McCall v. United States Shipping Board Emergency Fleet Corp.

294 F. 989, 1924 U.S. Dist. LEXIS 1868, 1924 A.M.C. 466

• Court: District Court, W.D. Washington
• Decided: January 18, 1924
• Docket: No. 6329
• Status: Published

Opinion

NETERER, District Judge

(after stating the facts as above). The libelant bases his right to recovery upon section 4525, R. S. (Comp. St. § 831(5), and the shipping articles executed by respondent Lorentzen pursuant to section 4612, R. S. (Comp. St. § 8392). These sections are pari materia. The right to recover is against the master. Section 4525, supra. The form of agreement designates the present master, or whoever shall go for master, or whoever shall lawfully succeed him. Section 4612, supra. Under these sections, which must be construed together, the right to recover must be for wages earned at a time when the relation of master and seaman was extant.

The ship is primarily liable, arid the seamen’s wages are "a lien on the last plank in the ship.” Benedict, § 603. The master is made liable because in early days he had custody o£ the ship’s earnings, and riot because of any pecuniary interest in the vessel or in the venture. When Eorentzen was displaced by Cairney, and the ship’s funds turned over to the latter, all relation to the ship and seaman ceased, and the liability of I,orentzen for future earnings ended. Smith v. Oakes, 141 Mass. 451, 5 N. E. 824, 55 Am. Rep. 487.

Eorentzen is liable for all unpaid wages earned prior to December 21, 1920, during-the time he was master, which amount to $229.11. Everett v. U. S. (D. C.) 277 Fed. 256. Libelant was paid, according to his claim, after December 21, 1920, the sum of $206.76 in cash and the sum of $26.40 from the slop chest, making a total of $233.16. If this is applied to the oldest items of wages due, it satisfies the demand here. There is no allegation of election at the time of payment, and, if neither party avails himself of such right, the duty devolves unon the cou rt to make the application ex sequo et bono. Field v. Holland, 6 Cranch (10 U. S.) 8, 3 L. Ed. 136. The rule settled by the Supreme Court as to application of payments is that, if the debtor fail to direct its application, the creditor may; if neither elects, equity will make the application according to justice and good conscience. “Neither of the parties can make it after a controversy upon the subject has arisen between them, and a fortiori not at the. trial.” National Bank v. Mechanics’ National Bank, 94 U. S. 437 at page 439, (24 L. Ed. 176). Each case mast depend upon the justice and equity presented by the peculiar circumstances disclosed.

In the instant case the court must decide between two parties, masters of 'the ship similarly situated, both parties acting’ in entire good faith. Holly v. Missionary Society, 180 U. S. 284, 21 Sup. Ct. 395, 45 L. Ed. 531. The funds of the ship were honestly administered, so far as disclosed by both masters. While Smith v. Oakes, supra, held that jiayments made are properly applied to the oldest claims of service, the facts there disclosed a different relation of the parties.

I think, in view of the liability of the ship for the entire service and the liability of the masters for the particular service rendered during the command o£ each, that equity and good conscience, under the rule above suggested, would require the application of the moneys paid by Capt. „Caimey, master, to his liability. The liability of Eorentzen ending with his displacement, the claim for charges for transportation to the home port cannot be asserted against him, nor the claim for double pay. There is no testimony that any of the moneys delivered by Eorentzen to Cairney were paid to the libelant. Jenkins v. Fleet Corporation (D. C.) 268 Fed. 870 (see Everett v. United States, 284 Fed. 203), and. Alaska S. S. Co. v. Gilbert, 236 Fed. 715, 150 C. C. A. 47, have no application.

A decree is directed against respondent Eorentzen for the sum of $229.11.