THE MARINE- RECORD. UAJtKNK LAW., ,\ TnK pblf OLESON. ! Circuit Court, B. D.. Wisconsin. JVa;/ IS, 1384. In Admiralty. Markham & Noyce, for Interveners. ,. J.;H. Wlldlsh, Tor mortgagee, Dj cr, J. Objections are tiled to claims made by Bernard Klenast and August Walkowski to a share ot,the procceds^lslng from the sale of the Bchooner X)le Oleoyn upon a libel for seamen's wages. The In¬ terveners were employed as atone-plckera bv the niastor of the vessel, who uas also nianaglng owner, to gather stono on the shore of Lake Michigan at or near Alpena, "'and to assist In loadlnjjf the efoWon board as cargo to be carried to Chicago, While i engaged In this service they lived and slept on the vessel sb she laid off shores and the mnsteir testifies that when the weather wa« anuli that stone could not be gatheied, the schooner would run Into Alpena? and the Intorvenors would then lend a hand in hoist¬ ing sail. But they did not accouipirRy the vessel on her voyages, and were nor em ployed, as seamen, the vessel having a lull crow without them. The only question is, was the service which they rendered In pick¬ ing up stono for the vessel a maritime ser¬ vice, 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 pay¬ ment from the fluid in the registry, namely: the Canton, 1 Spr. December 487; the Ocean Spray, 4 Sawy. 105, and the Minna, 11 Fed Rep. 759. These cases ate nil dis¬ tinguishable from this. In the esse of the Canton, the employment of the libelants was to load the vessel at Qulncy with sttn\, not asquarryuen,butto take the stone on board from a wharf, to navigate the vessel to Boston, and (here to unload her. As we said by Judge Sprague, they must have been able to "hnnd-redf and steer," the ordinary test of seamanship. These duties they performed, apd so they were not landsmen merely, but actually participated in the navlgatlon-of the vessel. In the case of the Ocean Spray, the vessel wont upon a voyags for seal. The libelants shipped as sealers, and weie hired to take seal for the vessel at a stipulated sum per month, and their shipping agreement bound them also "io lend a hand on board when¬ ever they were wanted." On the voyage they helped make and reel Bull, heave the anchor, and clear the'decks, but did not stand watch They also procured drift¬ wood and water for the use ol the vossel, and, as Judge Deady well states the case, they were co-laborers In the leading purpose of the -voyage. Upon the principles ap¬ plicable to surgeons, stewards, coots, and tablnbojs, they were to be considered a mariners. They engiigfd for the voyage, were employed In promoting the puipuse of the voyage, and aided In the navigation of the vessel; and, as Judge Deady says, with¬ out their services the Y.«> age must luiie been profitless, becauso the purpose ot It could not have been accomplished. Moreover, ihc v< g. ael was expressly pledged as security for the payment of the wages of the tenlei&fui the round trip. The case ol the Minna seems at first sight to rub the case lu hand mora closely The Minna was engaged exclusively in fishing As the case is stated, she ran out from Alpena every morning to the fishing ground's threw her nets, made a catch of fish, and returned to port "here the fish were discharged and prepared for market. Her crew consisted of a master and engineer. The libelant was employed as a tlshermun and though he took no purt In the naviga¬ tion of the tug, his contract required him to go out with the lug every day, to set and lift the nets, clean tho fish, discharging the catch and reeling the nets on shore, where he lodged at night. His services were, therefore, as Judge Brown decided, In furtherance of the main object of the enter¬ prise In which the vessel was engaged. lie assisted In the main purpose ol the vessel's cniploj meut. Ills services were mainly per¬ formed on board tho tug, and were neces¬ sarily connected w Ith, and part of, the ser¬ vice In which the tug was engaged. They ■were, therefpre, maritime In their character, rn the case in liuud the intenenurs were mere landsmen. '1 hey procured cargoos on ■hore for tho tho vessel's employment, but not more so than the services ofatovedores and the prese*nt weight of authority In that stevedores have no maritime Hon upon n ship fur services In londlng and stowing her cargo. Paul v. Bark Ilex, 2 Woods, 220, and cases there cited. The services of the Intervonors were completed before tiro voy¬ ages of the vessel were begun. They did not attend her upon her voyages. They were laborers on shore, and the. nature of their contraot was not affected by the fact that they obtained their meals and at night slept on board the vessel as she laid offshore or harbor. In material respects, the caterl' think, differs from that ofMinna and theother oases cited, and I thall sustain the*objections to these claims on the ground that the ser¬ vices of the Interveners stand on the same footing at those of stevedores, I thus rule, not without-some hesitation, for, as an origi¬ nal question, I mint confers I ha\e never been tfble to see why the employment of a stevedore should not bo regarded entitling him to a maritime lion. Objections are also filed to a claim against the proceeds, in the reglstiy 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 Ne- quette, in Michigan, her master, who was half owner of tbe vessel, purchased from Peacock, a cargo of culled lumber to carry (o RacOie, 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 schooner Ole Oleson unloads the load of culls, she by her enptalu, promises to pay 10 the order of R. Peacock the sum of mo bundled forty eight 30-100 dollars, be¬ ing the amount due for the cargo now loaded. 