Hon. Martin Welker
On the breaking out of the Rebellion he was commissioned major and served on the staff of Gen. J.D. Cox, and served with the three-months' volunteers. He was afterward appointed aid-de-camp to the Governor and acted as judge-advocate general of the State, and served until the close of Governor Denison's term. In 1862 he was appointed assistant adjutant- general of the State, and superintended the Ohio drafts for that year. While in this work he was nominated for Congress by the Republicans of that district, then the Fourteenth Ohio, composed of the counties of Holmes, Wayne, Ashland, Medina and Lorain, and was defeated by 36 votes, was again nominated in 1864 and elected, re-elected in 1866, and again in 1868. He served on some of the important committees, and was chairman of one, making an honorable record. In 1873 President Grant gave high recognition to Judge Welker's ability by appointing him district judge of the United States court for the Northern district of Ohio. He served as such judge until the summer of 1889, when he retired under the U.S. statute from the Bench, having arrived at the age of seventy years, and suffering from defective hearing. He made a record for purity and conscientious discharge of duty excelled by none. The degree of LL.D. was conferred on him a few years ago by the Wooster University. He now resides in Wooster, Ohio.
The Admiralty decisions rendered by Judge Welker were remarkably consistent with the character of the man. They showed careful consideration, and all have undisputable evidence of a determined effort to arrive at a just and honest decision. The first cause of Admiralty tried by Judge Welker was that of Mark English vs. the Webb, the libellant being the owner of the Webb. It was an ordinary collision case calling for damages of the libellant schooner in the amount of $3,500, and was very closely contested. As is usual in such cases, each party attached the blame of the collision to the other, and the Judge being unable to determine upon which side the fault mostly rested, found both at fault, dividing the damages, and referred the case to the clerk, the late Earl Bill, to ascertain the amount each sustained. The rule established in this case applied to all others of the same nature that were sub- sequently heard and decided. In cases where collisions occurred when schooners were in tow of tugs or steambarges, the usual rule was that the motive power was at fault, unless it was clearly shown in the evidence that the schooner was not properly navigated.
A very large number of decisions were rendered by Judge Welker, many more than by any or all of his predecessors or successors thus far, and the whole Admiralty practice of the court of which he was judge was revised and regenerated during his incumbency. This as brought about not only by his efforts, through his study of Admiralty law and practice, but by conference either in person or by letter with the Admiralty judges of the United States district courts at the various ports on the chain of lakes, and also by the reason of valuable assistance rendered him by his clerk, Earl Bill, who was considered by all the members of the Bar of Cleveland to be well posted in Admiralty law and practice. We cannot more appropriately emphasize the importance of his decisions than by a casual reference to a few of the most important of them which we have found in a scrap book of newspaper clippings kept by the clerk above mentioned.
The case of C.A. Barrett et al, vs. the schooner Wacousta was quite important from the fact that the question of "going rates" of freight was decided in the following language: "The only safe and true rule is, that rates of freight are fixed and established by actual contracts in the market, and can only be changed by contract in good faith made in the port for like services." In the case of Barney McCarty vs. the schooner Senator, the question whether stevedores have a lien for services rendered was raised, Judge Welker decided in favor of the libellant on the ground that the stevedores perform an indispensible part of the transportation and delivery of a cargo; begin and conclude it, and their services are in nature of skilled labor. Also that the contract for them was within the scope of the authority of the master of the schooner, for the reason that all maritime contracts made within the scope of the master's authority do, per se, hypothecate the ship.
The case of Samuel A. Provost et al, vs. the schooner Selkirk, was a memorable one for the reason that it established a new rule on the subject of the order of liens upon the proceeds of the sale of the vessel when brought into court for distribution. The judge confirmed the report of the commissioners to whom it was referred to construct a table of distribution of the proceeds of the schooner Selkirk. The commissioner, who was the late Earl Bill, clerk of the court as well, of long experience in such matters, made a report, presenting the following summary for the consideration of the court, showing the relative order to be observed in marshaling of liens and claims upon it. Salvage, general average, seamen's wages, bottomry bonds, in inverse order of dates, supplies, repairs, materials, towage, pilotage, wharfage, demurrage, contract of affreightment or passage, and stevedores service, damages by collision, unpaid premium on insurance, claims accruing after collision, brokerage service, mortgages, levy by execution against owner (the last two named are not maritime liens). This report was very exhaustive and was confirmation in full, and from the date of its confirmation was the established practice of the court.
Another notable decision was that of Charles Miller et al, vs. the barge W.B. Tuttle, in which the court decided that seamen were not entitled to their wages, unless they complete the contract, which was that they were to go to Marquette and return to "a port of discharge on Lake Erie." This port of discharge was not known to the master of the vessel at the time of the making of the contract, nor to anyone else. On the trip down the barge ran into the port of Cleveland to coal up, and the seamen jumped the boat and libeled her for wages. The court decided against them because of their failure to remain on the boat until their arrival at Ashtabula, the "port of discharge." This case was very closely contested, as the issue was considered an important one to vessel owners.
This sketch could go on almost indefinitely, enumerating Judge Welker's decisions rendered in the interest of marine circles, both of Cleveland and Toledo, but suffice to say that the work done by him while upon the Bench will stand as precedents in all the courts of Admiralty upon the Great Lakes for many years to come.
In 1889 Judge Welker, having retired from active service, an estimate of his inherent qualities cannot be better expressed than in the language of the resolutions offered by a committee of the Bar of Cleveland assembled in his honor at the time of his retirement, and unanimously adopted, part of which resolutions are here appended:
Whereas, Under the circumstances, we, the members of the bar who have attended Judge Welker's Court for years back, regard it proper to express our appreciation of his conduct as judge, his ability as a jurist, and his kindness and many good qualities.
Resolved, That we deem it a privilege to express our high appreciation of his valuable judicial services; our sense of obligation to him, who at all times has been courteous, upright and impartial judge; our great respect for his genial character and bearing and for his ability, industry and integrity as a man and a judge during the fifteen years he had performed the arduous and responsible duties of his position as judge in admiralty.
Resolved, That it is with regret that we part with Judge Welker in his official capacity, and that he take with him in his well earned retirement the genuine respect, and good wishes of every member of the bar.
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This version of Volume II is based, with permission, on the work of the great volunteers at the Marine Captains Biographies site. To them goes the credit for reorganizing the content into some coherent order. The biographies in the original volume are in essentially random order.
Some of the transcription work was also done by Brendon Baillod, who maintains an excellent guide to Great Lakes Shipwreck Research.