Alabama Dry Dock & Shipbuilding Co. v. Foster

• Decision Date: 26 March 1929
• Docket Number: No. 5455.,5455.
• Citation: 31 F.2d 394
• Parties: ALABAMA DRY DOCK & SHIPBUILDING CO. v. FOSTER et al.
• Court: U.S. Court of Appeals — Fifth Circuit

31 F.2d 394 (1929)

ALABAMA DRY DOCK & SHIPBUILDING CO. v. FOSTER et al.

No. 5455.

Circuit Court of Appeals, Fifth Circuit.

March 26, 1929.

Harry H. Smith, of Mobile, Ala. (Smiths, Young & Johnston, of Mobile, Ala., on the brief), for appellant.

Palmer Pillans, of Mobile, Ala. (Palmer Pillans, H. Pillans, Wm. Cowley, and Alexis T. Gresham, all of Mobile, Ala., on the brief), for appellees.

Before WALKER, BRYAN, and FOSTER, Circuit Judges.

WALKER, Circuit Judge.

Following the arrival of the schooner Else at Mobile on April 27, 1928, with a cargo of bitterwood taken aboard at Montego Bay, Jamaica, and while the cargo remained aboard, she was seized under a libel filed on April 30, 1928, by her master, the appellee A. S. Foster, and crew, asserting claims that the libelants were entitled to liens on the vessel and her pending freight for alleged amounts of wages owing to them. There was no appearance on behalf of the owners of the vessel, and a decree pro confesso was rendered against them. Under orders of the court the vessel was sold, and the proceeds, $1,200, were deposited in the registry of the court, and the cargo was unloaded and the freight money collected and deposited in the registry of the court.

The Mobile Towing & Wrecking Company intervened and claimed a lien on the funds deposited in the registry of the court for services in towing the vessel into the port of Mobile immediately prior to her seizure. The appellant, Alabama Dry Dock & Shipbuilding Company, also intervened and claimed a lien on the funds for labor and material supplied in dry-docking and repairing the vessel. A master found that the amounts due to the several libelants and interveners were the following: To the seamen, $1,030.05; to the master, $800.10 (being the balance due for his wages at the rate of $175 per month to the date of his discharge, April 28, 1928); to the Mobile Towing & Wrecking Company, $244.20; and to the appellant, Alabama Dry Dock & Shipbuilding Company, $5,595.45. There was no dispute as to those amounts.

By agreement of the parties the amount found to be due to the seamen was decreed to be paid out of the proceeds of the sale of the vessel. The court adjudged that the master had a lien on the freight superior to all claims, except those of the seamen, and a lien under the statutes of Alabama on the proceeds of the sale of the ship of equal rank with the lien adjudged in favor of the Mobile Towing & Wrecking Company, and superior to the lien adjudged in favor of appellant on the proceeds of the sale of the ship; that the amount adjudged in favor of the master be paid from the net proceeds of the freight, $1,049.91, and that the balance remaining in the registry of the court, $174.40, be paid to the Mobile Towing & Wrecking Company.

A principal contention in behalf of the appellant is that the master is not entitled to a lien on either the freight or the ship. In 1828 a District Court decided that a master has a lien on the freight for his wages. Drinkwater v. Spartan, Fed. Cas. No. 4,085, 1 Ware, 145. That decision was followed by the same court in The Bowditch, Fed. Cas. No. 1,717, 3 Ware, 71, and by another District Court in The Arcturus, 17 F.(2d) 95. We think those decisions are not in harmony with decisions of the Supreme Court of the United States. In the case of The Steamboat Orleans v. Phoebus, 11 Pet. 175, 9 L. Ed. 677, that court decided that a master has no lien on the vessel for his wages. In the case of Norton, Assignee, v. Switzer, 93 U. S. 355, 23 L. Ed. 903, the decision was to the same effect, the court saying in the opinion: "Seamen have a maritime lien for their wages wherever the services may be rendered; but that just rule was never extended to the master, except in cases where the lien is created by statute."

That the quoted statement meant that the master has no maritime lien for his wages, and applied to the freight as well as the vessel, is persuasively indicated by the citations which followed the statement, as it is to be inferred that the court considered the decisions and texts cited to be in harmony with its statement. The first of those citations is the case of Smith v. Plummer, 1 B. & Ald. 575, in which it was decided that the master of a ship has not a lien on the freight for his wages. Another of the citations was Maclachlan on Shipping, which contains a statement to the effect that, prior to the English statute on the subject, the master for his wages or disbursements was without lien, so that his only remedy was personal, either at law or in equity. Maclachlan Law of Merchant Shipping (6th Ed.) 155.

There was no decision on the subject in the case of The William M. Hoag, 168 U. S. 443, 18 S. Ct. 114, 42 L. Ed. 537. Nothing was decided in that case except that the District Court had jurisdiction, and that the case was not before the Supreme Court for a decision on the merits. But the statement in the opinion as to the questions raised in the case shows that the court recognized that, in the case of The Steamboat Orleans v. Phoebus, supra, it decided that the master has no lien...