To begin with the master’s general conduct. The evidence does not show that he was either careless or unskilful. He was certainly unfortunate in the loss of his tender, and in the small amount of whales taken in his off-shore cruise; but the preponderance of the evidence is, that these results were not owing to his fault. It was said that I must give greater weight to the evidence against him than to that in his favor, because the witnesses taken from the ship were reluctant to say any thing to his discredit But after making whatever allowance I can discover to be due to apparent or probable bias, I must decide the case, after all, upon what the witnesses say, and not upon what they might have said had they testified differently. And the whole evidence convinces me that, excepting in the matter of distilled spirits, to which I shall recur presently, the master exerted himself with reasonable care and skill, and with rather uncommon diligence for the promotion of the best interests of the voyage. Upon the special matter of the slops, the assessor is satisfied that the master has duly accounted for them; and I see nó reason to vary his award in that respect, nor to charge him with the value of certain articles stolen from the wreck of the Alfred.
On the other hand, I cannot allow the master a commission on moneys advanced to the crew. His contract expressly provides for the commission on sale of slops, but mentions no other; the usage of the trade is against it, and so is the reason of the thing. The commission on the sales is intended to compensate him for his trouble in making them, and to ensure his selling to the best advantage. The necessary advances to the crew are made as a part of a master’s ordinary duty, and from the owner’s money; the trouble is slight, and the responsibility nothing. I affirm the assessor’s disallowance of the charge.
Nor can I allow the libellant a lay in the oil taken at Hurd’s island after he sailed for home. The contract made with the men whom he left behind, appears to have been carefully drawn, with the intention of giving the owners full control over this matter. They have seen fit to allow a lay in this oil to the master and crew of the Arab, who took it on board, and brought it home; and I cannot say they have acted' unjustly. These men did a certain amount of work upon this oil, and are better entitled than those who came home in the Samuel Robertson to some share in its value. The libel-lant took the responsibility of the enterprise, and this may entitle him to some considera*305tion from the owners; but he has no legal claim which a court can ascertain and enforce.
The amount of the master’s lay depends upon the construction of the special contract as applied to the facts of the case. It was agreed, that if the master procured on board the ship four thousand barrels of oil, or a full ship, his lay was to be one-sixteenth, otherwise one-seventeenth. The ship brought home somewhat over three thousand four hundred barrels, and the evidence is clear that she was full, and there is no proof that she was badly stowed. The respondent says that the ship did, on one occasion, bring a good deal more. He gives the number of gallons, by which it appears she had a little more than thirty-five hundred barrels, besides a considerable quantity of bone, said, in the argument, to be equivalent to some two hundred barrels of oil. It does not appear that she ever did or could bring four thousand barrels, or very near that amount.
Under these circumstances, it is fair to assume the libellant’s construction of the agreement, and hold that he was to procure a full cargo estimated at four thousand barrels, more or less, rather than to say with the respondent, that the specification was intended as a minimum, and that the larger share was dependent on his getting at least four thousand barrels. The former construction, it is true, rejects the demonstration as false; but then it appears to be false. Such a contract should be construed against the owners in a doubtful case, because they are supposed to know the capacity of the vessel, which the master certainly did not; and it is not to be presumed that they would establish as a minimum an amount of cargo larger than the vessel was ever known to carry. Upon the facts in evidence, the respondent’s interpretation gives scarcely greater weight to the words, “or a full ship,” than the other does to the “four thousand barrels,” because it is not credible that they could in any event expect the vessel to bring more than the specified amount. This point then, not submitted to the assessor, I must decide for the libellant
The assessor has rejected the whole of the very large bill charged by the libellant for the expenses connected with the illness, death, and burial of Mr. Briggs at Mauritius. As it appears, however, that the ship was unable to furnish the proper medicines and medical attendance, which the unfortunate situation of the chief officer demanded, the master was right in boarding him on shore. And after examination of the account, I have thought it right to allow one hundred and twenty-five dollars as a fair charge against the owners on this account. The George, [Case No. 5,329;] The Atlantic, [Id. 620.]
The next inquiry is, what penalty, if any, should be awarded for the breach of the ar-tide concerning spirituous liquors. And upon this, the case of Hazard v. Howland, [Case No. 6,280,] decided by Judge Sprague in 1863, is a direct authority. It was there adjudged that the owners have a right to-say whether or not these liquors shall be used on their vessel for other than medicinal-purposes; and further, that the penalty affixed by the articles, of a total forfeiture of wages, is one to be chancered by the court. In the present case the evidence is clear that the master wilfully violated this stipulation, and permitted his officers to have-nearly as much whiskey as they liked. I must suppose that the discipline of the ship-was injuriously affected by this laxity. What the actual pecuniary damage to the voyage was, it is impossible to say; and I shall deduct from the libellant’s lay the sum of ■ three hundred and seventy-five dollars, which is the penalty imposed by Judge Sprague, in the case cited, and in which the master’s lay was very nearly what it is here.
There is but one item of account remaining to be considered. The respondent produced before the assessor, a paper signed by the libellant, acknowledging to have received one hundred and fifty dollars as the passage-money of one Captain Proctor, from Mauritius to New Bedford. The libellant testified that he received in fact but seventy-five dollars for this service; that the price receipted for was the fair price of a first-class passage, to which Captain Proctor was entitled, but that the accommodations actually furnished him did not come up to that description, and the receipt was given “for the benefit of Captain Proctor.” This means, I suppose, that Proctor’s owners were to pay for the accommodation he ought to have had, and Captain Proctor himself only for what he had. No doubt a receipt is open to-explanation; but I am not satisfied with this explanation, which appears to involve a fraud on the persons who were ultimately to pay the passage-money. The owners of the Samuel Robertson were entitled to receive all that Captain Proctor’s owners were bound to pay; it is not fit that one-half the money should be kept in the hands of the-agents; and I am unwilling to believe that this was done. If the master has undertaken to release Captain Proctor from any part of the amount due for his passage, he-must settle that account with him.
The account then stands thus: (The judge-here stated the account in conformity with, the above opinion.)
Decree for the libellant.