The Samuel J. Christian

• Decision Date: 25 April 1883
• Citation: The Samuel J. Christian, 16 F. 796 (E.D. N.Y. 1883)
• Parties: THE SAMUEL J. CHRISTIAN. (Seven Cases. [1]
• Court: U.S. District Court — Eastern District of New York

16 F. 796

THE SAMUEL J. CHRISTIAN. (Seven Cases. ^[1]

United States District Court, E.D. New York.

April 25, 1883

William G. Wilson, for the crew and the material-men.

James K. Hill, Wing & Shoudy, for the libelant McNab.

BENEDICT J.

One of the questions presented by this application is whether a claim of one McNab upon the tug Samuel J. Christian for damage to the brig Lillie H. White, caused her by being run against a pier while in tow of the tug, through the negligence of the master of the tug, is entitled to priority in payment over the claims of the crew of the tug for wages earned in her navigation prior to the accident referred to. Upon this question, my opinion is that the seamen are entitled to be paid their wages in preference to the claim for the damages to the brig.

In the case of The Orient, 10 Ben. 620, it was held by Judge CHOATE after a careful examination of the authorities, that the wages of seamen are entitled to priority over a claim against their vessel for damage arising out of a collision. The same conclusion was stated by Judge HALL in the case of The America, cited by Judge CHOATE in The Frank G. Fowler, 8 F 339. I concur in the conclusion arrived at by Judge Choate in the case of The Orient, and cannot concur with the contrary conclusion arrived at by Judge NIXON in the case of The Maria and Elizabeth, 12 F. 627. The dictum of Mr. Justice BRADLEY in Norwich Co. v. Wright, 13 Wall. 122, which is referred to in the case of The Maria and Elizabeth, cannot as it seems to me, be considered to be an adjudication by the supreme court of the United States upon the point in controversy. The present case is, however, stronger for the seamen than either the case of The Orient or The Maria and Elizabeth, for here the the contest lies between two demands both arising upon contract. The claim of McNab is based upon a contract to tow his brig with due care, which contract is set forth in his libel, together with a breach thereof. In such a case, I should be sorry, indeed, to hold that the seamen were to be remitted to an action in personam, for no other reason than to prevent the owner of the brig from being so remitted. If either is to be turned over to an action in personam, in my opinion, it is not the seamen.

The next question relates to the order of payment as between the libelants other than the seamen, being six in number. Five of these actions were commenced at one time. The libel of McNab was filed a day before, but the processes in all the cases were served by the marshal at one time. One demand is that of the Communipaw Coal Company, for coal furnished on the credit of the boat during the months of February, March, June, and July, 1882. Another demand is that of the Hoboken Coal Company, for coal furnished on the credit of the boat in July, 1882. Another demand is that of John H. Lewis, for ship chandlery furnished on the credit of the boat in April, 1882. Another demand is that of Reilly & Co., machinists, for repairs done to the boat during April, May, June, and July, 1882. Another demand is that of Samuel T. Sherwood, carpenter, for repairs done to the boat in April, 1882. Another demand is that of McNab, for the damage to his brig.

These actions are all actions upon contract. None of the libelants are creditors in invitum. All are voluntary creditors who have entered into their several engagements upon the credit of the vessel. In this respect the question presented is different from that decided in the case of The Frank G Fowler, supra, where the controversy was between claims based upon tort. Here the conflicting claims, as stated, are for breach of contract,...