Page:Federal Reporter, 1st Series, Volume 9.djvu/535

520 FEDERAL REPORTER. �port of safety, the contract for the voyage being terminated by the in'er positionof the vis major. The Dawn, 2 Ware, 126; Miller v. Kelly, Abb. Adm. 564; 3 Kent, 196. Being dismasted she could ne longer, as a sailing vessel, continue and complete her voyage, and did not attempt to do so, but was subseciuently taken to lier port of destination by the assistance of a tug. �This breaking up of the voyage by disaster was one of the contin- gencies of the employment which I must presume to have been con- templated by both parties at the time the contract was made. After the schooner was in a port of safety, and it had become practically impossible to complete the contract, and both parties were by the disaster absolved from it, Oleson had, in my opinion, no right to claim that any wages had been earned upon the original hiring, beeause the original contract was an entirety; but he could, as I have already said, if he chose, leave the vessel at that time. Indeed, I am not sure but that if he remained on board after the vessel arrived at South Haven, with the knowledge and acquiescence of the master, the law would imply a new hiring under the new circum- stances which surrounded both parties. But without passing directly upon the question as to whether the law would or would not imply a new hiring, it is sufficient to say that the proof satisfies me in this case that there was a new employment of Oleson by the master. The promise was that if he would remain on board he would do what was right by him, which implied that he would pay him such wages as his services were reasonably worth. He did remain on board and per- form his duty until the vessel arrived at Pentwater, and only left when the captain denied his obligation under any new hiring, and insisted that the men were bound by the contract made in Chicago before the sailing of the schooner. �I have no doubt that, when the captain repudiated the contract made, the libellants had the right to leave the vessel and sue for and recover in this action whatever was then due them. The conduct of the captain towards these men does not seem to me to indicate that he was willing or intended to do what was right with them under the circumstanees. There is no proof that he could not have obtained a tug immediately after the vessel took shelter in South Haven harbor ; but it is evident that he took his own time to make the best bargain he could with a tug after the season had nearly or substantially closed, 80 as to get his vessel towed to Pentwater at the lowest possi- ble priee, and during all this time he kept these men on his vessel when they could have been earning higher wages thau he finally ��� �