The Nisseqogue
| Decision Date | 24 March 1922 |
| Docket Number | 169-179. |
| Citation | 280 F. 174 |
| Parties | THE NISSEQOGUE. |
| Court | U.S. Court of Appeals — Fourth Circuit |
Robert Ruark, of Wilmington, N.C., for Phillip Shore.
Robert W. Davis, of Southport, N.C., for R. R. Stone.
E. K Bryan, of Wilmington, N.C., for Wilmington Iron Works.
John D Bellamy & Son, of Wilmington, N.C., for seamen.
Rountree & Carr, of Wilmington, N.C., for Furness Shipping Co. and Diamond Steamboat Wrecking Co.
George L. Peschau, of Wilmington, N.C., for C. E. Collins.
Thomas W. Davis, of Wilmington, N.C., and John T. Tucker, of Baltimore, Md., for Davison Chemical Co.
John D Bellamy & Son, of Wilmington, N.C., for Bar Pilot Ass'n.
The Nisseqogue is an American four-masted schooner of 194 feet length, 39 feet beam, 14 feet depth, carrying a crew of 14 men, built in Brunswick, Ga., in 1917, 971 tons gross, 859 tons net, owned by Smith Navigation Corporation, with her home port at New York. At the time and upon the voyages hereinafter set forth, her master was Sven G. Berglund. While she was at the port of Rotterdam, November 27, 1919, the Furness Shipping & Agency Company, of that city engaged in the business of shipping brokers, at the request of her master, between November 27, 1919, and January 2, 1920 furnished and delivered supplies, services, and disbursements to the said schooner to the amount of 14,451.11 guilders, as nearly as can be ascertained, amounting to $5,420.29 in American money, as shown by the statement approved by the master and attached to the libel filed herein.
The schooner sailed from Rotterdam, January 12, 1920, for Oporto, where she was to deliver a part of her cargo, and the balance at Cadiz. From Cadiz she sailed, light, to Norfolk, Va., reaching there the first part of June, 1920. She sailed from Norfolk, Va., to St. John, New Brunswick, light; thence to Queenstown, where, under orders, she sailed to Runcorn, England, with a cargo which she discharged, and sailed, light, to Tampa, Fla., where she arrived on October 28, 1920, at which place she took a cargo of lumber for Cienfugos, Cuba. Upon her arrival at Tampa, libelant Phillip Shore was employed to act as the agent of the schooner, and alleges that, at the request of the master, he advanced to the said master, upon the credit of the schooner, for the purpose of furnishing him funds wherewith to pay the wages of the crew of said schooner, on October 29, 1920, the sum of $5,000. Thereafter, and while said schooner remained at Tampa, on November 23, 1920, at the request of the said master and owner and from time to time during said period, said Phillip Shore alleges that he advanced and furnished to the said schooner and her master and owners, for the purpose of enabling master and schooner to obtain necessary work, supplies, and funds wherewith to discharge valid obligations incurred by said schooner, the sum of $5,974.36, which sums were necessary on behalf of said schooner, as shown by statement which has been approved by the master and furnished to the owners.
While at Tampa, November 28, 1912, George F. Bowen and the other seamen, libelants herein, shipped, under shipping articles, form B, as prescribed by the Department of Commerce Bureau of Navigation, Shipping Service, on the said schooner. The shipping articles signed by the seamen described the voyage as:
'From the port of Tampa, Florida, to Cienfugos, Cuba, and such other ports and places, in any part of the world, as the master may direct, and back to a final port of discharge in the United States, for a term not exceeding six calendar months.'
After her arrival and discharge of cargo at Cienfugos, the schooner, under the same master and crew, took on a cargo of 1,000 tons of pyrites ore, and on January 26, 1921, sailed for Baltimore. On February 9, 1921, while on her course to Baltimore, and 'about half way between Cape Lookout and Cape Hatteras, in the Gulf Stream, with squally weather and strong winds and rough seas,' it was discovered that she was leaking, having made 19 inches of water from noon on that day to 4 o'clock, in four hours' time. On account of the condition of the weather and of the schooner, the master, on the evening of February 10, 1921, brought her under her own sails off the Cape Fear bar, and anchored four miles from the bar; the master thinking that he was 'up to the bar.' When the fog lifted, he moved her, under her own sails, within a mile of the bar. At that time it was raining, and the wind was from the south, blowing strong.
