16 F. Cas. 1268 | D. Mass. | 1861
Two questions have been raised. 1st. Whether this service was in its character maritime; and 2d. Whether, if the libellants have a lien upon the vessel, it attaches also to the boiler, notwithstanding the claim of M’Kay and Alders.
As to the first, this steamer is about eighty tons burden, and duly enrolled as an American vessel, was built at Philadelphia, was subsequently found at Bucksport, Maine, and afterwards in Boston. Her employment, during the time which the libellants were on board, was that of a steam tug, towing vessels in and near the harbor of Boston; generally within, but sometimes going beyond, the light, upon the high seas. The whole employment was upon tide-waters. No part, not even loading or unloading of a cargo, was upon land. It certainly is not necessary that the service should have been upon the high seas, in order to be maritime. That idea is, indeed, thrown out in Thackarey v. The Farmer of Salem [Case No. 13.852], but the same judge decided in Smith v. The Pekin [Id. 13,090] that a voyage between two ports in the- Delaware river was maritime; and there are several similar decisions. It is urged that the libel-lants lived on shore, but prior to the 18th of October, Taylor, the mate, lived wholly on board of the vessel, and Douglas, the engineer, took his meals on board, but slept on shore, except when his services were required at night, which was not often. After the 18th of October, both lived on shore, except dining on board. If it were doubtful, from the other evidence, whether the employment of the libellants was on land, or on the sea, the circumstance of their living on shore might be material; but the other evidence is not equivocal, and the living on shore is by no means a decisive criterion. Pilotage, for example, is a maritime service, and yet the pilot not unfrequemtly lives on shore. He may pilot vessels only outward bound, going on board and returning the same day, eating and sleeping in his own house, and follow this employment from day to day. or only occasionally, and yet each act of pilotage would be a maritime service. Hobart v. Drogan, 10 Pet. [35 U. S.] 120.
Indeed, such is the rapidity with which passages are now made, that a steamer may run by daylight, on the high seas, from state to state, and yet the officers may sleep and take their meals on shore.
In Gurney v. Crockett [Case No. 5,874], Betts, J., decided that merely moving a vessel from one anchorage to another, in the harbor of New York, was a maritime service. The present case comes within the principles laid down in The Canton [Id. 2,388].
One of the libellants was the mate, and the other the engineer, of this steamer. Some question has been made, as to the latter’s having the lien of a seaman. But engineers are a» essential to the navigation of a steamer, as mariners who manage the sails are to the navigation of a sailing vessel; both control the motive power, and are equally entitled to the rights of a seaman.
I am of opinion, that both the libellants have a lien upon this vessel, for the amount of their wages.
Does this lien attach to the boiler, notwithstanding the claim of M’Kay and Alders? They were the makers of the boiler, and put it into this steamer, under an agreement with Dodge, her owner, that it should remain their property, until fully paid for, and that, if any instalment of the purchase-money should be overdue, they should have a right to remove it. It has not been paid for, and the instalments are overdue, and they now claim to remove it. As between them and Dodge, they have a right to do so; and it is contended that they have the same right against
This boiler was in the steamer, fastened in the usual manner, to her timbers, and united with-her machinery, and constituted the sole motive power, at the time these libellants entered upon their sendee. There is no color for saying, that they had any knowledge of the claim of M’Kay and Alders, prior to the 11th of November; and, even then, there was no notice by M’Kay and Alders, that they should hold the boiler, as against the seamen; nor is there any evidence of an agreement, either express or implied, by the libel-lants to waive their lien, or relieve the boiler therefrom; the most that can be said is, that they had information, which might put them upon inquiry, as to the agreement under which the boiler was put into the boat, by its makers. But, if they had made such inquiry, and had obtained actual knowledge of the agreement between M’Kay and Alders on the one part, and Dodge on the other, it would not have impaired their security. When the makers of the boiler put it into, and made it a pail of, this steamer, essential to her navigation, and left her under the exclusive control of her owner, they subjected that part of the steamer, in common with all other parts, to the lien of all seamen whom the owner might employ, in her navigation. If M’Kay and Alders had owned the whole vessel, and had made precisely the same agreement in regard to her, and let her go into the possession and control of Dodge, there is no doubt that seamen employed by him would have security upon the vessel. So, if they had owned an undivided portion. And it can make no difference, that the part of the vessel which they owned was physically separable; otherwise, the sails of a vessel might be withdrawn from a seaman’s lien, by .the sailmaker who furnished them; the rigging by the rigger; spars by the sparmaker; the rudder by the carpenter; and so of every separable portion, until nothing might be left for the security of the mariners but a condemned and worthless hulk; and, with equal reason, that also might be withdrawn by any person who had furnished it, upon condition of retaining the ownership, until paid for. Seamen are not bound to inquire into the ownership of a vessel, on board of which they serve; and if they know the general owners, in whole or in part, and know also, that those with whom they contract have only a special ownership and control for the time being, it does not impair their lien upon the whole vessel.
The mortgagees do not interpose any claim, as against these libellants. Decree for wages and costs.
