THE HERBERT L. RAWDING

• Decision Date: 29 January 1944
• Docket Number: No. 1012.,1012.
• Citation: 55 F. Supp. 156
• Parties: THE HERBERT L. RAWDING.
• Court: U.S. District Court — District of South Carolina

55 F. Supp. 156

THE HERBERT L. RAWDING.

No. 1012.

District Court, E. D. South Carolina, in Admiralty.

January 29, 1944.

Moore & Mouzon, of Charleston, S. C., and Lloyd, Decker, Williams & Knauth, of New York City, for libellant, American Home Products Corporation and other Cargo Claimants.

Augustine T. Smythe, of Charleston, S. C., for libellants, A. K. Bertun, Master, and others.

Barnwell & Whaley, of Charleston, S. C., for libellant, Commercial Terminal & Warehouse.

Hagood, Rivers & Young, of Charleston, S. C., for Bankers Commercial Corporation.

Mitchell & Horlbeck, of Charleston, S. C., for various Cargo Claimants.

Buist & Buist, of Charleston, S. C., for Intercontinental Steamship Lines, Inc.

WARING, District Judge.

The "Herbert L. Rawding" is a four masted wooden schooner rigged sailing vessel of approximately 201 feet in length and 38½ foot beam and having a gross tonnage of 1,219. Her certificate of registry shows her owner as being Intercontinental Steamship Lines, Inc., of New York City.

The schooner laden with certain cargo arrived in the port of Norfolk, Virginia, and while there underwent extensive repairs. On June 24, 1943, Charles A. K. Bertun took command of the ship as master, and on July 19th the vessel left Norfolk bound for Cape Town, South Africa. The vessel was fully loaded with a cargo of various classes of merchandise. It appears that shortly after embarking on this cruise the master discovered that the vessel was leaking some where between twenty to thirty-one inches a day although no bad weather had been encountered. On inspection the master discovered that the ship was not in good condition, the standing rigging and some of the spars and masts being in bad shape. A message was sent to the owner through the naval patrol system and two days after the message was sent a United States Coast Guard cutter came alongside the schooner, the master being told to come into Charleston harbor and the cutter towed the vessel in where it was anchored in that part of Charleston harbor known as "Rebellion Roads". The schooner remained anchored there from August 10th to August 25th, on which latter date the master had the schooner towed in and docked alongside of the wharf owned and operated by Frederick Richards and Frederick Richards, Jr., copartners doing business as Commercial Terminal and Warehouse Company. The master contracted with Richards for payment of a wharfage of $12 per day. Nothing further was done in regard to repairs to the vessel or preparation to continue the voyage and on September 10th, American Home Products Corporation, an owner of a portion of the cargo, filed its libel in rem. On September 16th, the master and various members of the crew and others filed a libel claiming preferred maritime liens for wages, services and advancements and supplies. Subsequently a number of other libels were filed by various cargo owners. And Bankers Commercial Corporation filed a libel alleging that it was the owner and holder of two preferred mortgages given under the Ship Mortgage Act, 46 U.S.C.A. § 911 et seq. It was claimed that there was due an unpaid balance of $123,492.38. Certain of the cargo owners amended their libels to set up claims arising from torts.

The master and a number of the crew remained aboard the vessel caring for her as she lay in the dock until they were discharged by the United States Marshal on October 28, 1943. It appears that the Marshal engaged a watchman to be upon the wharf and see that the ship was not taken away, but that the usual caretakers' duties were performed by the master and crew. These, while not numerous, were important since the lines had to be slackened and shortened according to tides and weather, and particularly on account of the fact that the vessel leaked: and she continued to take in water so that the pumps operated by a donkey engine had to be used from time to time. All parties interested in the cause, as well as the United States Marshal, were aware of the fact that the crew was remaining aboard and rendering these services. However, on October 28th, the Marshal's attention having been called to the fact that some question was raised as to the propriety of the crew performing these services, he informed the master and crew that they were no longer needed and placed caretakers aboard the vessel with directions to perform the necessary services for its protection.

The owner of the vessel has filed a claim. Subsequently another libel has been filed by the United States of America claiming compensation for salvage. This last named is based upon services rendered prior to the vessel reaching Norfolk.

