277 F. 391 | 2d Cir. | 1921
This is a suit in admii-alty, in which the libelant has filed his libel against the steamship Kalfarli to recover the sum of $3,626, which he alleges is the reasonable value of work, labor, and services which were necessary for equipping the vessel, and which he avers that he performed at the special instance and request of the master and owner of the vessel, between- December 26, 1917, and January 5, 1918.
The answer denies the allegations of the libel, except the nonpayment of the amount demanded and the jurisdiction of the court, and alleges that the work was performed pursuant to a contract made between the respondent, as master of the vessel, and one Andrew Olsen, and that the' contract was solicited by the libelant for and on behalf of Olsen, and further alleges that the reasonable value of the work, labor, and services rendered was but a fraction of the sum alleged in the libel.
Testimony for the libelant was taken in opeñ court, and testimony for the claimant was taken out of court; the last of such testimony having been taken on November 8, 1918. The District Judge rendered an opinion on February 3, 1920. He found in favor of the libelant, but directed that the case be sent to a commissioner, “if further hearing .is desired as to the amount.” 'On February 18, 1920, an interlocutory decree and order of reference was filed and entered, and on April 20, 1920, the commissioner began to take testimony, and continued thereafter to do so from time to time until May 28, 1920, when it was declared that the testimony was closed.
On August 16, 1920, the commissioner filed his report. He reported in favor of the libelant in the sum of $2,160.05, having disallowed a number of items in his claim. The amount allowed, with interest thereon from January 5, 1918, which amounted to $334.30, made in all the
“There may have been some lack of understanding on the part of the master of the ship as to the capacity in which Andersen was undertaking to do the work, and perhaps Olsen was rightfully displeased with Andersen for obtaining work from his old customers, without making plain to them the change in relation and that the work would not bo done by Olsen’s men or at his shop. But neither of these propositions is a defense to an action for work actually performed by Anderson as principal, on the orders of the master, even though the master mistakenly closed his eyes, disregarded the statements and facts, and thought he was an agent.
“The claimant invokes the rule that the libelant must have clean hands and be guilty of no deception before he may come into equity for relief. But the present action is not in equity, but at law. Unless there was an absolute absence of contract, or of consent and acquiescence in the performance of the work on the ship, the ground of objection on the part of the third party as to business methods used in obtaining the work is not a defense to a charge for the work done. Even in equity the relation of third parties would not affect t.he equities between the libelant and the claimant, in an action on a lien for work and materials. The testimony produced upon the trial seemed to show in general that the work was well performed and that the amount of the bill, while large, duo to increased wages and other causes, was not exorbitant or incorrect.”
- The statement that “the present action is not in equity, but at law,” must have been made inadvertently. The District Judge very well knew that the suit was neither at law nor in equity, but in admiralty, and an admiralty court administers maritime law by a procedure peculiar to itself and different from that followed by either courts of common law or of equity. The admiralty courts owe their origin largely to the civil law, and the process and methods of procedure in such courts, as was pointed out in Richmond v. New Bedford Copper Co., 2 Lowell, 315, Fed. Cas. No. 11,800, are even more free from technical rules than is the case with the equity courts.
But before entering upon a particular consideration of the claims made by this libelant, and the character of those claims and the evidence in this- record concerning them, it seems desirable, for reasons which will more fully appear in a later portion of this opinion, that we should call attention to certain fundamental propositions which underlie the jurisdiction and powers of this court respecting the questions which arise in connection with the libel now before us.
We may observe that one who makes repairs or furnishes supplies to a vessel may have an action in personam to recover therefor, or he may have a right in rem against the ship, which enables him to cause the ship to be sold so that he may be repaid out of the proceeds. Under the maritime law, when unchanged by statute, his right to a lien against the ship depended upon the character of the ship. Thus in The General Smith, 4 Wheat. 438, 4 L. Ed. 609, decided by the Supreme Court in 1819, in an opinion written by Justice Story, it was decided
Congress, however, by the Act of June 23, 1910, 36 Stat. p. 604, c. 373 (Comp. St. §§ 7783-7787), enacted that any person furnishing repairs, supplies, or other necessaries to a vessel whether foreign or domestic, upon the order of the owner or owners of such vessel, or of a person by him or them authorized, shall have a maritime lien on the vessel which may be enforced by a proceeding in rem, and' section 2 provides:
“That the following persons shall he presumed to have authority from the owner or owners to procure 'repairs, supplies, and other necessaries for the vessel: The managing owner, ship’s husband, master, or any person to whom the management of the vessel at the port of supply is intrusted.”
