The Hattie M. Bain

20 F. 389 | S.D.N.Y. | 1884

Bin iwn, J.

This libel was filed by several persons claiming wages due t tem for stevedore work in unloading a cargo of logwood from the b ig Hattie M. Bain, in September, 1881. The head stevedore was c ne McAllister, by whom most of the libelants were originally empl< yed. In their behalf it is claimed, however, and the testimony show;, that a number of them, at least, being informed that McAllister was r ot to be trusted to pay them, went to the captain and told him that i ley could not trust McAllister, and would stop work unless the capta n would see them paid; and that the captain, being in baste for th a discharge of the cargo, promised that he would see that they were paid. The captain admits that on the last day he employed two o ' the men, but he denies that he employed or promised to pay any o ihers.

As respects those workmen to whom the captain’s promise, if any, was c ollateral only to the obligation of McAllister, and who did not work >n the faith of the captain’s promise, no recovery can be had; for it wat McAllister’s debt, and it is impossible, under the present known custo1 us, that workmen engaged by the head stevedore should not un-derst; nd that they must look to him for their pay. The old law of the C msulado expressly provided that where the workmen knew the work vas done by a contractor by the job the ship could not be seized. Vol. i, c. 54, § 83; The Mark Lane, 13 Fed. Rep. 800. But the Con-sulad > also declares that if the patron (captain) promise to pay the work] íen, and they work on the faith of it, though the work bo let out to a contractor by the job, that promise must be made good. Chapter 5, § 85. Where the original employment is by another, and the allege d promise by the master is disputed, no liability of the ship can be admitted, unless the court is clearly satisfied that the work itself was done on the faith of the master’s promise; a subsequent promise by the master to see the men paid is a mere collateral promise, and insufficient. In the present case, I think this is made out in regard to only five of the libelants, and I therefore allow as follows: Grant, $2.70; Boyle, $33.50; Kehoe, $11.50; John Hammill, $1.95; Thomas Hammill, $1.95; and I disallow the other claims.

The other defense is that no lien exists for stevedores’ services, on the ground that the service is not a maritime service. That was formerly the rule followed in this district. It is not to be denied that the supreme court has sanctioned a more enlarged view of what is comprehended under a maritime service than that which formerly prevailed in this country. In Ins. Co. v. Dunham, 11 Wall. 26, the court say:

“As to contracts it has been equally well settled that the English rule, which concedes jurisdiction, with a few exceptions, only to contracts made upon the sea, and to be executed thereon, (making locality the test,) is entirely inadmissible, and that the true criterion is the nature and subject-matter of the contract; as whether it was a maritime contract, having reference to maritime service or maritime transactions.”

The ship is bound to make proper stowage, and proper discharge of the cargo; for any breach of duty in either the ship is liable, and a maritime lien.arises, because the obligation is maritime. Suits for the enforcement of liens arising from the breach of these obligations are of frequent occurrence; and there is no dispute either as to the lien in such cases, or as to the maritime character of the ship’s obligation properly to stow and discharge cargo. But if the ship’s obligation is maritime, the service rendered to the ship in discharging that obligation must be maritime also. In the language of the supreme court, it “has reference” exclusively “to a maritime transaction.” Every service rendered to the ship in discharging her own maritime obligations must be held to be maritime, and, if the vessel is in a foreign port, will give a maritime lien for such service. The subject has been so fully discussed by Choate, J., in the case of The Windermere, 2 Fed. Rep. 722; by Benedict, J., in The Circassian, 1 Ben. 209, and The Kate Tremaine, 5 Ben. 60; by Lowell, J., in The G. T. Kemp, 2 Low. 482; and by Deady, J., in The Canada, 7 Fed. Rep. 119, — that I have nothing to add beyond what is there stated in support of a stevedore’s lien.

In the ease of The Thames, 10 Fed. Rep. 848, this court held that a shipping broker has no lien for services in procuring a charter-party, on the ground that this was clearly separable, as a preliminary service leading to a maritime contract, and was not of itself a maritime service. The services of such a broker are no part of the obligation of the ship to the goods, and therefore separated by a clear line of division ‘rom services like those of a stevedore, which are rendered in the discharge of a maritime obligation.

Enteri lining no doubt that stevedores’ services are maritime within the defin tion of the supreme court, tho lien to which they who render such ser ices are justly entitled, by tho general principles of the marine law, should no longer be denied them when the services are ronderec, as in this case, to' a foreign vessel. The libelants are, therefor;, entitled to a decree for the amounts above specified; but as tho c ise is the first in which this lien has been directly allowed in this disi rict, it will be without costs, except the clerk’s and marshal’s fees.