Considerable time having elapsed since the first libel was filed, it was realized that this litigation might be considerably protracted in view of the fact that there are many conflicting claims among the various owners of the cargo, the holder of the mortgages, the master and crew, various parties with claims for wharfage, services and supplies, and the government's claim for salvage. There is also a claim by the owner based upon general average. The taking of testimony and hearing of these various matters would and will take some time and it was deemed expedient to order an early sale of the vessel in order to stop the running of costs for caring for the vessel and in order to raise funds to meet these costs as well as the early and pressing claims, especially those of wages for the crew. It was admitted by all parties in interest that a certain amount of wages was due and according to the law and custom in admiralty the pay and care of seamen require prompt attention by the Admiralty Court. Accordingly a decree was entered directing the sale of the ship. After due advertisement the sale was had and the vessel brought the sum of $15,000, which amount has been paid into the registry of the court and the sale has been confirmed and title passed and delivery of the vessel made to its new owner. All claims and questions were relegated to the fund held in the court. Unfortunately, the sale could not be had as quickly as might have been hoped because of the fact that the vessel was heavily laden with various kinds of cargo and all of this had to be removed and stored before the ship would be available for inspection by prospective purchasers. However, in due course all of this was taken care of. In the meantime and in order to minimize as much as possible the delay in taking care of the preferred claims, the matter was referred to Huger Sinkler, Esquire, a member of the Charleston bar, as Commissioner, with directions to take testimony and pass upon the validity of the mortgages and upon the claims of the master, crew and other parties claiming priority over the mortgage indebtedness by reason of advancements and supplies and services and wharfage. The amounts and priorities of the other matters in issue were relegated to future hearings.

The Commissioner took a great deal of testimony and has filed his report in this court, together with testimony and exhibits. Certain exceptions have been filed to that report, which are now before me, and this opinion is limited to the issues passed upon by the Commissioner. The Commissioner has filed an excellent report fully covering the factual and legal situation and has made his findings and recommendations, dividing the questions in issue before him into eleven sections, some of which, however, he treated together, and the Commissioner's arrangement of these was so well and conveniently made that I shall follow them in commenting on his report.

1. Preferred Mortgages

Bankers Commercial Corporation has satisfactorily proven that it is the owner and holder of two mortgages recorded respectively, on October 24th and December 4th, 1942, both of which are preferred mortgages under the terms of the Ship Mortgage Act, 46 U.S.C.A. § 911 et seq., and the mortgage debt is undoubtedly entitled to the preference allowed under that statute. The actual amount due on this mortgage indebtedness was not proved before the Commissioner, but all parties concerned admitted it is far in excess of the amount in the registry of the court and that it will take whatever amount remains after the payment of such claims as may be found to have priority over the mortgages. Under this Act the mortgages in this cause have priority over all claims excepting those which are classed as "preferred maritime liens." 46 U.S.C.A. § 953, defines preferred maritime liens as follows: "* * *, the term `preferred maritime lien' means (1) a lien arising prior in time to the recording and indorsement of a preferred mortgage in accordance with the provisions of this chapter; or (2) a lien for damages arising out of tort, for wages of a stevedore when employed directly by the owner, operator, master, ship's husband, or agent of the vessel, for wages of the crew of the vessel, for general average, and for salvage, including contract salvage."

There is no difficulty in this case as to the claims for wages of the crew prior to the time of filing libels, or of the claim of Richards during the period when the ship was in the custody of the Marshal and kept by him at the wharf for unloading the cargo and under order of court. Serious questions are raised, however, as to the other claims herein.

2. Wages of Master

The master claims a maritime lien for his wages. It has been repeatedly held that the master is not a member of the crew and has no maritime lien. Over a hundred years ago the Supreme Court speaking through Mr. Justice Story said: "By the maritime law, the master has no lien on the ship, even for maritime wages." The Steamboat Orleans, 11 Pet. 175, 184, 9 L.Ed. 677. This doctrine has been stated and repeated in numerous decisions: The Grand Turk, Fed.Cas.No.5,683 (opinion by Mr. Justice Livingston sitting as Circuit Justice); Willard v. Dorr, Fed.Cas.No. 17,679 (opinion by Mr. Justice Story sitting as Circuit Justice); Drinkwater v....