(District Court, 8. D. NetD York.
SHIPWRiGHT'S COMMON-LAW LIEN -
POSSESSION- PROCEEDINGS IN
STATE COURT TO FORECLOSE-FORFEITURE OR WAIVER OF LIENEsTOPPEL-()ONVEUSION-SEIZURE BY SHERIFF-SEIZURE BY
llHAL-ADMIRALTY JURISDIC'rION TO ENFORCE COMMON-LAW LIENSTATE STATUTE ENLARGING LIENOR'S RIGHTS--FINDING OF STATE
DUE, How FAR BINDING. The common-law lien of a shipwright, who takes a vessel into his possession for repairs, and continuell to hold it, is too well established as matter of authority to be,open to disp.ute. The },farion, 1 Story,68. . Where the libellant's ship-yard was partly on the libellant's premises and partly on those of the coni\titutinga public dock, .];lut used by him under an agreement town, lJ,nd, the master of the vessel sunendered her there into· the actual. custody of the libellant, who was understood by both parties to be responsible for ." her citre and safety, althOugh the·iriBSter, who was' also the owner, .. 8tay.ed by "he vessel mostof ,cook and mate, W'ho slept on board,--the presence ofthe master, and the retention of . . ih'li cook lind mate,' not intEmt to retain'the custody of "the vessel, but to help inrepa.mng 'ancHo lessen expelises...... · that the libellant had sucb actual possesiiiori:of ,the ;vessel as !W;ould:, give him .acommon)aw ijen. Wpe nature ,of, ,. or !tcts and it! with the nature of the object on WhICh the work IS dilne.· . c. .AlSo held., that the act of the' libellant, 'a shipwright, haVing a coml' lien on a vessel for repairs, in instituting a. suit fn the. state CO)lrt to foreclose ,his lien, advertising the interest of the claimant that of a mortgagee in the for sale at auction under a jUdg.··ment ixithe suit, and buying it in at the sale and taking a bill of sale from. the' receiver, where the· receiver never took lI;ctual pOilsession, ,but t;he uninterrupted possession ,remained in the libellant, didp.ot to extinguish the .libellant's lien; the state court and the Unitetl States courts (3 FED. REp. 457; 4 FED. RE;p., 552) having declared the whole proceeding null and void, for want of jurisdiction, ,as affecting the title of the vessel. There was, in fact, no sale, but merely an attempt to sell. What was done created no new title, and vested no new possession in the libellant or in any other person. Although the libellant, believing he had thus acquired a new title, subsequently sought to bond the vessel in this court as owner, he is not estopped by such averment as owner, in his pleading in this court or in the state court, to deny now that he ever had such title, because the fact has since been conclusively found against him in a litigation relating thereto between himself and this claimant. Nor did that void sale, or attempt to sell the claimant's interest in the
COURT AS TO AMOUNT
THE B. F. WOOLSEY.
