THE ST. LoUIS. HITCHCOCK v. THE ST. LoUIS. ST. loUIS, 1. M. &: S. Ry. CO.
D. Kentuc1cll. November 16, 1891.)
I.Suit'.llF.m.1nt» TO CLADl1l:XBMPTION.
, When, however, the seaman's admiralty proceeding was begun before a Unite4) Stalill commissioner prior to the judgment of the justice,and the railroad com, J>any,hsd Blltual notice thereof before th.at it was t:\1e latter's duty to call the Justice'll'sttention to that proceeding, arid beoaulle of ita failure to do 80 Ui will be. . cbareed' with the costs thereof.
In Admiralty. Libel by J. J. Hitchcock against the steamer St. Louis, owned by the St.-Louis, Iron Mountain & Southern Railway Company,: for wages. Decree for libelant for costs only. JamaCampbell, Jr., for libelant. Quigley. &- Quigley, for claimant.
BARR; J. This is a libel in rem, for the wages claimed by the ant, and the questions raised by the claimant, the St. Louis, Iron Mountain & Southern Railway Company, are: (1) Has a court of admiralty jurisdiction of the subject? (2) If it has jurisdiction, is not the ment of the wages due libelant by the claimant defendant, by and under an order of a state court under a proceeding of garnishment, a bar to a, recovery in this court? The steamer St. Louis is owned and used by the claimant defendant. for the purpose of transporting its trains across the Mississippi river. It is really a steam ferry-boat, with iron rails so adjusted as to permit. the trains of the defendant to be run over and upon it, and thus betransported across the Mississippi river by the steamer. This boat is registered, has a large tonnage, and has the capacity of transporting,
freight andpass!lngersother than those in or on a train of cars; butit is not thus used, nor was it &t the time the wages were filflrned by the Jibelwas ll-. part of the line 9f ant; The defendal}t insists that this its railroad, under section 5258 of the Revised Statlltes, and therefore not subject to the jurisdiction of an admiralty court. ;That seetion aU. thorizes."railroads to carry upon and Over its road, boats, ferries alLpassengers,'" etc., "mails, freights, and property, on, from any state to another state, au<l to connect with ,roads of otherjlta:tes, so as to form contim:\Ous liuesfor the transportation of the same .to place of destination." But we do not think it has any bearing uporithe question ofthejurisdiction of the courts of admiralty. It·was passed bycongressiunder the ,commercial clause of the constitution, l!-nd flutbonzes continuous lines of railroads from one state to another ,state, and thus secures interstate against obstacles, even if . by state action; and was !'lot intended to deprive of admiralty ,pf ariy jlirisdict\ou which they otherwise had. The jurisdiqtion is t() be consideredwitllQut regard to this section of. the '.J;.'heMississippi river, is within thejurisdiction of courts of admiralty; and as the St. Louis is a,latge boat,propelled by steam across that river from one state to another, it would Seem there can be no doubt this case is within admiralty jurisdiction. It may be, in cases like the one bar; there is no especial need for the lien of seamen for their wages, and that commerce between the states does not need the aid ofliens in favor of the crew Qfsteamers, running over ,or across the public navigable waters froin one state to another; but this need is not the test of the admiralty jurisdiction, or of maritir;ne liens. A recent a\lthor, Mr. Hen,ry, states the matter thus: ' "But later cases seemto extend the scope of admiralty jurisdicqonto all neclassos of vessels used in commerce or navigation, without regard to cessity for ,such liens arising in order to enable them to conduct the voyage; " Henry, Adm. p. 9 1 . " . ,. ,
It has been decided that the crew of an ordinary ferry-boat rqnning across a river, and within the same state, have a marithn!'lJien. Murray v. Ferry-Boat, 2 Fed. Rep. 86. See, also, The Cheeseman v, fwo FerryBoats, 2 :Bond, 363; The Gate City, 5 Biss. 200. In the case of The Votunteer,l Br-own, Adm. 159, it was held that an admiralty court hll,djurisdiction in a collision between two tug-bol1ts which were emplqYed in harbor service in the Same harbor, and within the body of the same county, but as links of transportation in interstate commeroe. 'he answer of the defendant sets out, the attachment of the wages C'humed by the libelant by process of garnishment, and a judgment thereon by J. P. POLLOCK, a justice of the peace in and for the state of Kentucky, and a subsequent payment thereof by the defendant. The sums thus paid are pleaded by defendant 8S a bar to any recovery by libelant in this suit, as they cover the whole alDount of his wages. It appears from the record of the proceedingsin the justice's court the libelant ,was before the court by actual servicfl of the sun1mons, but that J;leitherhe northedefendllnt set up the,cbaracterQf anp.
