264
FEDERAL REPORTER.
THE SARAH E. KENNEDy.1 'MCCARTHY and others v. THE SARAH E. KENNEDY. (District Oourt, D. New Jersey. November 10, 1886.)
1.
SEAMEN-WHO ARE-WAGES-LIEN-LABORERS CLAIMING AS MARINERS.
While there exists an undoubted 'tendency to extend to all persons, when necessarily Ilnd properly employed as co-laborers on a vessel for the purposes of the voyage. the privilege of marin'ers, and while, subject to this qualification, the rule is independent of sex, character, or profession, it would be inequitable and unjust to extend the rule, by implication, to laboring men hired by 'the freighter, and not l-y the vessel, whose contract was solely with the former, and to whom the la;ter was a stranger, and whose only material con· nection with the vessel was that they were transported in her as passengers to the port of destination for the purpose of excavating cargo. The circum· stance of their having, during the passage, of their own motion, rendered occasionally slight and immaterial assistll.nce in working ship, cannot be used as a pretext when frOID the evidence it appears that the vessel was provided ,with a fUll complement of officers and men.
2.' SAME:-'-PLEADINGll AND PROOFS-VARIANCE.
While; from the evidence, it, is possible that the libelants might, perhaps, have had a claim a,s salvors or lighter-men, it is unnecessary, under the plead· . ings, to, consider the question. The libelants, having claimed as mariners, must reco'Ver, if at all, in that capacity.
In Admiralty. Libel in rem by laborers claiming a lien upon the Tessel for the payment of their wages. John Grijfin, Jr., for libelants. Owen rf Gray, for claimants. WALES, J. The libelants, 13 in number, sue for seaman's wages, and their libels have been consolidated. 'l'heir services are alleged to have been rendered on board the brig Sarah E. Kennedy. The brig belonged to Somers Point, New Jersey; and while lying at the port of Baltimore, on the seventeenth of July, 1885, was chartered by Daniel Walters, her ml1ster and agent for owners, to Charles Smedley for a voyage from the last-named port to Arenas Key, a small island in the Gulf of Mexico, and back to Hamnton roads for orders not east of New York. By the terms of the charter-party, Smedley stipulated to provide and furnish to the vessel a full and complete cargo, under deck, of guano in 'bulk for the homeward voyage, to carry out men and materials, to gather cargo, and bring men back, to furnish a steward, provisions, take entire care of the men, and to load materials, free of expense to the vessel. He was to pay the master or agent, for the use of the vessel during the voyage, at the rate of four dollars per gross ton for each ton delivered, and deliver the guano along-side at Arenas Key at his own expense. Twenty-five days were allowed for loading and discharge; and for each day's detention by default of the charterer, he was to pay $48. Performance of the con· 1 Reported
by Theodore M. Etting, Esq., of the Philadelphia bar.
'fHE SARAH E. KENNEDY.
