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S'l'lll'V1itlORBmll'oRBION POn,'; the
AppealfiOrn the Distrb.lt· COutt' of the the Eastern District of Lou.is1ana. . . , . ", '. . ··... Libel by ,8teamsh.ip to teMverfor . rendered ,liS a stevedore. . The libel was dlSmlssed ,by tbelIistriet ReveraelL ,tt B. ,Sanaum, for Erlte8rT.,Flot'anc6,for appellee. " .' Before ,PARDEE and McCdRKiC.Jt,.Circuit J udge8; and LoCJOll, District Judge.
TREMAIN. PARDEE, Circuit Judge.. The libelimt..exhibitedhis libel in the court below against the steamship Main, claitrilng a maritime lien on the said steamship by reason of his under. cqntl'act in discharging and loading cargo. Admiralty warrant having on said libel, and said steamship having been seized,the appelleecame into court and filed a claim to said steamship, as follows: "Now into court comes the Anglo-Amprican Steamship Company, Limited, a corporatiOn duly establishf:'d under the laws of Great· Britain, and douliciled in Liverpoul. England. b;r F ·.G. Frye, resident manager of said corpuration. and claims the steamshill Main, libeled. and desires to release the Ilame from seizure on giVing bOUll to law. "[tiigned] F. G. FRYE. ReSIdent Manager A.A. 8. S. Co., Ltd."
Having obtained possession of the ship unller the above claim, and by giving the requisite bond, appellee excepted to the libel on two grounds: (1) That the claims and demands herein set forth are so vague and indefinite thatclaimant cannot answer thereto intelligently; (2) that, from the nature of said claim anti demand, this court is without jurisdiction to entertain the libel herein. And thereafter the cause was called in the district court, and disposed of, as appears by the following entry: "This cause was called upon excpption to the jurisdiction of the court, and was argueq by the proctors for the respecti \·e parti!'s. Whereupon it is ordered, adjudged, lind decrt>l!u said exception be maintained. and the libel dismissed, at libelant's costs." These recitals as to the claim, exceptillDs, and· decree of the district court disposed of all contention in this court as to whether the steamship Main was a foreign or domestic ship, or that the case was disposed of in the court below upon any other question than the jurisdiction oC the court. The case presented, then, is whether the stevedore rendering services to a vessel in a port other than its home port has a maritime lien for such services. Since the decision of Mr. Justice BRADLEY in The flex, 2 Woods, 229. it has been the invariable rule inlhis circuit to deny the lien in favor of stevedores. In The !lex, Mr. Justice BRADLEY said: .. This is a libel in rem al(ainst a foreign ship, bound on a foreign voyage. for services as stevedore, fur luading timber on the ship. A stevedore has never been held to have II claim against the ship itself for his services. On the contrary. the claim has been uniformly rejected. Jndge BETTS, in Cox v. Murray, 1 Abb. Adm. 342. 343. undertakes to explain why the loading of a ship with cargo preparatory to a vOYIig-tl is not a maritime service, whilst the fUl'Dishing of repairs and supplies preparatory to such voyage is a maritime service. He seems tothink that the maritime quality arises only whl'n the matters performed or entered upon pertai n to the fitment of .the vessel for naVigation. aid and relief supplied her in preparing for and conducting a voyage. or the freighting or employment of h!'r as the instrument of II but that services only incidentally benefiting a voyage have not ILis quality. J,udg-e LOWELL thinks this not a very satisfactory explanation. because a ship cannot be used tu advantage without a cargo. any more than without repairs and supplies. As, however. the prpcedents are all one way, I do not feel at liberty, in this court, to disregard them; and the views expressed by Mr.
