. 34 mnsaar. nsromma.
1, Spr. 510, it is also ruled that such a contract as that relied 0n_ in
this case will be carefully scrutinized by the court, and not be allowed
to operate to displace the lien, even where shipping articles were signed
indicating it, without the clearest proof that the seamen so understood [
‘ it. It is a case directly in point as a precedent for this, and was also,
A like this, a contract to go upon a wrecking expedition. The same learned
judge, in the case of The Adelphi, MS., A. D. 1862, cited in Flaherty v.
Doane, supra, and elsewhere, also held that the lien was not waived by
· hiring to a charterer. In The Erie, 3 Ware, 225, 230, it- is said that
“1'10 one is ever presumed to waive his own rights. Express words are
required for that purpose." Also, that- the owner has no right to bar-
gain away the privilege of the seamen by his contract with the charterer, “
· unless they were parties to the contract, and Emerigon is cited as au-
thority for it, as well as others. In The Artisan, 9 Ben. 106, which was
chartered by a circus company, it is held_ that the lien exists without
regard to the personal liability of the owner, and that incidental work
on shore for a circuscompany does not deprive the seamen of their
lien. ‘ `
` In The Montauk, 10 Ben. 455, the fact that the seamen had knowledge _
of the master’s agreement to sail on shares does not raise any presump-
tion that his ow_n agreement was such as to destroy the lien; and there
the learned judge explains such cases as The Bambard, 8 Ben. 493, and
Scott v. Failee, 5 Ben. 82, to have proceeded upon the'same understand-
ing of theflaw, although decided against the libelants. He also doubts
` whether any different understanding prevails in the Southem district of
New York, and says the weight of the authority is in favor of this rul-
ing. The Galloway O. Morris, 2 Abb. 164, is to the same general eifect;
and sp are The Samuel Ober, 15 Fed. Rep. 621, and The Clayton, 5 Biss.'
162, where the chartererwho hired the crew became insolvent and had
j made an assignment. `Attention may be called to Rev; St. U. S. § 4535,
. which forbids that seamen shall be held to have forfeited their lien, or
to have abandoned any remedy for wages, except by an agreement in °
accordance with the merchant seamen’s act, to show that it is also a
statutory policy to preserve the lien against any such implications as are
relied on here, and that that policy is in harmony with the general law,
whether that act applies to the lake navigation or a case like this or not.
I wish to say, in closing, that this case was partially tried before Mr.
District Judge Smvnnnns, during his designation, but not being finished
V ~ was left over by him for completion before the court next sitting, but
that he examined the authorities and reached the same conclusion that
is here announced, and to his notes and suggestions I ain much in-
debted in the preparation of this opinion.
` Let the libelants have a decree for the amount claimed by each, as
shown by his testimony, which I understand to be for 91*} days at $1.25
per day for each of them, less the credits admitted by each in his testi-
mony. The clerk will calculate the amount from the testimony without
. the costs of a reference, which is unnecessary, since there is no dispute
aboutthe time or amount. Let claimants also pay costs. So ordered.