The Blohm

BLATGHFORD, District Judge. The contract of August 14th, 1865, with the supplemental contract of September 11th, 1865, between Vogelgesang, the mate, and Tiede-mann, the master of the vessel, was merely a mortgage of the vessel to Vogelgesang as a ■creditor of Tiedemann, and did not constitute Vogelgesang a part owner of the vessel. He is, therefore, entitled to his wages, as mate, of 84 marks courant per month. As to Ternan, the man shipped at New York, he was shipped to supply the place of Struck, who was promoted to be second mate, in place of a second mate whom the master had discharged. No objection is made ■to the promotion of Struck; and the employment of Ternan, under the circumstances, was proper. He is, therefore, entitled to his wages* of 60 marks courant per month. Struck is entitled to his wages as seaman, at 42 marks courant per month, to February [724] 5th, 1807, and, from that time, to wages, as second mate, at 60 marks courant per month. The alleged increase of the wages of Adams, Ahrent, and Struve, made February 5th, ISO", cannot be admitted. They shipped for the round voyage back to Hamburg, and it does not sufficiently appear that the agreement made by the master to raise their wages from the 5th of February, 1867, was a voluntary act on his part by which the vessel ought to be bound, especially as against creditors advancing money on the strength of a lien on the vessel. Accordingly, Adams, Ahrent, and Struve are entitled to wages for the whole time since they shipped at the rates named in the shipping articles and no more, namely: Adams, 27 marks couran}; per month; Ahrent, 21 marks courant per month; and Struve, 12 marks courant per month. The Hamburg law formed part of the contract- with these seamen, and, according to that, I think that each of the crew is entitled to either a free passage to Hamburg from New York or to two months’ extra wages. It is urged that this cannot be enforced as wages, and is not a lien, but is merely a penalty enforceable against the master and owners personally. It is true, that in article 24 of the Hamburg Code this two months’ wages is called forfeiture money, but in article 25 it is expressly provided that if a vessel is entirely prevented by higher power from the continuation of her voyage, the crew have to look for their passage home or money in lieu, according to article 24, entirely to the vessel or the proceeds of the same, and not to the master or owners. In this case, the vessel is a Hamburg vessel and has been prevented, by the vis major of a sale under a decree of this court, from continuing her voyage, and the crew have been discharged from her by the purchaser under the sale. The choice as to whether the crew shall have a free passage home or this “distance money,” as it is called in article 25, is given by that article to the master. As he appears to have been derelict to all his proper duties, and no free passage home has been provided for the seamen, each of them is entitled to two months’ extra wages, at the rate of his ordinary wages, to be paid out of the proceeds in court. The only remaining question is, as to how the computation is to be made of the amounts due to the seamen. It is shown by the evidence that 125 marks courant are equal to 100 marks banco of Hamburg. The act of March 3d, 1843, § 1 (5 Stat. 625), fixes the value of the mark banco of Hamburg at thirty-five cents, in all computations of its value at the custom houses of the United States. This act does not apply to its value for commercial purposes; and, by the act of February 21st, 1837 (11 Stat. 163), all former acts declaring foreign gold or silver coins a tender in payment of debts are repealed. The question, therefore, is one of evidence, to be taken before a commissioner, as to the commercial value of the mark courant of Hamburg in the coined money of the United States. When that value is ascertained, a further question arises. The claimants contend that the amount due the seamen in dollars, computed at that value, must be paid in United States currency, or legal tender notes; while the petitioners claim that they are entitled to be paid the amount in gold, or, if paid in United States currency, or legal tender notes, to be paid so much as will purchase an amount in gold equal to' the amount in dollars found to be due to them. The ground of this claim of the petitioners is, that the contract of the seamen was made in Hamburg, for service on board of a Hamburg vessel, and that their wages are made payable in Hamburg currency. It is difficult, perhaps, to reconcile some of the decisions which have been made on this subject. The case of Councer v. The Griffin [Case No. 3,279], decided by Judge Hall in the district court for the northern district of New York, and affirmed by the circuit court on appeal, and the case of The ' Roehambeau [Id. 11,973], would seem to sustain the views of the petitioners. But the practice of this court has been to the contrary, even in cases of foreign seamen shipped abroad on foreign vessels under a contract in which the rate of wages was expressed in a foreign currency. The Isis [Id. 7,106], before Judge Betts, Nov., 1864; The Tweed [Id. 14,278], before Judge Benedict,. Feb., 1866. And I am satisfied that the weight of authority, both on principle and by precedent, is in favor of the view which has prevailed in this court. Metropolitan Bank v. Van Dyck, 27 N. Y. 400; Wilson v. Morgan, 30 How. Pr. 386; Swanson v. Cooke, 45 Barb. 574; Kimpton v. Bronson, Id. 618. When the amounts due to the petitioners in coined money of the United States are ascertained, according to the evidence which shall be given as to the commercial value of the mark courant of Hamburg in the coined money of the United States, they will be entitled to a decree for the payment of those amounts in United States currency, or legal tender notes, dollar for dollar, without any allowance for any premium on such coined money or any depreciation in the value of such currency or notes. If the parties do not agree on the amounts: due to the petitioners on the principles thus declared, there must be a reference to a commissioner.