“It is bound, by its nature and constitution, to determine the cases submitted to its cognizance upon equitable principles, and according to the rules of natural justice. It cannot, in a technical sense, be called a court of equity. It is rather a court of justice.”
In Brown v. Lull, 2 Sumn. 443, 4 Fed. Cas. 407, No. 2,018, Mr. justice Story said:
“Courts of admiralty are not, by their constitution and jurisdiction, confined to the mere dry and positive rules of the common law. But they act upon the enlarged and liberal jurisprudence of courts of equity, and, in short, so far as their powers extend, they act as courts of equity.”
In The Kate, 164 U. S. 458, 469, 17 Sup. Ct. 135, 41 L. Ed. 512, the court declared that “good faith is undoubtedly required of a party seeking to enforce a lien against a vessel” for repairs or supplies furnished" at the master’s request, and it was said:
“Courts of admiralty will not recognize and enforce a lien upon a vessel when the transaction upon which the claim rests originated in the fraud of the master upon the owner, or in some breach of the master’s duty#to the owner, of which the libelant had knowledge, or in respect of which he closed his eyes, without inquiry as to the facts.”
Mr. Justice Story, in The Virgin, 8 Pet. 538, 549 (8 L. Ed. 1036), speaking-of the considerations which control courts sitting in admiralty, says:
•‘Such courts in the exercise of their jurisdiction are not governed by the strict rules of the common law, but act upon enlarged principles of equity.”
In Kellum v. Emerson, 2 Curt. 79, 14 Fed. Cas. 263, No. 7,669, Mr. Justice Curtis said:
“It is often said lhat a court of admiralty is a court of equity, acting on maritime affairs. This is true when properly understood. A court of admiralty applies the principles of equity to the subjects within its jurisdiction.”
In The Julianna, 2 Dods. Ad. 503, 521, it is said:
“A court of law works its way to short issues, and confines its views to them. A court of equity takes a more comprehensive view, and looks to every connected circumstance that ought to influence its determination upon the real justice of the case. This court certainly does not claim the character of a court of general equity, but it is bound, by its commission and constitution, to determine the cases submitted to its cognizance upon equitable principles, and aecording to the rules of natural justice.”
It Is said in The Harriett, 1 W. Rob. Ad. 183, 192, by Lushington, Judge of the High Court of Admiralty:
“If a court of equity would relieve, and a court of law could not, I consider that it would be my duty to afford that relief under the circumstances of the present ease. The jurisdiction which I exercise is an equitable as well as a legal jurisdiction, and I must relieve the parties in this suit, if they are entitled to be relieved in law or in equity. It is therefore unnecessary for me to enter into a distinction whether the relief is at law or in equity.”
When it is said that a court of admiralty proceeds according to principles of equity, it is necessary to understand exactly what is meant-
In Pope v. Nickerson, 3 Story, 486, Fed. Cas. No. 11,274; it was said that a Court of admiralty, in cases within its jurisdiction, acts as a court of equity, and construes instruments as a court of equity does, with a large and liberal indulgence. And in O’Brien v. Miller, 168 U. S. 287, 18 Sup. Ct. 140, 42 L. Ed. 469, Mr. Justice White (Chief Justice White) speaking of bottomry bonds, said:
“In the exercise of their jurisdiction with respect to such bonds, courts of admiralty are not governed by the strict rules of the common law, but act upon enlarged principles of equity.”
In Toledo S. S. Co. v. Zenith Transp. Co., 184 Fed. 391, 399, 106 C. C. A. 501, 509, the Circuit Court of Appeals for- the Sixth Circuit, speaking of a revocation of an agreement of submission to arbitration and the attitude of courts of law and of equity respecting it, said:
“But this suit is in admiralty, a branch of the law not hampered by the rigid rules of the common law, and which deals with causes upon considerations even more elastic than pertain to the broad jurisdiction of courts of chancery.”
