28 F. 670 | N.D.N.Y. | 1886
The employment of the seamen by the master of the vessel is established by a preponderance of evidence. During the season of navigation, and until the seizure by the marshal, they were at all times ready to perform the duties for which they had boon engaged. They should not suffer by reason of Die master’s failure to find employment for the steamer. Especially is this so when their right to recover is resisted only by those who have not a vestige of interest in the fund. Spencer is entitled to receive $297; Bortol, $850; Couch, $130.50; and Bishop, $313.50. Interest upon these sums should be allowed .from July 24, 1885, together with costs and disbursements. The claims of Bortel and Bishop have been disallowed in part. The law does not permit a privilege against the vessel for services which are in no sense maritime, rendered after the close of navigation. A mariner may also be a mechanic; but the fact that he works as a painter, machinist, carpenter, snow-shoveler, or ship-keeper, upon a vessel while she is lying in port, ice-bound and idle, does not give him a lion for his services.
That the Vulcan Iron-works Company has no standing in court is too plain to admit of doubt.- It is conceded that the lien created by the statute of New York — -Laws 1863, c. 422, amending chapter 482,
Nothing that was done by the sheriff or the master of the boat operated to revive or continue this lien. The state court had no jurisdiction. The process under which the sheriff took possession was null and void. His act was a trespass. The libelant acquired no rights by reason of this unlawful proceeding.
The same is true of the libel filed by Gobel and MacEarlane. When they commenced proceedings in this court their lien under the state law had expired. But the proposition was advanced, for the first time on the argument,, that this claim may be sustained, in whole or in part, as a salvage service, and an amendment in this respect is asked for. It is entirely clear that only the earliest services rendered by the libelants, forming but a small part of their entire claim, can, in any view, be classed under the head of salvage. In order, therefore, to make their position tenable, the court must arbitrarily apply the payment of $2,500 received by the libelants upon the subsequent items of their account. Where so many creditors are seeking payment from an inadequate fund, it would be an arbitrary exercise of judicial discretion to thus allow an amendment changing the entire nature of the claim after having first arranged the proof to make the amendment available.
The libels filed by the Vulcan Iron-works Company, Tanner, and Lyon, and by Gobel and MacFarlane, must be dismissed, but without costs.
The libel filed by Thomas Dobbie alleges a claim for salvage in pumping out and raising the Sumner after she was injured by fire, and sunk in the harbor of Oswego, in the spring of 1884. The libel was taken pro confesso on the first of September, 1885, and a decree was entered referring it to a commissioner to report the amount due. The libel states a cause of action in rem, and, as these allegations stand admitted, no reason is perceived why the libelant should not recover. If, in deciding this case, the court were permitted to consider the evidence returned in the other actions against the Sumner, it is by no means certain that the libelant could succeed, for it is at least doubtful whether services rendered in raising the vessel after she had sunk at her dock can be dignified by the name of “salvage.” This question, though argued by counsel, is not decided, for the reason that it is not presented by the record.
The libelant Thomas Dobbie is entitled to a decree for $134.94, with interest from March 15, 1886, and costs.
It is altogether probable that the sums thus allowed will exhaust the fund in court. Should any remnants remain in the registry after paying the amounts due the seamen, the decrees previously taken by default, and the claim of Thomas Dobbie, they should be paid over to the claimant, provided no claim entitled to precedence is in ths mean time brought to the attention of the court.