6 F. 630 | W.D. Pa. | 1881
The exceptant, B. H. Palmer, Jr., claims to be paid, out of the proceeds of the sale of the steam-ferryboat Shortcut, $288, “for his services as clerk,” from March 2 to June 23, 1880, and $204.88, the balance of his wages as master, from June 23 to October 6, 1880.
The evidence, however, shows that the exceptant was not a clerk of the boat in any proper 'sense of that, term. During the period covered by that part of his claim the boat was in course of construction. She was built for and owned by the Six-Mile Ferry Company, a corporation. The hull was built under contract by S. P. & I. N. Large for this company, and the company had the boat finished. The exceptant was “secretary and superintendent” of the corporation, appointed by the board of directors. He testifies that he “had charge of the building and fitting of the boat,” or, as he elsewhere
It is well settled that a master of a vessel has no lien against her for his wrages. Steam-boat, Orleans v. Phœbus, 11 Pot. 175; 1 Conck. Adm. 115. The exceptant, therefore, to sustain a lien for his wages as master of the Short Gut, must rely wholly upon the Pennsylvania act above cited. But the third section of that act prescribes that such lien claimant shall commence his suit within 60 days after his wrages shall have become due and owing; and the fourth section provides that any neglect or failure so to commence suit shall discharge the boat from the lion. Now the exceptant quit the Short Gut October 6, 1880; and his wages, it would seem, were then duo and owing. He did not, however, commence his suit within 60 days, nor until December 14, 1880, when he filed his intervening libel in this case. But I am of opinion that his lien was then gone, notwithstanding the original libel of D. K. Calhoun in this case was filed November 15, 1880. 1 do not see upon what principle the exceptant can avail himself of the original libel to avoid the consequence of his delay in suing. He was not a party to the original libel, and it was not filed or prosecuted for his benefit. ' At any time before his intervention the proceedings might have been discontinued without his consent. As the lien was wholly statutory, it must be governed, as respects its duration, by the limitation imposed by the statute.
But if the objection just discussed could be overcome, there is an equitable ground for disallowing the exceptant’s claim