1 his lumber was sold the vessel so she coufd make a freight. Interest after due until paid. Scan. Ole Oleson, of Racine, "By her Captain, John Sohult/." The cargo was carried to Racine, was there artachedimd «old;rnnd~ther-ctennrtid ot vendor, Peacock, for the purchase price has ever since remained unpaid. The ques¬ tion is, did Peacouk acquire a maritime lien on tho vessel, far the amount due liltn for the lumber, which took precedence of prior mortgage, on the vessel? The Instrument executed by the uiasierdoes not, by its terms, purport to create a lien. 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 ot the lumber a Hen. The only question, then, is, does the maritime law.givc the vendor a Heir on the vessel from, the mere fact that the master bought the cargo for the purpose df earning freight? Or, to state the proposition in another and uiore general form, can a master and pait on tier of a vessel puicjiase n cargo an credit and thereby create a maritime lien for the purchase money, on the vessil? So far as the power of the master, noting simply In that character, to bind the owners of a ves¬ sel in the purchase of cargo, Is concerned, adjudged cases seem T<> have settled tl.oques- tlou, beyuhd oonirdveifV, In the negative. In Halhhorn v. Cutis, Grtjonl. 300, the court said: (_, "1'he master in his capacity as such, has power to bind thp owners ol the ship In con¬ tracts relative to her usual employment only. '('Ids power relates meiely to the carrage of goods and the supplies requisite for the ship; hut the owners of tho ship cannot bu bound by any conn act of the master concerning the purchase of cargo. To bind theowner In such i comma the master must be clothed with po a ers other than those which are neces¬ sarily incident to his office as commander of the ship. He may Indeed, aot in the double character of master and supercargo or con¬ signee, but his power to sell, ,cases of neces¬ sity excepted, or to purchase cargo, flow>, not lrom his uflicfiil character as master, but from special aulhoilty conferred for that purpose." In Hewett v. Buck, 17 Me. 13d, Judge Shepley held that— "The master may bind the owners by his contracts relating to [ho usual employment of the vessel In, the can Inge of goods, but has no power to purchase a cargo on credit of the owners." Citing, In support of the last propesltlmi, Bell v. Humphries, 3 Stiirkle, 280. The rule thus laid down in 8 Greenl. and 17 Me Is also asserted without quallftoatlon In Newhall v. Dunlap, 14 Me, 180, and Ly¬ man v. Redman, 28 Me. 280. In Naylor v. Baltzell, Taney, December ofi, Chief Justice Taney said: "The master has a right to- contract for tho employment of the vessol under circum¬ stances of necessity, and the owners will be bound by It; but tills right Is derived from the maritime code, which is founded on the general usage and convenience of trade, ami which has been adopted!to a certain extent by all commercial nations, Tho authority of the master is limited to objects connected with the voyage, and and it he transcends the prescribed limit*, his acta become, In legal contemplation, mere nullities, and It Is incumbent on the creditor to prove the actual existence of tho necessity of those .things which give rise to his demand." If, then, tho master, acting in his official character of master, has not tne power to make a purchase of cargo, and bind the ow n- ers.ot tbe vessel, It pould seem quit logically to follow irTat lie could not. In such a transac¬ tion, bind tho vessel. This right to make eugagements on, the oiedlt of the vessel be¬ ing restricted to cases of necessity, he would seem to have no greater authority to pur¬ chase a cargo, ami thereby create a Hen on the vessel, than by the same act to bind the owners. The rule in the one case has not been more' unqualifiedly laid down In the other. "The master, acting as nn agei\t, Is limited and restricted In his power, and can ■pledge hfs vessel only Is,case of necessity for the purpose ot repalrst and other things indlspenslble to the prosecution of the voy¬ age. It Is for the convenience of commerce that he should have authority to pledge his vessel tor the security of a foreign creditor might furnish the means of