claimed an exemption fl"om the attachment because of the nature of the wages due. The libelant now insists that his wages are not subject to an attaqhment from a court of law, and that the justice of the was without jurisdiction to render the judgment he did, and his counsel calls the attention of the court to the 4536th section of the Revised Statutes. That declares that "no wages due or accruing to any seaman or appreriticeshall be subject to attachment or arrestment from any court; and every payment of wages to a seama.n or apprentice shall be valid in law, notwithstanding any previous sale or assignment of wages, or of any attachment, incumbrance, orarrestmebt thereon." This language is similar to that used in the English statutp.s of 17 & 18 Vict., and is taken from the act of congress passed June 7, 1872, which is entitled "An' act to authorize the appointment of shipping commissioners by the of the United States to superintend the shipping several and discijarging of seamen engaged in merchant ships belonging to the United States, and for the protection of seamen," and is placed in the Revised Statutes under the head of II Merchant Seamen." Many of the provisioris of the act of June 7, 1872, do not apply to vessels navigating the westemrivers; but section 61, which is the same as section 1536, Rev. St;,' is under the head of" Protection of Seamen;" and section 65 of said act provides "that, to avoid doubt in the construction of this act, any person having the command of any ship belonging to any citizen of the United States shall,within the meaning and for the purposes of this act, be deemed and taken to be 'masters of such ship,' and that every person (apprentices excepted) who shall be employed or engaged to serve in any capacity on board of the same shall be deemed and taken to be a 'seaman,' within the meaning and purposes of this act; and that the term 'ship'shall betaken and understood to comprehend every description of vesRel navigating on any sea or channel, lake or river, to which the provisions of 'this law may be applicable." This section is re-enacted in Rev. St. § 4612. The court in ROBBv. Bourne, 14 Fed. Rep. 859, in considering section ,61 of the act'of 1872, says: "This provision is general in its terms, and to,all wages earned by seamen, whatever the nature of the voyage." Iconolude the present ease is within its provisions, and that 'libelant's wages could not be attached by the process of garnishment issued from a common-law court. Whether these wages could have been thus subjected; I in the absence of a prohibitory statute, is a most interesting question, which has been most ably and learnedly discussed by Justice GRAY, then chief justice of Massachusetts supreme court, on the one side, and by Judge BENEDICT on the other. See Eddy v. O'Hara, 182 Mass. 56,and McCarty v. The City of New Bedford,4 Fed. Rep. 818. ' But this court need not express an opinion on this mooted question, as 'we think the statute covers the case. . It seems from the record filed of the proceedings before the justice of the peace that libelant was' before him by actual service of the summons, and these wages have been in fact paid by the defendant, and applied to the payment of libelant's debts. These debts of his are presumably
just debts, and I do notfirid that he made any question before the justice as to the right Of attachment and the application of his wages to the payment of his debts. He should have made the question before the justice, and, if decided against him, appealed the case to a higher court. He did not do this, but allowed the defendant to pay the wages due him under the order of the state court, and apply the money to the payment of his presumably just debts. It would be inequitable, under such circumstances, to require defendant to pay these wages a second time. The Oity oj New Bedjord, 20 Fed. Rep. 57. It appears from the record that proceedings were commenced before the commissioner of this court on the iiOth of January, 1891, and that the defendant had actual notice of this proceeding before the judgment was tendered by the justice of the peace on· the 5th of February. It was the duty of the defendant, under the circumstances, as well as the libelant, to bring to the attention of the state court-justice of the peace-the fact of the proceeding in admiralty. I shall not, therefore, give libelant judgment for the wages which have already been paid by defendant, and applied to libelant's just debts, but will give libelant a judgment for the costs of the admiralty proceedings; and it is so ordered.
'11. THE UNIONIST.
(Dl8tr1.ct Court, E. D. V-£rginia. November 80, 1891..)
OJullTER·PABTY-CONSTJIU0T10N-NOTICB 011' RBAD1NE88 rOB CARGO.
A charter-party provided tbat it was to go into effect tbe morning after Dotice of readiness to receive cargo, suuh notice to be given before 19 o'clock of tbepreced. tug day; tbat 14 lay-dayssbouJd be allowed, "Snndays and bolidays excepted;" and tbat tbe cbarteMr8 mlgbt cancel tbe contract if tbe ve8sel was not ready on or before Cbri8tmas day. Held that, although this latter provi8ion &eemed to make Chri8tma8 day available for the purpose of giving notIce, yet as tbe provi8ion for notice of readines8 was evidently intended to enable the charterers to get the cargo together and engage laborers for loading, a notice given on that day was inoperative, and the llly-days did not commence until the sccond dBy thereafter.
SUIE-GUARANTY OB' INSURANOE-DECK CARGO-CATTLE.
A printed charter-party gave the charterer8 a rigbt to put on board a full cargo of ootton, or any lawful merchandise, u8ing all spaces where cargo was usually car. ried, and the owners guarantied first-clas8 insurance. On the margin of tbe in. 8trument was written a clause giving tbe charterers a right to 8hip cattle on the deck. Held, that the charterers could not recover freight for cattle which they would have 8hipped, but did not because insurance was not obtainable; it appears ing tl:\at insurance was refused fOl'reasons not calling in que8tion tbe ve88el'8 8eaworthlne8s, and that shippers did not usually construe the guarantrof insurance acovering deck cargo, especially cattle, unless expres8ly 80 provided.
In Admiralty. Libel by Myers & Co. against the steamer Unionist upon a charter-party. The facts fully appear in the following statement by HUGHES, J.: