221 F. 308 (2nd Cir. 1915), 127, The Samuel Little

Docket Nº:127.
Citation:221 F. 308
Party Name:THE SAMUEL LITTLE.
Case Date:February 09, 1915
Court:United States Courts of Appeals, Court of Appeals for the Second Circuit

Page 308

221 F. 308 (2nd Cir. 1915)

THE SAMUEL LITTLE.

No. 127.

United States Court of Appeals, Second Circuit.

February 9, 1915

Page 309

The Samuel Little is a harbor tug employed in and about the harbor of the city of New York. The tug was sold by the United States marshal on February 14, 1913, under a libel for repairs. The sum realized has not been sufficient to pay all filed claims, and it is necessary to adjust priorities between them.

Claims were filed subsequent to the filing of the libel by several members of the crew of the tug for wages, and by William Horre & Co., whose claim is for coal supplied to the tug. It was contended by appellant that what has been known as the 'forty-day rule' should determine the priority of payment, and that wage claims, though retaining priority for a period of 40 days, were subordinate to claims accruing during a subsequent period of 40 days.

The District Judge declined to apply the 40-day harbor rule to wage claims, and held that all such claims, irrespective of the time of accrual, should be accorded a preference over the claim of William Horre & Co. for coal supplied to the tug within 40 days previous to the first attachment of the vessel-- on January 30, 1913. The coal had been delivered at various times between January 1 and 25, 1913, and the claim of John J. McCambridge for wages arose in June and July, 1912. The appeal is from so much of the decree as prefers the wage claims over the claim of the appellant for supplies.

Alexander & Ash, of New York City (Mark Ash and William Ash, both of New York City, of counsel), for appellant.

Foley & Martin, of New York City (James A. Martin, of New York City, of counsel), for appellees.

Before LACOMBE, COXE, and ROGERS, Circuit Judges.

ROGERS, Circuit Judge.

This appeal raises for the first time in this court the question whether what is known as 'the forty-day harbor rule' is to be upheld and applied to the wages of men employed on tugs in and about the harbor of New York. The amount involved is small, but the principle involved is one of considerable importance. All the wage claims, with the exception of the claim of John J. McCambridge,

Page 310

are within the 40-day rule. McCambridge was employed on the tug as a deck hand at $30 a month, and his claim amounted to $60, and was for wages due during the months of June and July, 1912. His petition as originally filed alleged that he was employed on the tug from September 1, 1912 to October 30, 1912. But his testimony at the trial showed this to be error, and he was allowed to amend his petition to conform with the proof. His employment ended, therefore, 6 months prior to the filing of the libel, and yet his claim for wages was given priority by the court below over the claim for coal which had been supplied to the tug within 40 days prior to the attachment.

A seaman has long been regarded as a ward of the admiralty, and his claim for wages has been called many times a 'sacred claim.' He has been allowed to enforce it either by suit against (1) the owners of the vessel, or (2) against the master personally, or (3) by process against the ship in a court of admiralty jurisdiction for the enforcement of the lien given him by the maritime law. Maclachlan's Law of Merchant Shipping, p. 258 (5th Ed. London 1911). In the Laws of England, vol. 26, p. 264 (1914), the law is stated as follows:

'The seamen's lien for wages takes priority over the master's lien for wages and disbursements, to a bottomry bond whenever given, to the claim of a mortgagee, to towage and light dues, and to a shipwreck's possessory lien, to the extent of the wages earned up to the time the vessel is put into the hands of the shipwright. The seamen's lien is postponed to a damage lien, to salvage rendered after the wages earned, to a shipwright's lien from the time he had possession, and to dock dues.'

In American and English Encyclopedia of Law (2d Ed.) vol. 19, p. 1121, it is said:

'The lien for seamen's wages is the most tenderly guarded of all liens by the courts. As a general rule it is preferred to all liens incurred during the voyage, except for salvage.'

And in Abbott's Law of Merchant Ships and Seamen, p. 1025 (14th Ed. 1901), the law is stated as follows:

'The lien for seamen's wages, including in certain cases subsistence money and viaticum, takes priority over the master's lien for wages and disbursements. It also has priority over a bottomry bond, and it matters not whether the wages were earned before or after the bond was given. It also ranks before the lien for necessaries, the shipwright's possessory lien, when the wages were earned before the repairs were taken in hand, and payments made for towage and light dues.'

