THE MORNING STAR
| Decision Date | 26 September 1924 |
| Docket Number | 8726.,No. 8711,8712,8711 |
| Parties | THE MORNING STAR (three cases). |
| Court | U.S. District Court — Western District of Washington |
James Kiefer, of Seattle, Wash., for libelant Gilmore.
Howard H. Startzman, of Seattle, Wash., for intervening libelants Gilmore, Smith, Ott, Crotty, Holmgren, and Young.
Huffer, Hayden & Bucey, of Seattle, Wash., for intervener Frampton.
Battle, Hulbert, Gates & Helsell, of Seattle, Wash., for libelant Standard Oil Co.
Thomas P. Revelle, U. S. Atty., and John A. Frater, Asst. U. S. Atty., both of Seattle, Wash.
J. D. Gilmore, as half owner, may not assert a lien against the vessel as against the unpaid wages of the seamen.
James Gilmore is the holder of a master's and pilot's license, issued within 2 years. From his appearance it is doubtful whether a stranger would employ him as a master or pilot. The testimony shows, however, that he was at the wheel on several occasions. He testified, as did the master, J. D. Gilmore, that an express contract was entered into with relation to his employment, and that the services were faithfully performed, for which he has only been paid $400. When service is rendered by a member of the family living as one household, the rendering of services alone does not imply a contract to pay. Disbrow v. Durand, 54 N. J. Law, 343, 24 Atl. 545, 33 Am. St. Rep. 678. J. D. Gilmore and James Gilmore at times were living together. James Gilmore testified his home was with his daughter. As watchman of the vessel he may not assert a mariner's lien. The Fortuna (D. C.) 206 Fed. 573. I think 16 months should be deducted from the period of his employment as not a maritime service. The $400 paid, I think upon this record, should be credited to the nonmarine service.
The claims will be allowed as hereinafter indicated. The 90-day local harbor rule (The Edith D. C. 217 Fed. 300, and The Sea Foam D. C. 243 Fed. 929) has no application. They apply to Seattle harbor (Elliott Bay) and Puget Sound. The Morning Star was operating between Seattle, on Puget Sound, in the United States, and Vancouver, on Burrard Inlet, British Columbia.
Double pay, as penalty (section 8320, Comp. Stat.), should be allowed William Gilmore. Gerber v. Spencer (C. C. A.) 278 Fed. 886. The last cited case was tried before the writer at San Francisco. The Nika (D. C.) 287 Fed. 717, is not decisive here. There are equities, however, in favor of the objecting creditors. I think a seaman on discharge may not wait indefinitely to assert his claim and demand double pay; he should exercise diligence in asserting it, at least as against other lien claimants. William Gilmore could have asserted his claim 24 hours after discharge and refusal to pay June 13, 1924 (section 8320, supra), and will not be granted a lien as against the other claimants for double pay prior to filing this libel July 29, 1924; the fund in the registry of the court being insufficient to pay all asserted liens.
The question of laches...
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