The Augustine Kobbe

• Decision Date: 22 December 1888
• Citation: The Augustine Kobbe, 37 F. 696 (S.D. Ala. 1888)
• Parties: THE AUGUSTINE KOBBE. v. THE AUGUSTINE KOBBE. REVERE COPPER CO. et al.
• Court: U.S. District Court — Southern District of Alabama

37 F. 696

THE AUGUSTINE KOBBE.

REVERE COPPER CO. et al. v. THE AUGUSTINE KOBBE.

United States District Court, S.D. Alabama.

December 22, 1888

The bark Kobbe was seized at Mobile September 12, 1888, under libel of the Revere Copper Company, for copper claimed to have been furnished at New York to her as a foreign vessel.The captain had given sundry drafts payable at Pensacola whither, under a charter to Chiesa, (seeChiesa v Conover,36 F. 334,) the vessel was to have gone to take on a cargo of lumber for South America.Calling at Mobile to deliver freight, the master, Conover, whose wife was the owner, and aboard the bark, made what he conceived a more favorable charter than the South American one, and so abandoned that.He claimed that he had done this on the promise of the new charterers, Martin, Taylor & Co., of Mobile, in the presence of J. R. Edwards, to advance about $3,000, to be sent holders of the drafts on Pensacola, being about 50 per cent. of these claims, and thus satisfy them.This agreement was not included in the charter-party signed August 31, 1888.The Revere Copper Company, learning that the vessel had not proceeded to Pensacola, libeled her at Mobile and other claims were also sent to Mobile for collection.After fruitless negotiations Gokey & Son of Jersey City N.J., libeled on September 17, 1888, for repairs made at that place as to a domestic vessel, claiming under the New Jersey statute of April 24, 1884, and alleging the home port of the vessel to be in New Jersey.This was the allegation of all pleadings subsequently filed.C. E. Steelman and other sailors libeled September 27th, claiming wages for a round voyage from New York, where they shipped in July, 1888, for South America via Mobile and Pensacola, and return to the United States, alleging that this voyage had been broken up by the act of the master at Mobile.A large number of other claims against the vessel were then filed from time to time by libel or petition, covering the period from her purchase by the Conovers in the fall of 1886 down to the seizure at Mobile.During that time the vessel had been fitted out at Portland, Me., and made a long voyage to South America and return under Steelman as master, lasting from January, 1887, down to her arrival at Providence, R.I., May, 1888, and embracing sundry adventures and trading trips from point to point in South and Central America.At Providence a stevedore named Adamson discharged her cargo of logwood, and Gladding and Braley advanced $1,000, which went to pay the seamen's wages for the past voyage.From Providence the Kobbe had been towed over to New York harbor, and had undergone coppering and general overhauling at Gokey's docks in Jersey City.This done, she started on the second voyage to South America, in pursuance of the charter Steelman had made with Chiesa at Rosario, shipping new sailors at New York for that voyage, and Conover, husband of the owner, taking charge as master, with Steelman as mate, calling at Mobile in August, where she was seized as above related.On October 1st a reference to Richard Jones as special master was ordered for the purpose of taking testimony and reporting on the various claims and their priorities.Pending its execution the Kobbe was sold under order of court for $6,350, and the money paid into court by the purchaser, Edwards.The special master reported November 9, 1888, classing the priority of the claims as follows: (1) Seamen's wages.(2) Maritime liens: (a) incurred on voyage from New York to Mobile; (b) voyages;n South America and return; (c) voyage out to South America from United States.(3) Statutory liens for repairs and stevedores.(4) Mortgage.(5) Claims without lien, (including advances at Mobile by Martin, Taylor & Co., Adamson's Providence stevedore claim, and advances of Gladding & Braley there.(6,7) Claims not proven, fictitious and prospective, (including seamen's wages for unfinished voyage, and the alleged damages of Martin, Taylor & Co.)To this general classification no exception was made, but numerous exceptions, passed on in the opinion, were filed by creditors to their own rank in this table.

G. L. & H. T. Smith, for Revere Copper Company.

Hamiltons & Gaillard, for Steelman et al., sailors, and for sundry petitioners.

D. C. & W. S. Anderson and Hamiltons & Gaillard, for Gokey & Son.

Pillans, Torrey & Hanaw, for Martin, Taylor & Co., and sundry petitioners.

J. L. & T. H. Smith, for Doughty and Edwards.

R. I. Smith, for Gladding & Braley and Adamson.

W. D. McKinstry, H. Chamberlain, and R. P. Deshon, for sundry petitioners.

TOULMIN J.,

(after stating the facts as above.)The undisputed evidence as to the seamen is that they duly shipped at New York on the American bark Augustine Kobbe for a voyage from New York via Mobile and Pensacola to South America and return, but that on the breaking up of the voyage at Mobile by seizure under the process of the courtthey were here discharged.Under the circumstances of this case, I cannot allow more than the wages due at the time of seizure.There is no proof of any special damage, and besides the evidence tends to show that they could have obtained other employment of like character and at as good or better wages.I might have allowed expenses of return to their homes, but there is no proof on this point.Their exceptions are overruled.The Esteban De Antunano, 31 F. 920.

Waganer supplied meat to the vessel at Mobile, and excepts to not being allowed for supplies after discharge of the crew.By analogy to the seamen he has been allowed for what was furnished up to and even after the seizure, and his exception must be overruled.

In my opinion the evidence sustains the master's report that Edwards paid $40 to the captain for his individual use.This therefore, is no lien upon the vessel.His exception to having his claim for money paid stevedores at the captain's request ranked after maritime liens cannot be sustained.In this circuit it is well settled that stevedore services do not constitute a maritime claim, and that if they are entitled to any lien at all it is under the statestatute.The Ilex, 2 Woods, 229.The rule is equally well settled here that a state...