Bank of New Orleans and Trust Company v. The Oil Screw Tracy Marie, Etc., Lee-Roy Towing, Inc., Intervenor-Appellee

580 F.2d 808 | 5th Cir. | 1978

580 F.2d 808

BANK OF NEW ORLEANS AND TRUST COMPANY, Plaintiff-Appellant,
v.
The OIL SCREW TRACY MARIE, etc., et al., Defendants,
Lee-Roy Towing, Inc., Intervenor-Appellee.

No. 78-1624

Summary Calendar.*

United States Court of Appeals,
Fifth Circuit.

Sept. 21, 1978.

Robert T. Wakefield, New Orleans, La., for plaintiff-appellant.

Kierr, Gainsburgh, Benjamin, Fallon & Lewis, Lawrence S. Kullman, New Orleans, La., for intervenor-appellee.

Appeal from the United States District Court for the Western District of Louisiana.

Before THORNBERRY, GODBOLD and RUBIN, Circuit Judges.

PER CURIAM:

1

We affirm on the opinion of the district court, --- F.Supp. ----, with the following additional comments.

2

The evidence adequately supports the findings that Lee-Roy Towing was a special agent and not a general agent and that it was a real party in interest. We do not understand the court to have held that the presumption of 46 U.S.C. § 971 is irrebuttable; rather it held that the presumption had not been rebutted by appellant's contention that Lee-Roy was a general agent. There is no merit to the contention that the overall purpose of the Ship Mortgage Act, 46 U.S.C. § 911 et seq., and the Maritime Lien Act of 1920, 46 U.S.C. § 971 et seq. requires that the lien for crew wages not be given its usual superiority in this case.

3

AFFIRMED.

*

Rule 18, 5 Cir.; See Isbell Enterprises, Inc. v. Citizens Casualty Co. of New York et al., 5 Cir., 1970, 431 F.2d 409, Part I