THE HERDIS

• Decision Date: 02 November 1927
• Docket Number: 1461.,No. 1459,1459
• Citation: THE HERDIS, 22 F.2d 304 (D. Md. 1927)
• Parties: THE HERDIS. THE G. A. KOHLER. THE B. S. TAYLOR.
• Court: U.S. District Court — District of Maryland

22 F.2d 304 (1927)

THE HERDIS.

THE G. A. KOHLER.

THE B. S. TAYLOR.

Nos. 1459, 1461.

District Court, D. Maryland.

November 2, 1927.

Edward Duffy, of Baltimore, Md., for libelant.

John Henry Skeen and Marbury, Gosnell & Williams, all of Baltimore, Md., for claimants.

COLEMAN, District Judge.

These two cases raise the same questions and were heard together. The libel of the Continental Trust Company in the case against the schooner Herdis alleges that a mortgage for $40,000 upon the vessel was executed to the libelant by the owners, the Maryland Navigation Company, on April 9, 1924; that it conformed to the requirements of the Ship Mortgage Act of 1920 (46 USCA §§ 911-984 Comp. St. §§ 8146¼jjj-8146¼t), and therefore constitutes a "preferred mortgage," as defined by that act. The same facts are alleged as to the schooners G. A. Kohler and B. S. Taylor, except that the mortgage covering both of these vessels was for $42,000, and was executed May 18, 1924. The libels then set out the bankruptcy of the owners, and ask for foreclosure of the mortgages, sale of the vessels, and payment out of the proceeds, etc. A number of intervening libels on account of supplies furnished subsequent to the date of the mortgages were filed. In addition, there was filed against the Herdis a libel by her former master for $446.92, being the portion of agreed wages, at the rate of $160 per month, still unpaid, for services as caretaker from the time the schooner was laid up in Baltimore on April 1, 1926, till it was seized by the marshal on September 2, 1926. A similar libel was filed against the schooner G. A. Kohler, claiming $212.67 for like services by her former master, at the rate of $175 per month.

The vessels were sold under the original libels on November 19, 1926, and there was paid into the registry $4,835.98 on account of the Herdis, and $12,428.13 on account of the other two schooners. The mortgages, being admittedly valid, are prior to the subsequent supply liens under the express provisions of section 30, subsection M, of the Ship Mortgage Act (41 Stat. 1004 46 USCA § 953; Comp. St. § 8146¼nnn). In fact, this is conceded by counsel for the supply men. The only material question, then, is whether the wage claimants are entitled to priority over the mortgagees in the fund in the registry. If they are not, obviously nothing remains with which to pay them. The basis of the wage claimants' contention is that their claims are for "wages of the crew of the vessel," giving them a "preferred maritime lien," within the language of section 30, subsection M, which reads as follows:

"(a) When used hereinafter in this section, 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 section; 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.

"(b) Upon the sale of any mortgaged vessel by order of a District Court of the United States in any suit in rem in admiralty for the enforcement of a preferred mortgage lien thereon, all pre-existing claims in the vessel, including any possessory common-law lien of which a lienor is deprived under the provisions of subsection L shall be held terminated and shall thereafter attach, in like amount and in accordance with their respective priorities, to the proceeds of the sale; except that the preferred mortgage lien shall have priority over all claims against the vessel, except (1) preferred maritime liens, and (2) expenses and fees allowed and costs taxed, by the court."

The precise question here raised seems never to have been decided, at least in the reported cases, namely: Are caretakers on vessels, temporarily idle, but still afloat and moored in navigable waters, within the meaning of the term "crew," as used in the Ship Mortgage Act? Here the idleness was due to decline in shipping, resulting in inability on the part of the owners to obtain cargoes, terminating in their insolvency.

The facts of this case show that all three vessels were moored in a navigable section of Baltimore harbor, and the duties of the caretakers were such as only a competent seaman could perform; that is, they had to keep steam up for the pumps and winches, keep the vessels pumped out, attend to proper anchorage, especially in stormy weather, so as to prevent the vessels from drifting into positions hazardous to themselves and to other craft. They had not been dismantled.

The nature of the services performed in every case must be closely examined. Thus, where the services are such as only a seaman could perform, they have been held maritime, as, for example, moving of a vessel with the rise and fall of the tide, Wishart v. The Jos. Nixon (D. C.) 43 F. 926; attending to proper anchorage, pumping, and drying sails, The Hattie Thomas (D. C.) 59 F. 297; The Maggie P. (D. C.) 32 F. 300. But, if the services are such as not to require the efforts of a mariner, the result is otherwise. For example, services of watchmen on vessel laid up at her wharf, or launched, but still under construction, or laid up for repairs, or for the winter. Hoof v. Pacific Am. Fisheries (C. C. A.) 279 F. 367; Pacific Am. Fisheries v. Hoof (C. C. A.) 291 F. 306; The Fortuna (D. C.) 206 F. 573; The James T. Furber (D. C.) 157 F. 127.

Clearly the services in the present instance fall within the former classification, and are therefore maritime. The interpretation here adopted is further strengthened by the fact that these vessels were, during the period in controversy, subject to the pilot rules governing signals and lights on vessels at anchor, and by the further fact that, after their sale, they were refitted, are now again engaged in commerce, and have never been withdrawn from navigation, so far as the evidence discloses. But we have still to determine whether such watchmen are part of the "crew," as that word is used in the act, because conceivably persons other than members of a "crew" may perform service of a maritime nature on a vessel.

"Crew" is defined in the Standard Dictionary as "a group of seamen belonging to a vessel." "Seaman" is there defined as "one who takes part in the practical navigation of a vessel." Webster's International Dictionary defines "crew" as "a company of seamen who man a ship, vessel, or boat; the whole company belonging to a vessel or a boat."...