372 F.2d 626 (5th Cir. 1967), 23182, Barber v. Motor Vessel 'Blue Cat'

Docket Nº23182.
Citation372 F.2d 626
Party NameCaptain Tom BARBER, Appellant, v. The MOTOR VESSEL 'BLUE CAT', a 32' Catamaran, her engines, apparel, tackle and equipment et al., Appellees.
Case DateJanuary 31, 1967
CourtUnited States Courts of Appeals, Court of Appeals for the Fifth Circuit

Page 626

372 F.2d 626 (5th Cir. 1967)

Captain Tom BARBER, Appellant,

v.

The MOTOR VESSEL 'BLUE CAT', a 32' Catamaran, her engines, apparel, tackle and equipment et al., Appellees.

No. 23182.

United States Court of Appeals, Fifth Circuit.

January 31, 1967

Gary P. Eidelstein, Miami Beach, Fla., for appellant.

James L. Hurley, Frank J. Marston, Miami, Fla., for appellees, Fowler, White Gillen, Humkey & Trenam, Miami, Fla., of counsel.

Before BROWN, GEWIN and GOLDBERG, Circuit Judges.

Page 627

JOHN R. BROWN, Circuit Judge.

A case simple in setting, small in amount, has become complicated and the subject of much judicial travail-- with now more to come-- because of two factors. The first is that the Libelant, or more likely his first proctor who since withdrew, became mesmerized by the title 'Master' in describing the status of the Libelant seeking a lien for wages. The second is that the Trial Court forgot the lesson so often brought home by us that at this day and time dismissal of a claim-- land-based, waterborne, amphibious, equitable, legal, maritime, or an ambiguous, amphibious mixture of all of them, Mike Hooks, Inc. v. Pena, 5 Cir., 1963, 313 F.2d 696, 1963 AMC 355, on the basis of the barebone pleadings is a precarious one with a high mortality rate. Millet v. Godchaux Sugars, Inc., 5 Cir., 1957, 241 F.2d 264, esp. n. 1. 1

The libel was brought by 'Captain Tom Barber' against the BLUE CAT. How unlike such a person might well be from one who as 'Lord of the Quarter deck' is master of all he surveys, Avera v. Florida Towing Corp., 5 Cir., 1963, 322 F.2d 155, 1963 AMC 2110; United Geophysical Co. v. Vela, 5 Cir., 1956, 231 F.2d 816, 819, 1956 AMC 745, is revealed by the libel's captions description of the BLUE CAT-- 'a 32' catamaran.' The libel then alleged that Captain Barber 'was engaged as captain' at a minimum specified salary. But after exceptions to the original libel on the ground that the Master had no lien were sustained, the amended libel added much. 'Further' it alleged, Barber 'was engaged to ferry the vessel from Galveston * * * to Miami, Florida * * *.' It then went on to assert that under his arrangement with the vessel owner, Barber at the request of the 'vessel, her master, agent, owner, representative or the person or persons to whom the management, custody or control of said vessel' 2 had been entrusted, had 'furnished * * * services, materials, supplies (and) labor' for and to the vessel in the value of $2,766.50 as detailed in the annexed bill of particulars.

Page 628

The 'Bill of Particulars' listed 67 specific occasions between fitting out at Galveston on December 4, 1963, and the last item on February 28, 1964, subsequent to arrival of the vessel in Miami, Florida, on January 7, 1964. 3

In a record which contains naught but the amended libel, the categorical exception that 'as captain, libelant has no maritime lien for services performed while acting in that capacity' and the unrevealing order of dismissal 4 with no reported colloquy of the argument to indicate whether the Trial Court ever considered the numerous cases which do allow some liens despite the title 'Master,' we have to assume that the Judge thought it was a case of all or none so far as Barber's own labors were concerned.

And herein lies the error. For in a variety of situations, the cases, many of them ancient, recognize that this much-criticized prohibition of a lien to the Master for wages 5 has its own ameliorations. Where the so-called 'Master' or 'Captain' performs work which is essentially that of a crew member, deck or engine room, and now the shore-based Sieracki-Ryan-Yaka vicarious seamen, Ove Skou v. Hebert, 5 Cir., 1966, 365 F.2d 341, 344,1966 AMC 2223, he is not denied the protection of security which Mr. Justice Gray, in the plagiaristic tendencies of Judges echoing the salt water extravagance of Sir William Scott, later Lord Stowell, described as 'sacred.' 6

Thus, as though written about Barber and the BLUE CAT, Judge Sibley declared that 'Knowles speaks of himself as captain, but it appears that he was the crew also. A true master has in the United States no lien for his wages, but Knowles, constituting the entire crew of this small boat, as crew may claim one.' Swift v. Knowles, 5 Cir., 1939, 100 F.2d 977, 978, 1939 AMC 148. Indeed, we have sounded the same theme. Burdine v. Walden (The Atlantan), 5 Cir., 1937, 91 F.2d 321, 322, 1937 AMC 1149; see also Rathbun v. Halvorson (The Patsea), 5 Cir., 1960, 181 F.2d 57. The right to the security of a lien for wages for services which are the equivalent of a crewman's labor is the thing which gives the claim and the claimant the character, and 'their real character is a question of fact.' Collyer v. S.S. Favorite, S.D.N.Y., 1939 AMC 1015. See Norris, Seamen § 449 at 470 (2d ed. 1962). The fact that a person is described or describes himself or signs ship's papers as 'master' is not conclusive as to his status as a seaman. Wandtke v. Anderson, 9 Cir., 1934, 74 F.2d 381, 1935 AMC 130; Matter of Southern Pac. Golden Gate Ferries, N.D.Calif.S.D., 1942, 1942 AMC 1581, 1585; ...

