Memphis daily appeal. [volume] (Memphis, Tenn.) 1847-1886, 1876-03-15
INSURANCE,
Important Decision I'm Admiralty by
Judge II. A. Hill, of the u. 3.
District Court for SOuIh-
ern Mississippi.
ZOIIinger vs.. The Steamer Emma-A
ROrfgager Can Only Take Sur
plus Alter All other Mar
thine Liens are Sat
isfied.

A. Hill, in the United States district
court of southern Mississippi, during it's
January term at Jackson. The style of
the case was ZOllinger VeTsuS the steamer
Emma, the questions presented for de-
cision arising upon the exceptions Of the
intervenor, Samuel Bszinsky, MORTGAGE
OF said steamboat, to the libel and inter-
ventions, and also upon exceptions filed
by the libellant and other intervenOrs to
the claims pfOpOunded by John King
as master, and J. B. Denny as clerk,
Bazinsky and Hirseh, supply men, and
Forbes and Fitzpatrick on contract OF
affrsightments. The exceptions filed
by the inteTvenor, Bszinsky, were, in
substance, as follows:
First-That there is no lien for any of
the claims propOunded, because the
Emma was engaged in navigation be-
tween two ports of the same State.
Second-Thst there is no sverment
that the boat is Of more than twenty
tons burthen.
Third-That there is no jurisdiction
in the court because all the iibellsnts
and owners Of the boat are residents and
citizens of the State Of Mississippi.
Fourth - That contracts to deliver
goods to cOnsignees and return money
collected from said consignees, on what
are commonly called G. o. d. bills, are
not maritime contracts.
The court held that the admiralty ju-
rIsdiction of the court extends to and IN
cludes all navigabie waters in the State,
the same not being limited to the ebb
and flow of the tide. Admiralty courts
have jurisdiction over ell maritime con-
tracts to be performed by, or all tOrtS
committed by vessels navigating the
navigable rivers and waters of the
United States, whether the same be
wholly within one State or passing
through several States. Vide case Bel
fast, Wallace It'll, p. 642, which is not
overruled by LOttOwanna, Wallace 2lSt,
o. $685. The courts of admiralty can en-
force liens given by State laws upon
vessels for supplies and materials fur
nished at the home port; supplies fur
nished st the home port do not create q
lien. 1t was unnecessary to aver the
vessel to be of twenty tons, and If neces-
sary such defect could have been cured
by allegation that she was Of more than
one hundred tons. Admiralty jurisdic-
ton in no way depends upon the resi-"
dence or citizenship of the par
ties. There can be no ques-
ton as to mariners wages
being the first lien upon the boat. Al
though act of the Mississippi legisls-
ture, March 4, 1874, provides for an at
tachment, and gives an implied lien
against vessel for supplies and mate
rails furnished at the home port, no such
implied lien can be maintained, and if
intended to give remedy i1l rem against
the vessel enfOrcible in the State court,
it would be an infringement upon the
exclusive admiralty Jurisdiction Of the
United States court, and void under the
decision Of the supreme court in the Bel
fast case. Hence these claims consti-
tute no claim. The court maintains the
liability Of the vessel an rem, for the safe
transportation and delivery of goods,
upon g. o. D. bills. e., where the
master OF the vessel contracted to de-
liver goods to the consignees to whom
they had been sold, and collect and
bring back the price thereof to the ship
per. The master Of the es5el acts as
the master of the vessel, and not as the
0qent of the shipper, where a cargo of
goods is delivered to bis vessel upon
contract that the master shall convey
them to some market and there sell
them for account of the owner.
He acts as the master OF the
ship until he sell and deliver the goods,
but after he sells and receives the money
he is agent of the shipper; hence for any
breach OF contract of afreightment the
VeSSeI is liable, but for any default in
payment Of the money to the shipper
the master is personally liable only.
There is marked distinction betW cen
such casa and one in which the con-
| signOr upon an agreement that money
is to bs paid upon delivery OF the goods,
! hence the contract being entirely one OF
! affreightment. The master in such case
| contracts to transport the goods to the
| consignee and transport the money de-
| livered to him by eonsignee back to
! consignor, or if the money is not placed
| upon the vessel by the consignee to re-
| transport the goods to the shipper. The
| duties assumed are entirely those Of q
: common carrier, and common carrier
! is as much liable for failure to trans
| port and deliver the money received by
him fer transpor alton as he is for
failure to deliver any other character Of
| freight. The claims Of this class, so far
as proved, must, therefore, be allowed
| as liens upon the vessel, the exception
| to the claim of John King, master of
the vessel for his wages, insisting that
the same is lien upon the vessel en-
| forcible in rem. His contract is with the
him personally. The claim is not lien
and must be disallowed, and in the same
way is the claim of the first clerk, J. B.
Denny, disposed of. The first clerk of q
steamboat is the chief financial agent of
| the owner, employed by him, and ac-
countable to him and not to the master.
| He receives and handles all the moneys
| for the boat, pays the wages Of the crew,
| and practically pays the master Of the
vessel himself his wages; a1d, having
the money of the boat in his hands, pays
his own salary. A lien is given to mar.
liners for their wages because they are
employed by the master Of the vessel on
the credit of the vessel, and would in
most cases be practically without reme-
dy if they were compelled to hunt up
and sue unknown owners. No such pO-
sition is occupied by the first clerk, who
is financial agent Of the owner, and can
at all times pay himself out Of moneys
in his hands, which he receives for
freight and passage. Judge Hill thinks
that the Office Of fiist clerk is one I'M
known to the general admiralty law,
snd accordingly the master is the sole
representative and agent of the owner.
The same principles which exclude the
master from the privileges Of mari
n0I'6 llSu WOulu HlsU Do dFpllcaOle 10
the first clerk, and upon principle and
reason, says Judge Hill, in the absence
OF adjudicated cases l am satisfied that
fret clerks of steamboats, are not entitled
to q lien for their wages. The claim of
BsziDsky & Hirsh was for money ad-
vanced in the home port, does not rank
any higher than supplies and materials,
and must be disalloWed. As regards to
the claim Of the mortgage, Bazinsky, it
is no. maritime lien, but only lien
upon the vessel subjsct to all maritime
liens; it is good from the date OF its re-
cord, giving lien for his mortgage
debt, good against ell subseque VEN
dees and membranes, except those
holding maritime liens (which are liens
in rem and without regard to the owner
ship of the vesseD. A mortgage is only
conditional sale or transfer, and
as an absolute sale or transfer OF
the title cannot effect maritime
liens, a conditional one cannot,
T., 4. Ill al 4