THE ELSE

• Decision Date: 26 July 1928
• Parties: THE ELSE.
• Court: U.S. District Court — Southern District of Alabama

27 F.2d 935 (1928)

THE ELSE.

District Court, S. D. Alabama.

July 26, 1928.

Pillans, Cowley & Gresham, of Mobile, Ala., for libelants.

Smiths, Young & Johnston, of Mobile, Ala., for interveners.

ERVIN, District Judge.

The schooner and her freight was libeled by the master and crew for the wages owing to them. The owners being unable to make bond, the schooner was sold pendente lite, and her proceeds and the freight money were paid into court. There was a reference to determine the liens and priorities, and a report by the master, in which he found that the lien claims exceeded the proceeds of both ship and freight, that the claims of the seamen were entitled to priority, and that the master had a maritime lien on the freight money, but not on the ship, which was prior to the claims of the two interveners, and therefore that the seamen should be paid, first from the proceeds of the ship, and the balance of their claims should be paid out of the freight money. The interveners excepted to the report of the master, in so far as it held that the master of the schooner had a lien which was prior to theirs upon the freight money.

There are not many authorities on the question, but I am persuaded that the rule laid down in Drinkwater v. The Spartan, Fed. Cas. No. 4,085, by Judge Ware, where he holds that, while the master has no lien upon the ship for his wages, he has a lien on the freight, is correct. The same rule is laid down in The Arcturus (D. C.) 17 F. 95, without any discussion of the question; also in the note to The Bowditch, Fed. Cas. No. 1,717.

I have found no express opinion by the Supreme Court on the question, but in The William M. Hoag, 168 U. S. 443, 18 S. Ct. 114, 42 L. Ed. 537, the court, having before it the question of whether or not the master had a lien upon the ship, uses the following language:

"The denial of the lien of the master was based upon the theory that he had a lien upon the freight for his wages, and having the freight in his own hands was presumed to pay himself. The argument is made that, the reason for the rule having ceased to exist, the rule itself, which denied the master a lien upon the vessel, has become obsolete."

In this case the court declined to hold that the master had a lien on the vessel, but arguendo seems to concede a lien on the freight.

I am cited The Orleans v. Phoebus, 11 Pet. 175, 9 L. Ed. 677, Norton v. Switzer, 93 U. S. 355, 23 L. Ed. 903, The Short Cut (D. C.) 6 F. 630, The Vandercook (D. C.) 24 F. 472, and The Wyoming (D. C.) 36 F. 493, as holding that the master has no lien for his wages. These cases do so hold, but in each case the question was whether or not the master had a lien on the ship, and not whether he had a lien upon the freight. I have found no American case holding directly that the master has no lien upon the freight.

It is urged on me in this case that freight is an incident to the ship, and that, if there is no lien upon the ship, there can be none against the freight, and U. S. v. Robins Dry Dock & Repair Co. (C. C. A.) 13 F.(2d) 808, is cited to establish this proposition. In that case the question arose, not between the master and the shipowners, or interveners, but between persons who had either made repairs or furnished supplies for the ship, at the instance of a charterer, who, in his charter, had agreed that he would permit no lien or charge against the vessel while in his possession. These claimants asserted no claim to any lien upon the freight, except through a lien upon the ship, and the conclusion there reached was, in my opinion, correct; but a very different proposition arises when the master asserts the claim of lien. The lien claimants in the Robins Case had no dealings whatever with the freights; all their dealings were with the ship. On page 812 of the opinion in the Robins Case, the proposition urged is as follows:

"It is urged by the learned proctor for the Standard Oil Company and the McCormack Stevedoring Company, Inc., that these lienors are entitled to maritime liens against the freights for all the supplies and labor furnished by them; that freights are entirely distinct from the ship herself; that, even though the court shall find that the lienors did not use reasonable diligence in ascertaining the terms under which the Elder Company was in possession of the Neponset, and even though the lienors should be held to be charged with knowledge of the terms of the agreement * * * between the Elder Company and the Shipping Board, and prohibited from acquiring liens on the ship, these lienors may still enforce their liens upon the freight, inasmuch as freights are entirely distinct from the ship. They insist that, under general maritime law, the furnishers of supplies and labor are entitled to a maritime lien against the freights which the supplies and labor helped to earn."

It is interesting to note in the opinion, ...