265
,
tract by Smedley was guarantied by third parties. The brig had her own master, and a full complement of officers and crew, with an am· pIe supply of provisions for their separate use. The libelants, each for himself, by written agreement, engaged to go with Smedley to the island "for a cargo," in consideration of wages varying from fifteen to twenty dollars per month, and found, "and to be under orders, and wflrk diligently as he may direct." The brig was to sail on the twenty-first of July, but did not get off until the twenty-seventh. Smedley aocompanied the men. Nothing unusual occurred on the outward voyage until the island was sighted, on the twentieth of August, at about 7 P. M., when the brig rali db' a coral reef or bar, and all hands on board, including libelants; went to work throwing over ballast. .The tide was low, but rising, and, after 15 or20 tons or more had beenJhrown over, and the top-sails backed, the vessel floated, in about an hour after she had struck, a'ud without damage. The weather was oalm. The brig put to sea,' and the next day oame to anchor off the island. On the the mastef' notified Smedley that he was ready to diileharge supplies and receive cargo. Sunday intervening, the libelants did not get td work until .the 24th. They were quartered on the isla.nd during the time of loading the out and carrying the side in scows, from it.would be hoisted on b()al'd by the crew. The libelants continued at this work until the fifteenth of September, when, in consequence of a rumor that the water on the brig was ing short, they refused to work any longer, but were prevailed on by the united efforts of Smedley and the master to bring off two more loads in order to trim the vessel; and on the evening of that day the brig sailed on her return voyage, touching at Hampton roads for orders, and arlived off Jersey City on October 15th. The libels were filed four days afterwards. The'libelants were landsmen. Only two of them had been at sea before,-one as a fireman, and the otbet' as a passenger or cook. On the voyage out and back, Smedley, with some of his men, would occa. sionally assist at the windlass, and at the braces when the vessel was tacking, but· they never went aloft, stood watch, or steered. At the time ,of signing the charter party, Smedley agreed to let the master have the use of the men when he wanted it, but the master says he never called on, him for assistance. He had seen Smedley and bis men take hold of the windlass and help heave; had seen them catch hold of the braces, and help .pull round sometimes; but that most of the men never did anything at all. McCarthy, one 'of the libelants, says that he helped any time "he was asked,-not every day, but when hewas up oo.t of the hold." The carfW was sold for $3,300.. The master's Claims for freight, d?murrage,.'etc., exceeded this and he Smedley had,some kmd .of· a settlement in the office of Lister, Bros., the purchaBers of the guano, in New York. Smedley received $400, with the
266
REPORTER.
standing, on his part,. that out, of the ·balance the master would pay his own .Ql!tims, and the wages of thelibela l1 ts. , The master denies that he madeanJl He and Smedley flatly contradict each other, arid ,the only reliable testimony on this subject is that of Mr. Post, a lawyer, whow8.s present at the time the $400 were paid .This witness says that the master's claim was in exto cess of the value of the cargo, and that, "in ma-king up the statement upon which the settlement was effected, it was stated that this libel had been put upon the vessel. It was part of' the settlement that the captain should take care, of the claim of these libelants, it in the court, or by satisfying it if either byresisting and a judgment should be ·obtained." The defense is that the libelants did not, as seamen, a.nd not in fact render such they were not employed by the vElssel as any laboters,btit contractec;\ 'to work on the credit of. SmedleY, and not on that oftpebrig o1'co:rgo;. and that the slight an,d occasional help contrib\ited by;them in working the ship voluntary, and not ot such "ollar,acter and importance as to give them a. maritime lien.':',';,';,' " , It is the' that they are to payment , for servicesreridered, a,s seamen, Qr as salvors, Or al'\stevedores. But this contentiori'isfourided 'on the evidence, and not on the allegaany ,mention of claims for tions contained'in the libels, which i'he brig. The libelants,. must recover,if at all, asseamElD, secundum allegata et probata. , The Bosto'n, 1 Sum. 381, it 'Was held not, sufficient that th&rt/ are facts proved }Vhich ha'Ve a material bearing, unless Miere are allegations suited tobl,'ing them, as matters of plea and controversy, before the court. See, also, Admiralty Rule 23, and Ben. Adm: § 401. The only qnestion, then, is, can these libelants under.the' head of the case. The of seamen .ormariners, on the law and the this will govern th 13 decree of. the court. . support of the affirmative is that ".all the persona or properly employed in a ve.ssel as co.labo,rerl.lfor,tpe grea.t purpose of the voyage, have by the law been cl()thed.:with the legal rights of mariuers,-no matter what ohara()ter,'station, or Ben. Adm. § might be 241.' AndtJ:ie cases chiefly relied on to sustain a.nd illustrate this TM'acean Spray, 4:Sawy. 105; The Highlander,l Spr. rule ld. 4$7; Minna, 11 Fed. Rep. 759· .InTheOc,eanBpray,30 Indians were shipped by the vessel, at Victoria, togoJo the northerJ;l waters to take'seal, "and to lend a hand on board' 'whenever they were wanted," for '80 per month, until whel1El they were to be paid .off and disthey charged.':·pli.ring the when head winds prevailed, make sail, the anchor alld clear decks, they but did#<>tst!;Lnd , They were also employed in pJ,"ocuring . ,, \..
