Gerber v. Spencer

• Decision Date: 13 February 1922
• Docket Number: 3749.
• Citation: 278 F. 886
• Parties: GERBER et al. v. SPENCER et al.
• Court: U.S. Court of Appeals — Ninth Circuit

278 F. 886

GERBER et al. v. SPENCER et al.

No. 3749.

United States Court of Appeals, Ninth Circuit.

February 13, 1922

Rehearing Denied March 2, 1922.

Pillsbury Madison & Sutro, of San Francisco, Cal. (Oscar Sutro and Felix T. Smith, both of San Francisco, Cal., of counsel, for appellants.

Ira S Lillick, of San Francisco, Cal. (J. Arthur Olson, of San Francisco, Cal., of counsel, for appellees.

Gerber and the Anglo-California Trust Company appealed from a decree in favor of appellees libelants, for wages and transportation and subsistence against the ship Benowa, and, in the event transportation and subsistence were not furnished, in lieu thereof libelants should receive certain specified sums. In October, 1920, the Pacific Motorship Company, owner of the Benowa and other ships subject to mortgages in favor of the Australian government, contracted with the Australian government, whereby the Anglo-California Trust Company, as trustee, acquired the ships. On January 21, 1921, libelants signed at Baltimore for a voyage from Baltimore via coastwise points on west coast and final port discharge on west coast for a period not exceeding three months, and, if crew were discharged on the west coast, transportation was to be paid back to Baltimore. A few days afterwards Houlder, Wier & Boyd, of New York, as principals, but who were in fact agents of the Pacific Motorship Company, contracted with the Navy Department of the United States for the ship to carry coal from Hampton Roads, Va., to Bremerton, Wash. On February 28, 1921, the Benowa, in distress, put into the harbor of San Francisco, and arrangements were made to discharge cargo at San Francisco. The captain, unable to obtain money from the Pacific Motorship Company, obtained provisions on credit to last until about March 9, 1921. When the provisions were exhausted, the captain and the crew, except the chief engineer, the boatswain, and the chief cook, remained on the ship and performed duties. Demand for wages to pay the crew was refused. During the delay incident to telegraphic communication between the Navy Department at Washington and W. L. Comyn, asking permission to deliver cargo at San Francisco, on March 8, 1921, the commonwealth of Australia brought suit for the foreclosure of the equitable lien created by the contract of October 21, 1920, and asked for a receiver of the Benowa and other ships. On March 9 the Navy Department granted permission to discharge the cargo at San Francisco. On March 10, 1921, libel was filed by McIntosh & Seymour Corporation against the Benowa, and the marshal seized the ship. Other lienholders and other independent libels were filed against the ships, and in personam against the Pacific Motorship Company, and on March 15th these libelants filed suit.

In the libel libelants demand wages from the time of their shipping and sailing to the date of the filing of the libel, and money sufficient to procure passage back to Baltimore and support in the meantime until they could secure such passage, and their passage, including subsistence during the time libelants were traveling on their way home, and also two days' pay per day for each of the days the wages referred to remained unpaid from and after March 15, 1921. Wages calculated to March 15 aggregated $10,395.83. On March 16 libelants' proctor telegraphed the Navy Department at Washington that owners apparently abandoned the ship, crews were unpaid and without support, and notified the Department to withhold from the payment out of freight money amount due crew, $10,395.83, plus amount due captain for his wages and advances. The ship was discharged on March 17. Comyn, agent of the Pacific Motorship Company, testified that his company assigned the freight to proctor of libelants as trustee for the payment of the crew's wages. On the 17th of March the proctor telegraphed to Washington that, upon understanding that out of freight money $12,000 would be paid him as trustee for payment of crew and captain, release would be had of notice sent day before.

On March 26 a receiver was appointed, and on March 29 the proctor for libelants was notified that the freight due on the cargo of coal was paid to Holder, Wier & Boyd of New York, and that the money was attached in the hands of Holder Wier & Boyd in a suit of Pacific Steam Navigation Company v. Pacific Motorship Company. About April 21, appellant W. E. Gerber, Jr., and Anglo-California Trust Company, the other appellant, negotiated for the purchase of the claim of the Australian government; that claim being a first mortgage. Thereafter an order was made referring the present case to a United States commissioner to take testimony and report findings and conclusions. On April 27, Gerber, Jr., filed an offer to pay libelants $5,609.20, 'wages due to libelants in accordance with the shipping articles mentioned in the libel herein, up to and including the 17th day of March, 1921, which sum is herewith deposited with the clerk of this court. ' Gerber also offered to pay libelants their costs theretofore incurred, and also 'to furnish to such libelants as may desire the same transportation in accordance with said shipping articles. ' Deposit of $5,609.20 was made in the registry of the court. About May 5, 1921, the Benowa was released from the receivership, and on May 10 Gerber was substituted as intervener in place of commonwealth of Australia. On May 14 the District Court rendered its final decision that the libelants were entitled to wages earned under shipping articles, less amount paid, together with the penalty provided by section 4529 of the Revised Statutes as amended (Comp. Stat. Sec. 8320), and also awarding libelants transportation together with...