THE A'fLANTIC.
607
that contract is not maritime, and hence not within the jurisdiction of.tbis court. No amendment the libel could, therefore, avail the libelants. Tbough the libel, therefore, cannot be sustained, the libelants are entitled to thebenetit of the stipulation, and of the money paid under it, as a tendei' and deposit in court. The Rossend Castle, 30 Fed. Rep. 462. The rt-'Spondents are entitled to costs from the time of the stipulatiQn and payment. THE' ATLANTIO. McNAMARA v. TH;E ATLANTIC. (DIstrict Court, D. South Carolina. January 12, 1893.)
1.
Plaintl1f was englneer otl a steam dredge ehartered for work on a government contract. He was the highest' oflicer on the dredge. anddj.rected th firemen and; any otherhallds aboard, but 'he had no authority to engage or dismiss hands or purchase supplies. His wages were paid at the offiQe of the charterer l:p. 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. SAME-LIEN FOR WAGES.
OF STEAM'DREDGlI:-LIEN FOR WAGES.
2. 8.
Plaintiff, as engineer, was .entitled to a lien for wages, although the dredge was at work in the home port of the charterer. BY CHARTERER.
The fact that the plaintiff" as aware of the charter at the time he was hired by the charterer did not deprive him of his lien. The International, 30 Ii'ed. Rep. 375, followed. The fact that plaintiff left his employment without notlce, and failed· to; fulfill an appointment to return to his duty, and that the llbel was filelt without notice, was suffic1fDt reason for denying costs to him.
4. SAME-COSTS.
In Admiralty. Libel by Joseph McNamara against the steam dredge Atlantic to rooO\'er for wages as engineer thereof. Decree for libelant. Huger Sinkler, for libelant. R. W. Memminger, for respondent. RIMONTQN, District Judge. 'The libelant engaged as en, gineer on the steam dredge Atlantic, and files thiB libel in rem for his wages. The respondent· admits the service, but denies the lien, on two grounds--First, because tbiB is biB home port; and, second, becal'se 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 Oharleston. She. was during' a large part of the service of libelant engaged in dredging Brick Yard creek, a waterway connecting Coosaw. river and Beaufort dYer, and afterwards in Wappoo cut,near Charleston. Libelant had been fireman on the dredge, and upon the removal of the engineer was appointed in place. Thewagea were $3.50 .aday for every day the dredge was at work. .Tbe was under.the. direction and: .of there-
60S'
FEDERAL REPORTER,
vol. 53.
for: her, and gave instructioM 'when Edle should worlL He was not on her, but ;gave his directioM by her in person, or by sending his son-in-law to represent him.;l,ibelant was the highest officer on the dredge, and directed and any other hands aboard. He' had no authority to purchase supplies for her, or to engage or dismiss hands aboard of hel'. B:iswageswere paid at the office of the respondent in ChuJ:'leston, 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 employed by respondent, looked to him for his wages, was paid by him, was under the control of no one but hila; and in these respects came within many of the reaSOM 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 COlltinuous wages, but was paid 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 waster in no maritime sense. He was employed because he was an and his chief duties were to run the engine. For this rea· son his pay ceMed 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. 378. 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 Fed. Rep. 607. The engineer of a towboat has a lien. The May Queen, 1 BpI'. 588. Persons employed on a steam fishing vessel 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 isa privileged hypothecation, jus in re, and continues until it is des1royed in some of the modes of dissolving an bypotJ,lecary interest known to the law. * * * It is his natural and best security,and which seamen habitually look to; and, alt hongh 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 perRona,' and which they ought not lightly to be pre· sumed to have abandoned." The Eastern Star, 1 Ware, 185. In the Sirocco, 7 Fed. Rep. 59!), 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 lien for their services in all cases, unless it be made to appear that a waiver of the lien and an exclusive personal credit formi'd part of the contract."
In this case the voyage was for fishing, and the crew shared in the result. 'l'his did not impair the lien. In Flaherty v. Doane, 1 Low.
THE ATLANTIC.
60&
148, Betllllen were held entitled to a lien on a vessel chartered for although'they were hired with knowledge of the charter. by the charterer, although the ship was not responsible for supplies furnished her in the hOllle 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 seelll, 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 Tllust 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:
a fishing
"In all suits fQl' 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 tbls court as a seaman."
Any service is a maritime service if substantially to be performed on the watt']'. within the ebb and flow of the tide. The D. C. bury, Olcott, 73. Another objection on the part of respondent to the claim of libelant is that he left !Jis service wit!Jont any notice whatever to his employer, and after repeated appointments to return to his dnty which he failed to fulfill, thus 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 becollles unnecessary, therefore, to express an opinion upon a claim thns set up, and w!Jether it could be allowed as a counterclaim. It appears, however, that the libel was filed nn· del' these circumstances, and without notice. This will affect the costs. The qnestion whether thE- lien exists, althongh 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 In· ternational, ::W Ped. Rep. 375. .Judge Brown, of the southern district of :Kew York, in that case discusses the question, and sustains the lien of an engineer upon a chartered ship, although he was engaged with fllll knowledge of the charter party and by the chal'terer. Oounsel, at the hearing, al,,"l'eed that the unpaid wages were $411i. Let a decree go for this sum to libelant, but, for the reasons above intimated, without costs to him. v .53F.no.6-39
610
nDEB.U. BEl'OIl.TEB,. vol.
53.
NO. DA.VJS T. 8ALT46J1l"':'BIUCAXU'iG
t.
FLOAT NO. 231 AND FLOA.T NO." HELL G4TB-PROBABILlTY Oll' DAHAGJIl.
(District Coilrt, 8. D. New York. January 15, 1893.) Where a tUgboat broke her shaft In gell Gate, and, for assistance, was tALken Intoqulet water by libelant's steamboat, the service last· I1ig about 20 minutes, it was held tMt In the stroJIg tideot Hell Gate the li!lbUity ot the tug to gOllshore, it unaided, was a danger, and that the service, renderlOd was therefore, a,salvage service, tor wbicb. $1,800, upon a .vlllue ot $46,000, shoUld be awarded.
BuUT IN
In Admiralty. Libel' by Charles W. Davis against, the steam tug Transfer No. 1 and Float No. 23 to recoTer salvage for assistance rendered to them by the Mary E. Gordon. Decree for libelant. George A.' Black, for libelant. ;" . Page & Taft" for claimants. BROWN" District, Judge. In the afternoon of :April 2, 1892, as the steamtng was going through Hell Gate against the ebb tide, with a loaded car float lashed to her port side, she became disabled by the bre!tking of her shaft, wh,en a little above the ferry, .whilegolug near the shore in the eddy, whieh there lets up towards Hallett's point.· She signaled for assistance, and the libeJant's smaJ.l freight and steamer Mary E. Gordon, which was a short distance below, aDd, on one of her trips from :Yew York W Mamaroneck, came up at ollcein re.'!ponse to the signals and threw 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 1m. portl;l,nce. 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. Furthera.{lcident and loss were not indeed certain; but as the result could not be foreseen under the peculiar circumstances of that dangerous vicinity, the liability and danger of loss were certain. I am persuaded that in the eddy testified to by the claimants, 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 comparatively weak power of 'the Gordon for towing purposes, RIld the atrong 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 anj probability involve nearly 80 much. The value of t.h6l