213 F. 263 | W.D. Wash. | 1914
On the 23d day of January, 1913, the Rupert City, owned and operated by a corporation of British Columbia, flying the British flag, sailed from Seattle bound for Australia. On May 28, 1913, she arrived on her return voyage and anchored at Port Townsend. On the same day a libel was filed by Fischer Bros., monition issued, and the vessel taken into the custody of the United. States marshal. Thereafter various intervening libels were filed by the members of the crew for wages, by the master for wages and ad
It does not follow, as contended, however, that the mortgagee may not intervene and defend against the establishment of maritime liens against the vessel. These would deplete the fund upon which he must rely, as the vessel when sold is discharged of his lien, and the mortgagee has a claim only upon the proceeds of the sale. Schuchardt v. Babbage, 19 How. 239, 15 L. Ed. 625; The H. N. Emilie (D. C.) 70 Fed. 511; The Advance (D. C.) 63 Fed. 704; The Old Concord, Fed. Cas. No. 10,482; The Mary Anne, Fed. Cas. No. 9,195.
The Fischer Claims.
The Act of June 23, 1910, c. 373, 36 Stat. 604 (U. S. Comp. St. Supp. 1911, p. 1192), provides:
“Section 1. That any person furnishing repairs, supplies, or other necessaries, including the use of dry dock or marine railway, to a vessel, whether foreign or domestic, upon the order of the owner or owners of such vessel, or of a person by him or them authorized, shall have a maritime lien oñ the vessel which may be enforced by a proceeding in rem, and it shall not be necessary to allege or prove that credit was given to the vessel.
“Sec. 2. That the- following persons shall be presumed to have authority from the owner or owners to procure repairs, supplies, and other necessaries for the vessel: The managing owner, ship’s husband, master, or any person to whom the management of the vessel at the port of supply is intrusted.”
In Ely v. Murray, 200 Fed. 369, 118 C. C. A. 520, it was held that this statute met the presumption that necessaries furnished on the order of the owner were upon his personal credit, and thus that it is analogous to the state statutes, the effect of which is to give rise to a presumption that the parties intended to contract in reference to -the credit of the ship. In the recent case of The Sinaloa (D. C.) 209 Fed. 287, Judge Dooling held that this statute did not give a lien for the services of a watchman employed by the owner of a launch. This holding, however, is based expressly upon the fact that the services of the watchman were not maritime in character. The court says:
“This act does not by any fair construction of its terms include tbe services here in suit, nor is it clear that its terms should be so extended by construction as to include them. The apparent intent of the act was to relieve those persons who formerly would have had a lien if credit had been given to the vessel from the necessity of alleging and proving that credit had been so given. The purpose does not 'seem to have been to create a new class of liens, or liens for services which had been theretofore determined not to be maritime, but only to deal with certain matters that had always been recognized as cognizable.”
In The J. Doherty (D. C.) 207 Fed. 997, Judge Veeder held that the statute in question was not intended to apply to towage. The learned judge concluded that the act was intended to raise the pre
■If the stevedores in this case had themselves contracted with the managing owner, treating their services as analogous to those of seamen, by the general maritime law they would have a lien on the vessel.
“Ttiere are maritime services which are usually rendered under circumstances which make them so essential to the movement of a vessel, and to the performance of her primary function as an instrument of commerce, that the admiralty law presumes they are rendered on the credit of the vessel, in the absence of proof to the contrary, and creates a maritime lien in their favor, independently of the question whether it be a domestic vessel, or not. Notable examples are the lien for pilotage services, the lien for seamen’s wages, for towage services, and for salvage services.” The Alligator, 161 Fed. 37, 88 C. C. A. 201.
But where the contract is made with the owner by one who furnishes stevedores, as in this case, he cannot claim wages, for he has rendered no personal service, and he cannot claim to be subrogated to the liens of the stevedores, for they have agreed to look to him and not to the vessel for pay. He therefore is in the same position as one who furnishes supplies or repairs. Speaking of such contractors, Judge Brown, in The Seguranca (D. C.) 58 Fed. 908, 910, says:
“They simply supplied the labor of other persons, whom they employed .and paid. This differs in no degree, so far as I can perceive, from a contractor’s supply of workmen to do repairs; ancl thus the present case falls strictly within the analogy of repairs and supplies in the home port.”
