nDmRAL iBEPORTEL
'eonflicthas' been between the ,represehtatives '01 those,vessels which did not employ pilots and the piklts themselves j and leaving the entire matter tbthEdocal boa,rds, as had,bean tha case under three-fourths of all the previous legislation upon ,the subject, was, without doubt, the quickest rand most satisfactory manner of determining. it. In my opinion it'was the intention,of the legislators that the local boards should have power, not only' to determine what rates should be paid"bya vBssel ep:1ploying"apiiot, but also by one spoken that does·not'accept 8s:irvicesli ''Phe ·queation of rights. of pilots under a tenderharJ.dJ.iretusu of.: services ·h&.8 peen. settled, land it declared that there ·is iafl'impliedpronlise'oo, pa",' the amoun' determined to be in accordaqce, with Jaw.' It isnijl; a right or penalty given ·by a locaJ board. !! t; . The'state Jaw ms' & substantial .right ,Jor an amount which 'maybe, measured and. determinetlby ,such commissioners, and enfOlioed! by an :a,dmiraltJ'l iCOUlt:81l1 it might enforce' any other:implied marineo0Ilt,ract. Tl!Latamount in' this case is the half of the usual rate,,: and the decreaywiU:follow I aiCool'dinglv. Vide Wilson v·. met,,102(U. S. 572·.,: ',,, k j,
I.' .
See:L,'he REP. The Francisco GarU"!''llo, Itt . 495(The'WtllianiLaw, 'ld. 792;'1'h8'(WhiStler, IS 'FED. REF. 295; The Olymene, 12 FED. REP. 346: The Lora Olive, 10 FED. REP. 135; The GZal'amara·. 111.678. . ,
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Ross SUE
ti. BOURNE.
BEAMll;N'S WAGES-RIGH'fS TO
IN
ADMIRALTY.
In' the' absenctl ot legislation on the sul;Jject by congress, the right of a seaIl)anto, sue ,in. tile in ver,ona-?n .for his wages is not taken away or suspended by aniittachment of his by trustee process in an action &$ l!\w. . , : " , . ,
In Admiralty. C. Bonney aqd T. A. Codd, for libelant. E:L.1!arn(3!!, forl"e&pondent and the attaching creditor. NELSON, J. This iss. libel in personam' for seamen's wages. on the sixteenth of June, 1882, he shipped The bark Helen aqd Mary, of New Bedford, of which the respondent is pwner, ·then. lying at Marble island, in Hudson's bay, in the prosecution. of a whaling voyage, at the one
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aiX:ty.fiflih' lay in the subsequent catchings of the! voyage; ;,th8it' ,the bark continued her voyage with the libelant on board, and took a. large quantity of oil and bone, and, finally returned home to New Bedford, where she arrived October 3, 1882, and the voyage then ended; that by his shipping agreement his lay. ·was to be .paid him at the termination of the!. voyage; and that he had ,dema.nded ment of his lay and it had been refused. ,The rE!spondel!l.t,Un'his answer, admits the allegations of the libel, and avers.that·hds only reason for. not paying the libelant is that on the, third of October, 1882, after the voyage had' tel'minated and, before the filing of. this libel, the wages wereattacbed' by a trustee process against tbelibel· ant at the suit of Simeon Doane and another,:.returnable todihe supemor court for the county of Bristol on'the first Monday of 1882, and that the trustee process has been entered in that, court and is still pending. It is agreed that the amount due the libelant as wages is $132.12. 'Section 61 of the shipping commissioners' act of June 7,.1872,. (17 St. 276; Rev. St. § 4536,) enacts "that nO wages due or accruing to any seaman or apprentice shall be subject to attacbment or arrestment from any conrt; and every payment of wages to 'any seaman or apprentice shall be valid in law, nothwithstanding: any. previous sale or assignment of such 'wages, or of any attachment, incumbratice, or arrestment thereon." This provision is general in itstermstand is applicable to all wages earned by seamen, whatever the of the voyage. But by the act of June 9,,1874, (18 St. 64,) it was enacted "that none of the provisions'" of the act of'June 7, 1872, "shall apply to sail or steam vessels engaged in the; coastwise trade. except coastwise trade between the Atlantic and Paoifio coasts, or in the lake-going trade touching at foreign ports or otherwise, or in the trade between the United States and'the British NOrth American possessions, or in any case where the seamen are by custom or agreement entitled to participate in the profits or result of aCfuise or voyage. .. The effect of this act is undoubtedly to take fishing and wh'aling voyages, where the seamen receive as their, compensation a sharo or lay in the catchings, wholly out of the operation of the act of 1872. This has been frequently 80 ruled in this district. Ithas also been so ruled as to coastwise voyages between ports on the AtlaJltic. Scott' v. Rose, 2 Low. 881jU. S. v. Bnin, 5FEl>. REP,,: 192; Eddy v. O'Hara, 132 Mas8.56. ' The question in the case; is whether, in th&absence of\express legislation on'the lhlbjtlct by oongress, the rightoI"s. mariner 'to sue
860
nDBB!L : JmpOBTBB.