In Hansen v. Barnard (C. C. A.) 270 Fed. 163, the master of a ship sought to recover compensation for his services. It appeared that he had rendered fraudulent accounts to the owner. We dismissed the suit in that case. But our decision in it went upon the theory that an agent forfeits his right to compensation, if he is guilty of fraud on his principal in the transaction of the agency. We did not find it necessary to consider, under the circumstances existing in that case, whether a court of admiralty would deny .relief to one guilty of fraud and stánding in no fiduciary relation.
There seems no analogy between the misconduct of a seaman, which leads a court of admiralty to deny the seaman a lien on the ship for his wages, and the misconduct of one who, like the libelant, furnishes labor, or supplies to the ship, but is guilty of misconduct respecting the transaction. In the case of the seaman, his misconduct under the maritime law extinguishes his right to recover wages, and he can no. more proceed in personam that he can in rem. In denying him his lien, therefore, the court is not proceeding upon equitable principles and
What was said by the Supreme Court in The Lulu, 10 Wall. 192, 19 L. Ed. 906, as to the necessity of good faith, must be considered in the light of the circumstances of that case. The court certainly did not intend to lay down the broad proposition that a court of admiralty, like a court of equity, would deny relief in all cases to one guilty of bad faith. The Lulu was a New York vessel, and the repairs on her were made in Baltimore, and prior to the Act of June 23, 1910, to which reference has already been made. Under the law as it then existed, the right of a materialman to a lien on a foreign vessel depended upon whether or not he had knowledge or reasonable means of knowledge that the master had available funds or sources of credit, or that the vessel owner had made independent arrangements to supply necessary funds for the vessel’s purposes. If he had such knowledge, he acquired no lien. If he had the actual or constructive knowledge above referred to, the implied lien did not arise. What was said as to good faith is to be understood as relating to the circumstances referred to.
That the libelant actually performed work for the ship and furnished her with certain materials cannot be denied. For such work and for such supplies the maritime law gives a lien. We do not think that a court of admiralty- can deprive him of that right on the ground that he claimed fraudulently to have done more work than he did, or charged fraudulently for the labor or supplies he in fact furnished.
We are not unmindful of the cases which assert that the decision of a trial court in admiralty upon a question of fact, based upon conflicting testimony or the credibility of witnesses .examined before the judge, is entitled to great respect, and will not be lightly reversed on appeal, unless there is a decided preponderance of evidence against it, or a mistake is clearly shown. The Ludvig Holberg, 157 U. S. 60, 15 Sup. Ct. 477, 39 L. Ed. 620; The Lady Pike, 21 Wall. 1, 22 L. Ed. 499; Walsh v. Rogers, 13 How. 283, 14 L. Ed. 147; The City of New York, 54 Fed. 181, 4 C. C. A. 268; The Jersey City, 51 Fed. 527, 2 C. C. A. 365; The Buffalo, 55 Fed. 1019, 5 C. C. A. 388. And if testimony has been taken before a commissioner, and not before, the judge below, and it is all before the appellate court, the decision of a trial judge on questions of fact is not entitled to the same controlling weight as where he saw and heard the witnesses testify. The Sappho, 94 Fed. 545, 36 C. C. A. 395; The Joseph B. Thomas, 86 Fed. 658, 30 C. C. A. 333, 46 L. R. A. 58; The Glendale, 81 Fed. 633; The Cayuga, 59 Fed. 483, 8 C. C. A. 188.
The appellate court is not, however, concluded by the fact that the witnesses were seen and heard by the District Judge. In The Ariadne, 13 Wall. 475, 20 L. Ed. 542, the Supreme Court used the following language:
“We are not unmindful that both the Circuit and District Court came to a conclusion different from ours as to the alleged fault of the steamer. Their judgments' aré entitled to, and have received, our most respectful consideration. Their concurrence raises a presumption, prima facie, that they are correct. Mere doubts should not be permitted to disturb them. But the presumption referred to may be rebutted. The right of appeal to this court is a substantial right, and not a shadow. It involves examination, thought, and judgment. Where our convictions are clear, and differ from those of the learned judges below, we may not abdicate the performance of the duty which the law imposes upon us by declining to give our own judicial effect.”
