinf^ could he done lill tlu^ holis an opinion. But he is entitled lo hhow wiiat hmsohs Ir.' alleged for n(jt deliviTiii^ it; and lie acc(»rdingly wrote; to Cater X" Co a letter dated 21 , I J.iniiary. stating that \\ir. Jbirker fiad den-an Ird tlie caigM, and threatened, on his refusal to deliver it, to have Mr. Fairbanks put in prison and the ship arrested. Xoiie of the state- ments of that letter as to Mr. Barkers coudm I aiv iimic' I, though that gentleman was in Court at the hearing. I have no doiU>t that Mr. Fairbanks was treated, tcf say the best, with a high h;oid, and there was some provocation given for the harsh epithet fraudnlont which he used respecting the nianner in which he had been treated. It does not appear to have ocen ever stated to him by Cater Sc Co., who yet knew very well that ho was interested in the cargo, that any property hud passed under the endorsement of the bill of lading, or that Ibuker was more thr.n a nude assignee, who would as such not be entitled to sue on it either at Common Law or in this Court, as was decided by the '-'St. Cloud " (Brown cK: L. 18.) No doubt the consignee nanied in a bill of 1 ding, or his assignee- under a proper endorsement of it, is in general the person entitled to re- ceive the cargo, and Captain Fairbanks wonkl iia\e been (juiie iuttilied in delivering the cargo to the holder of the bill of lading. But then he may have iairly expected that Cater »!v: Co knew the r true state of afl'airs, and though there is reason to believe that Salter & Twining were indebtea to them in a considerable sura, there is nothing to shew that Captain Fairbanks knew anything of the dealings betweea the firms oi ever authorized Salter & Twining to pledge any property of his to Cater & Co. Tlis refusal to dfMver the cargo is, however, treated as an act of such misconduct ae would justify this Court in holding thai his wages are forfeited altogether. In support of that pn.pos'tion, tho 'Thomas Worth- ington," 6, Notes of Cases, 570, has been cited ; this was a case in which the master of a ship, in contravention of his owners order to keep their interests in view, executed a charter party at Bahia for a voyage to Europe, and in anticipatiu'i of the voyage received £600 on account of the frieght, which he paid over to the agents of the owners. The owners having become bankrupt, thejr assignee relied on this paj'ment as a forleituro, as amounting to collusion and fraud. But the Jourt did not doom it a forfeiture. Dr. Lushingtcu, in his judgment, said it was a serious question how far any conduct merely erroneous, and not tainted with guilty intention, could entail upon the master a forfeiture of his whole wages, and said he was not aware of any authority in cny Court or of aiiy case, to that eHect. It is a difficult question h()w far a master ought or ought not to follow the directions of his owners' agents. But Cater & Co. were not merely .igents of Salter & Twin- ing. They were as distinctly apprised of Mr. Fairbanks' position as an owner as were Salter & Twining themselves. Grant that Mr. Fairbanks would have shewn greater iiscretion had he trusted Cater & Co., and submitted to their directions ; am I to visit him with the consequence of that want of discretion when there was neither mala fides collusion, negligence, or incapacity. It is un- questionable that certain misconduct may operate as a forfeiture of wages, whether of » mere seaman or a master ; but in the "Camilla," Swabey, 314, Dr. Lushington states his opji^ion that neither error, nor want of seamanship, nor improper refusal to sign a bottoming bond, could be admitted as evidence in bar or even in reduction of a master's claim for wages. And the se.me principal or mere error of judgment on the master's part would not work a forfeiture of his wages, was recognized in the "Atlan- tic." (Lush. 566.) I cannot, therefore, hold that there has been any forfeiture of the wages to which Captain Fairbanks may be entitled, even assuming that he acted without reason, and in utter mistake, in refusing to give up the cargo ; a question which I am not at present called on to decide, and on which I offer no opinion. I am, therefore, bound to say, that whether Mr. Burchardt is *.o be deemed merely an agent of Salter & Twining, or beneficially entitled to their share of the proceeds, or to any part of it, that Bbare is liable to one-half the master's wages from 