The Samuel Little
206 F. 686
E.D.N.Y
1913
Check Treatment
CHATFIETD, District Judge.

The libelant Smith filed his claim for wages as engineer against the steamer Samuel Tittle, on January 30, 1913. On this claim an interlocutory decree was entered on February 21, 1913. One Taft and one John J. McCambridge were allowed by order of the court to file, on February 14, 1913, claims for wages as deckhands, as colibelauts in the Smith action. The vessel was sold on February 14, 1913, under a libel for repairs, filed by one Ward, and realized the sum of $670, which is not sufficient to pay all the filed claims.

[1] On March 11, 1913, William Horre & Co. petitioned the court to be allowed to open the interlocutory decree and to file an answer to the Smith libel. A libel had been filed by Horre on the 8th day of February, 1913, for supplies. The ground for the petition is the discovery since the decree of facts tending to show that the libelant Smith is the record holder of title to the vessel. This would invalidate any claim by him of a lien for wages.

The affidavits show that a second man, by the name of John J. McCambridge, was the real owner, and that this McCambridge arranged with Smith to take title in Smith’s name. Smith did this merely as an accommodation, and without consideration; but, having so done, he cannot claim a lien for wages as engineer. If he is the record owner, he could deduct his debt or collect the same before giving back his record title. If the value of the vessel be not sufficient to meet all claims, it must be held that he has trusted the individual, who has used him as a tool, and lost his rights in rem. This makes it impossible to grant to Smith a lien for his wages in advance of a lienholder for repairs.

[2] The only question is whether the libelant William Horre & Co. has been foreclosed from interposing an answer against the libelant in another action, by the advertising for claims and the entry of an interlocutory decree on default. Its libel was filed in time. Its proposed answer is not as to the merits of its own claim, but is rather to prevent priority or sharing in the proceeds by a colibelant, who now appears (before final decree) not to be entitled.

The court cannot see how this right has been cut off by anything which has occurred. The newly discovered evidence is sufficient ground to allow him to attack the Smith claim. . . .

The motion will be granted.