It is evident, therefore, if we construe the statute as intending to raise the presumption of a lien only where the maritime law does not create one, that the act does apply to the furnishing of stevedores by a contractor in the home port or on the order of the owner, for- by the general maritime law no> lien arises from such a contract. Still further, if we apply the rule of ejusdem generis, the furnishing of stevedores under such a contract is similar to that of a contractor’s furnishing of workmen to do repairs, so that it would come strictly within the phrase “other necessaries,” even though such term be limited to necessaries of a nature similar to' those mentioned. I must therefore conclude that, when the contract was made by the California Stevedore & Ballast Company with the managing owner of the vessel, a presumption arose according to the provisions of the Act of June 23, 1910, that the credit of the ship was pledged thereby, and this presumption is not rebutted by any facts or circumstances appearing in the testimony.
The same principles govern the assigned claim of the Washington Stevedore Company. It was named as the stevedore in the charter party, so it was not employed by the master, but by the terms of the Act of June 23, 1910, a lien arose upon which it may now rely.
FI. H. Williams’ Claims.
The commissioner’s reason for denying the lien is thus given by him:
“The contract of hire of Herbert H. Williams being made in this port, under the decision of the Supreme Court of the United States in The Roanoke, 189 U. S. 185 [23 Sup. Ct. 491, 47 L. Ed. 770], construing the statutes of this state applicable to foreign vessels, I conclude that said intervener is not dntitled to a lien for his services as master.”
The case cited held merely that a state statute could not create a lien upon a foreign vessel for materials furnished upon the order of a contractor, enforceable by a subcontractor regardless of whether such contractor had been paid, as this would be contrary to the general maritime law. But the master’s right to a lien does not depend upon a'statute of this state. He claims a lien under the statutes of Canada and England; the vessel being registered in British Columbia, and the owners being resident therein. The Canadian Shipping Act provides:
“Sec. 194. Every master of a ship registered in any of the provinces shall, so far as the case permits, have the same rights, liens and remedies for the recovery of his wages, and for the recovery of disbursements properly made by him on account of the ship, which, by this part, or by any law or custom, any seaman, not being a master, has for the recovery of his wages.”
The British Merchants’ Shipping Act of 1894, § 167, provides:
“The master of a ship shall, so far as the ease permits, have the same rights, liens and remedies for the recovery of his wages as a seaman has under this act, or by any law or custom.”.
The contract for the service of a master being a maritime contract,, it is proper for a statute to provide that a lien shall arise therefrom, and such lien will be enforced, in any other, forum whenever it has •
The fact that the contract was made in the United States and not in Great Britain does not prevent the law of Great Britain from being incorporated therein as one of its implied provisions. In The Magna Charta, Fed. Cas. No. 8,953, a seaman was employed by a Bi'itis'h vessel at New York, yet the law of England was held to determine his rights under the contract of employment. Nor does the fact that the master was an American and not a British citizen prevent the law of Great Britain from applying. When he assumed the responsibilities of -master, of a British vessel, his duties werq prescribed by the laws of Great Britain, regardless of his own nationality. It would-be unjust and illogical to measure his rights by diffex-ent laws. The contract was with British owners to act as master of a British ship. The master knew that the ship was British and that he was dealing with British owners, and he testified that he relied upon the credit of the ship for his pay. In The J. L. Pendergast (D. C.) 29 Fed. 127, Judge Brown held that where a citizen of this country contracted to serve as master of a British vessel, believing the owners to be British, he was entitled to a lien under the British Merchants’ Shipping Act. This case was reversed by Wallace, J., in (C. C.) 32 Fed. 415, who found the fact to be that the master believed at the time that the owner of the vessel was an American with whom he had contracted, and that as to such master the ship was an American and not a British vessel. The law of the previous case, however, is in no way criticised, and from the discussion of the learned judge it is evident that his holding would have been the same as that of Judge Brown had he found the facts as Judge Brown viewed them. The latter case is in harmony with the test of intention here laid down, since it could not there be presuxned that the parties intended to contract in reference to the British law if the master believed it was an American vessel. The Alice Tainter, Fed. Cas. No. 195.
