27 F.2d 886 | D. Or. | 1928
This is a libel filed against a ship. It seems from the testimony that in January, 1928, the West-moor, a British vessel, came into this port. She had aboard, among her stores, a quantity of intoxicating liquor, all of which were put under seal by the government authorities, except a certain quantity which was released to' the captain for medicinal purposes. Soon after the vessel was docked, Mason, the deceased, who was an acquaintance of the captain, went aboard to visit with the captain, and perhaps to partake of his hospitality. The captain thereupon, in violation of his instructions, the instructions of his owner, and in violation of his permit, produced some of this liquor, and Mason drank it to excess, and became intoxicated, and while attempting to go from one part of the vessel to another fell down a stairway and received the injury from which he subsequently died. His administratrix brings this libel against the vessel to recover damages for his death, on the theory that the act of the master in plying him with liquor was unlawful, in violation of law, and that the vessel is responsible for the consequences thereof.
Reliance is had by the plaintiff on the Oregon statutes, and a somewhat similar provision in the Federal Prohibition Act (27 USCA), which gives-a right of action to any person injured in his person, property, or means of livelihood by any intoxicated person, against the person unlawfully supplying and furnishing him with liquor. But, assuming, without deciding, that the master in this case violated the law and is liable personally to the plaintiff, the question still remains as to whether that liability constitutes a maritime lien and attaches to the boat.
Now a maritime lien is a privileged claim in a vessel in respect to some service rendered to it in the nature to facilitate its use in navigation, or an injury caused by the vessel in navigable waters, to be carried into effect by legal process in the admiralty court. The vessel must therefore be in substance either the contracting or offending thing; to sustain such a lien, there must be, either in fact or by presumption of law, a credit to the vessel. Such a lien is a secret one, operates to the prejudice of the general creditors and the purchasers' in good faith, and therefore will not be extended by implication, analogy, or construction. The statutes on which this action is based do not attempt to create a lien upon a vessel or building or place where intoxicating liquors are unlawfully sold or dispensed, and therefore I take it that under the maritime law the vessel is not responsible for the unlawful act of the master, if it was unlawful, in furnishing liquor to Mr. Mason, whatever his personal liability may be.
Some claim was made that the case came under the Oregon Boat Lien Law (Or. L. 1920, §§ 10281-10310), but that law provides that the vessel shall be libeled for damages or injury done to a person or property by the vessel, and it has been held by the Supreme Court, in, construing a similar statute, that it must be an injury caused by the vessel, and not damage done on board. So that I take it, under this record, that the plaintiff is not entitled to a lien upon the vessel for the alleged wrongful act of its master.
