98'i
93
REPORTER.
danger of loss; and there can be no doubt that what was done by the Whitesboro in bringing the raft into that port contributed, in some degree at least, to its ultimate recovery by the ()wners.. In my opinion, the service thus rendered by the Whitesboro and her crew lllay properly be regarded as a salvage serviCe. It may be that the owners of the steamer would not be entitled to recover as for ll.. salvage SPIT ice because of the direction given by them to the master to abandon the raft at Santa Oruz, but, the raft having been brought into a plat'(' of comparative safety as the result in part of the efforts of the erpw, the right of the latter to recover their proportion of the value of SUt'l1 salvage service was not forfeited by this action of the owners of the steamer, nor was the right of the members of the crew in any way affected by the agreement made between the master and the fishel" men. They were not parties to that agreement, and, as it appears from the evidence, knew nothing of it. Under such circumstane('s they werenot bound by it. The Sarah Jane, 2 'Y. Rob. Adm. 110; The Britain, 1 W. Rob. Adm. 40. The only question that remains is that which relates to the amount of the judgment to be awarded in favor of the libelant. The senit,(' rendered by the Whitesboro and her crew in bringing the raft into Santa Oruz was not of so meritorious a nature as to justify a largp award by way of compensation, and in determining how much Rhollld be awarded on account of that service to the libelant, who sues in behalf of himself and the master and other members of the crew. the language of Judge Brown in delivering the opinion of the court in the case of The William Smith, 59 Fed. 615, may well be adopted by me.as entirely applicable to the claims of the libelant and those in whose behalf this action is brought:, "The personal services of mosl of the ship's company in this case were comparatively small, ano without danger. The expense and risk were chiefly on the part or the ship and her owners." The master is not, by reason of his agrep ment witb the fishermen, elltitled to recover anything in this aetirH. and, in. my judgment, an allowance of $120 will sufficiently compl'-" sate the libelant and the remaining persons in whose behalf this suit is brought. . The said sum to be divided between them in proportion to the wages received by them. The libelant is also entitled to recover costs. Let such a decree be entered.
HAYSv. JAMES REES & SONS CO. (Circuit Court of ApP als, Third Circuit. . No, 20, March Term. MA.RITIME.LIENS-EQUIPMENT FOR VESSEJ,-NECESSITY FOR DELIVERY.
May. S. ·1899.)
Under the Pennsylvania statutes, either Act June 13, 1836, as amended by 4-ct June 24, 1895, or Act April 20, 1858, relating t() liens for work . done or materials furnished in the bunding or equipment of vessels, a delivery of an article made for the equipment of 'a steamer, either by placing it in the vessel or delivering it to the Qwners, is essential tQ create a lien on the ve!3sel therefor.
HAYS V. JAMES HEES & SONS CO.
985
Appeal from the District Court of the United States for the Western District of Pennsylvania. Oharles S. Crawford, for appellant. J. S. Ferguson, for appellee. Before ACHESON and DALLAS, Circuit Judges, and KIRKPAT· RICK, District Judge. DALLAS, Circuit Judge. The appellee, upon the order of the owners of the steamer Cyclone, made a shaft, bedplate, and pillow block for that vessel. The price agreed upon was $725.40. The work was done, and what thereafter occurred appears from the testimony of Mr. James M. Rees, as follows: the steamer Cyclone has been objected to by :\11'. Crawford, for the reason that it appears by the testimony of D. A. Rees that your charges under date of December 31, 1896, amounting to $687.16, were for one new shaft extra for the boat, and fittings,-material charged for which had not been delivered. I will ask you whether or not that shaft is still in the shop of your company. A. I believe it is; yes, sir. Q. And will you explain why the shaft was permitted to remain there, and why it wasn't delivered to, and put upon, the boat'! A. The shaft was ordered as an extra, and made some time after being received, and then the fittings for the shaft was ordered, so that, in case of emergency, they would have the extra shaft ready to put on th!' boat in a short space of time, without losing or causing any delay. Q. )lr. D. A. Hees testified that the shaft and fittings were permitted to remain in your shop at the request of one of the owners of the Cyclone. Do you know' anything about that'! A. Yes, sir; I personally requested Mr. Posey to take the shaft away, as it was in the way. He then told me to fit it up as far as I could, and hold it subject to their order where to deliver it, and, in case I could hold it there, as long as possible to do so, but, when it became too much in the road, then to set it out on the bank, any place where they might get it. Xow, that wassomewheres about a year ago. On becoming busy last fall,-in .TalluarY,-I took everything that was in the shop, and piled it at one end, in a lJromiscuous pile, by the crane. '1'hat shaft to-day, among three that was there, is on top of four pairs of cylinders and two other shafts, and about eight feet from the ground. Q. Did you take !lny note from the steamer Cyclone for your account or any part of it'! A. Yes, sir. Q. I show you note dated July 1, 1897, made by the steamer Cyclone and owners to the order of your company for $873.53, payable two months after date, and ask you whether or not that note included the charges for the extra shaft and fittings. A. Yes, sir; that is a note received in our account, and includes the shaft, six months after we had entered it in our books in settlement of the account up to that date." "Q. Captain, you are the president of the James Rees & Sons Company? A. No, sir; vice president and general manager. Q. Captain, your claim against
Upon the facts and under the circumstances disclosed by this evidence, did James Rees & Sons Company have a lien for the shaft and other articles referred to'! The Cyclone having been sold under admiralty process, and the proceeds brought into the district court for distribution, that court held that such a lien did exist, and decreed accordingly. The learned judge found that the articles had been delivered, and therefore held that the case fell within the purview of the Pennsylvania statute of June 13, 1836, as amended by the act of June 24, 1895, by which a lien is given "for all work done and materials and supplies furnished or provided in the building, repairing, fitting, furnis{ling, supplying or equipping of such ships or vessels." We are unable to concur in this view. 'We incline to think
986
93 FEDERAL REPORTER.
that the act 01 April 20, 1858, is more nearly applicable than that of June 24, 1895; but, be this as it may, we do not donbtthat delivery is, under either act, e88enUal JQ lien. ,It, ,il;j. ,Ilot to decide whether it be requisite that the articles shOuld, plaQed upon the but that the possessiop must b,e either to the or to its owner or proper representative, we think is unquestionable. James Dalzell's Son & Co. v. The Daniel Kaine, 31 Fed. 748. In the present case there was ,in fact. no change of posse&"!iolli and the reason for this is not, in our:opinion, material. The motion to quash is not well founded. '.l'Pe wsition now assumed in support of that II1otion was not taken in, the court below, from and the faet that the appellant bought the sheriff of Washington county, on the 6th day of :M.ay, 1898, is distinctly shown by the! recOl'd before us. The decree' (If the district court is reversed, l!lld'the cause will be remandeQ. to tha,t court·for further' proceedings, to be' there taken in ·pursuance,of this: detennination.
;1 '.""
MEMORANDUM DEqIS10NS.·