Seamen
[56-1 USTC
¶9180]Peter Aho, Wm. Blecker, Ray Gomez, Emmett Hansen, Kuste Joki,
Lewis E. Nelson, Orville S. Sletten, John Van Dyke, Gregg Wallace,
Ingvald Wathne, Plaintiffs v. Western Trading & Packing Company, a
corporation, Defendant
In
the Superior Court of the State of Washington, for King County, No.
450920, September 23, 1955
[1939 Code Sec. 3672--same as 1954 Code Sec. 6323]
Priority of creditors: Seamen's wages: Maritime lien: Priority over
lien for taxes.--Plaintiffs sued for back wages as seamen on a
fishing vessel owned by the defendant. The Government intervened and
asserted a lien against the defendant for unpaid withholding taxes. The
plaintiffs had a maritime lien against the proceeds of the sale of fish
which was prior to and superior to the Government's lien. While the
Government obtained judgment for the unpaid taxes, the plaintiffs were
entitled to have the proceeds of the sale of the fish less certain costs
distributed to them by reason of their prior lien.
Thor P.
Ulvestad, for the plaintiffs Peter Aho, Ray Gomez., Emmett Hansen, Kuste
Joki, Lewis E. Nelsen, Orville S. Sletten, John Van Dyke, Gregg Wallace.
Thomas R. Winter, Assistant United States Attorney, 233 United States
Court House, Seattle, Wash., for United States.
Findings
of Fact and Conclusions of Law
RONEY,
District Judge:
This matter
having come on before the Honorable Ward W. Roney on the 6th day of
September, 1955 for trial, the plaintiffs Peter Aho, Ray Gomez, Emmett
Hansen, Kuste Joki, Lewis E. Nelsen, Orville S. Sletten, John Van Dyke,
Gregg Wallace being represented by one of their attorneys, Thor P.
Ulvestad, the plaintiffs William Blecker and lngvald Wathne appearing
not at all and not being represented by counsel, and the United States
Government appearing by and through its attorney, Thomas R. Winter, and
the Western Trading & Packing Company, a corporation, not appearing
and not being represented by counsel, and the Court having heard the
testimony offered by the parties and having considered all of the
pleadings herein and being duly and fully advised in the premises,
enters the following:
Findings
of Fact
1. That at all
times herein mentioned the the Western Trading & Packing Company was
a corporation organized and existing under the laws of the State of
Washington for the purpose of catching and processing fish in and about
the Territory of Alaska. That said corporation operated a motor vessel
called the "Loon", which vessel was used as a mother ship in
the course of its fishing operations in the year 1952.
II. That the
plaintiffs herein were seamen and fishermen employed by the defendant
corporation to operate the said M/V "Loon" and for such employ
were to be compensated by monthly wages and additional compensation
under a lay plan.
III. That
there is now due and owing to these plaintiffs unpaid wages in the
following amounts:
Peter Aho ............. $ 764.85
Kuste Joki ............ 785.72
Orville S. Sletten .... 524.01
Lewis E. Nelsen ....... 667.66
Ray Gomez ............. 765.16
John Van Dyke ......... 92.50
Gregg Wallace ......... 610.77
Emmett Hansen ......... 366.23
$4,576.90
IV. That
certain of these plaintiffs during the 1952 fishing season caught and
delivered fish to the Red Salmon Company at the request of the Western
Trading & Packing Company, which fish were a part of the catch of
the M/V "Loon" which vessel was on a fishing expedition to
Bristol Bay, Alaska, and was engaged in the salting, canning and selling
of salmon in the waters adjacent to the Territory of Alaska.
V. That the
fishing boats which caught the fish which were delivered to the Red
Salmon Company were a part of the equipment of the M/V "Loon"
and the expedition in which said vessel was engaged, and the fish
obtained by such boats were a part of the cargo of and the catch of the
M/V "Loon" for the 1952 fishing season.
VI. That on
the 29th day of September, 1952 the plaintiffs by writ of garnishment
garnished the Red Salmon Company for all sums due to the Western Trading
& Packing Co. out of the sale of fish by certain of these plaintiffs
during the 1952 season, and thereafter the said Red Salmon Co. answered,
admitting indebtedness in the amount of $2,070.05, and by order of court
deted February 2, 1953 the Red Salmon Co. was ordered to pay said sum
into court, less certain costs. That there is now on deposit in the
registry of this court the sum of $1,988.55.
VII. That the
United States of America was permitted by order of court to intervene in
the above entitled action claiming indebtedness in the amount of
$2,000.14 for taxes due by the defendant, Western Trading & Packing
Company, the said United States at all times herein mentioned being a
corporate sovereign and body politic.
VIII. The
Commissioner of Internal Revenue duly assessed the following taxes,
penalties and interest against the Western Trading & Packing
Company, a corporation:
Date Assess. Date Notice of
Lien No. Tax Period Amount of Lien List Rec'd Tax Lien Filed
WH & Empl.
24120 FICA
9-30-52
$3,344.33
12-8-52
12-10-52
That the amount of $3,344.33 was reduced by subsequent audit to the
amount of $2,000.14, which amount is stipulated by the parties to be the
balance due to the United States.
IX. That after
the receipt of said assessment list, as indicated in paragraph VIII
above, the District Director of Internal Revenue for the District of
Seattle duly demanded payment of said tax, but the said Western Trading
& Packing Company, Inc., neglected and refused to pay the same or
any part thereof, and that all of said tax, together with interest as
provided by law and a filing fee in the sum of fifty cents, is still
due, outstanding, and unpaid.
X. That under
its Complaint in Intervention the United States Government put in issue
the priority of liens between the plaintiffs herein and the intervenor,
the
United States of America
.
XI. That at
the time of trial there was no counsel representing the plaintiffs
Ingvald Wathne and Wm. Blecker and said parties were not present in
court on the day of trial.
FROM THE
FOREGOING FINDINGS OF FACT THE COURT NOW MAKES THE FOLLOWING:
Conclusions
of Law
I. That the
plaintiffs are entitled to judgment against the Western Trading &
Packing
Co.
in the following amounts:
Peter Aho ............. $ 764.85
Kuste Joki ............ 785.72
Orville S. Sletten .... 524.01
Lewis E. Nelsen ....... 667.66
Ray Gomez ............. 765.16
John Van Dyke ......... 92.50
Gregg Wallace ......... 610.77
Emmett Hansen ......... 366.23
for a total amount of $4,576.90, together with interest thereon from
September 29, 1952 until the present date, together with all of their
costs properly recoverable in this action.
II. That the
United States of America is entitled to judgment against the Western
Trading & Packing Co. for the sum of $2,000.14 together with
interest from the 10th day of December, 1952.
III. That the
claim of the plaintiffs is based upon a maritime lien and such
plaintiffs have a maritime lien against the proceeds of the sale of fish
to the Red Salmon Co., which is prior to and superior to the lien
claimed by the United States of America, and said plintiffs are entitled
to have the sum of $1,988.55 distributed to them by reason of their
prior lien.
