Great Lakes Towing Co. v. St. Joseph-Chicago S.S. Co.

• Citation: 253 F. 635
• Decision Date: 22 August 1918
• Docket Number: 2465.
• Parties: GREAT LAKES TOWING CO. v. ST. JOSEPH-CHICAGO S.S. CO.
• Court: United States Courts of Appeals. United States Court of Appeals (7th Circuit)

253 F. 635

GREAT LAKES TOWING CO. v. ST. JOSEPH-CHICAGO S.S. CO.

No. 2465.

United States Court of Appeals, Seventh Circuit.

August 22, 1918

Rehearing Denied October 14, 1918.

Harvey D. Goulder and Thomas H. Garry, both of Cleveland, Ohio, for appellant.

Harry W. Standidge and Charles E. Kremer, both of Chicago, Ill for appellees.

Before BAKER, ALSCHULER, and EVANS, Circuit Judges.

BAKER Circuit Judge.

On July 24, 1915, the steamship Eastland, owned by the St Joseph-Chicago Steamship Company, of St. Joseph, Mich., and chartered to and operated by the Indiana Transportation Company, capsized and sank in the Chicago river. Many passengers were drowned and others injured.

Three days later the Great Lakes Towing Company, appellant contracted with the steamship company 'to raise and deliver said steamer, righted and pumped out, to a dock in the vicinity of where she now lies, for $34,500; no cure, no pay. ' Appellant's undertaking was fully performed.

This cause was begun in the District Court by the steamship company's filing of a libel and petition for limitation of liability. A trustee was appointed and took possession of the steamer; an order was entered, restraining the prosecution of claims, except in the limitation proceedings; and a monition was issued, citing all claimants to appear. Appellees, other than the steamship company, are tort and supply claimants.

Appellant filed an answer denying the steamship company's right of limitation, and also a petition asking that appellant's claim for services in raising the steamer be declared and enforced as a 'preferred, paramount, and first lien.' It was stipulated that there were no other claims of that class.

Afterwards the court sold the steamer for a sum which would go but a little way toward satisfying all the claims. Thereupon appellant filed a motion that it be first paid out of the proceeds. Tort and supply claimants resisted appellant's petition and motion, and a hearing resulted in a decree:

'That said Great Lakes Towing Company is not entitled to the relief prayed for by it in its said petition and motion to have its said claim decreed a preferred, paramount, and first lien on said steamer or the proceeds thereof, and it is ordered that said prayer of said petition be and the same is hereby denied.'

Hence this appeal.

1. Motion to dismiss: Appellees contend that the decree is merely interlocutory, because appellant's petition was not in terms finally dismissed, and because appellant may hereafter be granted an allowance for its services as an unsecured claim or on an equal footing with appellees. But the only relief sought by appellant's petition was the enforcement of an asserted prior lien. By the limitation proceedings appellant was forbidden to file an independent libel, and was constrained to intervene in this case. The San Pedro, 223 U.S. 365, 32 Sup.Ct. 275, 56 L.Ed. 473. Appellant's intervening petition was in its essence an independent libel to declare and enforce a paramount maritime lien; and though the controversies between the steamship company and the tort and supply claimants were left pending, and though appellant's right to allowance of an unsecured claim, if appellant should care to present such a claim, was not cut off, nevertheless the decree denying the only relief sought by the intervening petition was in its effect upon the asserted lien the same as a formal and final decree dismissing an independent libel. Gumbel v. Pitkin, 113 U.S. 545, 5 Sup.Ct. 616, 28 L.Ed. 1128; Potter v. Beal, 50 F. 860, 2 C.C.A. 60; Sanders v. Bluefield Water Works, 106 F. 587, 45 C.C.A. 475; The Attualita, 238 F. 909, 152 C.C.A. 43. Motion to dismiss is overruled.

2. Has appellant a paramount lien?

Appellees contend that appellant rendered no salvage service. Confessedly appellant did not go out in a tempest, at great risk to its own vessels and crews, in a voluntary effort to save the Eastland from imminent perils of the sea. What appellant did was to raise and pump out the sunken steamer under a 'no cure-- no pay' contract with the owner. Work of this character, appellees insist, is not salvage service. From the syllabus of Merritt & Chapman Derrick & Wrecking Co. v. Morris & Cummings Dredging Co., 137 F. 780, 70 C.C.A. 356, they quote:

'The raising of a dredge sunk in shallow water, where there is no danger involved, nor any extraordinary means

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