« EelmineJätka »
that contract is not maritime, and hence not within the jurisdiction of this court. No amendment of the libel could, therefore, avail the libelants.
Though the libel, therefore, cannot be sustained, the libelants are entitled to the benefit of the stipulation, and of the money paid under it, as a tender and deposit in court. The
The Rossend Castle, 30 Fed. Rep. 462. The respondents are entitled to costs from the time of the stipulation and payment.
(District Court, D. South Carolina. January 12, 1893.)
Plaintiff was engineer on a steam dredge chartered for work on a gorernment contract. He was the highest officer on the dredge, and directed the firemen and any other hands aboard, but he had no authority to engage or dismiss hands or purchase supplies. His wages were paid at the office of the charterer in Charleston, and he received pay only for each day that the dredge was at work. Held, that he was not the "master" of
the dredge, within the rule denying to masters a maritime lien for wages. 2. SAME-LIEN FOR WAGES.
Plaintiff, as engineer, was entitled to a lien for wages, although the dredge was at work in the home port of the charterer. 3. SAME-ENGAGEMENT BY CHARTERER.
The fact that the plaintiff was aware of the charter at the time he was hired by the charterer did not deprive him of his lien. The International,
30 Fed. Rep. 375, followed. 4. SAME—Costs.
The fact that plaintiff left his employment without notice, and failed to fiufill an appointment to return to his duty, and that the libel was filed without notice, was sufficient reason for denying costs to him. In Admiralty. Libel by Joseph McNamara against the steam dredge Atlantic to recover for wages as engineer thereof. Decree for libelant.
Huger Sinkler, for libelant.
SIMONTON, District Judge. The libelant was engaged as en gineer on the steam dredge Atlantic, and files this libel in rem for his wages. The respondent admits the service, but denies the lien, on two grounds-First, because this is his home port; and, second, because the libelant was master of the dredge, and as such has no lien. The steam dredge was leased by Thomas Young for the purpose of completing a contract with the government. The dredge belongs to the port of Charleston. She was during a large part of the service of libelant engaged in dredging Brick Yard creek, a waterway connecting Coosaw river and Beaufort rirer, and afterwards in Wappoo cut, near Charleston. Libelant had been fireman on the dredge, and upon the removal of the engineer was appointed in his place. The wages were $3.50 a day for every day the dredge was at work. The dredge was under the direction and control of the re
spondent, who made the contracts for her, and gave instructions when she should work. He was not on her, but gave his directions by visiting her in person, or by sending his son-in-law to represent him. Libelant was the highest officer on the dredge, and directed the fireman and any other hands aboard. He had no authority to purchase supplies for her, or to engage or dismiss hands aboard of her. His wages were paid at the office of the respondent in Charleston, either to libelant or to his authorized agent.
It is a puzzling question whether libelant stood in the place of the master or not. He was einployed by respondent, looked to him for his wages, was paid by him, was under the control of no one but hiva; and in these respects came within many of the reasons given for refusing the master his lien. Drinkwater v. The Spartan, 1 Ware, 158; The Eolian, 1 Biss. 321. On the other hand, he had none of the responsibility or powers of a master, never had any independent authority, did not get continuous wages, but was paid only when his engine was at work. Upon the whole, I am of the opinion that he cannot be treated as a master of a vessel. He was master in no maritime sense. He was employed because he was an engineer, and his chief duties were to run the engine. For this reason bis pay ceased when his engine stopped. His position on this dredge was analogous to that of a sailing master on a yacht, and it has been held that he is not a master. The Carlotta, 30 Fed. Rep. :78.
The next question is, has he a lien as engineer? Dredges and Scows are subject to a maritime lien for services rendered. The Alabama, 19 Fed. Rep. 544. A barge without sails or rudder is subject to a lien for wages of men employed in her. Disbrow v. The Walsh Brothers, 36 Fed. Rep. 607. The engineer of a towboat has a lien. The May Queen, 1 Spr. 588. Persons employed on a steam fishing ressel only to catch fish have a lien for wages. The Minna, 11 Fed. Rep. 759. Does it affect the question that she was in her 'home port, and because he was employed by the lessee in person? The counsel for respondent contends that the lien does not exist in favor of the seaman at the home port. There is no authority for this proposition. "The lien of a seaman is a privileged hypothecation, jus in re, and continues until it is destroyed in some of the modes of dissolving an hypothecary interest known to the law. * * * It is his natural and best security, and that which seamen habitually look to; and, although they have a personal remedy against the owner and master, it is a case to which the rule applies ‘plus cautionis in re est quam in persona,' and which they ought not lightly to be presumed to have abandoned.” The Eastern Star, 1 Ware, 185. In the Sirocco, 7 Fed. Rep. 599, Judge Benedict says:
“The presumption of the maritime law is that services performed by a seaman on board a vessel are rendered upon the credit of the vessel, as well as that of the master and owners, and by that law seamen acquire a lieu for their services in all cases, unless it be made to appear that a waiver of the lien and an exclusive personal credit formed part of the contract.”
