Everett v. United States

277 F. 256 | W.D. Wash. | 1921

NETERER, District Judge

(after stating the facts as above). [1] The seamen under the shipping articles have a threefold remedy for their wages against (a) the ship; (b) the owners; and (c) the master. There is no diversity to this rule, so far as I am advised. The laws of the United States as well as those of England have provided such remedy. Bronde v. Haven, 4 Fed. Cas. 211; Farrell v. McClea, 1 Dall. 392, 1 L. Ed. 192; The Susan, 23 Fed. Cas. 443; Skolfield v. Potter, 22 Fed. Cas. 299; Russell v. Rackett (D. C.) 46 Fed. 200; Wysham v. Rossen, 11 Johns. (N. Y.) 72; Smith v. Oakes, 141 Mass. 551, 5 N. E. 824, 55 Am. Rep. 487; Temple v. Turner, 123 Mass. 125; Calvin v. Huntley, 178 Mass. 29, 59 N. E. 435 (1901).

[2] The general owner is liable for seamen’s wages only when privity with the master is shown. Hussey v. Allen, 6 Mass. 163. This principle is applied by Judge Hanford in The General McPherson (D. C.) 100 Fed. 860, where at page 865 he says:

“I consider that the legal authority of Capt. Nelson to bind the ship by bis contract ceased when he unlawfully and tyranically took control of her adversely to her owners.”

In this case the master was engaged by the owner, and afterwards he appropriated the cargo and ship, and before the master secured the vessel he employed one Poole as cook, and did not pay him, and Poole sought to impress his claim for wages against the ship.

[3] An owner may not escape liability for wages by transfer of ownership pending fulfillment of articles, Bronde v. Haven, 4 Fed. Cas. 211; nor during a voyage, Sheppard v. Taylor, 5 Pet. 707, 8 L. Ed. 269; nor by abandoning the ship to underwriters, Brooks v. Door, 2 Mass. 39; but where the owner makes a bona fide sale, and delivers possession of the ship, and surrenders control to the purchaser, he is not liable for the wages of the seamen employed by the master, who was hired by the purchaser; the vessel being navigated by such master and seamen, and voyage directed by the purchaser or his crew. U. S. v. Shea, 152 U. S. 178, 14 Sup. Ct. 519, 38 L. Ed. 403; The Craigallion (D. C.) 20 Fed. 747; The T. A. Goddard (D. C.) 12 Fed. ] 74. And the fact that the sale was not consummated by execution of formal transfer, and the ship still documented in the name of such owner, would not change the status. Aspinwall v. Bartlet, 8 Mass. 483; The McPherson, supra. Failure to take a mortgage was the hazard of the respondents, which cannot affect the seamen. The contract of sale provided for a mortgage to secure the purchase price, the title was retained in the respondent conditioned upon payment. The security was not affected; only the terms of payment and the character of the lien. The registry may he shown by parol to be conditional rather than absolute ownership, where third parties are not misled. Morgan’s Assignees v. Shinn, 82 U. S. (15 Wall.) 105, at page 110 (21 L. Ed. 87), where Justice Strong said:

“It is not questioned that an instrument absolute in its terms may be shown ,by parole evidence to be only a mortgage. It is true that if trust and confidence have been reposed in it by third parties, with the honest belief that it was indefeasible, and such parties have been misled by its form, they have a right to insist that, as to them, it shall be what ui>on its face it purports to be.”

While this was not an expression having relation to admiralty, the same rule has application. In Thorp v. Hammond, 79 U. S. (12 Wall.) 408, 20 L. Ed. 419, one of several general owners sailed a vessel on shares under an agreement whereby he became the charterer, hiring his own crew, paying and victualing them, paying half the port charges, retaining half the net freight after the port charges were taken out, and paying the other half to the general owners, he was held to be owner “pro hac vice,” and is said to he personally liable for tortious collision with another vessel, and the other general owners were not liable. At page 416 of 79 U. S. (20 L. Ed. 419) the court said:

“It is clear, therefore, that lie must be considered as having been, tlie owner ‘pro bac vice.’ This accords with the authorities generally. Notwithstanding this, however, and though Hammond was the special owner, it has been contended on behalf of the libelants that all the general owners are liable for the torts committed by the schooner while she was thus let to charter. The Circuit Court was of opinion that tliey are not, and this court is equally divided upon the question. But we are all Of opinion that the owner pro hac vice is liable, and that he may be charged in this proceeding."