intheadmil'alty for his wages is taken away or snspended by an attachment of his wages b.y trustee process in an action at law. The thirteenth admiralty rule provides that "in all suits for mariner's wages, the libelant proceed against the ship, and master, or against the ship and freight, or against the owner or the master alone, in personam." No one would fora moment contend that the aUachment suit should have the effect to deprive the seaman of ·.his,lien on the'vessel and freight. But to avail himself of that privilege he must necessarily resort tOa court of admiralty, where alone the lien can be enforced. The Oaroline, 1 Low. 173. InWinthropv.Carleton,.8Mass.456, it was held that it was no cauae to abate a< "writ! that the.. defendant had ooen sued as the trustee ,of the plaintiff, an'd the trustee procsss was still pending, but was that ground .for a continuance only. The court say: "Nott judgment. will be rendered,agaill.B[ the defendant in tha'othersuit.". I shall not err if, following the decision in that case, I hold that the seaman's right to sue fhe ownei' in personam'in the admiralty is not taken away by the trustessuit. Is a court. ·of admiralty under obligation to 8uspend its decree while the,trustee suit is, pending? .The right of the seaman to sue in tbeadmiralty for his wages llHLS pl<l as the admiralty itself. I,lriol, to 1872 there' was no act ·of congress prohibiting the attachment of wagei:learnedon foreignvoya.ges, and it was for a less thaI) two thatthe prohibiti0n.,eJUended to coastwise and to fishing' and ,whali;og·voyages., , Yet' t)le ,reeent case ,of McCq,rty \!'. The City of New Sedford,4 .F1EP. ltEP. 818, deqided hy is first repotted ijttBDlptto delay aseamaQin PUfsllit of his, wages in the admiralty by by trustee process;-', In that casedhe learned judge held ith(tl seamen'a wages not atfor the tachableunder. the general marithllolaw, and he seaman, notwithstanding an of the libelanfa wages by trustee process WM pending in a state court. That such a debt is not exempt from.a.ttacbmentat common law seems to be the'lawof Massa.chusetta, thpughthe pointba.s never been directly adjudged. Wentworth v. JoVhittemore, 1 Mas,S. 471; v. Nye, 12 Pick. 105; Eddy v. O'Hara, ubiBupra; 2 Dane, Abr. 463 j. Cush.Trust. Proc;38. At it would seem.to be clear that a judgn:Lant of a court of competent jurisjudgdiction chavgingthe trustee, and a'pa.yment by him ment, would be a defense pro tanto in a court of admiralty, as in any other .court, to a.sllit' by a sea-man fOJ:his wages, whether against the ship and freight, pr tbeowner or master in personam. But it is a very r
ROSS V. ,BOURNE.
