10 F. Cas. 956 | U.S. Circuit Court for the District of Southern New York | 1817
This is a libel by the master against the ship Grand Turk, for disbursements made by him while abroad, for wages paid by him to some of the mariners after her return home, and also for wages due to himself. The district court condemned the vessel, pursuant to the prayer of the libel, and ordered all these demands to be paid out of the proceeds. From this sentence an appeal has been taken to this court. It is denied by the appellant, and of that opinion is the court, that any thing was due to the master for disbursements at the time of filing his libel. He had received from the consignee in Belfast, enough to reimburse him for all these advances, and as the money was paid for the express purpose of such reimbursement, and so credited by the master at the time, as appears by his own account and receipt, he cannot now be permitted to say that it was a payment on account of his own wages, and thus revive a credit against the owners for these advances: on this point the evidence is conclusive. Nor is it less so that the sums paid by the libel-lant to two of the mariners, who sued him, and 'which constitutes another item of his demand, were also repaid by the owners previous to the commencement of this suit. The court is, therefore, relieved from the necessity of examining whether a vessel can in any case be libelled by the master for disbursements made by him while abroad; or for wages which he may have advanced the seamen. The naked question presented for its consideration, is whether a vessel can be proceeded against in the admiralty, for wages due to the master himself. It is not denied that in England this cannot be done; and that such has generally been regarded as tne law of this country — but it is supposed, that it has been thus settled by some mistake, in testing a master’s right to proceed against his vessel, by the rules which apply to him at common law, of which a party is deprived, as soon as he parts with the possession of the property — or by a series of improper encroachments by courts of common law, under a statute of Richard the Second, on the jurisdiction of the courts of admiralty. If this were really the origin of the rule, and the court were satisfied that it had proceeded from an incorrect course of reasoning, as applied to the case of liens, or from an unwarrantable issuing of prohibitions by common law courts, would it not be better for the legislature to apply a remedy to the evil, if it be one, than that a single judge should expunge from the commercial code of the United States, a principle which has been sanctioned by the practice of ages in Great Britain, and which has been regarded as the law of this country from its earliest settlement down to the present day? But it is not true that the courts of common law have proceeded on the sole ground, that because there was no possession in the master, there could be no lien — or seamen would not have been allowed to libel, which they rarely do until they have left the vessel. Nor could this reasoning have always applied to the master, who, to avoid
[1 Dong. 101.]