During the night the wind changed to the westward, 'with a strong breeze, and the sea increased from the south, so that the vessel was rolling in the trough of the sea. ' At 7 o'clock a.m., February 11th, a pilot was received. Preparations were commenced to get under way for crossing the bar in to Southport, with 30-fathom shackle outside hawsepipe, the foresail was hoisted and other preparations made, when the porthole and 'wild-cat' broke, and the chain to starboard anchor commenced running out. The port anchor was then let go and the sails taken in. The tugboat Blanche, standing near, took the schooner in tow about 10:30 a.m., and at 1 p.m. the schooner was grounded in Southport harbor. The Blanche and Alexander Stewart worked to siphon water out of her hold, and by 7:45 a.m., February 12th, had lowered the water from 72 inches to 54 inches, when she started to Wilmington, with master, crew, and pilot aboard, in tow of the tug Alexander Stewart, and docked at noon of same day at the Wilmington Iron Works for repairs. The two tugs remained by her, pumping water, until noon, February 13, 1921.
On reaching Southport the master, without delay, communicated to the owners of the schooner 'her apparent condition and asking instructions. ' He was advised by the owners 'to use his judgment'; that a representative of the company, owners, would come to Wilmington.
The master instructed the seamen to remain with the vessel, which they did. On February 13, W. G. Renaut, port captain of the Smith Navigation Company, owners of the schooner, arrived at Wilmington, and immediately, in the interest of the owners, took charge of all repair work to be done on the schooner. On February 14th Renaut called for a survey, in order to determine her condition, which was made by H. E. Queenstedt, surveyor of the American Bureau of Shipping. The survey showed that the--
The survey recommended that certain repairs be made to the schooner, in consequence of which the master contracted for making such repairs with the Wilmington Iron Works. It was the intent and purpose of the master, upon the completion of the repairs, to proceed on his voyage to Baltimore. The officers and crew were kept on board and assigned to their duties. From February 11, 1921, to the day on which the schooner was towed to Wilmington, February 14, 1921, she was treated by her master and owners as a vessel, temporarily unseaworthy, needing and awaiting the completion of repairs to complete a voyage, with a crew held intact until such repairs were made. The Wilmington Iron Works began repairing the schooner on the 12th day of February, 1921, and while so engaged libelant Phillip Shore, on February 21st, filed the libel herein, and the marshal, on the same day, served the libel and monition by taking said schooner into his custody. No caretaker was put on her.
On March 3d, libelant R. R. Stone, owner of the tugs Blanche and Alexander Stewart, filed the libel herein, claiming $5,000 for salvage. The monition and attachment was levied the same day. Other libels were filed as of the dates appearing in the record. The master had no instructions from the owners until March 14, 1921, when he received, and immediately read to the officers and crew, the following letter:
W. G. Renaut, Port Captain, 'Smith Navigation Corporation, 17 Battery Place, New York, N.Y.'
The owners, after this letter, have taken no further action in respect to the vessel or her cargo. At this time, and at no time thereafter, did the master have any funds with which to pay the crew the wages due them. He received no further instructions from the owners. The marshal retained the custody of the schooner until May 21, 1921, when appraisers appointed by the court appraised the schooner at $62,239; anchor and chains at $2,494; cargo at $6,000. On May 10, 1921, a decree was entered, ordering the marshal to sell the schooner, her tackle, apparel, furniture, freight, cargo, and anchor and chains; that the cargo, anchor and chains be sold separately. Pursuant to said decree the marshal, after advertising same as directed by the decree, sold the schooner for $19,550, anchor and chains for $600, and the cargo for $1,275. On June 11, 1921, after notice to all parties interested, no objection being made, an order was entered confirming the sale.
The order was made on May 4th, appointing a special...
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... ... Fergusson, 281 U.S. 52, 55, 50 S.Ct. 189, 191, 74 L.Ed. 696, Mr. Justice Stone states the general admiralty rule that "events subsequent to the seizure do not give rise to liens against a vessel in custodia legis. See The Young America (D.C.) 30 F. 789, 790; The Nisseqogue (D.C.) 280 F. 174, 181; The Grapeshot (D.C.) 22 F. 123. Cf. New York Dock Co. v. The Poznan, 274 U.S. 117, 47 S.Ct. 482, 71 L.Ed. 955." In Collie v. Fergusson, it was held that seamen, employed at a stipulated monthly wage, some part of which had not been paid upon the libeling of the ship, were ... ...
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