'Vessel bv the libellant, constitute such a tortious dealing with the property that he has thereby forfeited or waived his lien. There is no evidence or averment in the answer of, any dealing with the ve8sel her8elf in connection with that sale. Also lield, that the lien was not extinguished by the sheriff seizing the vessel in a replevin suit brought by the claimant against the libellant. Al80 held. that the libellant's rights as a lienor were not affected by the subsequent seizure of the vessel by the United States marshal, in a suit fol' seamen's wages, nor in a suit for wharfage. Also held, that the libellant's act in procuring, the marshal to seize the vessel in this suit to,enfo'rce the lien, Gaunot operate to extinguish the lien, provided this court has jurisdiction. ' Al80 held, that this court has jurisdiction to enforce a simple com· mon-Iaw possessory lien, independent of the question whether the lienor's nghts were enlarged or altered by the New York statute givillg lienors the right to enforce their liens by a sale of the property. The power of a court of admiralty to order lIhe sale of a vessei does not depend u,pon the right the lipellant may:have to seH her, 01' cause her to be sold, to enforce, his, deml\nd; ,but it is a power inherent in the court, be exercised iIi'i.lie ipterest of comnu3rce. cause being maritimeiri its' nature, the 'court 'has jurisdiction of the parties and ,the$ubject-matter. It 'is immaterial that th& vessel is & tic i' , . , , '. · i; : , ',· ' Held further, thM the Nllw York ,statute was intended to and <lier confer on this 'class of'lienorlh,he new and etiiarged right 'to -enfol-cit, ! their liens by a sa.1e6f the property, notwithstanding, in the particu-, lar case of a maritimecoq.tract" the ,proposed remedy fans because the state could t;lot confer on any its juri,seliction to make the sale, ' : . .' ' ", ", That such failure of remedy does' not' prevent the statute from hav- , fng its effect in thus modifying and enlarging the nature of the lien; and a court of admiralty, in enforcing the lien, will give it, full effect, according to the inte,ntion of the statute,'as alien, carrying with it a ' right of en'forcement by 6f the chattel. The statute is applicable to simple common-law possessory liens, such as that of the shipwright, and is not confined to cases of liens where by the existing law tile lienor had already the right to enforce his lien by sale, ' held, that the finding of the state court as to the :amount due is not conclusive on the claimant as a judgment. The state statute did not provide for a separate money judgment for the amount due, in addit,ion to the judgment for foreclosure, nor was such judgment in fact recovered in the case. The finding is incidental merely to the chief purpose of the action, which ill the foreclosure of the lien.
In Admiralty. Henry D. Hotchkiss, for H. B. Kinghorn, for claimant.
CHOATE, D. J. ,This is a libel brought by a shipwright to recover, againsttheaehooner B. F. Woolsey, a domestic vessel, his charges for repairing. The libel alleges that one Terrell, the master and owner of the vessel, delivered her into the possession of the libellant to be repaired; that reo pairs were made of the reasonable value of $869.46; that she has at all times remained in his actual possession; and that he has a "common-law lien" upon the vessel for the amount due him; and the libel prays that the vessel be condemned and sold to satisfy the libellant's claim. Terrell, the owner, alone appeared to contest the suit. He has set up several defences, by exception and answer, which will be severally considered: 1. In' the first place. it is objected that the common-law lien or right to hold the thing on which work has been done in possession till payment of the charges incurred does not extend to ships; that it isa right appertaining to particular trades. but existing only where the usage of the particular trade has. established it; that it can be proved to exist only by proof of such usage in the particular trade. Doubtless this right originated in usage or custom. at first being estab· lishedby evidence of the existence of the usage in particular trades. and afterwards being taken notice of as established customary law; and it seems to have been first recognized as existing in favor of persons exercising a qua,si public employment .as inn-keepers. and the like, who were obliged to render the service; but it has been extended to all artisans bestowing labor on goods, whether they would have been compelled to accept the employment or not. Thus it is said by Chancellor Kent. (2 Com. 635. 12th Ed.:)
,i It is now the general rule that every bailee for hire, who, by his labor and skill,'has imparted an additional value to the goods, has a lien upon the property for his reasonable charges...·
And in the particular case of the shipwright who takes int.o his possession the vessel for repairs. and continues to hold it in his possession, the lien is too well established as matter of authority to be open to dispute. In the case of The Marion, 1 Story, 68, Mr. JQ.Btice Story and Judge Davis
THE B. F ·. WOOLSEY.
