amounting to a justification, and mitigate the penalty to a reasonable and proper indemnity to the owners, for any damage they have sustained from the delinquency of the seaman. My opinion is, that the court has that power; and that the facts in proof make this a proper case for exercising it. It seems to me to be unconscionable and unjust to mulet this boy, supposing him to have a substantial, though not a legal and technical interest in his wages, of the entire earnings of more than three years and a half laborious and dangerous service, for a fault, blamable indeed, but which was induced mainly, if not exclusively, by the improper conduct of the master. If in consequence of the desertion the owners have sustained any damage, as is suggested, the proof being produced, it should be deducted from the wages.

Mackie and Cushman, for libellant.
Eliot and Stetson, for respondent.

January 10, 1856.

HENRY TABER ET AL. v. LEVI JENNY, Jr., ET ALS.

A replication, merely denying the truth of the answer, is not required in this district; but where the libellant relies on new matter in avoidance, he should put it on the record by a supplemental libel, to which the respondents should reply.

When a whale has been killed, and is anchored and left with marks of appropriation, it is the property of the captors.

Where such whale is afterwards found by another ship, still anchored, there is no usage, or principle of law, by which the property of the original captors is divested, even though the whale may have dragged from its first anchorage.

Where two vessels are under a contract of mate-ship, there is no such joint property in a whale taken by one of them, as requires the owners of both to join in an action for its tortious taking.

1 Since this opinion was delivered, I have been favored through the politeness of the authors with the first volume of Blatchford and Howland's Reports, just issued from the press, containing the admiralty decisions of Judge Betts. It is an addition to our books of admiralty jurisprudence of very great value. The extensive learning and great experience of Judge Betts, give to his opinions a commanding authority. I find that the principal question involved in this case, has been repeatedly decided by him, that the only case in which it is imperative on the court to pronounce for an entire forfeiture of wages, is when the desertion is proved precisely according to the requirements of the statute. The Cadmus, 142; The Martha, 155; The Elizabeth Frith, 201; The Union, 555.

An award where one of the arbitrators has prejudged the cause, is to be set aside.

Even where the referees are unexceptionable, the umpire must rehear the

case.

The measure of damages for the tortious taking of a whale, is to be full indemnity to the libellants for all they have lost by the taking at the time and place where it was taken, and no more.

What this will be is a question of fact, and the report of an assessor will not be disturbed unless it can be shown affirmatively that he is wrong. If substantial doubts exist as to any of the elements of damage, they are to be solved against the wrong-doer.

THIS was a libel in admiralty, brought by the owners of the ship Hillman, of New Bedford, against the owners of the ship Zone, of Fairhaven, for damages from the alleged wrongful taking of a whale. The facts sufficiently appear in the opinion of the court.

The respondents, in their answer, in addition to other grounds of defence, set up an award made previous to the filing of the libel. The libellants admitted the fact of the award, but contended that it was invalid on two grounds. First, because one of the referees had formed and expressed an opinion against them before his appointment; and second, because the umpire appointed upon the disagreement of the original referees, had decided the case merely from the statements of the referees.

To this latter point, the libellants cited Russell on Arbitrators, 230, 231; Falconer v. Montgomery, 1 Dallas, 233; Passmore v. Petit et al., 1 Ib. 271, and Salkeld v. Slater, 12 A. & E. 767.

As to the general question of property, they relied on the principles stated in Sander's Justinian, 181, 182, and Vinnius' Com. on Insts. 153.

SPRAGUE, J. The first question is one of practice; the only pleadings are the libel and answer. According to the practice in this district, a replication merely denying the truth of the answer, is not necessary; the allegations of the answer are deemed to be in issue without such formal denial. The answer here sets up an award of referees as a bar to the libel; the libellants not denying that such an award was made, insist that it was not binding for two reasons; first, that one of the referees had prejudged the cause; second, that the award was made by an umpire without hearing the parties. This is new matter in avoidance of the allegations of the answer, and should have been put on the record. This is sometimes done by a replication; but the more regular mode is by a supplemental libel, to which

there should be an answer by the respondents. The parties having come prepared to litigate these, as well as other points in controversy, and having engaged that a supplemental libel and answer shall be filed, so that all the issue shall appear upon the record, I proceeded at their request, to hear the cause, and will now state the conclusions to which I have arrived upon the merits.

