CHARLES T. WILDER, Tax Assessor and Collector of the First Taxation Division of the Territory of Hawaii, Plff. in Err., v. INTER-ISLAND STEAM NAVIGATION COMPANY, LIMITED.

211 U.S. 239 (29 S.Ct. 58, 53 L.Ed. 164)

CHARLES T. WILDER, Tax Assessor and Collector of the First Taxation Division of the Territory of Hawaii, Plff. in Err., v. INTER-ISLAND STEAM NAVIGATION COMPANY, LIMITED.

No. 30.

Decided: November 30, 1908.

Substituted as a party in place of James L. Holt.

Messrs. Charles R. Hemenway and Mason F. Prosser for plaintiff in error.

Messrs. A. Lewis, Jr., and Smith & Lewis for defendant in error.

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Mr. Justice Day delivered the opinion of the court:

This case is one of a number of similar cases arising within the territory of Hawaii, and is brought here for the purpose of settling the liability of seamen's wages to seizure after judgment by attachment or proceedings in aid of execution. The Inter-Island Steam Navigation Company, defendant in error, was directed by order and judgment of the district magistrate of Honolulu to pay into court, on account of a judgment rendered in favor of plaintiff in error, against one A. Tullet, the sum of $65. Tullet is a seaman, being master of the steamer Keauhou, plying between ports within the territory. The sum of $65 was due to Tullet from the Inter-Island Steam Navigation Company for wages for the months of January and February, 1906. The judgment was recovered against Tullet on September 5, 1905, for the sum of $120.38 and costs. An execution was issued thereon and returned unsatisfied. Upon affidavit being filed an order was issued attaching the sum of $65, due in manner aforesaid from the navigation company to Tullet. The navigation company filed an answer setting forth that Tullet was an American seaman in the employ of the company, and that the money attached was due to Tullet as wages, and, under § 4536 of the Revised Statutes of the United States (U. S. Comp. Stat. 1901, p. 3082), the same were not subject to arrestment nor attachment, and that the territorial court had no jurisdiction in the premises. The lower court held that the wages could be attached in this manner. This judgment was reversed in the supreme court of Hawaii.

The laws of Hawaii regulating attachments in cases such as are now under consideration authorize proceedings supplementary to execution, as follows:

'Sec. 2118. Attachment of debts, order.—It shall be lawful for a judge of any court upon the ex parte application of such judgment creditor, either before or after such oral examination, and upon affidavit by the judgment creditor or his attorney, stating that judgment has been recovered, and that it is still unsatisfied, and to what amount, and that any other person is indebted to the judgment debtor and is within the jurisdiction, to order that all debts owing or accruing from such third person (hereinafter called the 'garnishee') to the judgment debtor shall be attached to answer the judgment debt; and by the same or any subsequent order it may be ordered that the garnishee shall appear before the judge to show cause why he should not pay the judgment creditor the debt due from him to the judgment debtor, or so much thereof as may be sufficient to satisfy the judgment debt; provided that the judge may, in his discretion, refuse to interfere when, from the smallness of the amount to be recovered, or of the debt sought to be attached, or otherwise, the remedy sought would be worthless or vexatious.'

It was under this section of the Hawaiian statute that the order was made for the payment of the judgment out of the wages due to Tullet, and the question for decision in this case is: Can such an order be made consistently with the maritime law as declared in the Revised Statutes of the United States? The section of the statute construed in the supreme court of Hawaii is 4536, which provides:

'No wages due or accruing to any seaman or apprentice shall be subject to attachment or arrestment from any court; and every payment of wages to a seaman or apprentice shall be valid in law, notwithstanding any previous sale or assignment of wages, or of any attachment, encumbrance, or arrestment thereon; and no assignment or sale of wages, or salvage, made prior to the accruing thereof, shall bind the party making the same, except such advance securities as are authorized by this title.'

This section was first enacted into the statutes of the United States in 1872, and was § 61 of the act of June 7, 1872, entitled 'An Act to Authorize the Appointment of Shipping Commissioners by the Several Circuit Courts of the United States, to Superintend the Shipping and Discharge of Seamen Engaged in Merchant Ships Belonging to the United States, and for the Further Protection of Seamen.' 17 Stat. at L. 262, 276, chap. 322, U. S. Comp. Stat. 1901, p. 3082. It afterwards became, in the revision of 1874, § 4536 of the Revised Statutes. This section appears to have been copied from § 233 of 17 and 18 Victoria, chap. 104, which act provides: 'No wages due or accruing to any seaman or apprentice shall be subject to attachment or arrestment from any court; and every payment of wages to a seaman or apprentice shall be valid in law, notwithstanding any previous sale or assignment of such wages, or of any attachment, encumbrance, or arrestment thereon; and no assignment or sale of such wages, or of salvage, made prior to the accruing thereof, shall bind the party making the same, and no power of attorney or authority for the receipt of any such wages or salvage shall be irrevocable.'