In this case the voyage was for fishing, and the crew shared in the result. This did not impair the lien. In Flaherty v. Doane, 1 Low.
148, seamen were held entitled to a lien on a vessel chartered for a fishing voyage, although they were hired with knowledge of the charter by the charterer, and although the ship was not responsible for supplies furnished her in the home port. A seaman had a lien for his wages though he served only in the home port, (Levering v. Bank, 1 Cranch, C. C. 152;) and, in another case, where he had never left port, (The Blohm, 1 Ben. 228.) The May Queen, supra, gave a lien to an engineer on a towboat whose only employment was towing vessels about a harbor. The Minna, supra, was a case in a home port, and so also, it would seem, was Disbrow v. The Walsh Brothers, supra. See, also, The Sarah Jane, 1 Low. 203. The lien of seamen and that of material men are wholly distinct. The former has for its sanction a principle of maritime law, existing from the earliest times. It owes its origin and its existence to law. The lien of material men is founded upon the necessity of the case. This necessity tunst exist before a master can bind his ship. It does not exist where the owner lives. See The International, 30 Fed. Rep. 376, and The L. L. Lamb, 31 Fed. Rep. 29. The rights of seamen are crystallized in rule 13 of the admiralty:
**In all suits for mariners' wages the libelant may proceed against the ship, freight, and master, or against the ship and freight, or against the owner or master in personam. It cannot be disputed that the libelant stands in this court as a seaman."
Any service is a maritime service if substantially to be performed on the water. within the ebb and flow of the tide. The D. C. Salisbury, Olcott, 73.
Another objection on the part of respondent to the claim of libelant is that lie left his service without any notice whatever to his employer, and after repeated appointments to return to his duty which he failed to fulfili, this keeping the dredge idle. It appears, however, that the dipper of the dredge was out of order, and had to be repaired, and that, as soon as it was ready, the respondent put the fireman in charge. It becomes unnecessary, therefore, to espress an opinion upon a claim thus set up, and whether it could be allowed as a counterclaim. It appears, however, that the libel was filed under these circumstances, and without notice. This will affect the costs.
The question whether the lien exists, although the libelant knew that respondent was only lessee of the dredge, has not been discussed, as it was not pressed in argument. The point is settled in The International, :30 l'ed. Rep. 375. Judge Brown, of the southern district of New York, in that case discusses the question, and sustains the lien of an engineer upon a chartered ship, although he was engaged with full knowledge of the charter party and by the charterer. Counsel, at the hearing, agreed that the unpaid wages were $116. Let a decree go for this sumn to libelant, but, for the reasons above intimated, without costs to him.
TRANSFER NO. 1.
FLOAT NO. 23.
DAVIS v. TRANSFER NO. 1 AND FLOAT NO. 23.
(District Court, S. D. New York, January 5, 1893.) SALVAGE-BREAKING SHAFT IN HELL GATE-PROBABILITY OF DAMAGE.
Where a tugboat broke her shaft in Hell Gate, and, signaling for assistance, was taken into quiet water by libelant's steamboat, the service lasting about 20 minutes, it was held that in the strong tide of Hell Gate the liability of the tug to go ashore, if unaided, was a certain danger, and that the service rendered was therefore a salvage service, for which $1,800, upon a value of $46,000, should be awarded. In Admiralty. Libel by Charles W. Davis against the steam tug Transfer No. 1 and Float No. 23 to recover salvage for assistance rendered to them by the Mary E. don. cree for libelanta
George A. Black, for libelant
BROWN, District Judge. In the afternoon of April 2, 1892, as the steam tug Transfer No. 1 was going through Hell Gate against the ebb tide, with a loaded car float lashed to her port side, she became disabled by the breaking of her shaft, when a little above the Astoria ferry, while going near the shore in the eddy, which there sets up towards Hallett's point. She signaled for assistance, and the libelant's small freight and passenger steamer Mary E. Gordon, which was a short distance below, and on one of her trips from New York to Mamaroneck, came up at once in response to the signals and throw lines to the tug and the float, and in about 20 minutes guided them into the still water below Flood rock between the two ebb currents, where the tug and float were taken in charge by a sister transfer of the claimants' line.
