The Minna , 11 F. 759 ( 1882 )

Brown, D. J.

At first blush I was inclined to the opinion that libellant’s services, not being maritime in their character, wore not such as to create a lien upon the vessel. The earlier cases collated in 2 Parsons, Shipping, 185, indicate that mere landsmen have no lien unless their labors contribute to the preservation or navigation of the ship, or to the sustenance or health of the crew. See, also, Gurney v. Crockett, Abb. Adm. 490; Coz v. Murray, Id. 340. But, upon reflection, I am satisfied the sounder principle is that stated in Ben. Adm. § 241, and The Ocean Spray, 4 Sawy. 105, viz.: that all hands employed upon a vessel, except the master, are entitled to a lien if their services are in furtherance of the main object of the enterprise in which she i" engaged. Any other rule would put large classes of persons employed upon steam-boats outside the pale of admiralty law. -I have never heard it questioned but that the deck hands of a lake propeller, whose duties arc simply to load and discharge fuel and freight, as well as the stewards, waiters, cooks, and chambermaids of passenger steamers, are entitled to proceed in rem for their wages, though none of them performed services of a maritime character. So, I take it, if men should engage upon a whaling voyage solely for their skill in finding or catching whales, or trying out oil, they would be regarded as mariners, and be entitled to the same remedies as the crew, though they took no part in the navigation of the ship. The test is whether the services are for the benefit of a vessel engaged in commerce and navigation. If there be a failure in either respect, viz., in the character or in the nature of the ship’s employment, there is no lien.

I do not regard the fact that libellant slept upon shore at night, and there reeled out and mended the nets, as qualifying in any way the nature of his contract. These services were merely incidental and subsidiary to his main contract. The Canton, 1 Spr. 437; The Mary, Id. 204.

Upon the facts I think that libellant is entitled to recover. The testimony of both himself and the master shows that he was hired at $35 per month. The burden of showing that he was hired for the entire season, and that he deserted the ship, is upon the claimant, and I do not think he has established these facts by a preponderance of testimony.

A decree will therefore be entered in favor of the libellapt.

Note. All persons employed on a vessel to assist in the main purpose of the voyage are mariners, and are included under the name of seamen, (The Louisiana, 2 Pet. Adm. 268; Turner’s Case, 1 Ware, 88; The Brandywine, Newb. 5; The Highlander, 1 Spr. 588; Wolverton v. Lacey, 18 Law Rep. 672; Wheeler v. Thompson, 2 Strange, 707; The Jane and Matilda, 1 Hagg. Adm. 187; The Prince George, 3 Hagg. Adm. 376;) and have a lien for their wages, (The Ocean Spray, 4 Sawy. 105.) It was not limited to acts done for the benefit of the ship, or in the actual performance of seamen’s duties. Ringold v. Crocker, Abb. Adm. 346; Reed v. Canfield, 1 Sumn. 195. Any service is maritime if substantially to be performed on water within the ebb and flow of the tide. The D. C. Salisbury, Olcott, 73. So the clerk of a steamboat is a seaman, (The Sultana, 1 Brown, Adm. 13; The Superior, Gilp. 514; The Prince George, 3 Hagg. Adm. 376; Mitts v. Long, 2 Dods. 105; Wilson v. Ohio, Gilp. 505; Boss v. Walker, 2 Wils. 264;) so cabin boys, cooks, (Allen v. Hallett, Abb. Adm. 576; The Mentor, 4 Mason, 84; The Orozimbo, Abb. Adm. 576; The Charles F. Perry, 1 Low. 475; The Thomas, Bee, 86,) carpenters, (The Louisa, 2 Wood. & M. 53; The Lord Hobart, 2 Dods. 103,) pilots, (The Æolian, 1 Bond, 267;) stewards, chambermaids, (Gurney v. Crockett, Abb. Adm. 459;) and female cooks are mariners, (Gurney v. Crockett, Abb. Adm. 492.) The maxim that freight is the mother of wages does not apply to a fishing voyage. The Ocean Spray, 4 Sawy. 105. — [Ed.