Clifford v. Merritt-Chapman & Scott Corporation

• Decision Date: 15 April 1932
• Docket Number: No. 6392.,6392.
• Citation: 57 F.2d 1021
• Parties: CLIFFORD et al. v. MERRITT-CHAPMAN & SCOTT CORPORATION et al.
• Court: U.S. Court of Appeals — Fifth Circuit

57 F.2d 1021 (1932)

CLIFFORD et al. v. MERRITT-CHAPMAN & SCOTT CORPORATION et al.

No. 6392.

Circuit Court of Appeals, Fifth Circuit.

April 15, 1932.

Burton G. Henson, of Tampa, Fla., for appellants.

K. I. McKay, Maynard Ramsey, G. L. Reeves, Claibourne M. Phipps, W. H. Jackson, and J. W. Cone, all of Tampa, Fla., for appellees.

Before BRYAN, SIBLEY, and HUTCHESON, Circuit Judges.

SIBLEY, Circuit Judge.

This is an appeal from a decree in admiralty by which seamen were awarded a first lien for their wages on the ship but none on the cargo, and a tug owner and a warehouseman were given liens of equal dignity on the cargo. All are dissatisfied. The material facts so far as found are these: The steamship Santa Ana of Tampa, Fla., sailed from Seattle with a cargo of crated apples, canned salmon, and reindeer meat in the hold and lumber on the deck, consigned by various shippers to themselves at Tampa, except that some of the apples were consigned to Wilmington, N. C. The apples and meat were kept refrigerated by machinery. On the trip the boilers and refrigerating machinery failed and the ship got short of water. After passing through Panama Canal rough weather was encountered. The ship began to leak badly and sent out wireless distress calls, in response to which the Athelchief took her in tow to the harbor of Grand Cayman and anchored her there in safety. The wrecking tug Warbler owned by Merritt-Chapman & Scott Corporation had also answered the call and at Grand Cayman, after conference with the master, communicated by wireless with her owners and they contracted with the owner of the Santa Ana at Tampa to tow her to Tampa for $4,500 plus additional requirements at scheduled rates. The Warbler accordingly took the Santa Ana in tow, installed additional pumps on her, and through a steam line assisted in running her refrigerating plant. With some aid from the Santa Ana's engines the Warbler brought her over calm seas to the wharf of Tampa Union Terminal Company at Tampa on December 27, 1929. The next morning a marine survey was had of vessel and cargo. The vessel was found leaking and advice was given that the cargo be removed and stored for the benefit of all concerned. Accordingly, with the consent of the ship's officers, Tampa Union Terminal Company through stevedores discharged the cargo across the dock into its warehouse, putting the apples and meat in cold storage, and the salmon and lumber in dry storage. On December 30, 1929, Merritt-Chapman & Scott Corporation libeled and attached the ship and cargo, claiming a lien against both for $7,555 for towage and additional services. On January 2, 1930, the seamen of the Santa Ana libeled her, her freight and cargo for wages, reciting the former libel and seizure and designating theirs as an intervening libel but obtaining no order to file it as such. The owners of the Athelchief also libeled for salvage. By January 10, 1930, the apples and meat had been sold under order of the court as perishable. On that date Tampa Union Terminal Company petitioned the court to be paid its charges for stevedoring, refrigeration, storage, and dockage as costs. On January 11th it filed an intervening libel, asserting a lien therefor on vessel and cargo. Claim was made for the vessel by her owner, and the various libels were answered. One Hedrick claimed the proceeds of the apples, also answering the libels. No one claimed the salmon, meat or lumber, which were later sold, as was the vessel after long and expensive delay, at very disappointing prices. The court ordered all libels and petitions to be consolidated, and to be considered as intervening in the first libel. The salvage claim of $1,000 was conceded by all and paid, two-thirds from the proceeds of cargo and one-third from the proceeds of the vessel. The court decreed $6,521.62 as wages to the seamen, with a first lien on the proceeds of the vessel, of which only a few hundred dollars remained, and denied a lien on the cargo. The owners of the Warbler were awarded $7,555.84, and given a lien on the proceeds of the cargo. The warehouseman after payment of a portion of its claim as costs accruing since the seizure was awarded $2,186.95 for stevedoring, wharfage, refrigeration, and storage, with a lien on the proceeds of cargo ranking with the towage. The proceeds of cargo after paying costs and salvage are but $4,856.52.

