The opinion of the court was delivered by: CAMPBELL
CAMPBELL, District Judge.
There are two causes of action alleged in the libel herein, the first to recover for pump hire, the second to recover for services.
On Movember 9, 1942, for the first time, the libellant and one Arthur W. Schoultz, President of the Schaw Shipping Lines, the claimant, first met, and became acquainted, having been introduced to each other about 7 o'clock P.M. on that day, by Aro G. Gabriel, a lawyer with offices at Union City, New Jersey.
The place of meeting was at Caragol-Clark & Company's office at 80 Wall Street, New York City.
The libellant was a diver of long experience in a large way and lived at Keansburg, New Jersey.
The Schooner Paul E. Thurlow was a sunken vessel having been intentionally sunk in the Kills off Port Reading on the Staten Island side. She was 1,598 gross tons, 1,531 net, length 230 feet, breadth 41.8 feet, depth 24 feet.
The libellant was a man well known as a diver in a large way, he had done some work for Mr. Aro G. Gabriel, who had a high opinion of the libellant.
Mr. Arthur W. Schoultz, generally referred to on this trial as Captain Schoultz, had secured an option to purchase the sunken Schooner Paul E. Thurlow, and talked with Mr. Gabriel about finding a diver to go down and examine the Thurlow, and let him know her condition so as to determine whether it would be a good proposition when raised. After some effort to arrange a meeting, Mr. Gabriel was able to arrange it for the evening of November 9, 1942, when the Hansens, with their car, and Mr. Gabriel in his, went as far as Hoboken, where the Hansens left their car, and then proceeded with Mr. Gabriel in his car to 80 Wall Street, New York City, where Mr. Gabriel and Mr. Hansen went into the building at 80 Wall Street, and Mrs. Hansen stayed in Mr. Gabriel's car.
Captain Schoultz and Mr. Hansen commenced talking about the boat, and Captain Schoultz said that he wanted Mr. Hansen to go down and see just how bad the boat was damaged, and Mr. Hansen said that he would be glad to do that, and that he would do it with a helper and his own equipment, for $50 per day.
Mr. Hansen went on board the Schooner on November 11th, Armistice Day, and met Captain Schoultz there. Mr. Hansen ascertained the condition of the boat, except her bottom which was embedded in the mud, and reported favorably to Captain Schoultz.
On conflicting evidence, I find that the libellant did not enter into any contract with Captain Schoultz, or any of the companies with which he was connected, to raise the boat in any specified time, or for any specified sum, but agreed to render services for that purpose at a daily wage of $20.
Payment was made to Mr. Hansen through one of the companies with which Captain Schoultz was connected, which company also paid some claims directly, but generally by giving to Mr. Hansen each seven days a sum sufficient to pay wages and like expenses for the week.
On behalf of claimant, it was contended that Mr. Hansen was raising the boat on a flat contract sum of $4,500, and that as Mr. Hansen had no money to carry on the job, the understanding was that advances would be made to enable him to proceed, and that they would be charged against the contract price. This, in my judgment, was clearly not so, as Mr. Hansen was not an independent contractor, but only an employee.
The attempt was made by Captain Schoultz to prove that Mr. Hansen was an independent contractor by evidence of conversations, and also by the letter, Exhibit A, which it was contended was a written confirmation of the verbal agreement. This I do not believe was the fact, as I am convinced that no such letter was ...