37 F. 217 | E.D. Wis. | 1889
This caso comes now before the court upon the objections lo the payment of libelant’s claim out of the proceeds of the sale of the vessel,' covered into the registry of the court. The facts upon which opposition to the claim is based are disclosed by the evidence of the libelant. In April, 1888, P. 0. Seefluth was master of the vessel, and employed libelant as seaman, at §50 a month. Ho continued in the service under that agreement one month, when the master reduced the pay to $1.50 per clay. He served as seaman under the changed agreement until the 8th day of June, when ho left the service because of threatened further reduction of wages. He remained idle until the 6th of July, when he was re-engaged hv the master at §1.50 per day. At this time the master informed him of his intention to stop ashore for two or throe trips, and suggested that the libelant had better go on the papers as master. He accompanied the master to the custom-house, took the oath of citizenship, and was then rated on the vessel’s enrollment as master. He made one trip of six days as master; then Seefluth again took command in fact of the vessel, and remained in command until her seizure. The libelant’s name continued on the enrollment as master, and he reported and cleared at the custom-house; but Seefluth was in fact master, purchased cargoes, collected freight, and in all other respects commanded the vessel; the libelant performing seaman’s services.
It is objected that the services were rendered as master, and no lien therefor exists upon the vessel or the proceeds in court. Without respect to the registry laivs, he would ho master to whom the owner actually intrusted the navigation and discipline of the vessel. The inquiry in such caséis, what is the tact? As Judge Nixon observes in The Imogene M. Terry, 19 Fed. Rep. 463, “Courts of admiralty deal with things, not words.” It cannot be questioned upon the evidence that the libel-ant, with the exception of the one trip, was in fact a seaman, and not the master. Seefluth was in every respect the master, charged by the owner with all the duties and responsibilities of master. What effect did
So, as to the case at bar, it might well be urged that, if the libelant bjr reason of his acquiescence in and active consent to the request of the master incurred a penalty for violation of a provision of law, that did not make him an outlaw, nor, as to the claimants, estop him from showing the actual relation he bore to the ship. If wrong there was, was it not a wrong done to the United States, not to the other claimants, or to their injury? It is not necessary, however, to determine that question here, for The Dubuque is expressly put upon the ground that one can only be the lawfully registered master by the act of the owner, which is not this case. Here, so far as the evidence discloses, the entry of the libelant’s name upon the enrollment as master was at the request of and for the convenience of Seefluth, the master registered as such by the act of the owner. The change was made without the knoAvledge or consent of the owner, and was for a temporary purpose. In The Exchange, Bee, 198, the libelant, at the request of the real captain, lent his name to clear the vessel at the Havanna. It was held he was not captain in fact, and therefore not barred from suing for services. This case is referred to by Judge Lon&year in The Dubuque, who observes with respect to it that “the real master has no authority thus to divest himself of his office, and confer it upon, another. This could be done by the owners only.”' Whatever object Seefluth had in causing or continuing the change in the registry, so far as the evidence discloses it, was without the knowledge or privity, of the owner. Seefluth remained master in fact, with
It is urged that the libelant should not be permitted to recover, for the reason that by his action in registering as master ho has held himself out to the world as such, and others have dealt with the vessel supposing him to be master, and entitled to no lien on the vessel for his services. Whether the laws for the enrollment of vessels can bo considered in the light of the recording acts of the state need not he determined, because here nearly, if not all, of the demands against the vessel accrued before the transaction complained of. There is no suggestion that any supplies were furnished or services rendered at the request of the libel-ant, or upon the faith of his being master'of the vessel. The libelant’s claim will bo allowed as the first lien upon the fund in the registry of the court. There must, however,- be deducted from the claim the amount expended by him to the use of the vessel, and the amount of his services upon the trip he actually served as master.