956 Justice GaPQl. In Mc]l6rmott v.The·OWlJ'n,9, 1 Wall. Jr. 871, are so clear an" that I am not certain that I should come to a different conclusionltthp'dnestlon were a new one. He says: 'The stevedores are usually emplbftldby the owner, consignee, or master, on their personal credit. The &'1'.i08 performed is in no sense maritime, being completed be. '-ore the voyage'18 begun or after it .is ended, and they are no more entitled .to a lien on the vessel than' the draymanand other laborers who perform in loading and dlsch!"'rging " While the rule adopted'byJusticeBRADLEY has been followed in the fifth circuit, the'sdtniralty judges" and proctors have not been satisfied. See Esteban atr..4.ntunano, 31 Fed. Rep. 920; The Ohriatobal Colon, 44 Fed. Rep. 803!, ¥eanwhile, inotherciroaits the contrary rule prevails. Roberts Bark Windermere, 2 Fed. Rep. 722; The Circa&ian, 1 Ben. 209; TheKatt'JlrtAnaine, 5 Ben. 60; The George T. Kemp, 2 Low. 482; The Canada, '7 'Fed. Rep. 119; The Velox, 21 Fed. Rep. 479; The Gilbert Knapp, 37 Fed. Rep. 209; The BCOM, 35 Fed. Rep. 916; The Matti4 May, 45 Fijd.' Rep. 899j'l!he HattieM. Bain, 20 Fed. Rep. 389; The 8enam-, 21;Fed. Rep. 191. In Insurance 00. v.Dunham, 11 Wall. 1, it was held as to cohtracts, that. "The true, criterion whether they are within the admirnltyand maritime jurisdiction is their nature and subject-matter, as whether they are maritime ,maritime seryict', maritime transactions, or madtime;llailualties, witb09t regard to tbe place where they were.made." . Undel" ,this decision, it would seem that the question presented as to the right of the stevedore to a lien would depend upon whether the contract for llissemoos walllior;was not a. maritime contract. The various wihohave recognued.the lien in fa.vor of stevedores have stoutly Dudlltamed .,the maritime nature of the services. In The Canada, supra, J,u<lge J)J1:4DYSay's: . :r "To my mind it is very plain that the services ot the stevedore.aremar-iv,oYlltge.cannotlila.begun or ended without the stowof cargo.,'J;o recei ve and deliver tb,e C\lrgo are as much a t,h'8un;t;lertaking ,of as itftrans'portatioii {rom one port to anbtMr... Indeed, it is an. ot such transportation. Freight is not QUe 61' ijMiled :until the mrgu'is at leasfplaced on the wharf. at the end of the Ship's tackle·.·To sa, lhat the final· delivery or discharge of the cargo is it is or illl\Y be performed partly on shore, is simply questIon, as iUs the. nature of the service, and not the place where rendered, its character in this respect." ..' In The HaUi4 M.Bain,supra,Judge BROWN concludes his opinion as follows: (, , "lJ:ntertaining no doubt thai .stevedores' services are maritime, within the .defh;tition of the IIupreme cou1;t,' the lien to which they who render such servicellare justly entitled, br principles of maritime law, should no longer be denieil tlIem, the servicell are rendered, as in tbis case, to a foreign vessel. ". .. Alid in The Velox, supra, the samejudge said: "The stev,edore'sservices are as essentillttto the earning of freight as is the seaman'sprecal'ioWl sel'vice; and thtl former bas an equal equity, thertlfore, With the "
THE 'MAIN.
