Old Point Fish Co. v. Haywood

• Decision Date: 07 February 1940
• Docket Number: No. 4563.,4563.
• Citation: 109 F.2d 703
• Parties: OLD POINT FISH CO., Inc., v. HAYWOOD et al.
• Court: U.S. Court of Appeals — Fourth Circuit

109 F.2d 703 (1940)

OLD POINT FISH CO., Inc., v. HAYWOOD et al.

No. 4563.

Circuit Court of Appeals, Fourth Circuit.

February 7, 1940.

J. L. Morewitz, of Newport News, Va. (Morewitz & Morewitz, of Newport News, Va., and R. Arthur Jett, of Norfolk, Va., on the brief), for appellant.

Henry Bowden, of Norfolk, Va. (Bowden & Winder, of Norfolk, Va., on the brief), for appellees.

Before PARKER, Circuit Judge, and COLEMAN and CHESNUT, District Judges.

CHESNUT, District Judge.

This case presents an unusual if not novel question of admiralty law. A fishing vessel has been libeled and sold at the instance of lien claimants for repairs and supplies. Four members of the crew, whose compensation was to be based on a percentage of the proceeds of the catch, have filed intervening libels for an estimated percentage of the profit which might have resulted from a catch which was not made, because the voyage was terminated a few days after it began by the necessary return of the vessel to port for repairs, and before they were made the vessel had been libeled. The repair and supply claims approximate $16,000, while the vessel sold for $5,900. The members of the crew contend that the sums due them, as for wages, are entitled to payment in priority to other lien claims. After testimony and hearing on these so-called wage claims, the district judge allowed each of the four members of the crew, as intervening libelants, the sum of $100 based on 46 U.S.C.A. § 594 as an analogous statute; and also allowed one member of the crew $50 for clothing left upon the ship and lost or not returned, and another $10 for similarly lost bedding.

The district judge did not make formal findings of fact, but in a brief opinion expressed the view that the crew had in effect been wrongfully discharged. The evidence in the record relating to the wage claims of the crew is in many respects vague and unsatisfactory but from it the district judge could have and apparently did find the following facts.

The ship libeled (named the St. Providenza II) was a motor vessel about 80 feet long, of 61 gross tons and 18 net tons, owned and operated by the master Philip Giammanco of Gloucester, Massachusetts. For several years prior to 1939 the vessel had been engaged in trawl fishing in the waters of the Atlantic, operating a part of each year out of Gloucester, and the remainder of the year out of Hampton, Virginia. A few days prior to March 29, 1939, the date on which the original libel in this case was filed, the vessel began a voyage from Hampton, Virginia, with a crew of seven men including the master, under an oral agreement whereby they were to work the vessel on what is called a "lay", the arrangement being in substance that the crew would furnish the food, ice and fuel and receive 60% of the gross proceeds of the catch, the ship owner to receive the remaining 40%. A few days thereafter, about 50 barrels of fish having been caught, the vessel developed engine trouble and was towed back to port. The fish caught were sold for about $200, which was less than the cost of the supplies furnished but not paid for by the crew, and later included among the libel claims against the ship. It was estimated that the making of the repairs would occupy three days, and the master instructed the crew, who lived nearby, to go home and await orders to return for a continuation of the voyage. It appears he gave one or more of them a sufficient sum for transportation home. Before the repairs were made the original libel was filed, and shortly thereafter several members of the crew filed their intervening libels, each claiming about $1,000 by way of damages for breach of contract of employment for the fishing season. The evidence did not show with any definiteness what constituted such a season, but there was some testimony to the effect that on somewhat similar voyages, one or more members of the crew had averaged on a percentage basis about $100 a month. At the hearing held on April 21, 1939, some of the members of the crew testified in effect that as a result of the voyage having been broken up they would probably be unable to obtain further employment of the same kind during the summer. On June 6, 1939, the district judge filed a brief memorandum opinion in which he expressed the thought that the statute mentioned, 46 U.S.C.A. § 594, by analogy furnished "as fair a standard by which to adjudge the claims of the seamen in this case as can be found". His order filed July 7, 1939 decreed that four members of the crew were entitled to recover the respective allowances "as a first lien upon the proceeds of said sale". From this order the other lien claimants have appealed.