affirm it as an undoubted principle of the common law. In many other cases, also, the right has been recognized. In a suit in the supreme court. of New York, between these same· parties, it was held to be the rule of the common law as it. exists in this state. On such a question the opinion of that court is entitled to great weight, and this point must be held not well tak£ln. 2. It is also objected that the libellant never had such an, actual and exclusive possession of the vessel as is necessary to give him this common-law lien. On this point the evidence is that the libellant occupies certain premises adjoining a wharf at City Island, in this port, as a ship-yard for the repair of vessels. The premises are partly his own and. partly belong to the town of Pelham, constituting a public or town dock. By an arrangement between him. and the town authorities he uses this part of the town property for his own purposes. On his own part of the premises is a railway on which he hauls vessels out of the water. This vessel was brought to the place by Terrell, the master and owner. She came to anchor, and afterwards was hauled to the premises ordinarily used by libellant as a ship-yard, being moored at first on that part belonging to the town. She was afterwards hauled out on the railway, and again taken off the railway and moored in her former position. I am satisfied by the evidence tbat the owner surrendered the actual care, control, and custody of the vessel to the libellant. The crew were dismissed, except the cook and the mate, whom the owner wished to retain for future service. The owner and the cook and mate helped the. libellant in his work. The cook and the mate slept on board the vessel all the time the repairs were going on t :except a sho.rt time when the condition of the vessel made it impracticable, and then they slept in a building of libellant on the adjoining wharf. The owner stayed by the vessel. and slept on board most of the time, but on Saturdays .he went to his bome in Brooklyn, :returning on Monday morning.. The libellant took his directions from the owner as pairs were to be made. It is clear from the testimony that the parties understood that the libellant .was responsible for
the care and safety of the vessel. His men moored her, hauled her on and off the railway, tended her lines, and looked after her safety in bad weather. If the master and owner had remained, or kept the cook and mate there, for the purpose of retaining the possession or custody of the vessel, then the possession of the libellant would not probably have been such as to give him a lien. But it is clear they were not there for any such purpose, nor did they assume in any way to retain the actual custody of the vessel. Their acts upon and about the vessel were alio intuituto help on and hasten the repairs, and lessen the expense. The circumstances of the case are very much· like those of The Marion, ut supra, where similar possession by a shipwright was held to be sufficient to give a common-law lien. The nature of the possession must be according to the nature of the object on which the work is done. A ship is an wieldly subject, and the possession of it cannot exactly like tlJat which a mechanic obtains of a horse or a watch; or, rather, the fact of possession is evidenced by different circumstances and acts. In this case the evidence is satisfactory that the libellant had actual possession. 3. It is next objected that the libellant agreed to do the work on a credit of six or eight months without security. If this were so, of course there would be no lien. The agreement would be inconsistent with an intention to retain the vessel till libellant's bill was paid. On this point the evidence of what conversation took place between the parties is conflicting. The claimant swears to a conversation importing some such agreement. The libellant positively denies it. If forced to determine this point on the relative credibility of the parties, I should find the alleged agreement not proved. There are, however, certain circumstances proved which are entitled to greater weight than testimony of conversations. The conduct of the claimant when the work was done, and payment of the bill demanded, shows clearly, I think, that he did not then understand that he was entitled to take the vessel away without payment of the libellant's bill. There being no other obstacle except the non-payment
