100 F.2d 977 | 5th Cir. | 1939
John S. Swift, the owner of motorboat 18-K-528, employed Lloyd Knowles about Oct. 30, 1937, to work on and about the boat. On Feb. 15, 1938, Swift directed Knowles to wash the former’s automobile, which Knowles refused to do, claiming it was not within his employment. Swift paid him off and discharged him. Knowles libelled the motorboat for his wages accruing subsequently, and on April 29, 1938, obtained a decree for them figured to Oct. 30, 1938, less what Knowles had earned since his discharge in another continuing employment up to the date of the decree. Swift has appealed, and has applied to take additional evidence in this court to show what Knowles earned between the date of the decree and October 30, 1938.
From the findings of the District Judge it seems that he regarded the contract of employment to be founded on a letter from Swift to Knowles, dated Oct. 9, 1937, which Knowles in his libel asserted to be the contract. It reads thus: “I talked again with Mr. Ezzell, and after the conversation I came to this conclusion, and following is my proposition: $175.00 per month salary. This is on a year around basis. When you are away from Miami I, of course, will take care of your meals. At the end of the year, if everything has been to my satisfaction, I will be glad to pay you a bonus not to exceed $300.00. You will take care of the boat and devote your whole time to the job.” Swift claiming the motorboat by his answer denied that this was the contract, admitted the discharge, and sought to justify it. Swift and Knowles were the only witnesses heard. Swift testified to an oral employment in Miami about the last of Oc
We are of opinion that the letter when its offer was not accepted fell out of the negotiations, and is not shown to constitute the contract or any part of it. The variance is of no moment, however, in admiralty. The agreement as proven by Knowles himself was for service on the boat only until sometime in May, and when the boat should be laid up he was to be caretaker of the premises of Swift on land. The care of the automobiles during the winter may well be considered as a mere incident to his main employment about the boat, so that the contract for winter employment was essentially maritime; and we will not disagree with the trial judge that the care of the automobiles was as to their mechanical condition and did not include washing the car, so that a discharge in February for not washing it was unjustified. We cannot, .however, agree that a maritime contract for the period of a full year is proven. The maritime service was to end when the boat should go out of commission and into storage in May, and since Knowles, having the burden, has fixed the period no more definitely, we must set it down as May 1st. After that date no certain period of employment was agreed on, and the nature of the employment was not to be maritime at all. The wages for that employment should not have a maritime lien upon this vessel.
The appellant contends that there is only a single contract for an employment partly maritime and partly not, and that admiralty has no jurisdiction at all to enforce it. See 38 C.J., Maritime Liens, § 24, citing The Saginaw, D. C., 32 F. 176; The James T. Furber, D. C., 157 F. 126. We think that without too great strain it can be held that for the definite period to end when the vessel should be laid up in May there was a contract for maritime employment which can be enforced against the vessel, but for no longer. Whether there was also an enforceable contract for a land service to begin thereafter we need not en-quire, for a court of admiralty has no concern with it.
Knowles speaks of himself as captain, but it appears that he was the crew also. A true master has in the United States no lien for his wages, but Knowles, constituting the entire crew of this small boat, as crew may claim one.
We set aside the decree as made, and adjudge that Knowles is entitled to recover salary at $175 per month (considering the