957
In The SenaWr, supra, Judge WELKER said, in relation to steve lores' "There does not seem to be any difference in principle between that service and the service performed by the sailor, the lighterman, the man who sets the rigging, scrapes the bottom, or paints the sides of the vessel, or by him who furnishes supplies or tows the vessel out or into the port. These are all necessary to the general bUsiness of the transportation of the cargo. and contribute to the reward of capital emplol'ed in the maritime service, and alike should be, regarded as maritime service. and furnish a remedy against tpe vessel." In The Gilbert Knapp, wpra, Judge JENKINS says: "The service is essential to enable the ship to earn freight, the sole object for which the ship is constructed and navigated. The contract of affreightment is confessedly maritime. Why are not services performed in fulfillment of the maritime contract equaUy maritime? The lading of the vessel or delivery of cargo upon the, wharf is as essential an element of the contract as carriage by lJea. Freight cannot be earned without delivery." In The Onore, 6 Ben. 564, Judge BENEDICT said: "Many maritime contracts are performed on land. and by persons having no immediate connection with the sea. The services in question are maritime, because they are a necessary part of the maritime service which the to the cargo, and without which the object of the voyage could ship not be 8llcomplished. " In TheItex, Mr. Justioo BR.ADLEY followed the deCision and reasoning GRIER in McDermott v. The Owena, supra. Since thesuof Mr. preme, cpurt 'qeCided In8urance Co. 'v. Dunham, this, reasoning is not at all " In determining the maritime character of, a contract it is not to inquire where it was, made. As long as the subject of contrkct is Nor does it appear the to be true; in fact, that the services of a stevedore are not for a service Leather8 v. BlesSing, to be performetfih the business 6f navigation. 105 U. S. 626, it was held that although the transit of the vessel was completed, and she was securely moored to the wharf, and had com·, munication to shore by a gangplank, she was still engaged in the business of navigation, as her cargo was to be discharged at the place where she was moored. ' The services of a stevedore in loading and stowing cargo on board of a ship, and ih u'tlloading a cargo from a ship, are largely employed on board the vessel itself, and generally he uses the ship's tackle and machinery in performingthe work. It is difficult to see why hoisting and lowering cargo on a vessel is not as much a maritime service as hoisting and lowering yards and sails. A vessel, in taking on and unloading cargo, is earning freight; for, in loading and unloading, services are rendered, the ex· pense of which necessarily enters into the affreightment contract. It may be true that stevedores, when employed by the owner or consignee, are employed on personal credit; but it is not true that, when stevedores are employed by a master in a foreign port, they are employed on the personal credit of the master. It must that when tha
In
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958 . t?e i
I'EDJmAL R:mPoRTER,
vol 51.
its' It
arrived at 6' destina:tion" becon(l8<;led cargo d?,,'
the to ,have performed. If. he ,hires a stevedore to performU1&sellVroesiandthen borrows-.money for the, use of the ship, that the·'{umisher of the money has a lien Un the "Stowage of cargo is primarily a duty of the master, but is now generally performed by a stevedore, and it is a very important service to the ship; for on.it depends the safe carrying of. the cargo, and frequently of the ship. Fumishe1'$ like coal, to a steamilhip than .a home. ... a, voyage, are ceded:tohaveiaDiaritime lien; but coaleupplied and deposited on the wharf would be of no avaHOO the ship unlesst8ken on hoard. The argo'ttl'ePtthat, if the stevedore's' 'contract, for' Joading and unloading cargo be adjudged to be a 'maritime contract, draymen and cargo, warehousemen, and otheJ'lilwho perform services in .a1sQ. maritime, services,.is not sound. The test tobe'i\pplleCJ:in detertllbling whether a contract is, lJ:laritime or not is ,to consider the subject-matter of the contract, and not the oLject. See Amer. LAw .Reg. (N. p. 1; Leland v. TM Medora, 2 Woodb. &: M. 109; The Paola R., 82 Fed. Rep. 174. We conclude that on principle .of authority the services by a stevedore to a and the ship taking and st()W,ing and in discharging cargo are services of a maritill\e nature. It folIo"'lI that, when such serviC8l!-are rendered to a ship in tbe hom,e part, a lien 11l1fu4'O/fll:l po. v. 20 Wall. 11$9. . The decree appealed from is reversed, and this, remanded to. the 4istriQ,t court for the eastern district instructlolUl to ovenule .the exceptioD8 tiled the ijbel. pr0ce84:in the calMt according to law.
.8
'I'm: McQUBSTU "
AGNES
I.
GRACE.
ale
tI. PROPELLER, a'OWBOAT
Co. tl aL .
(CCnluCt Coun of 4ppeat.,
J1UUI
89t 181&)
No. 401
.An aWaMitbe district, IlO'Ort of salvage equal to tbe amouot,oontract.e4 fOl' bJ' tbe maateJ" , .· . n. \:Ie merely becalJse It seems in to tbe value of tbe ",perty save!!. when It appearil that the contract waa entered Into after fuU '.de· ration, and !witbopportunity to procure other aid. and that l' _mllli fair, Juet at it.waa . 69 Fed. Rep. 6U,
.., .