of the bill to his taking her away, he went away to try to raise the money to meet the bill, but was unable to do so. An unsuccessful attempt, also, was made to arrange security. These circumstances, and the greater probability on all the testimony of the libellant's version of the affair, are sufficient to determine this point in libellant's favor. 4. It is also claimed in the answer that the libellant has lost his lien by causing the vessel to be sold at public auction under the judgment in said proceeding in the state court in satisfaction· of his pretended lien. That proceeding in the state court has recently been the subject of litigation in this court and in the circuit court, and it has been held that it was void so far as it assumed to affect the title of the vessel for want of jurisdiction in the state court. The B. F. Woolsey, 3 FED. REP. 457; 4 FED. REP. 552. While, however, the proceeding as a legal proceeding was void for want of jurisdiction, yet it was promoted by an act of the libellant, and the question is whether the sale made under that proceeding has operated to extinguish the lien. The libellant instituted that suit, caused a receiver to be appointed therein, had the interest in the vessel of Terrell, the owner, and Whitehead, a mortgagee, the defendants in the suit, sold at auction under the judgment, and bought it in at that sale, and took a bill of sale from the receiver. The receiver never, in fact, took possession. The actual possession remained with the libellant as before. There was no delivery to him by the receiver except the delivery of the bill of sale. It is to be assumed, of course, now, that no title vested in the receiver, and no title passed by the sale or by the bill of sale. The whole proceed· ing was a nullity, and inoperative as effecting the title. It has been so declared to have been null and void by the state court in which the suit was brought on motion of this libel· lant, though against the opposition of this claimant. There was no sale, in fact, of anything, but a mere attempt to sell, which was futile and inoperative. There was the appearance of a sale merely. What was done created no new title, nor vested any new possession in the libellant or in any other person. v.7,no.l-·8
The libellant, though upon the basis of his supposed new title he averred himself to be the owner, and as such sought to be admitted to claim and bond the vessel in this court, is not estopped by such averment in his pleading in this court, or in the state court, now to deny that he ever had any such title, because the fact has been conclusively found against him on this point upon a litigation relating.thereto between himself and this claimant. Does this void sale, or attempt at a sale, of claimant's interest by the libellant, however, constitute such a tortious dealing with the property on which he had a lien that he has thereby forfeited or waived his lien ? This is the only question in respect to his acts, as operating to extinguish his lien, raised by the answer. A.lienor who converts the property on which he has a lien-as, for instance, by selling and delivering it tq another personundoubtedly forfeits his lien. His possession is gone, and he has asserted a right over the property inconsistent with his lien. The lienor is not allowed to claim a lien and to deal with the property as his own. This would be inconsistent with good faith. But, admitting this principle, no case is cited which goes so far as to compel me to hold that this void sale in and of itself worked a forfeiture or waiver of the lien, which is a very much favored by the law. The libellant thought he had a right to foreclose the lien under the state law. He believed he had acquired a title under that law. In this he was mistaken. And this supposed right he asserted in this court. That act is not, however, made the basis of the claim that the lien is extinguished. But there is no evidence of any dealing with the vessel herself in connection with this auction sale, nor is any such thing alleged in the answer. What was done in making this .sale was done not to or with the vessel herself: it was a sale in form, but unaccompanied by any actual deltlingwith the vessel. It is not even shown that the libellant resisted the claimant's demand for the vessel, on the ground that she had become his own property under this sale, which might have worked a forfeiture or waiver of his lien. If his actual possession hn.d been interrupted, :lnd the receiver had taken
1'0SSesSi6n, and he had then taken her from the receiver under a new title, the case would be different. See Jacobs ·f. Latour, 5 Bing. 130. So, too, if title had passed by the :'<l.1e the lien would be gone. Mexal v. Dearborn, 12 Gray, 336. What the libellant did in thus attempting to sell the owner's interest was not with any purpose of relinquishing the li'Em, but with the purpose of insisting upon and enforcing it, and I think it has not operated to extinguish the lien. There was certainly no intended bad faith towards the own&, nor did the attempt to sell impair or injuriously affect the owner's interest. I am not called on to determine whether anyof libellant's other acts in or in pursuance of the suit in the state court operated to extinguish the lien. See, further, as to waiver or forfeiture of lien, Kerford v. Mandel, 28 L. 1. (N. S.) Exch. 303; Weeks v. GootU, 6 C. B. (N. S.) 367; Winter v. Gait, 7 N. Y. 288; Doros v. Morewood, 10 Barb. 183; Hanna v. Phelps,7 Ind. 21; Thompson v. Trailt, 6 B. & C. 36; Boardman v. Gill, 1 Camp. 410; Schar/v. M01'gan, 4: M. & W. 270. 