Wandtke v. Anderson

• Decision Date: 21 December 1934
• Docket Number: No. 7437.,7437.
• Citation: 74 F.2d 381
• Parties: WANDTKE v. ANDERSON et al.
• Court: U.S. Court of Appeals — Ninth Circuit

74 F.2d 381 (1934)

WANDTKE v. ANDERSON et al.

No. 7437.

Circuit Court of Appeals, Ninth Circuit.

December 21, 1934.

H. W. Hutton, of San Francisco, Cal., for appellant.

Thacher, Jones & Casey, of San Francisco, Cal., for appellees Anderson and others.

Resleure, Vivell & Pinckney, of San Francisco, Cal., for appellee Oakley.

Before WILBUR and GARRECHT, Circuit Judges.

GARRECHT, Circuit Judge.

This appeal is from the decree of the District Court which allowed and approved the findings and conclusions of the Commissioner in determining that appellee Arthur Oakley was not a captain or master of the boat or scow Mary E, but merely an operator, engineer, or stevedore, and as such entitled to priority over certain other claimants.

The Mary E was a motorboat of 67 gross tons, 48 net tons, 60.1 feet in length, 25.8 feet in width, 6.2 feet in depth, and the crew as required called for but one man.

The Mary E was engaged in transporting freight between San Francisco and San Rafael with a crew consisting of the said Arthur Oakley and two stevedores. Oakley received monthly wages of $160, which was $25 per month more than the wages of each of the other two men. The testimony disclosed that the reason he was employed was that, in addition to being an engineer, he was able to do the work of a stevedore.

The following facts were found by the Commissioner and adopted by the District Court as its findings:

"The testimony reveals that Oakley possessed an operator's license, and, that he had no master's, nor mate's, nor pilot's papers. He signed no bills of lading, he collected no freight money, he never ordered supplies of any kind during the period he worked on the `Mary E,' he neither hired nor discharged any of the crew. He was usually occupied from 9 to 12 hours per day, his working day was divided as follows: 5 hours were spent in stevedoring, 2½ hours were devoted to steering the vessel, the balance of the time was used in running, attending to or repairing the engines. He ordered some minor repairs; sometimes supervised the repairing of the engine; at times repaired the engine; helped to attach a new rudder and painted the vessel.

"On the other hand Oakley started the engines, steered and docked the boat. Under oath he subscribed as master to the enrollment in the Customs House and under oath he signed a report of the accident as master."

The relation of the various parties to the controversy further appears from these facts: On January 16, 1933, the libelants Alma Anderson, Walter Anderson, and Alfred Christofani, doing business as Anderson & Christofani, filed their libel in rem against the Mary E for repairs in the sum of $934.01. Subsequently, on February 21, 1933, interveners Borg, Olaguez, and Oakley filed an intervening libel in rem for seamen's wages, claiming, respectively, $366.50, $310, and $765.07. Defaults of all parties were taken, and the matter was ordered referred to the Commissioner. Testimony was taken, and the Commissioner filed his report, allowing the claims of the parties then before him, according priority to the seamen interveners.

Thereafter, on May 10, 1933, G. J. Wandtke, the present appellant, filed an intervening libel for repairs on a claim of his own for $57.95 and an assigned claim of Madden and Lewis for $396.90; all claims being stated as for repairs furnished at the request of the owners. On June 20, 1933, Frank Gassagne and A. Benedetti likewise filed a libel in intervention for repairs for $110.49.

Foard-Barstow & Co. did not file a libel, but by stipulation was allowed a claim for supplies in the sum of $40.

On June 21, 1933, the Mary E was sold by the United States marshal for the sum of $2,125. The matter being again referred to the Commissioner, a full hearing was had, at which appellant and other libelants opposed the claim of Oakley, asserting that he was the master of the Mary E and not a seaman, and that he had no lien for his wages. The Commissioner found Oakley was not the master, and that he was entitled to a lien as a seaman and priority with Borg and Olaguez over all other claimants. The report was affirmed by the District Court, and from the decree rendered this appeal was taken.

The question to be determined is, Does the evidence sustain the finding that Oakley was a seaman and not the master? Appellant insists that Oakley, having signed the printed form of oath required by section 22 of title 46, USCA, and at another time having subscribed to certain documents prepared by an insurance adjuster, on both of which he is described as master, is here estopped to deny that he was the master of the vessel. It appears that these formal documents were executed by Oakley for the purpose, in one instance, to enable the vessel to operate in the coastwise trade, and whereby he bound himself personally to answer, in the event that the government was defrauded of its revenue, and in the other instance he signed the papers prepared for his signature to enable the owners of the vessel to recover the damages suffered by reason of some accident.

The argument of the appellant is that, "when one deliberately leads another to believe that a certain state of facts are true, he is estopped ever after from denying the truth of the statements, status, or anything else relating to them." In this connection it is further argued that all work covered by the claims of appellees was ordered by Oakley, and that as master he was liable for their payment. These arguments are not supported by the facts; the evidence discloses that the claims here presented for material and repairs were incurred, not by Oakley, but by the owners of the vessel. The testimony is that these owners had lost their credit by failure to pay these bills which are now presented as claims, and, by reason of these defaults of the owners of the Mary E, appellant and other firms furnishing material or doing work ordered by Oakley insisted on being paid before deliveries were made, and he merely acted as intermediary between the owners of the vessel and the firms, whereby actual payment was made for all materials and work ordered by Oakley himself. The proof shows that appellant and the other firms furnished no material nor did any work which was not paid for, on any supposition that Oakley was the master. There is then no foundation for the argument based on estoppel. The cases, Scott v. Byron Jackson, 89 Cal. 258, 26 P. 898, and Adams v. The Wyoming, 1 Fed. Cas. page 161, Case No. 71, cited by appellant, are not in point.

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