The contract of the master being made in reference to the British statutes, the lien on the vessel, was part of the consideration for his services of which it would be unjust to deprive him. Covert v. British Brig Wexford (D. C.) 3 Fed. 577; The Havana, Fed. Cas. No. 6,226. The master’s lien is established, and he will be paid out of the proceeds of the vessel.
The Canadian Shipping Act provides that a master shall have a lien for “disbursements properly made by him on account of the ship.” It is obvious that a disbursement is not made on account of the ship where it is not to discharge or prevent the incurring of a lien, and that the general rule with respect to maritime advances must apply to the master’s disbursements. The commissioner erred in allowing these items to the master; there being no necessity to pledge the credit of the ship where the managing owner had advanced the funds.
The same principles must ultimately determine the right of the master to a lien for other items advanced by him. The item of $12 charged as paid to the New Sailors’ Home cannot be supported by a lien. The master stated that a portion of this was advanced by the home to the sailors and the other portion was charged by the home for supplying the men. It does not appear that the advance was made for the ship. There is no lien for services in procuring seamen. The Humboldt (D. C.) 86 Fed. 351.
Exception is taken to the failure of the commissioner to charge the master $50 for excess which it is alleged he induced the People’s-Market to charge wrongfully to the ship for his private benefit after the seizure. ■ But it is obvious that the ship would not be liable for the $50 under the circumstances, and there is no reason for paying it this amount.
It is contended that the master should not have been allowed certain disbursements made by him at Melbourne because he had been furnished ¿190 for that purpose. The testimony shows that various-amounts were paid by the master which do not appear on the account rendered. The evidence in this respect- is not as clear as it might be, owing perhaps to the unsystematic method of keeping accounts, but in the face of the testimony of the master that he paid these various items with his own money and that the ¿190 was paid out for other expenses of the ship, I would not be justified in overruling the commissioner with respect to these items.
The other exceptions to the report of the commissioner with respect to the Williams’ account do not call for discussion.
H. H. Morrison & Co. Claims.
Nor can the items, “Head tax, 2 alien seamen, $8.00,” and “Ship’s-laundry, $5.74,” be recovered. Morrison stated that he had not paid but had merely assumed these amounts, and it does not appear that the ship was released from liability therefor. In other respects, the-report of the commissioner as to the Morrison claims is correct.
These claims were for meats and lodging furnished for the crew on shore after the seizure of the vessel. They were properly denied. The Augustine Kobbe (D. C.) 37 Fed. 702; The Young America (D. C.) 30 Fed. 790; 19 Am. & Eng. Enc. of Law, 1094; Dalzell’s Sons v. The Daniel Kaine (D. C.) 31 Fed. 746.
People’s Market.
Marconi Wireless Telegraph Company..
The amount of this bill depended upon conflicting testimony as to whether the managing owner had notified the creditor that the ship would be laid up and to take the apparatus off the ship, in accordance with the contract. The managing owner testified that he had notified the company that the ship would be laid up and to take the apparatus off the ship, in accordance with the contract. The managing owner testified that he had notified the company that the ship would be laid up “for the present,” and that they should take the apparatus off the ship. The testimony of the wireless company tended to show that after this notice it was informed that the ship would later come to Seattle and that notification would then be.given that the apparatus be taken off the ship. In view of this testimony, I do not feel warranted in disturbing the findings of the commissioner.
It is hardly necessary to notice the exception that equipment and expenses in operating a wireless apparatus on a ship gives rise to a maritime lien, since it is obviously useful to the ship as an instrument of commerce and navigation. The fact that the contract was made with the owners is immaterial under the act of June 23, 1910, considered above.
Max Kuner Claim.
It is claimed that the -commissioner erred in allowing $85.30 for charts, etc., on the ground that the intervening claimant and Max Kuner stipulated that the value thereof was $55.15. I do not find this stipulation in the record.
A decree may be entered establishing the liens of libelants and intervening libelants as found by the commissioner and as herein indicated, and directing the payment thereof out of the proceeds of the vessel.