The James Lamon

1 E.D. Pa. 552

• Court: District Court, E.D. Pennsylvania
• Decided: January 10, 1862
• Status: Published

Opinion

CADWALADER, J.

The claim for a reimbursement of the alleged advance of wages appears to stand upon a different footing from the claim for expenses in bringing the crew from New York.

There is no specific or particular maritime necessity suggested in the libel except that mariners could not be hired in Philadelphia.

The Court will judicially take notice of the liability of this port at the present season to be closed by ice in the river, which liability therefore will be considered as if it had been averred.

As to the advance to the crew I incline to think it at best a loan of money entitling the lender to be substituted as against the vessel, for the mariners who have received it, and entitling him to reimbursement, as against her, only if they should perform their duty and the vessel should earn her freight for the voyage. If, as has been stated, they have already left the vessel, I think her exempted from liability for the demand. But counsel, who- have had full time for consideration, and who may have investigated the matter more profoundly, appear to think differently; they press the claim with great earnestness.

If I could see any reasonable doubt upon the question, I, therefore, ought not to reject the claim absolutely by refusing, in this preliminary stage of the case to allow the libel; nevertheless, I would have great difficulty in allowing it, if it contained no other claim.

But the claim for expenses in bringing on the crew, stands, perhaps, on a different footing. If the vessel was without funds in the hands of the consignee or husband in this port, this charge would perhaps be a lien upon her. At all events I would not, in the present stage of the case, disallow the claim. The libel does not sufficiently aver that there were no funds to the credit of the vessel at this place, or otherwise at the command of the master. But, if they are at his command, there can be no difficulty in giving security; and as the libel might be amended, I will not, on account of the omission, refuse to allow the process to issue, as the vessel may otherwise leave the port.

I allow the libel with great hesitation and reluctance, and with a statement that if it should ultimately be dismissed the libellant will probably be condemned in costs.