THE DORA MATHEWS.
Neither can the bank have a lien for this demand unless it appears that it accrued within one year from the filing of its libel of intervention; forI although it may be inferred that some portion of this account was made within the year, it cannot be determined by the statement whether it is one dollar thereof or a thousand. Whenever a check or order 'of the owners was paid, under the statute giving a lien, such payment constituted a cause of action, and unless asserted or enfOl;ced in a legal proceeding within a year the lien is lost. In enforcing liens on vessels given by state statutes, courts of admiralty do so subject to every qualification and limitation attached to them by such statutes. The Alida, 1 Abb.Adm. 165. The first question is answered in the negative, and the second one in the affirmative. The intervention of the bank is dismissed. and the libelant shall have its costs and disbursements.
THE DORA MATHEWS.·
SPOTSWOOD '11. THE DORA MATHEWS.
(Di8triet Oourt, 8. D· .dlabama. April 16, 1887.)
WHAltFAGE-RIGHT TO CHARGE.
A person owning improved wharves, which he maintains at his own cost for' thll benefit of those engaged in commerce upon the public navigable waters of the United States, may charge and collect from parties using his wharves such reasonable fees as will fairly remunerate him for the use of his property.
A contract, express or implied, for wharfage. furnished a foreign vessel, is a maritime contract, and the proprietor of the wharf has a maritime lien on the vessel for his Wharfage fees. " While the proprietor of a wharf may waive his lien on the vessel for wharfage fees, either expressly or impliedly, by failing to enforce it for an unreasonable length of time, no usage or custom can displace it or prevail when in conllict with the law which gives it.
Libel for wharfage. Hanaw, for libelant. T. H. Smith, for claimant.
TOULMIN, J. A person owning improved wharves, which he maintains at his own cost for the benefit of those engaged in commerce upon the public navigable waters of the United States, may charge and collect from parties using his wharves such reasonable fees as will fairly remunerate him for the use of his property. Packet Co. v. St. Louis, 100 U. 423; Vicksburg v. Tobin l Id. 430; Packet Co. v. Keokuk, 95 U. S. 80; Cannon v. New Orleans, 20 Wall. 577. ' . '
Reported by Theodore M. Ettillg, Esq., of the l'hiladelphia bar.
The respondent could make no use of libelant's wharf without incurring liability to pay for it. That he did make use of it is admitted in the answer. But he says there was a usage and custom among the wharf-owners in Mobile not to charge outward-bound vessels, taking outward-bound cargo, any dockage or wharfage fee for lying at their wharves while receiving such cargo at the wharf, and that he used said 'wharf under such usage and custom. A custom for profit to be taken in another's property is bad. A right to pile or keep lumber on another's wharf is a profit therein, and a custom so to use the wharf cannot be sustained. See Littlefield v. Maxwell, 50 Amer. Dec. 653. A contract, express or implied, for wharfage for a foreign vessel (adrnitted to be the case here) is a maritime contract, and the proprietor of the wharf has a maritime lien on the vessel for his wharfage fees. Ex parte Easton, 95 U. S. 68. Any usage or custom in conflict with plain, rules of law can have no validity. East Tennessee V. & G. R. R. v. Johnston, 75 Ala. 604; Montgomery & E. Ry. Co. v. Kolb, 73 Ala. 401; Barlow v. Lambert, 28 Ala. 704; Cox v. O'Riley, 58 Amer. Dec. 633. H seems to me that the usage or custom invoked by the respondent in this case contravenes the well-established principles of law to which I have alluded, and, if allowed to prevail, would displace those principles, and allow respondent to make use of the libelant's wharf without incurring liability to pay for it, and would destroy the lien on the vessel given by law as security for the wharfage dues. Evidence of usage or custom in such case will not be admitted. See authorities 8upra. While the proprietor of a wharf may waive his lien on the vessel for wharfage fees, either expressly or impliedly, by failing to enforce it for an unreasonable length of time, no usage or custom can displace it or prevail in conflict with the law which gives it. In the case of Oroucher v. Wilder, 98 Mass. 322, cited by the proctors for respondent, the usage or custom set up did not contravene any general principle of law, and it was not invoked against any rule of law, but it was claimed that it should prevail against and should control a special rule established by a wharfinger as to the morIe of discharging cargoes at his particular wharf. The court, in effect, held that the usual or customary mode of discharging cargoes at similar wharves in the same port should prevail over any rule of the wharfinger of the particular wharf which had not in due time been brought to the knowledge of the vessel, or of the stevedore who had contracted to unload the vessel. I think there is a wide distinction between the Massachusetts case and the case at bar. In one a custom is set up to displace a private rule for the government of a wharf made by the proprietor thereof; in the other, a custom is invoked to contravene and displace well-established rules of law. In t4e latter case the custom, if it exists, has, in my opinion, l1f.) validity. The exceptions to the answer are well taken, and should be sustained, and it is so ordered.
xnLS fl. BOYD.
KELLS 'V. BOYD.
((Ji'T'cuit (Jourt. E. D. Louisiana. January 27, 1887.)
SEAMEN-WAGES OF MASTER.
Upon a libel by the master of a vessel to enforce a claim for wages, held that, upon the evidence, the most favorable view to be taken of libelant's demand was that he was employed at New Orleans, to be afterwards determined; that the wages were agreed upon In New York at $125 per month, and were afterwards -ralsen In New Orleans to $150 per month; that libelant was entitled to be paid upon this -basis, and was not entitled to be repaid the expenses of a trip made by him from New York to New Orleans, which was made in his own interest, and not in the interest of the vessel.
Admiralty Appeal. Richard De Gray, for libelant. B. F. Jones and J. O. Nixon, Jr., for claimant.
PARDEE, J. no evidence in the record that any contract of employment was made between libelant and respondent before libelant's arrival in New York, and about November 15,1883, and that contract, according to the weight of the evidence, was for the employmel1tof the libelant as master of the Gulnare, (then lying at the port of delphia,) at the rate of $125 per month. What took place before the contract was entered into in New York was preparatory merely with a view to the future employment of the libelant. What was done by Loan in going after the libelant, and bringing him to New Orleans, appears by the evidence of himself and others to have been done as the friend oUhe libelant, for which respondent, although his agents knew of the trip and its object, was not responsible. It was in the supposed interest of libelant, and not of the respondent. The amounts furnished libelant in New Orleans by the agents of the respondents were advances to enable the libelant to go on to obtain his employment as master, and join the ship, with the understanding that libelant would be employed, although the terms of employment were not then settled. After the ship reached New Orleans, by agreement with respondent's agent, the amount of libelant's wages was fixed thereafter at $150 per month. The most favorable view,then, to be taken of libelant's demand, is that he was employed at New Orleans, wages to be afterwards determined, and which wete afterwards agreed upon at New York, a.t $125' per month, and in New Orleans raised to $150 per month. not appear The exact date of the advances made in New Orleans from the evidence. Kells arrived in New Orleans about the first of November, 1883, and left for New York on thirteenth November. Computing his wages from the earliest date, and at the agreed rate of $125 per month, say from November 1, 1883, to December 4, 1883, when the ship arrived in New Orleans, when the wages were raised, 1 month and 14 days, at $125 per month, would make $183.33; and from December 14, 1883, to March 4, 1884, when libelant was discharged, 2