relieving' his necessities. But such power ought to be well guarded, and confined to cases coming with¬ in the reason of tho rule. It Is, therefore, Incumbent on tho oredltor to show that the advances wero made for repairs and supplies necessary for effcotlng the objects nf the voy- ago, or the safely nudseeurlly of the vessel. The master would, therefore, have no right to pledge the vessel for advances in purchase a cargo." The Mary, 1 Paine, 074 And, certainly, if he could not create a Hen for advances to purchase a cargo lie could not create such Hen by a direct purchase of the cargo on credit, In favor of the vendor.. Attempt was made on argument tojiken this case by analogy to one of bottomry. But' the-analogy falls, because some ot the well* Know n essentials of * marine hypotheo itloii of that character are not here show n. More¬ over, so far as the power of the/ master to execute an instrument of bottomry is con¬ cerned, 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 Hen on the vessel for the, purchase price of the cargo. Is the rulej| changed or aflected by the fiiQt that the mas¬ ter was part owner of the vessel? It Is to be observed that the other part owner was not I present and did not participate In the traus- 1 notion. We have Been that the ship's hus¬ band or managing owner has no power, t'tr- tute offloit to purchase a cargo on the oiedlt of the owners. In the ease of the Mary, «h- j>ra, It wafrheld that the owner of the ship, having absolute control over his property) ■has a right to pledge his vessel lor money borrowed for any purpose to be applied to repairs, outfits, or other necessailea, or to the purchase of a cargo. This was held In a case wheie the owner had executed a bot¬ tomry bond lor the payment of money ad¬ vanced for repairs, ootilt and other dlsbune- ments lor the u-e of the vessel, and to ena¬ ble her to perform her voyage. But the du¬ ties of the ship's husband are In general-to provide for the seaworthiness of tire ship, to taka caie o! her in port, lo see that she haa on board all necessary and proper papers, to make contracts for freight and all returns, 1 Bell, (oiudi, (4th -Ed.) p. 410, $428; Id. (5th £!d.) H04. But hoennnot borrow money •nor glvo tne Hen for freight nor Insure, nor purchase a. cargo for I lie owueis without spoolal authority. 1 Pars. Shlpp. <&; Adm. 110. Part owners are not by vlitue of such ownership co-partners. The geneial rules of co-teuaucy apply, and com Hilling author¬ ity would have lo be produced beloie I could be persuadid to hold that a part ow ner can, by Implication, bind the vessel for the pur¬ chase price of b cn£go, thereby displacing other existing Ileus. It would bo a danger¬ ous power to lodge either in U»3 master, or managing part owner, for In carrying such a cargo the vessel would be simply carrying I he prdpeny of her owner, and If he dice not to pay for It, the result would be, ao cording to the doctrine here contended for, that prior Ileus 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 lu hey employment In navigation, and as con¬ stitute the basis of a Hun In admiralty. Tho objections to the claim of the in venor are sustained. Kenosha, and MUHuii & McCoy, J||ltt, ulr .„ The complainants olalm to be all own..,.. of tugs, steambareea or propellers »i,,i. llcptseil under tho Tawsof the Ui.ltod\Ce. for the coaming trade, and for towl.n, \» general, and In the Chloago rlverand harbor to particular. Under the city ordinance, fine of not loss tlinu $s and not more thnn |B0 Is Imposed Jor each offense on all J J. Vessels employed In towing which shall h, have taken put tho f35 llcensoaud haveZ* number of the license and tho owner's nan i marked on both aides of tho vessel In legible loiters. The complainants paid the llcenT for 1888 4 under proient. making a total J ' of |1 850 Illegally taken, la Is claimedI to Z complajjjints, from theiu. , ' ° ■ ?.f^,^!,Q•,veve,^, "i8 c"y '"nbni,t to collect the- m license for the year 1884-5. The coin plalnanls nre liable to be Imprisoned anrt fined on a refusal tq pay the" license, and a multiplicity of suits and expensive litigation Is likely to ensue. They charge that tho liconse oidlnance of 1888 la illegal. Tho - complainants, who life citizens of this State and owners of the. tugs whose home port Is Chicago, have for years prior to the passage of the ordinance been, nnd are now, subloct to taxes on their tugs based on a valuation of the same as properly, lust as other citi¬ zens on their pj£pprJyJ_Tbe Hcenne Is also titer- TUG LltaiNsK. In the supreme court recently a large number of tug owners filed a bill against the city ot Chicago and William J. Ouahan, city collector, to restrain the collection' ol the yearly license imposed by the city ordi¬ nance of March u, 188.1, ot |2o on every steam vessel employed In towing In the Chicago river. The parties filing .the bill are Alexander Campbell, of Michigan City; J. A. Crawford, James