Revere Copper Co. v. The Augustine Kobbe , 37 F. 696 ( 1888 )

Toulmin, J.,

(after stating the facts as above.) The undisputed evidence as to the seamen is that they duly shipped at New York on the American bark Augustine Kobbe for a voyage from New York via Mobile and Pensacola to South America and return, hut that on the breaking up of the voyage at Mobile by seizure under the process of the court they were here discharged. Under the circumstances of this case, I cannot allow more than the wages due at the time of seizure. There is no proof of any special damage, and besides the evidence tends to show that they could have obtained other employment of like character and at as good or hotter wages. I might have allowed expenses of return to their homes, but there is no proof on this point. Their exceptions are overruled. The Esteban DeAntunano, 31 Fed. Rep. 920.

Waganer supplied meat to the vessel at Mobile, and excepts to not being allowed for supplies after discharge of the crow. .By analogy to the seamen ho has been allowed for what was furnished up to and oven after the seizure, and his exception must be overruled.

In my opinion the evidence sustains the master’s report that Edwards paid $10 to the captain for his individual use. This, therefore, is no lien upon the vessel. His exception to having his claim for money paid stevedores at the captain’s request ranked after maritime liens cannot be sustained. In this circuit it is well settled that stevedore services do not constitute a maritime claim, and that if they are entitled to any lien at all it is under the state statute. The Hex, 2 Woods, 229. The rule is equally well settled here that a state statutory lien is inferior to that conferred hv the maritime law, and must rank after maritime claims. The exceptions of Edwards must therefore be overruled.

The special master erred in disallowing the claim of Martin, Taylor & Bo., for damages sustained by them by reason of the breach of the charter-party made August 31, 1888. The master found that this breach was caused by their default in that they failed to advance sufficient funds to satisfy holders of drafts payable at Pensacola, (drawn on the faith of a charter previously made by the master with one Chiesa, which had been abandoned,) which Martin, Taylor & Co. verbally agreed to do previous to the execution of their charter-party, and that in consequence of such failure these creditors seized the vessel in Mobile, and thus the voyage to Europe, for which Martin, Taylor & Co. had chartered her, was broken up. But it does not appear from the evidence before the court that such breach was caused by their default. Any evidence of their failure (if there was a failure) to comply with an agreement made by them preliminary to the execution of the charter-party or contemporaneously with it and inconsistent with its terms, cannot be considered by the court. Such parol evidence is inadmissible to vary or add to a written contract, which must be hold to have merged all previous agreements, if any. Bast v. Bank, 101 U. S. 93, 96; The Delaware, 14 Wall. 579.

But the evidence submitted on the subject is not sufficiently clear and definite to satisfy me as to the amount of damages to whicli they are entitled, or as to the items that go to make up their damages. As to this I will permit further testimony to be taken. If freight has advanced since the execution of the charter-party, the difference of freight will be one of the elements of loss. The commissions provided for in the charter-party so far as they apply to advances made under it, will enter into the loss, and any sums advanced as advanced freight should also be included. But the claim for loss of dogs and chain and for timber furnished for a yard is a separate claim for supplies furnished, and is not a part of the damages for breach of the charter-party. I consider that Martin, Taylor & Co.’s claim for damages from breach of charter comes under the head of maritime claims, immediately after towage and pilot-age on the last voyage into Mobile, and their exceptions are sustained. The Maggie Hammond, 9 Wall. 435; The Director, 34 Fed. Rep. 57.