Though the service was short, it was, I think, of considerable im. portance. Had there been no danger either of stranding on Flood rock, or on Blackwell's island, or of collision with other approaching vessels, there was little reason for the signals given by the tug for a service
which, as must have been known, would be of a salvage character. Further accident and loss were not indeed certain; but as the result could not be foreseen under the peculiar circumstances of that daugerous vicinity, the liability and danger of loss were certain. I am persuaded that in the eddy testified to by the claim. ants, as well as by the libelant's witnesses, the tug and float must have reached very near, if not quite, to the upper end of the eddy very near Hallett's point, before they were worked out into the stream; and that they could not otherwise, considering the com. paratively weak power of the Gordon for towing purposes, and the strong ebb tide, have reached the point they did reach between the currents below Flood rock,
The value of the tug, float, and contents was about $46,000; but the loss which might be reasonably anticipated from stranding would not in any probability involve nearly so much. The value of the
Mary E. Gordon and her cargo was from $16,000 to $19,000. Her service made her late for the tide at Mamaroneck, and delayed her about eight or nine hours in reaching her dock; and the deviation increased her responsibilities by affecting her insurance. The service, however, was not one involving any great danger to herself, though she suffered some damage to her house.
Taking all the circumstances into account, I think that $1,800 will be a suitable award.
A decree may be entered accordingly, with costs.
THE SIRIUS. CEDROS ISLAND MIN. & MILL. CO. (LOWE et al., Interveners) y. THE
No. 10,292 1. BALVAGE-CONTRACT FOR TOWAGE-DURESS—AMOUNT OF COMPENSATION.
On a libel on contract for salvage services rendered by the steam schooner Tillamook to the steamer Sirius, the evidence showed that the Sirius, baving lost her propeller and part of ber shaft, was placed under such sail as she had, and, after drifting for three days, was anchored in a bay of an island off the coast of lower California; that she was in a dan. gerous position, as she could not get an offing with her small sail power, and in case of a southerly gale night go ashore; that the master of the Tillamook, which came to her assistance, proposed either to tow her to San Diego for $20,000, or to furnish stores and gratuitously take an officer to San Diego to prccure assistance; that the original purpose of the master of the Sirius was to send to San Diego for assistance; that he was positive his position was safe, and that he could get to sea before a southerly storm became dangerous; that he decided not to send an officer to San Diego, as he wished to avoid lengthening his voyage; that he claimed that $20,000 for the towage services was unreasonable and exorbitant, and proposed cither a reduction in the charge, or arbitration, or to leave the question to the owners to settle; that his propositions were reJected by the master of the Tillamook, whose vessel, with its small engines, might become disabled or too greatly strained by towing the Sirius, which was much larger; that 'the negotiations occupied an hour and a half; that the contract for the towage services at $20,000, contingent on success, was drawn by the purser of the Sirius, and subsequently signed by her master; and that the Tillamook was valued at $32,000, and the salved property at $143,539. Held, that the situation of the master of the Sirius did not force him into the agreement, and the contract was not made under duress; and that the compensation provided for the service, though high, was not so unreasonable in amount as to justify the court in setting the contract aside as wholly inequitable and unjust. The Wellington, 48 Fed. Rep.
478, and The Agnes I. Grace, 51 Fed. Rep. 958, 2 C. O. A. 581, followed. & SAME-APPORTIONMENT.
The award of $20,000 under the contract was distributed among the salvors by the court as follows: $13,250 to the charterers of the Tillamook, which was the principal factor in performing the salvage services, and assumed the risk of failure and disaster; $2,500 to the master of the Tillamook, who promptly procured addiricnal stores for the Sirius, offered to go to San Diego at once for assistance, and undertook the towage sery. ice against the protest of two of his passengers; and $4,250 to the other officers and crew of the vessel, according to their relations to the service performed, their extra work, and their regular wages.