S. Dunham, W. Walsh, J.jTohnson, J. 3. Carter, W. II. B. Dean, Thomas Teed, J. L. Byron, P. Gor¬ man, A. G. Rowell, J. A. Van Dnlson, E. Van Dalson, C. Van Dalson, II. W..Blue, \V. Harmon, T. E..MIIlor, \V. Crawfoid, Kate Crawford, George P. Oilman, DaVId Dall, John Hamlor, John McLaughlin, Ly¬ man Wilson, Thomas Brown, W. K. Har¬ mon, Joseph Evorott, George E. MuLane, J. J. Hickman, J. R, Sinclair, Robert Brown and A. C. Johnson, Flt/slmons & Council, Chicago Gravel Company, Chicago Dredg¬ ing & Dock Compaiiy, Green's. Dredging Company, tho Vessel OwnorSrTowIng Com¬ pany, all of Illinois; and A. Everett, of levied on each tug Irrespective of the differ- once In the value of the vessels as property, and Is made for the purpose of Increasing the revenue ol the olty without any corre¬ sponding benefit to the tug owners. The bill claims therefore that the ordl- nance of 1888 Is null and void, as being msdo In \ lolatlon of the ordinance Of 1787 tor the government of the territory of the United States' northwest of the Ohio river,the fourth clause of which provides "that the naviga¬ ble wnteis lending Into (he Mississippi river and St. Lawrence, and the carrying places between them, shall be common highways and forever free, ns well to the Inhabitants of Bald territory as to citizens of the1 United States, and those of. any other Stales that may be admitted Into the confederacy with¬ out any tax, Impost, ord'ity therefor.'1 This provision was duly adopted when Illinois became a State and adopted a constitution August 20,1818. The power Invoked by the ordinance of 1883 Is claimed to be exercised by virtue of the city charter objajnedjrom_ the9mterairdlhe~actsomieT3eneral Aaseui. bly of the-State applicable to Chicago; but It Is Insisted that no such potfer has been delegated to the cltv or Its common coun¬ cil io pass or enforce tho ■oidlnnnce In ques¬ tion, bui if it shall beheld that any act of the legislature or charter of the city does In terms confer such power and authority up. on tho city or Its council, (he said net,"or so much of lit as seeks lo confer such power and nuthotnyv Is.unconstitutional and void. Further, iflsiusisied that the tufi license ordinance ol 18811, Is-void aiid Is in Conflict with the first and third clauses of section 8 of article 1st of the Constitution of the Urn ted States, which provide respectively that Congress shall have power to lay and collect taxesj duties. Imposts, and excises, but all such taxes, etc., shall be uniform through¬ out the United States; and In said third clause,'"To regulate enmn-eree with foreign nations and among the several States, and with the Indian tilhe-," and also In conflict with clause 2 of section 10 ol said article. 1st, which provides that "No S'ate shall, with- . out the c miseiit of Congress, lay anyimposts or dude,, on Imports or exports except what may be absolutely necessary for executing Its Inspection laws." * » » "No Stale shall, without the content.of Congress, lay any duly of tonnage." In conclusion, the tug owners say that they have paid all duties Imposed on their lugs or officers and crews by the laws ol the United States, and annually pav io the gov¬ ernment, under title L. U.S. Revlsod Stat¬ utes, a duty of 0 cents per toil on each tug, In addition to oilier requlrcinents/'for a li¬ cense, and that the requirements of the city ordinance are In conflict with this, and oth¬ er provisions of sa'd law of Congress gov¬ erning tugboats and the towing business on the navlgible waters of the United States, that the city ordinance tends to and does abildge the free use of tile Chicago river, ill branches and the Chicago harbor, which are navigable waters of the United Stales, by tbe complainants, lo which they are legally entitled, by vlrtuo of the enrollment and . license of their tugs under the laws'of the < United States; alid that the $25 so charged and <»Tiii.tjii!-io » .-.......— ----- -'-------'---------*-- and exuetedls a tonnage tax, or a charge tax or duty for the privilege of engaging In commerce and navigation, and of their tugs entering, using and navigating the Chicago nyer and Its branches, and for entering Qt lying in the port of Chicago, or to run tugi ?lng \n Cnl«»go river, and Is also In vlola- t on of and In confliot with seotlon 4.220 of Jbe Revised Statutes of ihe United Stales, wh oh provides "that no vessels belonging to ifny cltl/ens of the United States, tradlug from one port within tho United States to another port within tho United States, cr employed In tho bank, whalo, or other fish erlos, shall bo subject vto , tonnage tax or duty, If such vessel Ib licensed, registered or enrolled." In conclusion, the bill asks that tho ordi¬ nance of 1883 be declared Illegal, null and void; that the city and Its collector may be restrained by injunction from collecting the license, and that they may l>e decreed to re¬ cover tho amount already paid for license under tho ordinance of 1883-1.—Intel Oitan.