Dejona v. Steamboat Osceola

Howem,, J. Plaintiff instituted this suit in the Fifth District Court of New Orleans, to recover the sum of ®510, alleged to be due for the wages of her minor son, as cook on the steamboat Osceola, at the rate of thirty dollars per month, for two months from the 5th February, 1859, and fifty dollars per month for nine months thereafter. Upon the usual affidavit, the boat was provisionally seized. The defendant, McMillan, as master and sole owner, excepted to the jurisdiction of the court, alleging his domicil to be in the parish of Caddo, in this State, which plea was, by consent, tried with the ‘merits. He took a rule to set aside the provisional seizure, on the ground: 1. That the allegations in the petition and affidavit do not authorize the writ; and, 2. That the boat was, during the time for which wages are claimed, in a trade extending beyond the limits of this State, and, for the last nine months of said period, was not within the State. This rule was dismissed, and defendant filed an answer reserving his exception ; pleaded the general denial; admitted that, on the 10th February, 1859, such a boy shipped on his boat at thirty dollars per month ; set up, as a defence, the second ground of his rule ; alleged a reduction in the wages; several payments on account; a deduction for lost time, and forfeiture of wages for abandonment before the completion of the last month ; and denied the privilege. Judgment 'wás rendered in the lowfer court, dismissing the exception, [280] and condemning the defendant to pay $326 90, with interest, and privilege upon the boat; from which he appealed. The first question presented is the plea to the jurisdiction. The defendant’s residence is proven to be in the parish of Caddo ; and, according to our jurisprudence and legislation, no personal judgment can be rendered against him, unless he voluntarily submit himself to the jurisdiction. Not having done so, the exception should be maintained, as to a judgment in personam. C. P. Art. 162 et seq. 5 A. 352. He contends, in the second place, that his rule should be made absolute, because the character of the claim sued on does not authorize the writ of provisional seizure; and, consequently, no judgment can be rendered against the boat. In support of this position, and to take the case out of the ruling in Henning v. Steamer St. Helena, 5 A. 352, just quoted, he relies upon Article 289, C. P., in which, he says, a distinction is made between vessels trading “within the State” and those trading “out of the State.” The first clause of the article gives to employees on vessels, trading within the Slate, as well as persons who have furnished materials for, or made repairs to such vessels, the right, when they bring their action against the captain, owner or consignee, to provisionally seize said ■vessels, to secure the amount of their claims, upon taking the prescribed oath. The second clause declares that “ such seizure may be made even of vessels trading out of the Stale, at the suit of persons claiming payment for materials furnished for, or repairs made upon, such vessels. ” This clause gives to a class of creditors, embraced in the first clause, to wit: those who furnish materials or make repairs, a remedy against a description of vessels not included in the first, to wit: vessels trading out of the Stale. The first awards the writ to both classes of creditors against one description of vessels ; the second gives it to one of those classes against an additional description of vessels. We can find no case in which this point has been raised; but we believe that it has been the uniform practice, up to the present time, to grant the writ to the employeés on all vessels where suits have been brought by them in the courts of the State for their wages ; and we are now called upon to give a judicial interpretation to this Article of the Code of Practice. Article 3204 O. 0. establishes a privilege in favor of such creditors. Article 284 C. P. gives to them the right to provisionally seize vessels “navigating within the State;” and Article 289, same Code, points out the manner in which the writ may be obtained; and promises, further, that it may issue against vessels trading out of the State, at the suit of those who have furnished materials for or made repairs upon such vessels. Had this not been added, we presume the question now before us would not bo raised; and the enquiry is, does this clause restrict the former and limit the writ, so far as emjoloyeés are concerned, to vessels which do not go beyond the borders of the State, and deny it in those cases where the vessels, though they may have their domicil hero, extend their voyages or trade beyond the State limits ? It is is a rule of interpretation that “the words of a law are to be understood in their most known and usual signification, without attending eo much to the niceties of grammar rules as to tho general and popular [281] use of tlie words (0. 0. Art. 14) ; and where its expressions are dubious, its true meaning is to be discovered by considering the reason and spirit of it, or the cause which induced the legislature to enact it.” 0. 0. Art. 18. Applying these rules to the article under consideration, we do not think it a forced construction to hold, that vessels, which have only one terminus of their voyage in the State, trade within the State, in the meaning- of the law, and that the second clause of the article was added to provide for vessels which trade wholly out of the State — fes batimens qui font le commerce exiérieur — such as may come here simply for repairs; cases not provided for in the first part of the article. We can discover nothing-in the reason or spirit of the law to justify the restricted meaning claimed for it by the appellant. By such a construction, our own citizens, trading entirely within the territorial limits of the State, might be placed in a less favorable position than those whose vessels trade beyond those limits, though it be but a few rods. The object of the legislature evidently was to give those who bring suit in our tribunals, for their wages, the right to seize, without having to furnish bond, the vessels on which they earned them; and the practice of years, without a doubt having heretofore been raised, has consecrated the meaning which we give to the terms of the law: a meaning which, we think, in no manner infringes the well settled doctrine, that this harsh remedy should be resorted to only in those cases in which it is expressly authorized. In this view, then, we conclude that the rule was correctly dismissed; and that, under the decision in the case of Henning v. Steamboat St. Helena, this action was rightfully maintained as to the boat provisionally seized. The capacity of the plaintiff was not excepted to in limine litis, and it is now too late to raise the objection. See authorities cited in 1 Hennen’s Digest (2d ed.), p. 1152, b. No. 1. On the merits, however, we think the lower court erred in the amount allowed. The claim embraces a period of eleven months, the wages for the last of which were forfeited, under the second section of the act of 1858, page 148, by abandonment before the end of the month; and the privilege is limited, by the act of the same year (p. Ill, (j 1), to six months. The wages are shown to be thirty dollars per month, which, for six months, amount to $180; deduct, from this the wages of the last month, and the payments made on account during the six months, amounting to $103 10, and we have the sum of only $56 90, for which a privilege exists by law. It is therefore ordered, adjudged and decreed, that the judgment of the lower court be avoided and reversed, and proceeding to give such judgment as should have been rendered below, it is ordered, adjudged and decreed, that the exception herein be sustained, so far as to dismiss the action in personam against W. McMillan, captain and owner of the steamboat Osceola; and it is further ordered, that plaintiff have judg^ ment, with privilege, against the said steamboat Osceola, her tackle, apparel, etc., provisionally seized herein, for the sum of $56 90, with legal interest from 10th January, 1860, until paid, without prejudice to the right of action, if any exist, for the wages not herein allowed, with privilege ; the defendant to pay the costs of the lower court, and those of this court to be paid by the plaintiff and appellee.