PETERSON PETERSON
t1.
THE NELLIE AND ANNIE. THE NELLIE AND
217
'l1.
ANNIE.
(DiBt,.ict (J01t,.t, E. D. WiaconBin. January 7, 1889.) M.uuTIME LIENS-SEAMAN'S WAGES.
Libelant had been employed by S., the master, for some time as a seaman. S., desiring to stop ashore for a few trips. accompanied libelant to the custom· house. where he caused him to be enrolled as master of the vessel, without the knowledge or consent of the owner. He made one trip as master, wben S. again took command in fact of the vessel, though libelant's name contino. ued'on the enrollment as master. and he reported and cleared at the customhouse. Held, that libelant was entitled to a seaman's lien for services reDdered, except during the trip he actually served as master,.
In Admiralty. Ubel for wages. O. T. Williams. for libelant. Mr. Krause and Mr. Wildi8h, for claimants, etc. JENKINS, J. Thi.s case comes now before the court upon the objections to the payment of libelant's claim out of the proceeds of the sale of the vessel, covered into the registry of the court. The facts upon which position to the claim is based are disclosed by the evidence of the libelant. In April, 1888, F. C. Seefluth was master of the vessel, and employed libelant as seaman, at $50 a month. He continued in the service under that agreement one month, when the master reduced the pay to.$1.50 per day. He served as seaman under the changed agreement until the 8th day of June. when he left the service because of threatened further reduction of wages. He remained idle until the 6th of July, when he was re-engaged by the master at $1.50 per day. At this time the ter informed him of his intention to stop al"hore for two or three trips, and suggested that the. libelant had better go on the papers as He accompanied the master to the custom-house, toak the ,oath of citizenship, and was then rated on the vessel's enrollment as master. He made one trip of six days as master; then Seefluth again took command in fact of the vessel, and remained in command until her seizure. The libelant's name continued .on the enrollment as master, and he reported and cleared at the custom-house; but Seefiuth was in fact master, purchased cargoes, collected freight, and in all other respects commanded the vessel; the libelant performing seaman's services. It is objected that the services were rendered as master, and no lien therefor exists upon the vessel or the proceeds in court. Without respect to the registry laws, he would be master to whom the owner actually intrusted the navigation and discipline of the vessel. The inquiry in such case is, what is the fact? As Judge NIXON observes in The hnogene M. Terry, 19 Fed. Rep. 463, "Courts of admiralty deal with things, not words." It cannot be questioned upon the evidence that the libelant, with the exception of the one trip, was in fact a seaman, and not the master. Seefiuth was in every respect the master, charged by the owner with all the duties and responsibilities of master. What effect did
218
,lI'EliERAli :,REPORTER.
the transaction, with respect to the change upon the enrollment of the vessel, have upon,theriglltaIQfthe-<libelatlt?\'fhis'cpa;nge was made at the request of the master because he desired to stop ashore for a time. It does not appear to 'havebeen,donebyor with',the knowledge or authorityof the owner. It may be, as determined in The Dubuque, 2 Abb. jute by'virtue of the (U. there canno,t, be In another, master qe facto. It IS there. held that the registry: conclusively determines the relations of owher, ttlaster; ,and crew." The case bf Draper v.. Insurance Co., 21 .N. Y. 378, is! directly lithe question was properly for determination,it might be well to'ctmsider whether the penalties imposed by law for false erttollment'should!he extended by implication, so that, as between contending claimants, a seaman de facto, although entered upon the enrollment as master, should be deprived of his wages8s seaman; whether an offense against the United States which may bB satisfied bv payment of a fin{canMil'rv()ked by a stranger to work injustice. In Bddger v. Gutierez, 111 U. S. 734, 737, 4 Sup. Ct. Rep. 563, the court ho1ds that when a vessel or its o,,'netbecomes subject to a statutory penalty for 1:aking: out improper 'papel's; that does not justify'a collector ofl customsinwithh6Iding,from'th'eJ vessel the papers to which it is fullyentitled."The conrtsays that fur the offense the law prescribed a penalty, payment of which:l1light:be