This is a libel to recover the value of a whale. In the summer of 1852 the ship Hillman, of New Bedford, and the ship Zone, of Fairhaven, were whaling in the Ochotsk Sea. On the morning of the 23d of July, one of the boats of the Hillman pursued and killed a whale, but being alone and the ship being at a distance, and obscured by a fog, the boat was unable to take the whale to the ship, and for the purpose of securing it, anchored it in fifteen fathoms of water, with an anchor weighing about sixty pounds, and a double tow-line with about thirty-seven fathoms scope, and a waif was fixed upon it. This waif was a staff, about eight feet long with a flag at its head. After the whale was anchored, the boat lay by it nearly an hour to ascertain that it did not drift; the boat then went to the shore, which was not many miles distant. A few hours after the whale had been thus left by the Hillman's boat, a boat belonging to the Zone with her captain on board, came across the whale. The captain took down the waif and then went to his own ship, which was quite near; he there ordered his mate to get into the boat, go to the whale, and bring it to the ship. This was done. When the mate reached the whale, he found the tow-line and anchor attached to it, and they were both taken into his boat. The whale having been taken alongside the Zone, the crew of that vessel proceeded to cut it in, that is, to strip off the blubber and take it on board. In doing this they found two irons with the initials H. N. B., which clearly indicated that they had belonged to the Hillman, of New Bedford. These irons were taken on board the Zone, as were also the anchor and rope attached to it. These irons were left on deck, the anchor was put below. The Zone while cutting in the whale stood out from the shore, but on the day following, while boiling down, stood in. The Hillman's boat having returned to their ship, and obtained the assistance of other boats, went in search of the whale, but could not find it. This they did on the morning of the 24th. During that day the mate of the Hillman seeing the Zone boiling down, went on board of her and ascertained

nett.

that she had taken the whale. The irons were lying upon her deck, and he took them away. But he did not see or hear anything of the anchor and tow-line. The anchor was thrown overboard by the captain of the Zone, but at what time does not appear, except that it was before the 26th. The excuse given by him for this was violent and abusive language in his own cabin, by Captain BenThat such language was used, is in proof. But that cannot justify the act of throwing the anchor overboard. On the 25th, Captain Cook, of the Hillman, and Captain Bennett, of the whale ship Massachusetts, went on board the Zone and demanded of Captain Parker, her master, the bone and oil of that whale, which was refused. They were subsequently brought to Fairhaven, and taken and sold by the respondents. A demand for the proceeds was made upon them by the libellants and refused.

When the whale had been killed and taken possession of by the boat of the Hillman, it became the property of the owners of that ship, and all was done which was then practicable in order to secure it. They left it anchored with unequivocal marks of appropriation.

It having thus become the absolute property of the Hillman, was that ownership ever lost? It is contended that it was. First-by the usage peculiar to the whale fishery; or, secondly-by the principles of law applicable to the facts of this case. The usage contended for, is, that when a whale is found adrift on the ocean, the finding ship may appropriate it to her own use if those who killed it do not appear and claim it before it is cut in. But from the evidence it does not appear that this whale was found adrift. On the contrary, I am satisfied that it was anchored when taken by the boat of the Zone. (The judge here examined the evidence.) Whether it was found in the place where it had been left by the captors or had dragged the anchor, and if it had dragged, how far, is left in some uncertainty. I do not think it is shown to have dragged, certainly not to any considerable distance, and if it had, there is no proof of usage embracing such a case.

2d. By the general principles of law, when property is separated from the owner at sea by force of the elements, or even by abandonment from necessity, the person who finds it has not a right to convert it to his own use, and cannot thereby divert the right of the original owner. The finder in such case has only the right of a salvor, and must conduct in good faith as such. If he embezzles the prop

erty, or wrongfully converts it to his own use, he may thereby forfeit his claim to salvage. In this case the whale was not derelict, it had not been abandoned by the owner, but had been left with the intention to return, and the captor did in fact return as soon as practicable, and in less than twenty-four hours. Whether the whale, when found by the crew of the Zone, was in a condition of peril so as to be the subject of salvage service, need not now be considered, as that question is not now before the court. It is not presented by the pleadings, nor by the propositions, or arguments on either side. Besides this, the conduct of the captain of the Zone was not that of a salvor, and was such as would have precluded him from now assuming that character. A ship or merchandise found upon the ocean is still the property of the original owner, however distant he may be, and even although he believes it to be absolutely lost. It may in such case be subjected to a lien for salvage, but still the property subject to such lien is in the owner, and when such lien is displaced, the ownership is absolute and unincumbered. If such be the law with respect to property found derelict and drifting upon the ocean, for still stronger reasons must the right of the owner remain in full force to property which he has anchored and left only temporarily, soon to return and repossess it. That this would be so as to a vessel or boat so anchored and left, no one would doubt. But the same principle applies to this whale. By capture, killing and possession, it had become the absolute property of the libellants, and the anchor, waif and irons, were unequivocal proofs not only that it had been killed and appropriated, but of the intention of the captors to reclaim and repossess it. It is in proof that the appearance of the whale was such, as to show to the finders that it could have been killed only a short time, not exceeding twelve hours. A whale not being the product of human care or labor, does not, of itself, purport to be human property, and what would have been the right of the finders, if the captors had abandoned it without any marks of appropriation need not now be considered. One other circumstance has been adverted to by the counsel for the respondents, as in favor of the right of the Zone. It is that the ships Massachusetts and Hillman were under a contract of mate-ship, and that on the morning of the day upon which Captain Parker found this whale, he had been on board the Massachusetts, and was told by her captain that they had seen no whales for three days, and that Cap