Barnes v. THE" KONGO", 10752.

• Decision Date: 14 April 1949
• Docket Number: No. 10752.,10752.
• Citation: 174 F.2d 67
• Parties: BARNES et al. v. THE "KONGO" et al.
• Court: U.S. Court of Appeals — Sixth Circuit

174 F.2d 67 (1949)

BARNES et al. v. THE "KONGO" et al.

No. 10752.

United States Court of Appeals Sixth Circuit.

April 14, 1949.

Leo J. Sandmann, of Louisville, Ky. (Leo J. Sandmann and Leon Seidman, both of Louisville, Ky., on the brief), for appellants.

Thomas J. Wood, of Louisville, Ky., (David C. Walls, of Louisville, Ky., Benjamin W. Yancey, of New Orleans, La., and Thomas J. Wood, of Louisville, Ky., on the brief and Terriberry, Young, Rault & Carroll, of New Orleans, La., and Doolan, Helm, Stites & Wood, of Louisville, Ky., of counsel), for appellees.

Before ALLEN, MARTIN, and McALLISTER, Circuit Judges.

McALLISTER, Circuit Judge.

This controversy grows out of a libel filed by a seaman of the Towboat Kongo and an assignee of other seamen to recover unpaid wages. Other claimants intervened asserting that they had delivered necessary supplies and made necessary repairs for the Kongo at the request of its captain. Claims of a number of intervenors were heretofore heard and disallowed by the district court, and its decision was affirmed by this court. The Kongo, 6 Cir., 155 F.2d 492, certiorari denied Standard Oil Co. of Louisiana v. "Kongo", 329 U.S. 735, 67 S.Ct. 99, 91 L.Ed. 635.

Appellants are subsequent intervenors who filed amended intervening libels January 14, 1947. Their claims were disallowed by the district court. Mrs. Barnes had, on March 13, 1943, loaned $1,500 for a thirty-day period, to be used for the payment of wages, materials, and expenses in connection with the conversion of the Kongo. Appellant Fisher had loaned money for the purpose of enabling the Kongo to make a voyage. In making the loan by appellant Barnes, the agreement with her was that it would be repaid from the monies and reimbursements due and to become due the United States Barge Line, lessee of the Kongo, for freight earned by the ship. After this obligation of $1,500 was past due, it was extended, on May 13, 1943, to the conclusion of the first contemplated voyage of the Kongo. The agreement evidencing this extension set forth that appellant Barnes did not waive or release any claim she had against the funds due the United States Barge Line from the Defense Plant Corporation, "or any claim that she has against the Steamer Kongo, her furnishings, tackle, equipment, engines and machinery, but in addition to such lien or claim, she shall have a claim on the earnings and the freight of said Steamer Kongo, her furnishings, equipment, tackle, engines and machinery to secure payment of the above sums." Later, appellant loaned $1,100 to enable the Kongo to complete its voyage on the agreement that she would be repaid "from the freight and cargo of the Steamer Kongo and barges, due and to become due from the Standard Oil Company of New Jersey."

Appellant Fisher's claim is based upon one loan to the Master of the Kongo for the purpose of enabling the ship to make a voyage, made on the agreement that Fisher was to be repaid from the proceeds of the freight earned and to become due from the Standard Oil Company at the conclusion of the voyage; and a subsequent loan for the purpose of enabling the ship to continue a voyage, which was agreed to be repaid from the proceeds of the freight earned and to become due from the Standard Oil Company. The funds to which appellants had looked for repayment of their loans, as evidenced by the written understandings, were subsequent to the making of the loans, paid into the United States District Court for the Southern District of New York, and there, in several admiralty and interpleader suits, lawfully distributed by orders of the court to other creditors. Appellants did not share in this distribution. Standard Oil Co. v. Defense Plant Corp. et al., D.C., 57 F.Supp. 13; Defense Plant Corp. v. United States Barge Lines, Inc., D.C., 57 F.Supp. 14, affirmed in 2 Cir., 145 F.2d 766.

With one exception, appellants did not make the loans in question, or enter into agreements for extension of their payment, on the obligation of the vessel; they relied solely on its earnings. Such reliance on the earnings as security for the loans amounts to a waiver of lien on the vessel.

Nor can liability be enforced on the claims of appellants on the theory that the written obligations evidencing the debts are Respondentia Bonds. The agreement for repayment of the loans lacks most of the essentials of those archaic instruments, the use of which has passed, with other appurtenances and trappings of romance of days now remote, when masted ships rode the waters of strange harbors, while their masters, far from their home ports, and unable to send a message to the owners, tried to raise cash on bonds of Respondentia to enable their ships to clear for the continuing voyage.¹

Furthermore, in the light of the decision of this court in The Kongo, supra, advances made after the execution of the charter party, referred to in that case, in which the charterer and his agents were forbidden to impose any maritime lien or encumbrance, or incur any charge or debt on the vessel, could not be a lien thereon.² Appellants in this case were charged with notice of the terms of the charter party in like manner as were the other libellants whose claims were heretofore considered and disallowed by this court. The Kongo, supra. There is, as has been mentioned, one exception to the disposition of disallowance of appellants' claims. When appellant Barnes, on May 13, 1943, extended the time for payment of the obligation of $1,500, the writing evidencing the understanding provided not only that she did not waive any claim to the funds due from the United States Barge Lines from the Defense Plant Corporation, or of any claim she had against the Steamer Kongo, her furnishings, tackle, equipment, engines, and...