exacted, and that "prosecution for: thM vit>lation of,the Iltw stood6n itsown:ground, and had its own penalty, which didnot:includea 1forfeitlllre or seizurebf the papers of the· I vessel." as to the caselLt bar, it might 'Well be urged that, ifthe libelant by reason of his l&Cquieacence inllnd 'active consent to the request of the master incul'rtld i i penaltyfot'violhtiotiof'ui!provisionof law, that did outlaw,nor, 'as ito the claimants, estop him from to the ship. If wrong there was, showing the was it 'noh:,wrong"done to the United'States, not to the other claimants, or to theidnjuty? It is not necessary, however, to determine thatquesl.:': tl0n here, fOl"'TheDubttque is expressly pm upon the ground that one can' only be the lawfully registered mastet by. the act of the owner; which is not this case. Here, so far as the evidence discloses, the entry of the: libelant's nama upon the enrollmeIitas master was at the request of and for the convenience of Seefluth, the master registered as Euch by the' act of the owner. The change was made without the knowledge or coosent of the owner, andwasfor·a teritporarypurpose. In The Exchange. Bae, 198, the libelant, 'at the reqnest of the real captain, lent his name to clear the vessel at the Havannlt. It was held he.was not captain in fact, and therefore not barred from suing fOl'services. This case is'referred to by JUdge LoNGYEAR in The: Dubuque, 'who observes with respect to· it that 'Ithe'·real master has l no authority thus to divest himself of his office,and.1oMferitupon another!' This could bedtJne by the owners only." Wba'OOver object Seefl'(lth hadincausing or continuing the changa in the registry'; so far as the evidence discloses it, was without the knowl. edge or privity of the owner. Seeflttth remained master in fact, With I
PARK .,.
OF THE EDGAR BAXTER.
the: exception of the nav:igation;of the 'vessel for orie trip,. redelving all moneys;, and presumablyliccounting therefQr to the owner. The latter 110 dealtwith',him, not:with:the libelant. '''',ThellOswer Of the owner, after auch dealing,:and after ,seizure of the vessel, IlsseFting ,that libelant was IPaster, ,carries'no 'weight. ' ' :It ie; urged-that the·.libelant sh0uld, not be permitted to recover,.for the reason that by his action in registering as master he 'has held him. sel£ out to the aflsuch,'and others have dealt with the vessel suppQsinghjtn'to ,be master,and entitled toino lien on the vessel for hisser,v. ieee;. Whether the laws for the enrollment of vessels can be considered in the lightoHhe recording acts of the state need not be determined, be. cause here nearly, if not all, of the demands againstthevessel accrued before ,tb.e trahsaction complained of. There is no suggestion that any mppliEls, ,were furnished or services rendered at the request of the libelant, :or,uponJihe faith ,of'his being master of the :vessel. The libelant's claim will be allowed as the first lien upon the fund iti:thereg:istry of the court. There must, however, be deducted from the claim the amount expended by him to the use of,the vessel, and the amount of his services upon the trip he actually served as master.
PARK V. THE HULL OF THE EDGAR BAXTER · ",", '! V.SAME.
'·1
{J?i'irict ,Oourt, 8· .D. New York. November 30. 1888.} llAmTnl:E LIENS-SHIPWRIGHTS-CoMMON-LAW LIEN-AsSIGNMENT.
A shlpwrtght i holding poss6esion ofa tug underblllUenfor repairs assigned his claim to,E;, still ho1dingpossession as the latter"! agent. The owner filed a libelz'n,p61'B01j.am to recover possession of tbe tug, without tender of the amount owing for repairs; and E. filed a libel in renHo enforce the claim for repairs. Held that, the contract being maritime, tbe claim and lien were transferable, and could be enforced in this court by the assignee; that the latter was entitled to a decree for the amount owing. and the owne.r to,a possession only on payment of that amount. r,.
In AdmiralLy. :Wilcox, Adam8 «Maeklin, for libelant Park. Carpe:num & M08her, for libelant Every. Wing;·Skoudy« Putnam, for claimant in second BROWN, J. The first-mimed libelwas filed by the owner td reC9vel" posseElSion of the tug EdgarBaxter,PQssession of which was refused on the ground that she was held unders shipwright's lien for the expense of 'certain repairs made under contract, and' fat' an E1dditiOtial Bum for ", .", ", - ' " The second libel was brought to enforce paY,1,ll@t of the amount alleged to be for,the contract work and the extra workj' the-libelant