We have been unable to discover any English case construing this statute, and none has been called to our attention. In Maclachlan on Merchant Shipping, 4th ed., 231, that author states the effect of the statute to be to except seaman's wages from liability to attachment by a judgment creditor, as payment of such wages is valid, notwithstanding any previous sale or assignment thereof, or any attachment, encumbrance, or arrestment thereon. In this country the cases, state and Federal, in which this statute has been under consideration, are not in accord. In Telles v. Lynde, 47 Fed. 912, and The Queen, 93 Fed. 834, the district court in the ninth circuit reached the conclusion that the statute did not prevent the seizure of seamen's wages after judgment upon proceedings in aid of execution, although the seamen's wages were not liable to attachment in advance of judgment.

The question was very fully considered by Judge Benedict in the case of McCarty v. The City of New Bedford, 4 Fed. 818. In that case Judge Benedict held the view that the statute of Victoria 17 and 18, above cited, was but declaratory of the law of England as it theretofore existed, and that, in view of the remedies given in the United States courts in admiralty, and the provisions of the Federal statutes enacted in reference to the recovery and protection of the wages of seamen, there was no jurisdiction in the state courts to garnishee the wages of seamen at the instance of a creditor.

With Judge Benedict's opinion before him, Mr. Justice Gray, then of the supreme judicial court of Massachusetts, in the case of Eddy v. O'Hara, 132 Mass. 56, said that the court, although recognizing the elaborate and forcible argument of Judge Benedict, had not been able to satisfy itself that such an exemption from attachment had even been recognized, except as created or limited by express statutes or ordinances. The learned justice conceded that a determination of that question was not nccessary to the decision then made, because the court held that the trustee in foreign attachment, haveing been compelled by process from the admiralty court to pay the amount of wages, could not be charged again for the same sum. In the subsequent case of White v. Dunn, 134 Mass. 271, the question was directly presented, and the former opinion of Mr. Justice Gray, in 132 Mass. 56, was approved; and it was held that the wages of seamen engaged in the coastwise trade (the act of 1874, 18 Stat. at L. 64, chap. 260, U. S. Comp. Stat. 1901, p. 3064, being construed to exempt coastwise-trading vessels from the provisions of the act of 1872, which included what is now § 4536) are subject to attachment by the trustee process. The court expressed regret at its inability to agree with the district court of the United States for the southern district of New York, evidently referring to Judge Benedict's opinion above cited, and expressed the opinion that no practical injustice would grow out of the conflict, as the supreme judicial court of Massachusetts had recently held, in Eddy v. O'Hara, supra, that where the wages of seamen had been obliged to be paid by a decree in admiralty, a party could not again be charged under attachment proceedings, and the court expressed the opinion that, as the wages were paid upon the judgment upon which trustee process had issued a court of admiralty of the United States would not compel the owners to pay a second time.

In the case of The City of New Bedford, 20 Fed. 57, Judge Brown, sitting in admiralty in the southern district of New York, adhered to the views expressed by Judge Benedict in McCarty v. The City of New Bedford, supra, notwithstanding the decision in Eddy v. O'Hara, supra, but held that a compulsory payment under garnishee process in Massachusetts, under principles of comity, should be recognized in the admiralty court. In Ross v. Bourne, 14 Fed. 858, Judge Nelson, sitting in the United States district court in Massachusetts, held that a suit at law against a seaman, wherein his wages had been attached by a trustee process, but not yet paid, would not bar the seaman's recovery of the whole wages by a suit in admiralty. Upon appeal to the circuit court of the same case (17 Fed. 703), Judge Lowell said that 'he did not dissent' from the learned opinion of Mr. Justice Gray, in Eddy v. O'Hara, supra, but held that such an attachment proceeding should be respected out of comity only, and that comity did not require actions in favor of seamen in admiralty to be hung up to wait the dilatory proceedings of an attachment suit at common law.

From this conflict of views upon the subject we turn to the consideration of the section (4536) itself. We may premise that no contention was made in the supreme court of Hawaii, or in the assignments of error or argument in this court, that § 4536 was inapplicable because the steamship company was engaged wholly in the coastwise trade. This removes any question on that subject from the case and renders it unnecessary to decide whether the act of 1874, 18 Stat. at L. 64, chap. 260, U. S. Comp. Stat. 1901, p. 3064, had the effect to repeal § 4536, so far as vessels thus engaged are concerned. In the first clause of § 4536 it is provided that no wages due or accruing to any seaman shall be subject to attachment or arrestment from any court; and it is the contention of the plaintiff in error that the words 'attachment' or 'arrestment' only forbid such proceedings before judgment, but do not protect such wages from proceedings in attachment after judgment. Undoubtedly the word 'attachment,' as ordinarily understood in American law, has reference to a writ the object of which is to hold property to abide the order of the court for payment of a judgment in the event the debt shall be established. And as Mr. Justice Alvey says, in delivering the opinion of the supreme court of Maryland (Thomson v. Baltimore & S. Steam Co. 33 Md. 318):

'An attachment has but few of the attributes of an execution; the execution contemplated by the statute being the judicial process for obtaining the debt or damages recovered by judgment, and final in its character, while the attachment is but mesne process, liable at any time to be dissolved, and the judgment upon which may or may not affect the property seized.