2l8t September ? «-:'"^T_'~tS^ ■» (itif^f ^ ? \ nf: \ u '^T'""'^' ^^^^' ^^^'^ the vessel was ar.ested But rate than £12 a month, which is the rate fixed by the only wi S examined for the RcRpondent ; any sums paid by^Mr Fairbrnls Jo must also be allo',vo(l, unless already etarcod in the Aiarshil'^ «/ count of expenses. I Hhall refer it to the KeHstL tHlulat; these sums unless they are agreed on by tL Sea lea" not allow Mr, Fairbanks any travelling e..penses. oxcepras a wTtncB* llnll?!, 1 • "' ^'^^^' '^'•■*' *''^ amount of it must, however be deduc eel ,n respect of his own liability. I would wXngly pay nm, If 1 could, son.eth.ng out of his own share of the proceeds o^ Sv oZ'.te .':* " ""'^T '''''"^ *" ^'^- BurchardtTav possi- bly opeiate IS a ch .,rge on those proceeds, w^w.h, ar, in tiie cJso of a bottomry bond by which the master is bou may "ivi p'^Htv vh nh T'Y-^^' '7' ^ '« ^"^"""t' whatever ii ,.,ay on.ve ?o be X I so ^ Ti o'""- ''"■" '' ''•'^^'l ^""^ hiB^hare of life outfit, I cannot ore is an su;nl.rs";r''''r'''' ^7^^"'^ ^"''" «'^ ^^at I cknnot sTy bu r^ < ;! "^ rny decree wil bo of little substantial benefit to him, ut t uii ,s a mattci beyond my potver to remedy I had hnnpri nat an arrangement betweer, the parties would present ^he ne?cs Su" tT*^"vrt or''tV^^-^r^'" '^ of W further li.iytlon in th sX o^s V avo^?! t 'liJ^ "^ '""-^''^ ."^'^^'^ i think have been nil 1 ?y*^'iftle more (consideration for the position and acknowledged rights of Mr. Fairbanks, but I have only to deal with the legal question and as I aeem him entitled to adeci-ee and aTn has to a considerable extent established his olaim a^ahUt a verv o^'a?rrhe";:i «j"^ ^r^^^"'^^^;.^ ^""^^^ ^^y thTcoX o;\hi-s Ti: ion and the subsequent proceed ngs. The costs in whiVb Mv co"L to b-ir''^f v" ^°''^'^°J- ""^^^ taxed as'usual.Th only costout'o'f". ''" ^"'^'^ ^^ "^^ -*^^ ^- himself will be Z I certify the foregoing to be a true copy. Bated this 23th day of May. (Signed) A. H. BARTON, Regiatrar. ■'^: smii- 10 r i THE DECREE. The 12th day of May, 1869. In Court. No- 76. THE "JOSEPH DEXTER." In the matter o/— Fairbanks, Petitioner. BuRCHARDT, Defendant. The matter of this Petition having been assigned for Judgment on this day, the Judge in the presence of the Petitioner in person, and of the Counsel and Proctor for the Respondent, delivered Judg- ment, and pronounced for the Petitioner's claim to the following extent— That is to say,— He decreed the Petitioner to be entitled to be paid his wages as Master of the " Joseph Dexter," at the rate of £12 per month, from the 21stday of September, 1868, to the 28th day of January, 1869, when said ship was arrested, and also to be entitled to be repaid such payments, if any, as shall appear to have been made by him to Peter Morash and William Walsh, or either of them for wages and subsistence money, from the 5th day of Jan- uary, 1869, to the 28th day of January, 1869, not already charged by the Marshal as part of his expenses in the cause, and also kettle money at the usual rate for masters of snips from the 28th day of January, aforesaid, and he referred it to the registrar to ascertain the amount of such payments and subsistence and kettle money respectively. And he decreed that one moiety only of the said wages and subsistence and kettle money, " when ascertained," shall be chargeable against the proceeds of the sale of this vessel now in court, the ether moiety being chargeable to the Petitioner himself, as owner of 32-64th shares of this vessel and of the nett pro- ceeds of said sale ; and he condemned the Respondent in the costs of the petition in this matter, and the subsequent proceedings herein, including the expenses of the Petitioner's journey from - A . m 11 Queenstown to Dublin, and referred it to the Registrar to tax and ascertain such costs, with a special direction to allow in such taxation from the time when the Petitioner commenced to act for himself in person therein, only the actual costs out of pocket. And he reserved all further directions. The Petitioner in person. The Queen's Proctor for Respondent. (A true copy.) (Signed) A. H. BARTON, Pegistrar. Notice. — The evidence taken at the trial, with all letters having reference to this case, showing very plainly the frauds, and who committ* I them, is now ready for the press, and rnll be published m a few days. ^ LEWIS P. FAIRBANKS, WOODBOURNE, DARTMOUTH, August 2nd, 1869. ■^^