Gokey & Son repaired the bark Kobbe on their docks at Jersey City, N. J., after her return from a long voyage to South America back to Providence, R. I. The master may have contracted for the copper in New York, but it is amply shown that none was delivered to the vessel until she was high and dry on Gokey’s docks in Jersey City, when Go-key repaired and coppered her. The law of New Jersey gives repairers a lien next after seamen, and it is argued for Gokey & Son that this lien or priority entered into and was a part of their contract. Gokey & Son claim that without regard to what the rule would be in cases arising within the limits of this circuit, in their case, arising in a circuit where a statutory lien is ranked equal to maritime liens, their lien is a part of their contract, and must be enforced in any forum as superior to all claims except for seamen’s wages. I have been much impressed with the able argument submitted by Messrs. Hamiltons & Gaillard on the Gokey claim, and must confess that I am not certain that my conclusion that the lien is a part of the remedy, and not a part of the right, is the correct one. If this be so, however, the law of this forum must govern, and that ranks statutory liens after maritime. So long as I am in doubt as to whether there is error in the master’s report on the claim, I think it my duty to sustain it, and overrule the exception of Gokey & Son. If I felt free to follow my individual views on the questions presented, I would sustain the exceptions. While this court must recognize the lien given to this claim by the New Jersey statute, it can only recognize and treat it as a statutory lien, and, following the decisions in this circuit, must place it-in a rank inferior and subordinate to maritime liens. The original libel-ants, the Revere Copper Company of Boston, furnished in New Jersey the copper that Gokey there put on the vessel’s bottom. They originally claimed a maritime lien, but have now amended so as to claim a lien under the evidence without defining whether it is maritime or statutory. I consider this claim as in the same category with the Gokey claim, and the Revere Company’s exceptions must likewise be overruled.

On the return of the vessel from South America, John S. Adamson, as boss stevedore, unloaded her cargo at Providence. The master properly classes the charge for that service as having a statutory lien ranking after maritime liens. Of the amount advanced to the captain by him $98.06 was shown to be for necessary disbursements of the vessel, and this gives a maritime lien; but the remainder of the advances were to the captain for his own purposes, and this could give no lien against the vessel. To enforce his claim, Adamson, like Gladding and Braley, who advanced at Providence $1,000 that went to pay off the sailors of the South American voyage, attached the vessel in a state court as property, but, finding they wore acting under a misapprehension, finally released her. .This has been expressly decided not to waive a maritime lien. The Boggs, 1 Spr. 369. Gladding & Braley are entitled to rank as the seamen whom their money paid off would have done, and Adamson to claim the §93.06 advanced the ship; but they are not entitled to claim as a part of their debts the costs of the attachment they procured and voluntarily released.

While in South American seas the Kobbe mei with a severe storm, which drove her into Montevideo for repairs, to effect which Capt. Steel-man borrowed §570 from Stewart & Williams, giving a draft on one Princesea at Eosario, to be paid out of the freight on the cargo which the Kobbe loaded for that place. While at Eosario, Princesca, who was consignee, told Steelman that these drafts which he had accepted were paid; but upon discovering, as he claimed, a deficiency in the amount of the cargo, Princesca receded from that, and forwarded them, with additions, (making a total of 6716,) to Eio de Janeiro, to be presented to the vessel. Steelman took legal advice in iho matter, and to avoid seizure recognized the claim, paid part, and gave a draft for the balance. This draft is now presented by J. P. Whitney & Co., who are in the same position as the original lenders. The master, in his report, has allowed the amount of the actual loan hut refused to allow for the commissions and other charges above the actual loan. I sustain the report, and must overrule the exceptions seeking now to disallow any payment because of Prineesoa’s statement at Eosario that the original drafts were paid. Capt. Steelman at Eio acquiesced in the claim when presented, and I cannot say he did not act wisely and within the general discretion the master must exercise in a distant foreign port.

Shortly after purchasing the vessel, the Conovers gave a mortgage on her to Richard Doughty for $3,000, and he is shown to reside, like them, in New Jersey. The amount has been reduced now to $2,000, and this is claimed out of the proceeds of the sale made under decree of this court. The mortgage was recorded at Portland, Me., while the home port of the vessel, being that of her owner, was in New Jersey. A mortgage on a vessel, to be effective against strangers, must be duly recorded at the port of her owner’s residence. Rev. St. § 4192; The Jno. T. Moore, 3 Woods, 61. That not having been done in this instance, the mortgagee can claim nothing except out of remnants, if any, and his exceptions are overruled.

Steelman, who was mate on the voyage to Mobile, has remained on the Kobbe since her seizure, and files a petition seeking compensation for services in aiding the marshal in handling her. Of whatever merit the claim might be as a part of the marshal’s expenses, if recognized by him, it certainly is not a maritime claim to be enforced against the proceeds of the vessel. His petition and motion must be refused. Except as hereinabove modified, the master’s report is in all things confirmed.