In The Columbian, 100 Fed. 991, 41 C. C. A. 150, which was a case in the Circuit Court of Appeals for the First Circuit,. counsel urged that,.as the question was one of weighing conflicting evidence, the finding of the court below should be accepted as unassailable. The court, speaking through -Judge Putnam, said, in the opinion which it rendered, that the practice in that circuit had been “to secure what the statute establishing this court intended to secure, not only a prompt hearing but a retrial of the case in' accordance with the convictions formed from the record by the judges sitting on appeal.”
This court in The Gypsum Prince, 67 Fed. 612, 14 C. C. A. 573—a case heard before Judges Wallace, Lacombe, and Shipman—considered it proper to disregard a finding of fact by the district judge under the circumstances 'there stated. The court, in a case heard before the same judges, in The Albany, 81. Fed. 966, 27 C. C. A. 28, declared
In Hughes, Admiralty Law (2d Ed.) § 203, the authority states that the intent of Congress to give an appeal on questions both of law and fact is clear, but that appellate courts have gone very far in practically refusing to review questions of fact where the District Judge has had the witnesses before him. He declares that this doctrine is largely an abdication of the trust confided in the courts of appeal, and for an admiralty court, smacks too much of the old common-law fiction as to the sacredness of a jury’s verdict. He adds that this theory about the trial judge being endowed with clairvoyance because he saw the witnesses has degenerated into a mere makeweight for that filius nullius, the per curiam opinion. He then says:
“If the trial judge could decide cases at their close, as juries render verdicts, there would be more force in the idea. But in districts of crowded dockets, where numerous cases, each with numerous witnesses, are tried in rapid succession, and then taken under advisement for months, nothing short of a moving picture screen, with a photographic-phonographic attachment, could bring it back to the judicial mind. To give this amiable fiction the scope which it has often been given is in effect to deny an appeal on questions of fact, which the statutes are supposed to give. That seeing the witnesses is an advantage cannot be denied; but its importance has been grossly exaggerated. Surely the combined intelligence of the three appellate judges as against the one trial judge ought to overbalance it.”
In the case now under consideration, the judge did not see and hear all the witnesses. He saw and heard only the libelant, his wife, and two other witnesses and their testimony constituted relatively a small part of the testimony in the record. Under the circumstances, we do not feel ourselves concluded by the findings, and we shall examine the testimony and reach our own conclusions. See La Bourgogne, 210 U. S. 95, 114, 28 Sup. Ct. 664, 52 L. Ed. 973; The Wildcroft, 201 U. S. 378, 387, 26 Sup. Ct. 467, 50 L. Ed. 794; The Carib Prince, 170 U. S. 655, 658, 18 Sup. Ct. 753, 42 L. Ed. 1181.
We come, now, to consider the facts of this case and the action of the court below. The question litigated on the trial was whether the master of the ship employed the libelant to do certain work on the ship as principal or as the representative or solicitor of one Olsen, who did an extensive business in repairing ships at Brooklyn; it being admitted that the libelant had been the solicitor for O'lsen for some time, and that the master knew him because of that employment. The judge held that this was no defense to the action, and that the amount of the bills was “not exorbitant or incorrect,” and directed that an interlocutory decree be entered and sent the case to a commissioner. Thereafter testimony was taken before the commissioner, who made a report that libelant was entitled to recover for the number of hours charged, viz. 3,460 hours, but at 45 cents per hour, instead of 80 cents; he also allowed for some of the supplies for which libelant charged; he also allowed the charges for 60'hours for one man in one night on the winches, and for 60 hours for each of five men in one night pn the engine, but at 45 cents per hour, instead of 80 cents per hour; he also
The libelant, in his statement of charges, as heretofore stated, gave the total number of hours of work, labor, and services performed as 3,460, for which he charged at the rate of 80 cents an hour. The commissioner found that this was excessive, and that 45 cents an hour should be allowed. The claimant called a disinterested witness, who at the time the libelant performed the work was a superintendent of shipyard and repair work and had been such for seven years prior to the time when this work was done. The following is an excerpt from his testimony:
“Q. Do you recall the prevailing rate of wages paid to boiler scalers in December, 1917, and January, 1918? A. At that time I was employed by James Shewan & Sons oyer there, and he paid, in 3917, 34 cents an hour for boiler scalers and tank scalers.”