861
different question whether the admiralty is bound to withhotd its decree until the trustee suit is disposed of. By the trustee statute of Massachusetts, if during the pendency of an action the defendant is summoned aS the trustee of the plaintiff, it is wholly within the discretion of the court to permit the action to be stayed for the trustee suit, and the court can order judgment in the first suit OJ;" continue it, as it sees fit. Pub. .st. c. 188, § 40. We have seen that the of the suit is no ground for abate· ment,(Winthro,pv.Carleton;). a1,ld in Merriam v. Rundlftt, 511, it w;as decided )that ,a jndgment ;aglloinst one as garnishee .in a prOCeSlil of foreignaUachnumt, in a.noth,er state is not a bar to ;an tion against him ,in this state by the principal defendant, if the gfl,rnishee has not satisfied and'may not be obliged to satisfy judgfor a stay of proceedings . ment, but that it was In Stanton v. :mmbrey, 93, U. S. 548, the pendency of a. in a was held ,abate a suit in a federal C01,lrt beparties for the:s,ame cause of action; and.in Massachusetts 'a,prioraction: for same cause in another Ii'\ not ground 'fox abatement. Nc;well v. Newton, lOPick. 470; Merrill 1j. New England .Ins. Co; 103 'Ml;tss.245. In Merriam v. .fl.undlett it is sa,id by Chief Justice SHAW t!lat ,"it has 1,leen settled.in a a in another state, ,when the court has jurisdictiOll ,oltha apd of thll ,subject-matter, will protect one he,re who has beeu obliged to payor is compellable to pay in pursuance of sU4h ment, altho\lg!l-,it be a debt on a pronUssQry note or other negotiable security, although no sp.ch judgment would lhaw ;beenrendered our.l,aws, and,;alth,ougp.sp.ch against a garnishee or law appears to us a little ulll'easonable." In Eddy v. O'Hara it was adjudged that where the wages of a seaman had been attached by trustee process in a court of this state, and the trustee had afterwards been compelled by proceedings in a court of admiralty against the vessei to' pay the attached wages to the defendant, notwithstanding his disclosure in the admiralty suit of the pendency of the' trustee process, the trustee should be discharged,and should not be compelled to pay the same sum 8. second time. Under these' decisions the respondent can suffer nodetrimeIit in the trustee suit from.a decree rendered against him ,here. , ' It was ,held by Judge LOWELL; when ,district judge,in The Sarah J. Weed, 2LoW:1555, dissenting lIpon gr6unds from a contrary deciSIon 'at Judge CONKLIN, in 1We A'.D. Patchen, 21 Law q
862
FEDERAL
that the lien' of a seaman passed by an assignment of his wages. This decisi.on of Judge LOWELL has been re.peatedly followed here, and is undoubtedly the law of this circuit. Jt1dgment against trustee might therefore have the effect to transfer· to the attaching creditor, by way of subrogation, the seamall's:lienoh the ship and freight. Such complications ought not to be, permitted in suits for seamen's wages. Theseamanishould have his wages settled promptly. If the owner or master does riot 'pay him, a oourt of admiralty should afford him a simple, speedy, and inexpensive remedy. ties of his occupation, his want of friends and llleans, snd the small sums usually coming to him, would, .in i most cases, render him incapable of following his claim through the double proceeding, and compel him to abandon it altogether., This would furnisa an inducement to dishonest owners and masters to instigate or encourage the · bringing of trustee suits to defraud the seamen. I am aware of no law of congress, or rule or praciiceill admiralty, which requires this court to hang up its decree iIi' this case until the attachment suit is disposed of. Ordinarily the sailor's only means of subsistence on shore are his wages earned at sea; If these may be stopped by an attachment suit the instant his ship is llloored to the wharf, a new hardship is added to a vocation already subjeet to of the iJls of life.. Wl1ges earned amidst the perils and its full hardships of the whale fisheries, and· pa,yable only at the end of l't voyage usually lasting for years, should of all others be paid promptly when due. So far as I have any discretion, I shall decline to exercise it to prevent the libelant from recovering his wages. Decree for the libelant for $132.12.
THE LOUIE
DOLE. January 6, 1883.)
(Circuit Court N. D. 1. SERVICEtr-'UPLICATIOl!f OF PAYMENT.
Where services were continuously performed on a vessel by libelant as engl. neer and wheelsman and pilot during a series of rears, there is no distinction existing in the law of maritime liens as to such services;· and the mode of ap- , propriating payments from· tfme to time made to libelant, in the absence of a special agreement, would be to the oldest service performed, and the balance claimed by libelant may be considered as accruing from the service most recently performed.
