The Ole Oleson

Dyer, J. Objections are filed to claims made by Bernard Kienast :and August Walkowski to a share of the proceeds arising from the sale of the schooner Ole Oleson upon a libel for seamen’s wages. The intervenors were employed as stone-pickers by the master of the vessel, who was also managing owner, to gather stone on the shore of Lake Michigan at or near Alpena, and .to assist in loading the stoiie on board as cargo to be carried to Chicago. While engaged in this service they lived and slept on the vessel as she laid off shore; and the master testifies that when the weather was such that stone ■could not be gathered, the schooner would run into Alpena, and the intervenors would then lend a hand in hoisting sail. But they did not accompany the'vessel on her voyages, and were not employed as seamen, the vessel having a full crew without them. The only question is, was the service which they rendered in picking up stone for the vessel a maritime service, and I am constrained to hold that it was not. Three cases are relied on in support of the alleged right of these claimants to payment from the fund in the registry, namely: The Canton, 1 Spr. Dec. 437; The Ocean Spray, 4 Sawy. 105; and The Minna, 11 Fed. Rep. 759. These cases are all distinguishable from this. In the case of The Canton, the employment of the libelants was to load the vessel at Quincy with stone, not as quarrymen, but to take the stone on board from a wharf, to navigate the vessel to Boston, and there to unload her. As was said by Judge Sprague, they must have been able to “hand-reef and steer,” the ordinary test of seamanship. These duties they performed, and so they were not landsmen merely, hut actually participated in the navigation of the vessel. [385] In tl .6 case of The Ocean Spray, the Yessel went upon a voyage for sea . The libelants shipped as sealers, and were hired to take seal fo.i the vessel at a stipulated sum per month, and their shipping agreeno snt bound them also “to lend a hand on board whenever they were w mted. ” On the voyage they helped make and reef sail, heave the an ¡hor, and clear decks, but did not stand watch. They also procun d drift-wood and water for the use of the vessel. They thus aided i 1 the navigation and preservation of the vessel, and, as Judge Dbaoy well states the case, they were co-laborers in the leading purpose othe voyage. Upon the principle applicable to surgeons, stewar< Is, cooks, and cabin boys, they were to be considered as mariners. They engaged for the voyage, were employed in promoting the pu pose of the voyage, and aided in the navigation of the vessel; and, a¡ Judge Deady says, without their services the voyage must have b 3en profitless, because the purpose of it could not have been accomplished. Moreover, the vessel was expressly pledged as security foi the payment of the wages of the sealers for the round trip. The case of- The Minna seems at first sight to rub the case in hand more (losely. The Minna was engaged exclusively in fishing. As the ca, :e is stated, she ran out from Alpena every morning to the fishing grounds, threw her nets, made a catch of fish, and returned to pon , where the fish were discharged and prepared for market. Her er >w consisted of a master and engineer. The libelant was employed as a fisherman, and though he took no part in the navigation of the ug, his contract required him to go out with the tug every day, to set i nd lift the nets, clean the fish, discharging the catch and reeling tin nets on shore, where he lodged at night. His services were, tlierefc re, as Judge Büown decided, in furtherance of the main object of the enterprise in which the vessel was engaged. He assisted in the nain purpose of the vessel’s employment. His services were mainly performed on board the tug, and wore necessarily connected with, í> nd part of, the service in which the tug was engaged. They were, t icrefore, maritime in their character. In t íe case in hand the intervenors were mere landsmen. They procur id cargoes on shore for the vessel, and assisted in loading them on boa ci. In a general sense their services were in furtherance of the ve; sel’s employment, but not more so than the services of stevedores, md the present weight of authority is that stevedores have no maritii 10 lien upon a ship for services in loading and stowing her cargo. Paul v. Bark Ilex, 2 Woods, 229, and cases there cited. The service i of the intervenors were completed before the voyages of the vessel • «-ore begun. They did not attend her upon her voyages. They were L borers on shore, and the nature of their contract