PARKER v. The CALLIOPE, 18 F. Cas. 1121

BY THE COURT. I desire that it may be understood, that I do not ground my decision upon any general custom, by which ship's cooks can legally claim the perquisite to which the libellant alleges his right. Several years ago, I investigated an alleged custom, that stewards should, of right, have the remnants of cabin stores after the voyage ended; and decreed they had no such right. There is no such general custom, as that of cooks having, of right, the slush; and, therefore, ■ in this case, it can only be claimed under the special agreement.

It appears to me. that the shipping articles contemplated by the act of congress, do not necessarily require these supplementary grants of additional benefits to be inserted. The privileges to mates, Ac. are never specifically written in the articles; which seem only calculated for pecuniary agreements. Therefore, parol testimony may be given of such extraneous matter. My decree will be formed solely on the point of the alleged embezzlement.

I should have hesitated to have given perfect credence to the first witness, who swears to the agreement in the owner’s compting-house, were his testimony not corroborated by the mariner who swears to the captain’s license, confirmatory and executory of the agreement originally alleged. The captain was the agent of the owner; and if he has made an agreement, or given privileges contrary to the owner’s interest, or instructions, he is responsible. The cook cannot be charged with embezzling an

article carried away and sold by the express license of the master. Here are two affirmative witnesses, swearing expressly to the point of an agreement, and a posterior ratification and license. These witnesses I am legally bound to admit in proof. I cannot reject them as unworthy of credit, from any general prejudice, which it is my duty not to indulge. Wages decreed to the libellant, amounting to one hundred and fifty dollars, with costs.