TH:ESARAH'
E.
KENNEDY.
267
drift-wootland water for the lIse'of the vessel, and' were under the control of her officers. Judge DEADY, in an able opinion, decided even if the libelants shipped'and served as sealers only, they ought,tdbe deemed mariners,as they were certainly co-laborers in theonlyplirpose of the voyage,-the taking of fur seal,-and that the sailors on the schooner only contributed to this purpose bynavigating 'hel!. The Minna was a tug employed in fishing; her crew consisting of a master and engineer. The libelant took no part in navigating the vessel, bu\, was employed solely as a fisherman. His contract required him togo out every day, to set and lift the nets, clean the fish, dischargingthe catch, and reeling the nets on shore. He also lodged on shore 'at night. It was there held, following the rule in 1'he Ocean Sprk1h aM in Ben. Adm. § that all handstlmployed upon a. vessel, except ,the m:aster,a,reetltitled to a lien if their services are in fU'rtherance of· the main object of the enterprise in which she is engaged. In The Highlander,the' services of divers and wreckers on board of asea-going'vessel were held to be maritim.e, and therefore a lien. In that case the libelants were all regularly shipped liy the vessel, and some of them were expressly required to take' part in her general managemeot. The Oantonpresents thecase of persons emph>yed'to loaG, navigate, and unload a vessel plying principally between Quincy and Boston, for the transportation of stone, in which it waS de'cided that when the contract of service is for the navigation of tide-wMers, and laying stone in wharves is merely incidental and subsidiary to the priucipalbusines's, the whole service may be maritime. These decisions are not open to criticism under the particular facts on which :they were made, and the general principles declared in theIi11Day be 'fully approved; but they are distinguishable from the case at bar in two important elements, if not more. In the cases cited,thelibelants were employed by and upon the vessel; their services were ditectlygiven to the vessel; and, in The Ocean Spray, the vesselw8,sexpressly bound for the wages. In the present instance the m.en were not sbippedbyorengaged to work on the brig. Their contractwas:with Smedley, and was made independently of the vessel. They were at no time under the control of her officers, and it is not pretended that whatfi"er service they may have performed on the vessel was given in obedience to orders, or otherwise than voluntarily:· were neither skilled as seamen, wreckers or. divers, stevedores or fishermen. They were common laborers, and contogo out to the island as such, with the exception of one or two,whom Smedley. had hired, a.s rough carpenters, to build tpe scows. They went out as The work done by them wits 'for Sll1edley, and on his credit, and noffor the brig, or on her credit, or on that of the cargo; and it would De extending the
268
doctrine of co-laborers too far to include their services under that head. There is no evidence of any imposition on the libelants by the master or officers of the brig, in taking advantage of their ignorance, and endeavoring to use their labor without compensation. If they had be.en inveigled on board as passengers, or on the pretense of being carried out as landsmen to work on shore for a third party, and had heen compelled to do duty on the vessel, they would have a just and legal claim on the owners. But there is no evidence that any fraud or deceit was practiced on them. Their labor was all on shore, and not on the vessel. Smedley was not even the owner pro hac vice. His contract was one of affreightment, though styled a charter-party. not deceived by the They gave credit to him personally, and master or agent of the owners; though thei,r situation may be a 4ard one, entitling them to sympathy, a maritime lien, being stricti itlris, cannot ,be, intended by . iqlplication ,or con struction for their benefit. The Ole Oleson, 20 If.ed. Rep. 884, has a suggestive resemblance sought to obtain a share to the present case. There, of the proceeds arising of the vessel, on the ground that they had rendered They had been employed as stone pickers