The doctrine of priority of seamen's wages is established beyond question. The William F. Safford, Lushington, 69 (1860); The Union, Lushington, 128 (1860); The Salacia, Lushington, 545 (1862); The Great Eastern Steamship Co., 6 Aspinall's M.C. (N.S.) 511, 515 (1885); The Andalina, 6 Aspinall's M.C. (N.S.) 62 (1886); The Tergeste, 9 Aspinall's M.C. 356 (1902). In The Madonna D'Idra, 1 Dodson, 37 (1811), Sir William Scott, speaking of mariner's wages, says:

'These are sacred liens, and as long as a plank remains the sailor is entitled, against all other persons, to the proceeds, as a security for his wages.'

The wages of seamen have been favored in the law of all nations because of the peculiar and perilous service in which they are earned.

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The reason for doing so appears in the statement made in Benedict's Admiralty, Sec. 190:

'Ships were originally invented for use and profit, to plough the seas, not to lie by the walls.' The ship being finished and furnished, her first want is a ship's company to navigate her. Without their strength, and knowledge, and skill, and intrepidity, she must rot at the wharf, or be hurried to destruction. The ship, that by the agency of the most uncertain, capricious, and powerful elements moves with a certainty and a security only surpassed by the beauty of her appearance and the grace of her motion, when under the control of a well-appointed crew, becomes, in the hands of unpracticed landsmen, the victim of the first peril, and their efforts only urge her the sooner to inevitable destruction. The service of the ship's company is, therefore, the maritime service which is entitled to the highest consideration and the greatest favor; and the jurisdiction of the admiralty in cases of mariners' wages is settled by a course of decisions of unbroken authority during centuries. The jurisdiction over such cases is firmly established in this country on principle, and all cases of mariners' wages are, par excellence, maritime cases, and subject to the jurisdiction of the admiralty; and this includes whaling, sealing, and fishing voyages, and demands for subsistence, expenses of cure, etc., which are in the nature of wages. The master alone may not in this country libel the ship for his wages; it being held that he looks to the owners, and not to the ship, for his security. The rule is different in England, and therefore the English law is applied by comity, and the master of an English vessel may libel her in our courts for his wages.'

The United States has legislated upon the subject in much detail. See Revised Statutes (2d Ed. 1878) Secs. 4524-4548. It has even been provided that:

'Sec. 4535. No seaman shall, by any agreement other than is provided by this title, forfeit his lien upon the ship, or be deprived of any remedy for the recovery of his wages to which he would otherwise have been entitled; and every stipulation in any agreement inconsistent with any provision of this title, and every stipulation by which any seaman consents to abandon his right to his wages in the case of the loss of the ship, or to abandon any right which he may have or obtain in the nature of salvage, shall be wholly inoperative.'

Great Britain has with equal care legislated in detail for the protection of the rights of seamen in respect of wages. See Merchant Shipping Act 1894, Sec. 155 et seq.

Under the general maritime law the rule was established at an early day that services, supplies, and repairs incurred on a subsequent voyage outranked those incurred on a prior voyage; the vessel being employed in the navigation of the seas. The liens connected with every new voyage were accorded priority over all former ones after the vessel had sailed, if there had been reasonable opportunity for the enforcement of the earlier ones prior to the second sailing. See Jones on Liens, Sec. 1801 (3d Ed. 1914); The Charles Carter, 4 Cranch, 328, 332, 2 L.Ed. 636 (1808).

The application of the voyage rule to vessels employed simply upon the inland waters of this country unduly limited the period of credit. The courts therefore modified the rule with respect to vessels employed upon the Great Lakes and inland waters, and the principle was established that claims for repairs, supplies, and other maritime services rendered to such vessels in one season should outrank claims for repairs, supplies, and maritime services rendered during the preceding season, without regard to the particular voyage in which they were incurred.

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The season of open navigation of such waters, and not the particular voyage, was made the rule by which the priority of the payment of the claims against the vessels were to be determined. The question arose in 1856 in the District Court of Michigan in The Buckeye State, Newb. 111, 114, Fed. Cas. No. 13,445, and Judge Wilkins said:

'Especially in the navigation of these Northwestern lakes, where several voyages are made during the season, from...

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