5. It is further claimed that the lien was extinguished by the seizure of the vessel by the sheriff, in a suit of replevin brought by this claimant against this libellant, or by her seizure by the marshal under the process of this court. It appears that in January, 1880, this claimant brought a suit of replevin against this libellant to recover the vessel, and the usual requisition to take possession of her was given to the sheriff; that the sheriff, without removing her, or other. wise disturbing the possession of this libellant, put a keeper on board, and maintained a sufficient possession to satisfy the requirements of the replevin suit till some time in March, 1880, when a suit for wages by one Terrill, the mate, was commenced in this court. This Buit for wages was instigated by this claima.nt, and, with his consent, the sheriff abandoned whatever possession he had, to enable the marshal to seize her under his process. Afterwards, a suit for wharfage was commenced in this court by the town of Pelham, and now this present suit to enforce libellant's lien. The marshal holds the vessel under the several processes in these three actions. As to
the suit in replevin, it cannot for a moment be admitted that the owner of a chattel can extinguish a lien thereon by any act of his own other than payment or tender of the sum due, whether by legal proceedings or otherwise; and the seizure by the marshal in the first two suits being in invitum, as against the libellant, cannot affect his rights. As to his own suit, if the court has jurisdiction to enforce the lien against the vessel-a point hereinafter discussed-it can enforce it only by first acquiring jurisdiction over the reB by seizing it under its process; and it would be quite absurd to suppose that its seizure by the marshal for this purpose would operate to extinguish the rights of the libellant. See The Acacia, 42 L. T. (N. S.) 264, 267. 'In the case of The Marion,' ut Bupra, there was such a seizure by the marshal, but it was not suggested that it did or could, affect the libellam's rights. 6. it is objected that the court has no jurisdiction to enforce such a common.la;w .possessory lien; that the. lien is a bare right to hold till payment is made; that it companied by any right to havetbechattel sold. It is argued that ,the nature of the tight issqchthllit;nocourl. will or· can give effect to it by a sale' of the property.. , AS8umingthat the right of the libellant WitS nothing more than the simple common-law possessory lien, and thllit. it is not enlarged or altered in its character by the statute of New) York giving lienors a right to have the lien foreclosed by a sale of the chattel, the objection is not well taken. The power of a court of admiralty to order the sale of a vessel does not depend upon the right which the libellant may have to sell her, or cause her to be sold, to enforce his demand. It is a power inherent in the court-an essential part of its jurisdiction-to be exercised in the interest of commerce to extricate the vessel and the parties from the impediments that stand in the way of her legitimate use as an instrument of commerce. See The Anna H. Smith, D. C. S. D. N. Y., Oct. 14, 1878. The precedent of The Marion, ut supra, is sufficient authority for the exercise of the jurisdiction in this case, even if the lien is a mere common-law lien or right to
THE B. F. WOOLSEY.
hold possession till the shipwright's charges are paid. The court has jurisdiction of the parties and the subject-matter because the cause is maritime. The fact that the vessel is a domestic vessel is immaterial. It will not tolerate a perpetual holding of a vessel to enforce payment. Such perpetual holding is contrary to its maxim that ships were made to plow the sea, not to rot by the, wall. Therefore it will exercise its power to sell, and thus <Jo substantial justice between the parties. It is not, however, true, as it seems to me, that the libellant's lien is a mere common.l/tw possessory lien, without any right to have the vessel sold to satisfy the lie,:l. The state statute, as to all after-made contracts under ;which a lien would arise at common law, has enlarged the rights of the lienor and given him a lien not merely to hold, but a lien with the right to have it by sale ,of the chattel. Although in the particular c,ase of a maritime contract the proposed remedy fails state could not confer on any of its courts jurisdiction to:r;nake the sale, yet none the is the purpose of the evident! to confer ,the lienorjhisnew and enlarged right. .This court no difficulty in enforcing the right of having the, ves!!el fjold to satisfy the lien, and it ,will .give .fullefl'ect to. all the rights intended to be granted, to the lienor according to its own method of procedure. If this is the eon:eot. view of the stat-. ute, then, of course, there is nothing in this objection. A question is suggested in the opinion of the lea.rnedi,circuit judge, (4: FED. REP. 558,) whether this statute of New York is not confined to cases of lien,S where, by the existing law, the lienor had already the right to enforce his lien by sale; the statute being intended to provide a convenient and safe remedy and mode of procedure in such cases. I think, however, that the terms and evident purpose of the statute indicate that it is applicable to simple common-law possessory liens, such as that of the shipwright, and that it was intended to give new rights to such lienors, and to provide a remedy for their enforcement. The statute enumerates among the persons within its operation "any innkeeper, boarding-house
