331 F.2d 44 (5th Cir. 1964), 20684, Peterson v. S. S. Wahcondah

Docket Nº:20684.
Citation:331 F.2d 44
Party Name:John R. PETERSON et al., Appellants, v. S.S. WAHCONDAH and Ahern Shipping Company, Ltd. and Miami Marine Agency, Inc., Appellees.
Case Date:April 08, 1964
Court:United States Courts of Appeals, Court of Appeals for the Fifth Circuit

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331 F.2d 44 (5th Cir. 1964)

John R. PETERSON et al., Appellants,


S.S. WAHCONDAH and Ahern Shipping Company, Ltd. and Miami Marine Agency, Inc., Appellees.

No. 20684.

United States Court of Appeals, Fifth Circuit.

April 8, 1964

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Fernand F. Willoz, III, New Orleans, La., for appellants.

Samuel C. Gainsburgh, Theodore J. Pfister, Jr., New Orleans, La., Kierr & Gainsburgh, New Orleans, La., for appellee.

Before RIVES, JONES and WISDOM, Circuit Judges.

RIVES, Circuit Judge:

Except for the Master of the vessel, who is not a party to these proceedings, the libelants, appellants, are all of the officers and crew of the 'SS WAHCONDAH' at the time of its arrival at the Port of New Orleans with a cargo of two thousand long tons of bulk sugar on or about June 18, 1962. The libelants' wages had last been paid on approximately May 1, 1962. After their arrival in New Orleans, and about two weeks after the sugar had been discharged from the vessel, the libelants demanded of the Master that they be paid the wages due them as of that time, 1 but the Master had had no money with which to pay them.

The vessel was of Canadian registry, and two of the libelants were Canadian citizens. The others came from the West Indies, from Latin America, and from as far away as Bombay, India. The ship remained at anchor in the Port of New Orleans until after September 19, 1962. No wages were paid the libelants, and they were without funds to repatriate themselves. Because of their status as unauthorized aliens, they could not attempt to find employment ashore. After remaining aboard the vessel for approximately three months, the supplies and provisions had been consumed and they sought the advice of counsel. On September 19, 1962, a libel was filed seeking their back wages, future wages that might be required of them while the ship was in the custody of the court, repatriation expenses, and penalty wages provided by 46 U.S.C.A. § 596. 2

On the day after this libel was filed, the district court was apprised of the fact that libelants were still aboard the vessel, and that they were in desperate circumstances, having neither food nor water, nor the means of obtaining these necessities of life. The district court entered an order recognizing the claim of a local ship chandler for provisions furnished subsequent to the seizure of the vessel as a priority claim, on the basis of which libelants were able to obtain provisions on credit. On four later occasions, the lower court signed similar orders authorizing the purchase of additional provisions.

The vessel was owned by Ahern Shipping Company, Ltd., a Canadian corporation. On December 13, 1961, at Miami, Florida, Ahern had entered into a 'Special Agency Agreement' with Miami Marine Agency, Inc. The agreement recited that Ahern 'herewith and herein advises and notifies the Agent that it is in a precarious financial position and cannot obligate itself to advance any monies for expenses for the operation of the Vessel

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nor to repay any such advances or costs for the operation of the Vessel, but that all such advances, payments, etc. shall be made against the credit of the Vessel * * *.' It authorized Miami 'to collect freights in behalf of Owners and apply such funds to disbursements of the Vessel, including the purchase of supplies for the Vessel, and to advance funds in excess of those collected from freights as necessary to keep the Vessel in operation * * *.' Miami intervened in the proceedings, asserting a lien against the vessel for advances between the dates of December 13, 1961 and May 31, 1962 in the amount of $15,530.03.

Under orders of the district court, the ship was finally sold to Miami for $20,100.00 and the sale confirmed by the court on November 21, 1962. On the same day the district court ordered that the sum of $10,187.94 from the amount on deposit as the proceeds from the sale of the vessel be distributed among the libelants, and in its order specifically recognized and reserved the rights of the...

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