The claimant also called a boiler foreman at Olsen’s, where the libel-ant had been employed prior to his discharge, previously referred to. He testified that at the time when this work was done boiler scalers were paid at Olsen’s yard $2.75 a day, and that foreman received $3.50. He also called a consulting engineer, by whom scaling bills had to be approved before they were paid, and who testified that scalers were paid $2.75 a day. He put on the stand, too, one of libelant’s own workmen, who was engaged on the work for which libelant seeks to recover. He testified that when he began the work the libelant paid him $3 a day, but before the work was concluded he was paid $3.50 a day, and that that was the highest amount he received. It thus appears that libelant was charging nearly twice what he was entitled in good faith to charge for wages paid, even assuming his statement as to the number of hours was correct.
We have examined the reductions with care, and the fault we find is not that they were made, but that they were insufficiently made. The commissioner allowed pay at the rate of $4.50 a day of 10 hours, or 45 cents an hour. This was based on an allowance of $3.50 to each man and an overhead charge of $1 a day for each. The evidence al
The commissioner did not reduce the number of hours the libelant claims his men worked. We believe that the statement is inaccurate and more or less inflated. An illustration of its inaccuracy is afforded by the fact that the libelant charges for the time of 12 men working 10 hours each on December 26th.. We are satisfied that the work did not begin until December 27th, as the engineers in charge of the Kalfarli testify, and as the vouchers for the wire and zinc brushes which the men used show. This error alone involves 120 hours.
The total number of hours of work is determined by ascertaining the number of men employed and the number of hours each man worked. The testimony as to the number of men who were employed on the job is very contradictory. The libelant’s attempt to support his claim as to the number of hours the men worked by the testimony of his foreman does not help his case. How satisfactory and reliable that testimony was may be judged by the following excerpt from his testimony:
“Q. It appears liere that on Thursday, the 27th, and Friday, the 28th, you worked 46 hours on each day? A. Yes.
“Q. Does that mean that you went on board the ship Thursday morning at 7:30 and worked through until 7:30 Friday morning without a rest? A. Yes.
“Q. Without any sleep? A. Yes.
“Q. You worked through 48 hours, right from 7 o’clock on Thursday morning till 7 o’clock on Friday morning; then on Saturday you worked 10 hours more? A. Yes.
“Q. So that you worked 58 hours consecutively without sleep? A. Yes.
“Q. You didn’t sleep a wink during that time? A. No—that is up to me.
“Q. Mr. Lundstrom, you are under oath; you are swearing to this, now? A. I know it; but, when you ask me such a question, I must answer that way. You know a man working like that will take any chance he can, without asking or telling anybody.
“Q. As a matter of fact, you did not work through from Thursday morning at 7 o’clock until Saturday night at 4 o’clock without taking any rest? A. I did not.
“Q. It would be impossible for you to do that, wouldn’t it? A. Yes.
“Q. And the same thing applies to these other men; is that not so? A. Yes.
“Q. That whenever they got a chance to take a nap they took a nap? A. If I was working, and the chief engineer came along and said to me, ‘Mr. Lundstrom, go into my room and take a nap,’ am I supposed to tell anybody that and cut it out of my pay? No.”
The libelant claimed that on a certain day each of his men had worked and was paid for 46 hours. Asked to explain he did as follows :
“Q. How many hours? A. 10 hours. They only work 8 hours; from 4 to & in the afternoon is 4 hours again, which makes 10 hours for the men. And from 8 to 12 is another 4 hours, which makes another 10 hours, there is 30, and from 12 to 4 o’clock in the morning is 4 hours, and that makes 40 hours; and from 4 to 7 o’clock in the morning is 3 hours, double time, 6 hours, makes 46 hours. That is what I had to agree with the men to get them to work, ana what I had to pay for it.”
On New Year’s Day he claimed each man worked 56 hours. This is an excerpt from his testimony in reply to an inquiry as to how he figured it:
*403 "A. We worked from the 31st and the night of the day before.
“The Court: They had been at work all day on the 31st, and up to midnight—
“The Witness: And to the New Year’s Eve.
“The Court: Start at 12 o’clock and then to 4. How many hours?
