21 F. 426 | S.D. Ga. | 1884
This is a libel for seaman’s wages, the libelant having been engineer on the steam-boat Pioneer. It is not denied that the amount sued for is due, but it appears that (1) the libelant had commenced an action against the owner of the boat under the lien law of the state, but subsequently came before the commissioner in a petition for seaman’s wages, and upon obtaining a certificate of probable cause for action had dismissed the former suit at his costs; and (2)' that the vessel upon which the services were rendered was a small steam-yacht or launch of less than five tons measurement, and neither enrolled nor licensed; both of which grounds are urged to defeat the jurisdiction of this court.
It is claimed that, having elected his forum, the libelant is estopped from abandoning it and bringing suit in another, and The Highlander, 1 Spr. 510, is relied upon. The decision there is that “a seaman’s lien for wages is not defeated by a previous attachment of the vessel at common law in a state court, abandoned before the filing of the libel. ” Certainly that in no way declares that it would have been lost had not such suit been abandoned before the filing of the libel, but had been before the hearing of the case. The court was then only considering tho case .before it, and its decision cannot go beyond the state of facts therein existing. In this case the former suit was against the owner, and not in rem, nor was the property, at the filing of the libel, under attachment from another tribunal, which would prevent the valid execution of one under this. The suit in the state court had been dismissed at plaintiff’s costs before this case came on to. be heard. In the state court tlie seaman’s lien is not the prior lien, without exception, as in the case of seamen’s wages in admiralty. The matter has not been adjudicated, nor is there any other action now pending; and that is all that is necessary for this court to consider, if it has jurisdiction otherwise. This was a contract for services to be performed by assisting in the navigation and working of a boat or vessel on navigable waters by a person who appears in the case to he a marine engineer, and if the court has no jurisdiction it must be from facts sufficient to establish an exception to ine general rule.
In regard to the size and character of the boat, and character of the services rendered by libelant, The Bolivar, Olcott, 474, and The Farmer, Gilpin, 524, have been cited and relied upon. In The Bolivar, the principal ground for dismissing the libel was that the lien had been lost by unreasonable delay until it became stale, and the character of the vessel, and the relations existing between tho owner and libelant, were but incidentally mentioned, and not as controlling or determining the action of the court. In The Farmer, the small craft was engaged in carrying wood across the Delaware river to Philadtdphia, from a place nearly opposite, and tiie opinion of the learned judge shows that he considered the objection to the jurisdiction on account of the general business and occupation of the libel-ants as laborers, they being engaged in navigating the boat but about eight hours a week, and because applications from the samt
Let the decree follow for the amount proven,—$129.67,—with costs.