The John Shay

• Decision Date: 14 May 1897
• Court: U.S. District Court — Eastern District of Pennsylvania
• Parties: THE JOHN SHAY. v. THE JOHN SHAY. KEATING

81 F. 216

THE JOHN SHAY.

KEATING v. THE JOHN SHAY.

United States District Court, E.D. Pennsylvania.

May 14, 1897

Jos Hill Brinton, for libelant.

John A Toomey, for claimant.

BUTLER District Judge.

This was a libel in admiralty by Joseph Keating, a stevedore against the schooner John Shay, to enforce an alleged lien against her. The cause was heard upon the following exceptions to the libel:

'First. Because the allegations thereof do not disclose any admiralty or maritime lien or claim upon the said vessel whereupon an attachment should be founded.

'Second. Because the alleged services were rendered to a domestic vessel in her home port and are not the subject of an admiralty lien.

'Third. Because the said libel was filed by libelant without entering stipulation for costs.'

The general trend of authority makes the claim of a stevedore analogous to a seaman's claim for wages even in the home port, and establishes a lien on the vessel therefor.

In The Senator (1876) 21 F. 191, Judge Welker held that the services of the stevedore were necessary to the general business of the transportation of the cargo, and contributes to the reward of capital employed in maritime service. That they should be regarded as a maritime service, and the stevedore furnished with a remedy against the vessel.

'I am aware that there are decisions opposed to the right to proceed in rem for this class of service; but they do not seem to be founded on sound principle, and I do not feel it to be my duty to follow them. There does not seem to be any difference in principle between that service and the service performed by the sailor, the lighterman, the man who sets the rigging, who scrapes the bottom or paints the side of the vessel, or by him who furnishes supplies or tows the vessel out or into the port. They are all necessary to the general business of the transportation of the cargo, and contribute to the reward of capital employed in maritime service, and alike should be regarded as maritime service, and furnish a remedy against the vessel.'

In Roberts v. The Windermere (1880) 2 F. 722, Judge Choate decides that a stevedore's claim for services constitutes a maritime service.

The River Queen (1880) 1 F. 731, Judge Choate held that the weighing, inspecting, and measuring of the cargo of a vessel performed partly on land and partly on shipboard constitutes a maritime service for which a lien attaches irrespective of the port of the vessel.

Judge Thayer held in The Wyoming (1888) 36 F. 495: 'In this district it has been heretofore held that such services (stevedores) are of maritime character, and that a lien exists therefor, even in the home port, when the service is shown to have been rendered on the credit of the vessel, or when such fact is fairly inferable from the circumstances under which the service was rendered.'

In The Seguranca (1893) 58 F. 908, Judge Brown draws a distinction between a contractor who, pursuant to his general business, furnishes watchmen or stevedores to a vessel in her home port, (as a lien for such services is similar to any other repairs or supplies in the home port), and that of a watchman or stevedore when employed by the ship's representative on her credit, in which case, even in the home port, they may have a lien for their wages in enabling the ship to earn her freight as analogous to the wages of a seaman to pilotage, towage, or wharfage. He therein cites with approval The Trimountain, 5 Ben. 247, Fed. Cas. No. 14,175.

The first paragraph of the libel alleges that 'the schooner John Shay is, and at the time hereinafter mentioned was, an American vessel hailing from and registered at Philadelphia,' so that the question presented is whether a stevedore who discharges a vessel in her home port is entitled to a lien for his services which can be enforced in the admiralty.

Such a lien arises only when the services are rendered to a foreign vessel. The George T. Kemp (June, 1876) 2 Lowell, 483, Fed. Cas. No. 5,341; The E. A. Barnard (June, 1880) 2 F. 712; The Windermere (May, 1880) 2 F. 722; The Canada (April, 1881) 7 F. 119' The Hattie M. Bain (May, 1884) 20 F. 389; The Velox (Aug, 1884) 21 F. 479; The Director (Feb. 1888) 34 F. 57; The Scotia (Aug. 1888) 35 F. 916; The Gilbert Knapp (Jan. 1889) 37 F. 209; The Main (June, 1892) 2 C.C.A. 569, 51 F. 954; Norwegian Steamship Co. v. Washington (June, 1893) 6 C.C.A. 313, 57 F. 224.

No well-considered case, in which a stevedore recovered for his services rendered to a vessel in her home port, can be produced which would justify the court in changing the law as laid down by this court in the case of The E. A. Barnard, 2 F. 712.

Judge Brown, after deciding in The Hattie M. Bain, The Velox, and The Scotia, supra, that a lien was given to stevedores for services to a foreign vessel, in the case of The Seguranca 58 F. 908, while dismissing the libel, attempts to extend the lien for services to a vessel in her home port, because the services are maritime in their nature. The authorities which he relies on however to sustain his contention are either cases of the distribution of remnants where no owner appeared, as The Trimountain, 5 Ben. 247, Fed. Cas. No. 14,175, the cases of foreign vessels, as The Erinagh, 7 F. 231, The Mattie May, 45 F. 899, or cases in which it does not appear whether the vessel was foreign or domestic-- as ...