The Virginia Belle

204 F. 692 | E.D. Va. | 1913

WAD.D1LL, District Judge

(after stating the facts as above). The pleadings present for the consideration of the court the questions of (a) whether libelant has a maritime claim; (b) whether the sloop Virginia Belle is subject to the admiralty jurisdiction of the court; and (c) the effect of the hill of sale given for the sloop recorded prior to the filing of the libel. These questions will be considered in. the order named.

[ t ] First. The $50 claimed as an advance for supplies by the libel-ant to the vessel having been abandoned, the residue of the claim of $120 will only be considered. That was due libelant for services rendered respondent in connection with the conduct of his fishing business, and for work as engineer on the Virginia Belle, used in ¡the venture. The Virginia Belle was a gasoline motor boat, 38 feet long, under five tons burden, was not registered nor entered at the custom house, and used by the intervener, Rowe, for the purpose of fishing in the waters of Chesapeake Bay. She was three years old, said to be worth from $250 to $400, and cost, when new, the engine $450, and hull, etc., $200. The libelant was engaged as engineer of the boat, and assisted in fishing. The business was conducted from a place on the York river, in Gloucester county, known as Thoroughfare, at the mouth of Sarah’s creek, and the fishermen stayed on shore at night, where the seines and nets were reeled, going out some 10 or 12 miles to the bay in the early morning to fish, and returning at night. The fishing crew consisted of four persons, other than Mr. Rowe, the master, owner of the Virginia Belle, and who, with the libelant as engineer, navigated the sloop.

On first impressions, it would appear that the libelant might be termed a fisherman, rather than a seaman, and hence not entitled to proceed in admiralty as for a maritime claim. But the maritime law-treats persons engaged in fishing enterprises upon waters as seamen, and accords them the same rights, privileges, and remedies afforded seamen; and particularly is this true of one occupying the position of the libelant, namely, engineer of the boat used in the service. The Minna (D. C.) 11 Fed. 759, a derision of judge Brown, of the Fastern district of Michigan, afterwards Mr. Justice Brown, of the Supreme Court of the United States, is a case strikingly like the one under con-' sideration; the facts in that case being as follows: The libel was for services performed as a fisherman on board the Minna. The testimony showed the Minna was employed solely in fishing, running out from Alpena every morning 15 or 18 miles to the fishing grounds, throwing their nets, and making a lift or catch of fish, and returning the same evening to port, where the fish were discharged and prepared for market. The crew consisted simply of the master and engineer. The libelant took no part in the navigation of the vessel, but was employed solely as a fisherman. His contract required him to go out with the tug every day, to stay and lift the nets, clean fish, discharge the catch, and return the nets on shore. He also lodged ashore at night. Mr. Justice Brown, in deciding the case, said:

“At first blush I was inclined to the opinion that libelant’s services, not being maritime in their character, were not such as to create a lien upon the vessel. The earlier cases collated in 2 Parsons, Shipping, 185, indicate that mere landsmen have no lien, unless their labors contribute to the preservation or navigation of the ship, or to the sustenance or health of the crew. See, also, Gurney v. Crockett, Abb. Adm. 490, Fed. Cas. No. 5,874; Cox v. Murray, Abb. Adm. 340, Fed. Cas. No. 3,304. But, upon reflection, I am satisfied the sounder principle is that stated in Ben. Adm. § 241, and The Ocean Spray, 4 Sawy. 105, Fed. Cas. No. 10,412, viz., that all hands employed upon a vessel, except the master, are entitled to a lien if their services are in furtherance of the main object of the enterprise in which she is engaged.' Amy other rule would put large classes of persons employed upon steamboats outside the pale of admiralty law. * * * The test is whether the services are for the benefit of a vessel engaged in commerce and navigation. If there be a failure in either respect, viz., in the character or in the nature of the ship’s employment, there is no lien. I do not regard the 'fact that libel-ant slept upon shore at night, and there reeled out and mended the nets, as qualifying in any way the nature of his contract. These services were merely incidental and subsidiary to his main contract. The Canton, 1 Spr. 437, Fed. Cas. No. 2,388; The Mary, 1 Spr. 204, Fed. Cas. No. 9,190. Upon the facts, I think that libelant is entitled to recover.”

To this case, including those cited therein, and in the note at the foot of the decision, special reference is made as conclusive of the law of the present case. Indeed, if there was no decision other than that of Mr. Justice Brown, the same would be followed, as no higher authority can be found respecting maritime matters.

[2] Second. The claim that thé libeled vessel is not the subject of maritime jurisdiction is not well taken, as the size of the vessel, or whether it was actually entered in the custom house, does not determine this question.

[3] Third. The claim of the libelant being maritime in character, as established by the proof, and the vessel sold, as above stated, for the purpose of meeting the same, the bill of sale, made in payment of the debt due by Mr. Rowe, along with the other property, will not operate to relieve the vessel from its maritime' obligations, timely and appropriately asserted as in this case.

A decree will be entered in favor of the libelant for $120, the amount of his claim, together with his costs.