There is nothing novel or unusual of itself in the kind of an oral agreement that we have here between the owner of the vessel and the crew for their compensation on a fishing voyage. Such an arrangement has been common practice from ancient times, United States v. Laflin, 9 Cir., 24 F.2d 683; 56 C.J. 1058. In such situations the fishermen crew are treated as seamen, and there have been numerous judicial decisions enforcing the rights of the crew against the owner and the ship. The Carrier Dove, 1 Cir., 97 F. 111, 112; The Z. R.-3, D.C., 18 F.2d 122; The Flk, D.C. Mass., 1938 A.M.C. 714, 724; Robinson on Admiralty (1939) 281, 282. See also 46 U.S.C.A. §§ 531-534. In Benedict on Admiralty, 5th Ed. Vol. I, p. 129, the applicable law is briefly summarized as follows:

"In the earliest periods of maritime commerce, a common form of compensating the mariner was by giving him, in one way or another, an interest in the success of the voyage. In modern times, fixed pecuniary wages have taken the place of a share of the earnings, except in the cases of whaling, fishing, and sealing voyages, in which the ancient mode of compensation still prevails. * * * Where a fishing vessel is worked on the quarter lay plan, her crew have a lien, as for wages, upon the vessel, and catch on board, for their share of the catch."

And in The Georgiana, 1 Cir., 245 F. 321, 325, the court said:

"For the value of their respective shares in the catch taken, upon a trip made upon terms like the above "quarter lay plan", the members of a fishing crew have a lien upon the vessel and the catch on board, corresponding to the lien of seamen shipped for hire in the ordinary way, for their unpaid wages against vessel, cargo and freight pending, so long as anything remains of either."

The novel feature of the present case lies in the asserted priority of lien claimed for fishermen as wages in lieu of prospective and speculative shares of fish not caught because the voyage was terminated by the libel of the ship for repairs and supplies. No case has been brought to our attention where a prior lien as for wages has been allowed under such circumstances; and we do not think it can be properly established consistently with other principles of admiralty law.

In Piedmont & George's Creek Coal Co. v. Seaboard Fisheries Co., 254 U.S. 1, 12, 41 S.Ct. 1, 4, 65 L.Ed. 97, Mr. Justice Brandeis, speaking for the Court said:

"The maritime lien is a secret one. It may operate to the prejudice of prior mortgagees or purchasers without notice. It is therefore stricti juris and will not be extended by construction, analogy or inference."

In Collie v. Fergusson, 281 U.S. 52, 55, 50 S.Ct. 189, 191, 74 L.Ed. 696, Mr. Justice Stone states the general admiralty rule that "events subsequent to the seizure do not give rise to liens against a vessel in custodia legis. See The Young America (D.C.) 30 F. 789, 790; The Nisseqogue (D.C.) 280 F. 174, 181; The Grapeshot (D.C.) 22 F. 123. Cf. New York Dock Co. v. The Poznan, 274 U.S. 117, 47 S.Ct. 482, 71 L.Ed. 955." In Collie v. Fergusson, it was held that seamen, employed at a stipulated monthly wage, some part of which had not been paid upon the libeling of the ship, were not entitled to recover double wages under the applicable statute for the delay in payment of wages consequent upon the seizure of the ship; and in The Poznan, 274 U.S. 117, 47 S.Ct. 482, 71 L. Ed. 955, recovery of wharfage due under an agreement prior to the libel of the ship, accruing after her seizure, was disallowed, except as an expense of the libel proceeding.

In accordance with the general rule that maritime liens do not arise from matters happening subsequent to the legal seizure of the ship, it has uniformly been held (in the absence of an applicable statute or duly authorized continuing services of seamen) that no maritime lien can be allowed for wages to seamen accruing after the libeling of the ship. The Astoria, 5 Cir., 281 F. 618, 621; The Nisseqogue, D.C.N.C., 280 F. 174, 184; The Bethlehem, D.C.Pa., 286 F. 400, 402; The Philomena, D.C.Mass., 200 F. 873, 874; The Bethulia, D.C.Mass., 200 F. 876, 878; The Rupert City, D.C.Wash., 213 F. 263, 271; The Augustine Kobbe, D.C.Ala., 37 F. 696, 699; Id., C.C., 39 F. 559; The Irages, D.C., 283 F. 445. See also The Pacific Hemlock, D.C.Wash., 3 F.Supp. 305, 307, and Burdine v. Walden, 5 Cir., 91 F.2d 321. In Benedict on Admiralty, 5th Ed., § 585, the rule is stated that "seizure of a vessel under process, resulting in breaking up the voyage, operates as a discharge of the crew who, therefore, have no lien for further wages".

In the instant case it is clear that the crew had earned nothing from the catch up to the time of the seizure of the ship, and they performed no services thereafter, but apparently recognized the breaking up of the enterprise by the filing of their libel claims. See The Nisseqogue, supra; The Charles L. Baylis, D.C., 25 F. 862. Whether, if the fishing enterprise had not been broken up, they would subsequently have earned compensation for their share of the catch and if so the amount thereof, was wholly speculative, uncertain, and dependent upon future happenings. If they had been employed for a definite period at a definite wage they would not have been entitled to a...