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87 practice notes
  • 435 F.2d 962 (5th Cir. 1970), 29195, Singleton v. Foreman
    • United States
    • Federal Cases United States Courts of Appeals Court of Appeals for the Fifth Circuit
    • December 1, 1970
    ...has characterized such a procedure as both a 'precarious one with a high mortality rate,' Barber v. Motor Vessel 'Blue Cat,' 5 Cir. 1967, 372 F.2d 626, 627, and 'a tortuous thing,' Arthur H. Richland Co. v. Harper, 5 Cir. 1962, 302 F.2d 324. Though our opinions are replete with homilies and......
  • 602 F.2d 743 (5th Cir. 1979), 77-1188, Gordon v. Green
    • United States
    • Federal Cases United States Courts of Appeals Court of Appeals for the Fifth Circuit
    • September 18, 1979
    ...but the fourth set of complaints in deciding to dismiss for lack of jurisdiction. [9] Barber v. M/V "Blue Cat", 5 Cir., 1967, 372 F.2d 626, 1967 A.M.C. [10] Cook & Nichol, Inc. v. The Plimsoll Club, 5 Cir., 1971, 451 F.2d 505. [11] See, e.g., Hitt v. City of Pasadena, 5 Cir., ......
  • 393 S.E.2d 298 (N.C.App. 1990), 8928SC384, McMillan By and Through McMillan v. Mahoney
    • United States
    • North Carolina Court of Appeals of North Carolina
    • July 17, 1990
    ...'to go too fast too soon.' " Sutton v. Duke, 277 N.C. at 108, 176 S.E.2d at 169 (quoting Barber v. Motor Vessel "Blue Cat," 372 F.2d 626, 629 (5th Cir.1967)). Reversed and remanded. Judges EAGLES and GREENE concur....
  • 608 S.E.2d 80 (N.C.App. 2005), COA03-1498, Stein v. Asheville City Bd. of Educ.
    • United States
    • North Carolina Court of Appeals of North Carolina
    • February 1, 2005
    ...now would be 'to go too fast too soon.' " 277 N.C. at 108, 176 S.E.2d at 169 (quoting Barber v. Motor Vessel " Blue Cat," 372 F.2d 626, 629 (5th Cir. 1967)). "By utilizing the discovery rules defendants may ascertain more precisely the details of plaintiff[s'] claim and ......
  • Request a trial to view additional results
86 cases
  • 435 F.2d 962 (5th Cir. 1970), 29195, Singleton v. Foreman
    • United States
    • Federal Cases United States Courts of Appeals Court of Appeals for the Fifth Circuit
    • December 1, 1970
    ...has characterized such a procedure as both a 'precarious one with a high mortality rate,' Barber v. Motor Vessel 'Blue Cat,' 5 Cir. 1967, 372 F.2d 626, 627, and 'a tortuous thing,' Arthur H. Richland Co. v. Harper, 5 Cir. 1962, 302 F.2d 324. Though our opinions are replete with homilies and......
  • 602 F.2d 743 (5th Cir. 1979), 77-1188, Gordon v. Green
    • United States
    • Federal Cases United States Courts of Appeals Court of Appeals for the Fifth Circuit
    • September 18, 1979
    ...but the fourth set of complaints in deciding to dismiss for lack of jurisdiction. [9] Barber v. M/V "Blue Cat", 5 Cir., 1967, 372 F.2d 626, 1967 A.M.C. [10] Cook & Nichol, Inc. v. The Plimsoll Club, 5 Cir., 1971, 451 F.2d 505. [11] See, e.g., Hitt v. City of Pasadena, 5 Cir., ......
  • 393 S.E.2d 298 (N.C.App. 1990), 8928SC384, McMillan By and Through McMillan v. Mahoney
    • United States
    • North Carolina Court of Appeals of North Carolina
    • July 17, 1990
    ...'to go too fast too soon.' " Sutton v. Duke, 277 N.C. at 108, 176 S.E.2d at 169 (quoting Barber v. Motor Vessel "Blue Cat," 372 F.2d 626, 629 (5th Cir.1967)). Reversed and remanded. Judges EAGLES and GREENE concur....
  • 608 S.E.2d 80 (N.C.App. 2005), COA03-1498, Stein v. Asheville City Bd. of Educ.
    • United States
    • North Carolina Court of Appeals of North Carolina
    • February 1, 2005
    ...now would be 'to go too fast too soon.' " 277 N.C. at 108, 176 S.E.2d at 169 (quoting Barber v. Motor Vessel " Blue Cat," 372 F.2d 626, 629 (5th Cir. 1967)). "By utilizing the discovery rules defendants may ascertain more precisely the details of plaintiff[s'] claim and ......
  • Request a trial to view additional results
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