was not affected by the fact that they obtained their meals and at night slept on boa 4 the vessel as she laid off shore or harbor. In material respects, the case, I think, differs from that of The Minna and the other cases cited, and I shall sustain the objections to these claims on the [386] ground that the services of the intervenors stand on the same footing as those of stevedores. I thus rule, not without some hesitation, for, as an original question, I must confess I have never been able to see why the employment of a stevedore should not be regarded entitling him to a maritime lien. Objections are also filed to a claim against the proceeds, in the registry of the court, of $248.30, made by one Robert Peacock, which claim arose upon the following state of facts: The Oleson, being at Bay de Noquette, in Michigan, her master, who was half owner of the vessel, purchased from Peacock a cargo of culled lumber to carry to Racine, Wisconsin, the home port of the vessel. The contract of purchase was in writing, and was as follows: “Bay de Noquette, September 3, 1883. “When schr. Ole Oleson unloads the load of culls, she, by her captain, promises to pay to the order of R. Peacock the sum of two hundred forty-eight 30-100 dollars, being the amount due for the cargo now loaded. This lumber was sold the vessel so'she could make a freight. Interest after due until paid. Schr. Ole Oleson, of Racine, “By her Captain,-John Schultz.” The cargo was carried to Racine, was there attached and sold, and the demand of the vendor, Peacock, for the purchase price has ever since remained unpaid. The question is, did Peacock acquire a maritime lien on the vessel, for the amount due him for the lumber, which took precedence of a prior mortgage on the vessel ? The instrument executed by the master does not, by its terms, purport to create a liem It is true that in the last clause it is stated that the lumber “was sold the vessel so that she could make a freight;” but it does not, in terms, assume to give the vendor of the lumber a lien. The only question, then, is, does the maritime law give the vendor a lien on the vessel from the mere fact that the master bought the cargo for the purpose of earning freight ? Or, to state the proposition in another and more general form, can a master and part owner of a vessel purchase'a cargo on credit and thereby create a maritime lien for the purchase money, on the vessel ? So far as the power of the master, acting-simply in that character, to bind the owners of a vessel in the purchase of cargo, is concerned, adjudged .cases seem to have settled the question, beyond controversy, in the negative. In Hathorn v. Curtis, 8 Greenl. 360, the court said: “The master, in his capacity as such, has power to bind the owners of the ship in contracts relative to her usual employment only. This power relates merely to the carriage of goods and the supplies requisite for the ship; but the owners of the ship cannot be bound by any contract of the master concerning the purchase of cargo. To bind the owner, in such a contract the master must be clothed with powers other than those which are necessarily incident to his office as commander of the ship. He may, indeed, act in the double character of master and supercargo or consignee, but his power to sell, cases of necessity excepted, or to purchase cargo, flows, not from his official character as master, but from special authority conferred for that purpose.” [387] In Hewett v. Back, 17 Me. 153, Judge Shepley held that— “The master may bind the owners by his contracts relating to the usual employi lent of the vessel in the carriage of goods, bub has no power as such to pure) iase a cargo on their account. The ship’s husband or managing owner may bii d the owners for the outfit, care, and employment of the vessel, but has no power to purchase a cargo on the credit of the owners.” Citing, in support of the last proposition, Bell v. Humphries, 2 Starkie, 286. The rule thus laid down in 8 Greenl. and 17 Me. is also asserted withou i qualification in Newhall v. Dunlap, 14 Me. 180, and Lyman v. Redman, 23 Me. 289. In Naylor v. Baltzell, Taney, Dec. 55, Chief Justice Taney said: “The master has a right to contract for the employment of the vessel under cireum tances of necessity, and the owners will be bound by it; but this right is derived from the Maritime Code, which is founded on the general usage a ad convenience of trade, and which has been adopted to a certain extent by all commercial nations. The authority of the master is limited to objects connected with the voyage, and if he transcends the