Vlavianos v. The Cypress

• Decision Date: 27 December 1948
• Docket Number: No. 5787.,5787.
• Citation: 171 F.2d 435
• Parties: VLAVIANOS et al. v. THE CYPRESS et al.
• Court: U.S. Court of Appeals — Fourth Circuit

171 F.2d 435 (1948)

VLAVIANOS et al. v. THE CYPRESS et al.

No. 5787.

United States Court of Appeals Fourth Circuit.

December 27, 1948.

I. Duke Avnet, of Baltimore, Md. (Albert Avnet and Donald G. Murray, both of Baltimore, Md., on the brief), for appellants.

David R. Owen of Baltimore, Md. (Semmes, Bowen & Semmes, of Baltimore, Md., on the brief), for appellee.

Before PARKER, Chief Judge, and SOPER and DOBIE, Circuit Judges.

SOPER, Circuit Judge.

This appeal involves competing claims to the sum of $17,837.56, which represents the proceeds of the sale of the S/S Cypress under a decree of the District Court. The members of the crew libelled the ship for wage claims approximating $24,000, and repair men and ship chandlers asserted liens in excess of $17,000 for repairs and supplies furnished the vessel. There is no dispute as to the existence or amount of the liens for repairs and supplies, all of which stand on the same footing. The problem in the case is to determine the amount of the lien claims of the seamen which, it is conceded, are entitled to priority.

The Cypress, a vessel of Panamanian registry, is an ex-Coast Guard lighthouse tender, which was bought in March, 1947, from the U. S. Maritime Commission by Compania Navegacion Dolega, S. A., a Panamanian corporation owned and controlled by Spyros G. Andreadis, a citizen of Greece, who planned to recondition her for lucrative passenger-cargo service in the Mediterranean or for sale abroad, and engaged the services of the supply creditors for this purpose. By May 25, 1947, Andreadis had recruited a crew of fourteen officers and men, including Markos Vlavianos, the master, who was also to serve as radio operator. All of the crew were citizens of Greece, except the chief engineer who was a naturalized citizen of the United States. Temporary agreements were made with each man for pay at a daily "port rate" which varied according to the nature of service; and the entire crew were fully paid at this rate through May 24.

On June 7, Andreadis and the master entered into a new oral agreement, and the crew signed written agreements embodying the same terms. These agreements, translated from the original Greek, were as follows:

"The undersigned Captain Markos Vlavianos of the S/S Cypress, representing the shipowner, and the Greek Seaman, ............, agree to the following:

"1. It is agreed with ............, registered on the Panamanian S/S Cypress, of which I am Captain, that on arrival of the ship in Greece, I shall pay to him the agreed sum of ............ drachmas, in payment for the voyage from Baltimore, North America, to Greece.

"2. It is agreed that the advance which was given in America will be deducted from the above sum.

"3. It is agreed, in the event the voyage takes over one month from the embarkation and not yet arrived in Greece, the above ............ shall be paid according to the Panamanian pay list.

"4. It is agreed, on arrival of the ship in Greece, the final payment of the above sum shall be made within (4) Four days. It is also agreed that after four days have passed, Article (3) Three shall start in force.

"5. It is agreed, in the event of sickness, accident, or shipwreck, the usual Greek decrees shall be in force. It is also agreed that expenses for subsistence to any of the above events shall be (20,000) Twenty thousand drachmas per day.

"This is in effect from the day of its signing at Baltimore, June 7, 1947."

The wages provided by the contract, if considered as payment for one month's work, were approximately four times as high as the port rate. On May 29 and June 6, Andreadis made advances of about $300 per man against the wages due under the contract, which he and the crew contemplated would shortly be signed. On June 27, however, the Cypress was still docked in Baltimore, and Andreadis, who had encountered financial difficulties, telephoned to the master from New York that the vessel would not sail for Greece, and that he should therefore pay the crew their accrued wages at the port rate. When the crew insisted on the contract rate for their services from June 7 to June 28, the master, unable to contact Andreadis, took it upon himself to ask the men to stay aboard at the port rate and keep the ship in condition.

On July 2, the seamen libelled the ship claiming wages from May 25 to June 7 at the port rate, wages from June 7 to June 28, at the contract rate (less advances) and damages for improper discharge which were alleged to amount to the sums specified in the contract to be paid to the crew upon the completion of the voyage to Greece which it was estimated would take one month. These claims, together with others which will be later discussed, aggregate the sum of $18,572.59. The crew remained on board after the libel was filed, and on August 7, filed an intervening libel claiming the additional sum of $5334.54 for wages at the port rate from June 28 to August 5, when they finally left the ship. The District Judge denied the claims as filed, but allowed the seamen a lien for the sum of $1750.65 for wages at the port rate from May 25 through July 1, and also as compensation for overtime and extra work and certain supplies.

The decision rested largely upon the interpretation given by the court to the written contract. The seamen contended that the promise of the owner to pay the sums specified in the agreement was absolute and unconditional, and fixed the rate for their services even if the ship did not sail, especially as the owner alone was responsible for the abandonment of the voyage. The judge, however, held to the contrary and in this ruling we think he was correct. Not only did the agreement provide that the sums named should be paid upon the arrival of the ship in Greece, and that the period of one month referred to in the contract was to be calculated from the date of embarkation, and that payment was to be made in Greek money, but the very high rate of pay, four times the current rate, was plainly intended to compensate the men for the great risk of crossing the Atlantic in a small vessel with an inadequate crew in order to enable the owner to achieve a profitable venture.

It follows that the court was right in refusing to apply the rate of the contract from June 7, when it was signed, until July 2, when the libel was filed. On June 7 the work of reconditioning the ship was still going on and the men were still performing the sort of service for which the port rate had been fixed, and were not exposed to the risks or hardships of the voyage; and consequently the statement in the contract that it was in effect from the day of its signing could not have been intended to quadruple the wages until the voyage began. Since the meaning of the contract in this respect was clear, the judge properly excluded the testimony of members of the crew that they understood from oral statements made to them that the higher rate was to begin from the signing of the contract. Restatement of Contracts, §§ 240, Comment c, and 242. Williston on Contracts (Rev.Ed.1936), §§ 630, 636, 639.

The judgment was also correct in rejecting the claim that the seamen were entitled to be paid for services rendered the ship after she was libelled on July 2. Events subsequent to the seizure of a ship while she is in custodia legis do not give rise to a maritime lien; Collie v. Fergusson, 281 U.S. 52, 50 S.Ct. 189, 74 L.Ed. 696; Old Point Fish Co. v. Haywood, 4 Cir., 109 F.2d 703; The Astoria, 5 Cir., 281 F. 618, 619; and this is especially true when the libel is filed by the crew itself. In some cases seamen have been compensated for services rendered in caring for the ship while in the custody of the marshal, e. g., The Herbert L. Rawding,...