by the master, who was also managing owner, to gather stone on the shore of Lake Michigan, at or near Alpena, and to assist in the stone on. board as cargo to be cal'l'ied to Chicago. While engaged in this service, they lived and slept on the vessel as she layoff shore; and when the weather was such that stone could not be gathered,the schooner would run into Alpena, and the intervenors would then lend a hand in hoisting sail. But they did not accompl1ny the vessel on her voyages, and were not employed as seamen, the vessel having a full crew without them. It was not insisted that the men were seamen, but that their services were of a maritime Il,ature, and entitled to a lien. Judge DYER, while giving his approval tQ:.The Canton, The Ocean Spray" a,nd The Minna, says the intervenqrs were mere landsmen,procuring cargoes on shore, and assisting iJ,1 loading them. In a general sense, their services were in furtherance of the vessel's employment, but not more so than the services of stevedores, who, as he understood the authorities, were not entito a lien, though as an original question he thought otherwise. . Conceding, however, that under recent decisions a stevedore is enpresent case did not act as stevetitled to a lien, the libelants in dores. Their work ended along-side of the vessel. The guano was hoisted on board, and stowed by the crew. They, might,perhaps, have had a claim' as lighter-men had they been employed by the brig iJ;l that capacity, (Ben. Adm. 284 ;) but being restricted, as we have alrllady said, to the allegations of the libels, we find nothing in them to warrant a decree for that service. Their claim is that they hired on board the brig as seamen on the credit of the vessel and cargo, as
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._- - - - - - -
THE G. BARBER.
269
well as the owners and charterer, and that, during the whole of the voyage they were obedient to the lawful commands of the master and Smedley. The evidence does not bear out this claim; and, under the pleadings and on the facts proven, the brig is exempt from liability. This conclusion makes it unnecessary to consider the claims for damages for a shortage of provisions and general bad treatment during the voyage, because the owners were not responsible to the libel· ants on account of these charges, even were they true. Neither can the owners beheld responsible for the alleged undertaking of the cap· tain to pay the libelants out of the proceeds of the sale of the cargo. The latter undertaking, had it been made, being without the scope of the captain.'s authority, could not bind the owners. The Norman, 28 Fed. Rep. 383. . The libels must be dismissed.
THE
G.
BARBER. l
S'tEVENS tI. THE
BARBER.
(Di8triet Oowrt, W. D. MiChigan, 8. D.
August 6, 1885.)
.SALVAGE-SERVICES RENDERED AT THE REQUEST OF CONTRACTOR-KNOWLEDGE . OF AGREEMENT-EFFECT OF. ·
One who declines to assist a stranded vessel when requested by her master, . but who SUbsequently, without any such invitation, joins in the undertaking at the request of one who, fora fixed price, has undertaken the work, with a full knOWledge of the relations of the parties, and the terms of their agreement, must look to the contractor, and not to the vessel or her proceeds, for payment. .
In Admiralty. Libel in rem for salvage. Orinck8haw &; Grier, for libelants. M. C. &; A. A. Krause, for respondents. WITHEY, J. The libel in this case is for the recovery of salvage per· form.ed by the tug Joseph H. Martin, of Charlevoix, upon the schooner G. Barber, while a wreck on the beach near Leland, on the west shore of Lake Michigan, in this district. The services were rendered in June July, 1884, for which $560 are claimed. Andrew Holmand, ter and managing owner of the .schooner, has. appeared and answered, setting up as a defense that libelant's services were not performed at the instance orrequest of either the master or owners of the vessel, but at the request of Eli Toulouse, who undertook to rescue the wreck, and take her into port, for a title to one-half of the vessel, and that libelant, at 1tnd prior to the time of the alleged had notice of such contract 1
by Theodore ]){. Etting, Esq., of the Philadelphia bar.