Court.of the United State, for dle Southern District of Georgia, Eastern Division.' ,
THE AGNES I. GRACE.
95f>
Libel'!?y the Towbpl1t Company againsUhe schooner: t\gnes Y. Grace£()t salvage. . Frank B. McQuesten and others, claimants. Decree for libelants. 49 Fed. Rep. 662. Claimants ,appeal. Affirmed., C. N. If'est, for appellants. T. P. Rqvenel and Geo. A. Mercer, for appellees. and Circuit Judges,and LOCKE, District LOCKE,District Judge.'rhe facts and circumstances in this case have been very fully stated in the opinion of the district judge, (49 Fed. Rep. 662,) arid wEl do not consider it necessary to reVil':wthem. The schooner Agnes I. Grace was in peril, and assistance. tOllave her and her cargo from total loss was absolutely necessary. The master was helpless to extricate . in his. 9harge' from danger, but thoroughly conand had ample versant with his situation and surrounding time and opportunity to make such investigationllas were necessary to appellee had made enable. him .to nrocure assistance. After efforts to float the schooner, !lnd been unsuccessful,and. after a ful' consultatic>ii and consideration, the master entered into 8 contract whicll he considered ns favorable as could be made. The agent of the underwriters at Savannah visited the schooner while on the bank after the agreement had been made, and it does not appear that he made any objections to the terms of it, but, on the contrary, expressed his doubts as to whether the schooner could ever be saved. The master visited Savannah suhsequent to the agreement, and had every opportunity to solicit assistance, but considered he had done as well as he could, and made no effort to procure other aid. This case cannot be considered as belonging to that class of cases of contract for services where the master, being upon the high seas or on an uninhabited coast, at a distance from all other aid, is absolutely helpless, and without power to ,procure assistance other than that offered, and compelled in consequence to make a hard and inequitable contract. He was within easy reach of Savannah, where, had he desired to assume the risk for his owners, he could have procured lighters and other tugs to render the service. In .The Helen and GeC1T'ge, Swab. 368, Dr. LUSHINGTON, speaking of contracts for salvage service, says: "The principle npon which the court acts is that, if satisfied that an agreement has bt'en made, it will carry it into effect, unless totally contrary to justice and the eqUity of the case." Again, in The British Empire, 6 Jur. 608, he says: "Wilen there has been a definite, distinct agreement, with ample time for the parties to considel' what they are doing, the court would be reluctant to interfere with it." In The WeUington, 48 Fep. Rep. 478, Judge Ross enforced the payment of an amount which he states was undoubtedly too large for th(l service, but not so exorbitant as to justify the court in setting it aside. In Post v. Jones, 19 How. 150, the court says:
960
FED:ERAL REPORTER,
vol. 51.
"Ool1ttt'ofa<tmh'alty WUlenfoq,econtrllcts made for salvage $el'vfce and salvage compensatloD, where the salyol'has not taken advantage of his power to malta antlnreasonable bargain." : In this case the property of the appellees, to a large amount, incurred risks in rendering the service much greater than of Qrdinary navigation. They also became responsible for the safety of the third tug, not owned by them and of the lighters employed, to an amount exceeding that of the entire contract. Before the performance of the service the to have been conRidered by all fair and just; and, if so then, it cannot now be considered otherwise because of its successful rendition by appellees, who had assumed ,all expense and risk. Although the ali10imt given may, under the circumstances, appear high, property saved, this court does not in proportion to the value of unreasonable to ,disturb the judgment of the court deem it below., .. It, was' unguestionablythe duty of the district,court to consider the petitioJia of the 'interveners,lind determine their claims against the of the court from the sale of the vessel, and the fund in the custody, and preservation of the cargo j amount and judgQient and decree ofilie court below is affirmed, with costs. And so it is ordered. . ,'
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