prescribed limits, his acte become, in legal contemplation, mere nullities, and it is incumbent on the reditor to prove the actual existence of the necessity of those things which ; ;ave rise to his demand.” If, t íen, the master, acting in his official character of master, has not th ! power to make a purchase of cargo, and bind the owners of the ve; sel, it would seem quite logically to follow that he could not, in sue' i a transaction, bind the vessel. This right to make engagements on the credit of the vessel being restricted to eases of necessity, In would seem to have no greater authority to purchase a cargo, and th ireby create a lien on the vessel, than by the same act, to bind the ow aers. The rale in the one case has not been more unquali-fiedly 1 lid down than in the other. “The master, acting as an agent, is limi ;ed and restricted in his power, and can pledge his vessel only in cas-! of necessity for the purpose of repairs, and other things in-dispon ¡able to the prosecution of the voyage. It is for the convenience c f commerce that he should have authority to pledge his vessel for the security of a foreign creditor who might furnish the means of relievi ig his necessities. But such power ought to bo wrell guarded, and ec nilned to cases coming within the reason of the rule. It is, therefi re, incumbent on the creditor to show that the advances wore made ¡ or repairs and supplies necessary for effectuating the objects of the voyage, or the safety and security of the vessel. The master would, therefore, have no right to pledge the vessel for advances to purchi se a cargo.” The Mary, 1 Paine, 674. And, certainly, if he could ! lot create a lien on the vessel for advances to purchase a cargo, he cor Id not create such lien by a direct purchase of the cargo on credit, in favor of the vendor. Atti mpt was made on argument to liken this case by analogy to one of bottomry. But the analogy fails, because some of the well-known essentials of a marine hypothecation of that character are not here s iown. Moreover, so far as the power of the master to execute [388] an instrument of bottomry is concerned, it is limited to the necessities of the ship. If, then, according to the rule laid down in the adjudged' cases, it was beyond the power of the master, acting in that capacity alone, to create a lien on the vessel for the purchase price of the cargo, is the rule changed or affected by the fact that the master was part owner of the vessel? It is to be observed that the other part owner was not present and did not participate in the transaction. We have seen that the ship’s husband or managing owner has no power, vir-tute officii, to purchase a cargo on the credit of .the owners. In the case of The Mary, supra, it was held that the owner of the ship, having absolute control over his property, has a right to pledge his vessel for money borrowed for any purpose to be applied to repairs, outfits, or other necessaries, or to the purchase of a cargo. This was held in a case where the owner had executed a bottomry bond for the payment of money advanced for repairs, outfit, and other disbursements for the-use of the vessel, and to enable her to perform her voyage. But the duties of the ship’s husband are in general to provide for the seaworthiness of the ship, to take care of her in port, to see that she has on board all necessary and proper papers, to make contracts for freight, and collect the freight and all returns. 1 Bell, Comm. (4th Ed.) p. 410, § 428; Id. (5th Ed.) 504. But he cannot borrow money, nor give up the lien for freight, nor insure, nor purchase a cargo for the owners without special authority. 1 Pars. Shipp. & Adm. 110. Part owners are not, by virtue of such ownership, copartners. The general rules of co-tenancy apply, and controlling authority would have to be produced before I could be persuaded to hold that a part owner can by implication bind the vessel for the purchase price of a cargo, thereby displacing other existing liens. It would be a dangerous power to lodge either in the master, or managing or part owner, for in carrying such a cargo the vessel would be simply carrying the-property of her owner, and if he chose not to pay for it, the result would be, according to the doctrine here contended for, that prior liens would be entirely defeated, or at best outranked, by a'demand that had its origin in private speculation, rather than in such necessities of the vessel as arise in her employment in navigation, and as constitute the basis of a lien in admiralty. The objections to the claim of the intervenor Peacock are sustained.