The seamen's libel was not perfected as an independent libel by a warrant of arrest, nor allowed originally as an intervening libel by order of the court under Admiralty Rule 34 (28 USCA § 723). The order of consolidation, however, expressly ordered that it be treated as an intervening libel and supplied any want of original allowance. The libel should not be dismissed. It alleged that freight had been earned by the ship in a sum of $11,520 which was unpaid. The answers of the claimants denied that any freight had been earned except upon the lumber. Tampa Union Terminal Company answered that it had no knowledge on the subject. In this state of the pleadings the burden of proof was left on the seamen. No evidence was taken on the question of freight save the general statement of the master that he had read the libel and its statement of facts was true. The libel also alleged that none of the cargo had been delivered, and there is a stipulation signed by all litigants that, "No delivery of cargo nor tender thereof was made by the Santa Ana to the consignees." At the final hearing the proctor for the seamen moved to be allowed to give further evidence by the bills of lading and by the ship's agents of the amount of freight on each lot of the cargo, and that it was unpaid, to wit: Apples consigned to Tampa, $4,914; apples consigned to Wilmington, $5,607; reindeer meat, $37.30; salmon, $280; lumber, $184. The motion was refused for the assigned reason that the seamen had been contending for a lien on the entire cargo and not merely on the freight, and evidence had been taken on that theory and time allowed to produce authority to sustain that contention. The additional reason is now urged that under the quoted stipulation and the plain facts no freight could have been earned. The seamen could produce no authority for a lien for wages on the entire value of the cargo, for there is none. The shipper of goods does not bind them to the ship for the wages of the seamen, but for the agreed freight, out of which the ship should pay wages. Except when salvage is involved the seamen look to the ship and to the freight only. Sheppard v. Taylor, 5 Pet. 675, 8 L. Ed. 269. But if the freight is not paid, since the ship has a lien on the cargo therefor the seamen are allowed in effect to enforce the ship's lien for the agreed freight; or in case the shipowner owns the cargo also, to enforce the ship's lien for a reasonable freight. Poland v. The Spartan, Fed. Cas. No. 11,246; Whitney v. Tibbol (C. C. A.) 93 F. 686. The seamen thus come to have an indirect but enforceable lien on each lot of the cargo for the earned unpaid freight due on it. We do not think the stipulation or the facts make it impossible that freight has been earned in the present case. With no contract or custom shown to the contrary, the ship before demanding freight is bound to bring the goods to destination, The Tornado, 108 U. S. 342, 2 S. Ct. 746, 27 L. Ed. 747, and to deliver them on the wharf so as to allow examination, Brittan v. Barnaby, 21 How. 527, 16 L. Ed. 177, and to notify the consignees or owners, Hutch. Carriers (3d Ed.) §§ 687, 689, 695. If they cannot be notified, or if the freight is not paid, the goods should be stored safely until freight is paid and delivery can be accomplished. The Thames, 14 Wall. 98, 20 L. Ed. 804. Upon such storage the ship ceases to be carrier, but has earned her freight and retains her lien therefor. Brittan v. Barnaby, supra; Howard v. 9,889 Bags of Malt (D. C.) 255 F. 917; Hutch. Carriers (3d Ed.) §§ 688, 880. This record shows no findings of the facts touching notice to the consignees. As to the lumber, salmon, and meat consigned to Tampa it is entirely possible that the consignees could...