Page:Federal Reporter, 1st Series, Volume 9.djvu/734

THE OETEWAIO. 719' �was thought beat to limit the effect of the provision by a subsequent statute. See Amendments to Merohants' Shipping A.ot in 1862, § 18; Maolachlan, Shipping, Sup. 12, 13. But, howeiver this may be, as no point bas been made upon the statute by the libellants in this case, the present case may well turn upon the question of fact on ■which the libellants have supposed it to turn, namely, whether any agreement was ever made by the libellants by which they abandoned or waived their right to participate in the reward for saviug the schooner proceeded against . Upon this question of fact the testimony of each libellant is that he was hired at monthly wages in the ordi- nary manner, and that nothing whatever was at any time said by either party in regard to an abandonment or waiver of any rigbt to claim salving; and there is no direct evidence to the contrary of this. The wages agreed to^ be paid to the men were ordinary monthly wages, such as are paid for ordinary services. �The case is thus teduced to the question whether the nature of the employment in which the Alert was engaged, at the time the libel- lants were hired, compels the inference that it was understood by them that the monthly wages agreed to be paid themshould be in lieu of any share in any salvage award to which otherwise they might beeome entitled as part of the crew of the Alert. In my opinion no such inference can properly be drawn. It bas been made plain that the Alert was engaged iu wrecking, but wrecking does not necessarily include salving; and there is no proof that the Alert, during the time of the libellants' service, ever earned a salvage reward except in the case of the Cetewayo now under consideration. Scott, the owner himself, says that for the most part the boat worked under contract, and he does not say that her compensation was ever, except in this instance, dependent on suecess. No inference, adverse to the pres- ent demand, can therefore be drawn from the fact that in no other instance have the libellants claimed to be entitled to salvage. There is, in truth, nothing in the case from which to infer an agre ement on the part of the libellants to abandon their right to parlicipate in the salvage in question, except the bare fact that the vessel on. which they were shipped was so equipped as to enable her to successfully perform salvage services in case the occasion for such services should arise. I am not prepared to say that, aside from the statute, a valid agreement might not have been made with these men which would have been a good defence to the present action, but I am quite sure that such an agreement is not proved by any evidence in this case. ��� �