Justice Clifford in Reed v. U. S., 78 U. S. (11 Wall.) 591, at page 600 (20 L. Ed. 220), in construing a contract of affreightment said:

“Charterers or freighters may become the owners for the voyage without any sale or purchase of the ship, as in cases where they hire the ship and have by the terms of the contract, and assume in fact, the exclusive possession, command, and navigation of the vessel for the stipulated voyage.”

Justice Field, in Leary v. U. S., 81 U. S. (14 Wall.) 607, at page 610 (20 L. Ed. 756), said:

“If the charter party let the entire vessel to the charterer with a transfer to him of its command and possession and consequent control over its navigation, he will generally be considered as owner for the voyage or service stipulated.”

And the general owner in neither case would be liable. The principle stated in these cases has application here, where the purchaser assumed exclusive possession, command and navigation. . Justice Story in Marcardier v. Chesapeake Ins. Co., 8 Cranch. 39, at page 49 (3 L. Ed. 481), said:

“ * * * A person may be owner for the voyage who, by a contract with the general owner, hires the ship for the voyage, and has the exclusive possession, command and navigation of the ship. * * * ”

In which case the owner is absolved from responsibility. The statement in the libelant’s brief that the National Oil Company “was a tort-feasor in operating, if it did operate, the Agron,” cannot operate to the libelant’s advantage. A tort committed against the respondent cannot create a right for the seamen. In any case to bind the owner there must be privity between him and the master. If the master is employed by another who has possession of the ship, and as tortfeasor operated it without the owner’s consent there would be no privity and no responsibility could attach.

The seamen in the instant case were not misled. They made no inquiry. The seamen, while testifying to an impression that the ship is of a style built by the Shipping Board, knew nothing about the ownership or registry certificate, and made no inquiry, and no representation of any fact or inducement of any kind as to ownership by the United States was made. The ship was staunch, the motive power adequate, and the seamen had a lien for their wages. And in view of all the circumstances there was no occasion to malee inquiry as to the financial responsibility of the owner. Hedemark, the master, employed by the National Oil Company through its representative, the National Oil Transport Company (and he testified he continued in that relation), made no representation to the seamen, or claim upon the respondent until he was unable to secure funds from his employer and after the vessel was libeled.

It is contended that by analogy with The Dubuque, 7 Fed. Cas. 1141, the registered owner should be held as owner for the voyage. The status of a master of a ship and of the owner do not bear the same relation.

It is claimed that the Panama Canal Zone court was without jurisdiction and that the sale of the vessel is void, that the master by timely appearance suggested to the court on behalf of the respondents an exemption from attachment under Act March 6, 1920, and that if the court had jurisdiction the contract of the libelants was merged in the decree. The first suggestion is immaterial here, and the second is material only in so far as the master is concerned.

[4] A decree in rem does not of itself defeat a contractual right to seek a remedy in personam for the balance of an unliquidated claim, if the two remedies exist and the remedy in rem has been exhausted. Toby v. Brown, 11 Ark. 308; Carey v. The Kitty, 5 Fed. Cas. 59; The Cerro Gordo (D. C.) 54 Fed. 391; Whitney v. Tibbol, 93 Fed. 686, 35 C. C. A. 544.

Under the shipping articles the master is obligated to pay the wages of the seamen. This is an extreme hardship, brought on by no fault of the master. It is a liability which was not contemplated by either the master or the seamen. The master lost his earnings on the voyage, he could not even participate in the proceeds of sale of the vessel, and now to be adjudged liable for the unpaid wages of the seamen will take from him all his savings, and the provision made for the education of his children, and leave his family destitute, except such exemptions as are given by law to the head of a family. The form of article is provided by section 4612, R. S., “Schedule” “Table A” (Comp. St. § 8392). This form was ad&pted when the relation of the master to the ship and to the owner was very different from that of the present time. The reasons for this stipulation, it would seem, do not obtain in the modern shipping world, and a change should be made, but it cannot be made by the court.

A judgment must be entered against the master for the unpaid wages and return transportation to Seattle for the officers and men, who returned immediately, as provided in the shipping articles:

“Railway tickets, sleeper tickets and $5 a day subsistence for time on route without stopover, mates, chief steward, chief engineer, three assistant engineers will be furnished first-class transportation and sleeper. Remainder of crew, tourist transportation and sleeper. * * * ”

If the return was made bjr boat, the expense necessarily incurred, and the libel dismissed as to the United States and its agencies.