“The Witness: From midnight that would be 30 hours, to 4’oclock is 40 hours, and from 4 to 8, that is 50—well, my foreman can explain it; he did not get paid for nor more than 50 hours.
“Q. In other words, you cannot tel] how a man can work 56 hours? A. He has paid for 56 hours.
“Q. I am asking you how these men could work for 56 hours during a 24-hour period on New Year’s day? A. That is the time I took off the foreman-—
“Q. You do' not know? A. I would not say that for sure, because I don’t know. 1 know we were paying it.”
The claimant was under the impression that, in estimating the total number of hours charged for, the libelant had included the hours his men had worked on the boat in doing certain work under a special contract for which a separate charge had been made. The foreman was asked as to this, and the following is an excerpt from his testimony:
“Q. Ho you think it would be proper for Mr. Andersen to charge 80 cents per hour for doing that work, and still charge for those men’s time for just the general work? A. That is np to him.
“Q. That would be doubling np, wouldn’t it? A. No.
“Q. Why wouldn't it, if a charge was made for 16 men doing a special contract during December 26 and December 27, and then in addition a charge was made for their time in those 3,460 hours, which you say were actually put in on the job, wouldn’t that be doubling np on the job?
“Mr. Cuff: I object to that as being argumentative.
“A. That is between the boss and the chief engineer.”
The commissioner has allowed for sweeping down the smokestacks, which in our opinion the libelant’s men did not do. The item rests upon the testimony of libelant’s foreman, above referred to, and which was accepted by the commissioner-, but which we believe was utterly untrustworthy. The two' engineers on the vessel testified in the most positive terms that it had not been done. The following is an excerpt from the testimony of one of them:
“Q. Do you know whether the smokestack was swept down? A. It was not.
“Q. It was not done? A. No.
“Q. Did you have a fire all the time you were in port? A. Yes; in one of the main boilers.
“Q. All the time? A. Yes; all the time.
“Q. Was it possible to sweep the smokestack down when there was a fire? A. No.
“Q. It could not be done? A. No.”
And the following excerpt is from the testimony of the other:
“Q. Did you clean the smokestack? A. No.
“Q. Did you have a fire in the boiler all the time you were in New York? A. Yes~; all the time.
“Q. Could they sweep the smokestack when there was a fire in the boiler? A. No.”
The foreman’s testimony was that they went inside the smokestack, and cleaned it, but that the steam was on, but low down, and the fire' was banked. But the testimony is that the vessel was an oil burner,
“Q. What kind of a vessel was the Kalfarli? Was she a coal or oil burner? A. Oil burner.
“Q. Is it possible to bank the fires in an oil burner? A. No.”
The boilers must have had considerable steam, on as they operated the winches, and it is inconceivable that workmen would go down inside the stack of a steamer to sweep it out when the fires were going, and had been going all day to make steam for the winches.
Included in the charges for which the libelant seeks payment are two items, aggregating $84.55, for the use of launches in transporting his men to and from the ship while she was lying in the stream and before she was brought to the pier, between December 26th and January 5th. The commissioner cut this item down to $6. He was asked on cross-examination how many days the boat lay at the pier, and how many days out in the stream, but was unable to say, although he admitted she came'up to the pier on December 26th, and we have stated our opinion that the work on her did not commence until December 27th. The claimant put on the stand one of the men employed on the work. As he testified that he worked on the boat 8 or 10 days, he must have been on the boat during almost the entire time, if not the whole of the time, the libelant’s work upon her was under way, as that work commenced on December 27th and ended on January 5th. He stated that, when he began his work, the vessel was at the pier, and that she remained there while he was at work on her, and that he never used a launch in order to get to the boat. We believe him to have been a disinterested and truthful witness.
We are satisfied that there are numerous other errors which we do not deem it necessary to point out in detail. As the libelant has rendered labor and services to the ship, it is clear that.the law gives him a lien on the ship, of which he cannot be deprived, even though the contract originated in deception, and the bill rendered is in some respects grossly inaccurate, and extortionate, if not actually in some respects fraudulent. We think, in view of all the circumstances, that justice will be done if a decree is entered in favor of the libelant in the amount of $1,700, without interest, and without costs in the District Court, and that he should be charged with the costs of this court.
As so modified, the decree is affirmed.
