132 F. 576 | W.D. Wash. | 1904
For a statement of this case I quote from the written argument filed in the case in behalf , of the libelant, as follows:
“This suit is one brought by libelant to recover from the schooner Alcalde the sum of $855.33, with interest from December 27, 1900, the same being for moneys advanced by libelant to O. H. White, the master of said vessel, at the port of San Pedro, California, between December 22 and December 27, 1900, which moneys were used by the master for the purpose of paying off claims of a maritime nature against said vessel, and which claims were a maritime lien upon said vessel. It appears from the testimony and stipulations as to certain facts that during the year 1900 the schooner Alcalde was registered at the port of Calvary, Wisconsin, and that one John L. Beau was the managing*577 owner of said vessel, and owned a nine-sixteenth interest therein, the remaining seven-sixteenth interest being owned by different residents of San Francisco, California. On May 22, 1900, the vessel was upon the ways in Ballard, Washington, and on said date Mr. Beau appointed one C. H. White as the master of said vessel at the agreed rate of wages of $150 per month. This appointment was made by Mr. Beau when in the state of Washington, and Captain White assumed the duties of master of said vessel from said day until about the 28th day of December of the same year. The vessel made two voyages from Port Blakeley, Washington, to Nome, Alaska, during the summer of that year, and then loaded lumber at Port Blakeley for San Pedro, California, arriving at San Pedro on December 19th. Mr. Beau was living at Calvary, Wisconsin, during said time, and had appointed as agent one Wm. Johnson, residing on Battery street, San Francisco, California; and Captain White, before sailing from Port Blakeley to San Pedro, was given instructions not to collect the freight upon the lumber, but that the same would be collected by Mr. Johnson from the San Francisco office of the San Pedro Lumber Company, to whom said cargo was shipped. The vessel arrived at San Pedro upon the 19th of December. Trouble appears to have arisen between Mr. Beau and the other owners of said vessel, which trouble resulted in the appointment of a receiver of the vessel under proceedings had in the superior court of the city and county of San Francisco, state of California, and the receiver, Mr. Bright-man, came on board the vessel at San Pedro on December 23d. The vessel, upon her arrival in San Pedro, was in need of money, and the master applied at the office of the San Pedro Lumber Company for money. On December 20th fifty dollars was advanced to the master, but, being advised by their San Francisco office not to make any further advances, the lumber company refused to advance the master any more funds, not informing him at the time that there was a receiver appointed for the schooner, and giving as a reason that, it being near the end of the year, and the books of the company being about to be closed, it was probably the desire of the San Francisco office that no further advances should be made to vessels at that time. (Deposition of Thos. H. Fawcett.) Captain White, being in need of more money, applied to the Bank of San Pedro, which bank had been in the habit of cashing drafts of vessels for the purpose of paying off the necessary disbursements at that port, and on December 20th secured from the bank seventy-five dollars. As stated above, the receiver came on board the vessel on the 23d (which was a Sunday), and on Monday demanded of Capt. White the papers of the ship. The master refused to give them up, claiming that the vessel owed him about seven hundred dollars, which the receiver said he had no authority to pay, and the master then told him that he would not turn over the ship’s papers until he received his wages. As Captain White testifies (page 8, Deposition C. H. White), the receiver said on that day, T still appoint you master of the vessel,’ and continued demanding the papers, which the master refused to give up. On that day the master went to the bank and borrowed an additional five hundred dollars. Nothing was said by the master to the officers of the bank about the receiver having been appointed for the ship, and the money was advanced by the libelant without any knowledge that such was the fact. On the 27th four hundred dollars more was secured by the captain from the bank, which money was advanced, as is stated by the officers of the bank, without knowledge on their part of a receiver having been appointed, and said money was advanced solely upon the faith and credit of the vessel. Out of the moneys so advanced the crew was paid off, longshoremen were paid, meat and other supplies were purchased, and seven hundred and thirty dollars were paid by the master to himself, the same being the wages due him at such time. The master then surrendered possession of the vessel to the receiver, and turned over to him the receipted bills for the accounts so paid by him.”
This case must be determined by application of the general rule which prescribes the conditions essential to a valid maritime lien in favor of a materialman. The libelant is a creditor by reason of having advanced money on the credit of the Alcalde to her captain, which money was all used to disburse the ship. A lender of money
The claimant has filed a cross-libel for damages caused by the attachment and detention of the vessel under process in this case, büt I consider that in prosecuting this case the libelant has acted iri good faith, under the advice of learned counsel, and that the process of the court has not been abused in such manner as to entitle the claimant to demurrage or compensation other than the costs legitimately taxable. The Alex Gibson (D. C.) 44 Fed. 371. Therefore the cross-libel will be dismissed, and I direct that a decree be entered in favor of the claimant for only the taxable costs.