'Arrestment,' a word derived from the English statute, is a word of Scotch origin, and derived from the Scottish law, and thus defined by Bouvier:

'The order of a judge, by which he who is debtor in a movable obligation to the arrestor's debtor is prohibited to make payment or delivery till the debt due to the arrestor be paid or secured. Erskine, Inst. 3, 6, 1; 1, 2, 12. Where arrestment proceeds on a depending action it may be loosed by the common debtor's giving security to the arrestor for his debt, in the event it shall be found due.'

And in the Century dictionary it is defined to be:

'A process by which a creditor may attach money or movable property which a third person holds for behoof of his debtor. It bears a general resemblance to foreign attachment by the custom of London.'

Neither of the words used in the statute, 'attachment' or 'arrestment,' considered literally, has reference to executions or proceedings in aid of execution to subject property to the payment of judgments, but refers, as we have seen, to the process of holding property to abide the judgment. But we are of opinion that this statute is not to be too narrowly construed, but rather to be liberally interpreted with a view to effecting the protection intended to be extended to a class of persons whose improvidence and prodigality have led to legislative provisions in their favor, and which has made them, as Mr. Justice Story declared, 'the wards of the admiralty.' Harden v. Gordon, 2 Mason, 541, Fed. Cas. No. 6,047.

We think, too, that the section is to be construed in the light of and in connection with the other provisions of the title of which it is a part. And we may notice that, after providing against attachment or arrestment of wages, this very section goes on to enact that payment of wages to seamen shall be valid, notwithstanding any previous sale or assignment, or any attachment, encumbrance, or arrestment thereon; and that no assignment or sale of wages made prior to the accruing thereof shall bing the party making the same, except such advance securities as are authorized by this statute. When we look to the provisions of the title we see that the field of 'advanced securities' is very narrow indeed. U. S. Comp. Stat. 1901, pp. 3079 et seq. It is made unlawful 1901, pp. 3076 et seq. It is made unlawful to pay any seaman his wages in advance, and an allotment of his wages is permitted only to grandparents, parents, wives, or children, or, under regulations of the Commissioner of Navigation, made with the approval of the Secretary of the Treasury, not to exceed one month's wages to a creditor in liquidation of a just debt for board or clothing. And it is provided that no allotment note shall be valid unless signed and approved by the shipping commissioner. This statute has been held a valid enactment (Patterson v. The Eudora, 190 U. S. 169, 47 L. ed. 1002, 23 Sup. Ct. Rep. 821) as to advancements.

Section 4536 therefore has the effect of not only securing the wages of the seaman from direct attachment or arrestment, but further prevents the assignment or sale of his wages, except in the limited cases we have mentioned, and makes the payment of such wages valid notwithstanding any 'attachment, encumbrance, or arrestment thereon.'

It seems to be clearly inferable from these provisions that wages which have thus been carefully conserved to the seaman were not intended to be subject to seizure by attachment, either before or after judgment.

Furthermore, there are other sections in the title which strongly support the conclusion that it was not intended that seamen's wages should be seized upon execution or attachment to collect judgments rendered at common law. Section 4535 provides that no seaman shall forfeit his lien upon the ship or be deprived of any remedy for the recovery of his wages by an agreement other than is provided for by this title. U. S. Comp. Stat. 1901, p. 3082. Section 4530 provides for the payment of seamen's wages, one half at every port where such vessel shall load or deliver its cargo, and when the voyage is ended the remainder of his wages, as provided in § 4529. Section 4546 provides for the summons of the master when wages are unpain within ten days to show cause why process should not issue against the vessel according to the rules of courts of admiralty. Section 4547 provides for process against a vessel in case a seaman's wages are not paid, or the master does not show that the same are otherwise 'satisfied or forfeited,' and all the seamen having like cause of complaint may be joined as complainants in a single action.

We think that these provisions, read in connection whth § 4536, necessitate the conclusion that it was intended not only to prevent the seaman from disposing of his wages by assignments or otherwise, but to rpeclude the right to compel a forced assignment, by garnishee or other similar process, which would interfere with the remedy in admiralty for the recovery of his wages by condemnation of the ship. These provisions would be defeated if the seaman's wages, to be recovered at the end of the voyage, could be at once seized by an execution or attachment after judgment in an action at law. The evident purpose of the Federal statutes, that the seaman shall have his remedy in admiralty, would be defeated, and the seaman, in many cases, be turned ashore with nothing in his pocket, because of judgments seizing his wages, rendered, it may be, upon improvident contracts, from which it was the design and very purpose of the admiralty law to afford him protection.

'Ordinarily,' says Judge Nelson, in Ross v. Bourne, 14 Fed. supra, 'the sailor's conly means of subsistence on shore are his wages earned at sea. If these may be stopped by an attachment suit the instant his ship is moored to the wharf, a new hardship is added to a vocation already subject to its full share of the ills of life.'

We think that § 4536, construed in the light of the other provisions of the same title, prevents the seizure of the seaman's wages, not only by writs of attachment issued before judgment, but extends the like protection from proceedings in aid of execution, or writs of attachments, such as are authorized by the Hawaiian statutes, after judgment.

Finding no error in the decision of the Supreme Court of Hawaii, the same is affirmed.

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