keeper, mechanic, workman, or bailee who shall have a lien upon any chattel property." These classes of persons have, as is well understood, this common-law possessory lien, and mechanics and workmen certainly have ordinarily, and in the absence of a special contract, and independently of this statute, only this mode of securing themselves. They have not by law a lien with any right or power to sell. The statute is remedial, and should have a. liberal construction to effect its apparent purpose. This particular class of lienors certainly stood in more obvious need of legislative aid than any other, to enlarge and make more effectual their right, which, as it existed at common law, has }jeen often found a barren and ineffectual method of securing their just dues. Therefore, this class of lienors being fairly within the language of the act, and their relief by such legislation being more obviously called for by considerations of public policy than that of any class of lienors who already had a right to· enforce their se· eurity by a sale, I think the statute was intended to include them. Such has been the view taken also by the state court. The claimant's objections to the libellant's recovery not being well taken, there must be a decree for the libellant. 7. The libellant insists that the judgment in the proceeding in the sta.te court, though void as a proceeding for foreclosure, is yet a conclusive determination of the fact of the existence of the lien and the amount of the debt due to him; that to this extent the remedy given by the statute is a common-law remedy, which the state court had jurisdiction to administer; and therefore, to this extent, the judgment is valid and binding on the parties. If the statute provided for a separate money judgment for the amount of the debt, in addition t.o the judgment for foreclosure, this argument would seem to be well founded. But it does not do so, nor was such judgment in fact recovered in the case. It appears to me that the ascertainment of the amount due is incidental, merely, to the chief purpose of the action, which is the foreclosure of the lien; and the court not having jurisdiction to make a decree of foreclosure, the judgment is not binding as to such incidental finding of the amount due. It is true
that a statute might be passed authorizing a court to ascer· tain and decree the amount due a lienor, without giving any further remedy by judgment for the payment of the amount, or any common-law process for the enforcement of such payment. Such a statute might have its uses; as, for instance, to enable the owner to tender the proper sum, or the lienor to demand exactly what was due, in case of doubt as to the amount justly due. Such a statute would, however, be a novelty, and it may well be doubted whether such a remedy, if it could be called a remedy, could be considered a commonlaw remedy, such as is alone reserved for the action of the state courts in cases of maritime. contracts. It would seem not to be so. The remedies reserved seem to be the recovery of a money judgment, with the incidental remedies of attachment and arrest on mesne process, and the various forms of execution known at common law. For these reasons it must be held that the finding of the state court, as to the amount due, is not conclusive on the claimant as a judgment. Decree for the libellant, with costs, and a reference to compute damages.
(District Oourt, D. Oregon.
April 28, 1881.)
Upon general principles the services of a stevedore are maritime in their character, and, when performed for a foreign ship, he has It lien thereon for the value thereof.
2. FOREIGN PORT.
A vessel is in a foreign port, in thfl sense of the maritime law, when she is in a port without the state where she belongs and her owner resides.
Rufus Mallory, for libellants. John H. Woodwo,rd, for claimants.
DEADY, D. J. The libellants, J. A. Brown and W. T. Mc· Cabe, bring this suit as stevedores against the ship Canada to recover $1,007.10. It appears from the libel that the Canada is an American vessel, owned in New York; that she reached this port on March 4, 1881, from the former place, with a cargo of railway iron weighing 1,581 tons, to be delivered here; that the libellants were employed at this port by the master to discharge the cargo for a compensation of 60 cents a ton, and performed said contract prior to March 21st, for which they are entitled to the sum of $948.60; that in performing said contract they expended and paid out $58.50, in docking said vessel and otherwise fitting her for discharge; and that there is due them for such services and expenditures the sum of $1,007.10, which sum is a lien upon said vessel. To this libel Effingham B. Sutton and others, claimants of the vessel as mortgagees,-in possession under a mortgage from the owners, George and Jabez Howes,except, and allege that the facts stated therein do not give the libellants a lien upon the vessel. Since the commencment of this suit-April 6, IS81-the Canada has been sold upon an interlocutory decree, made in the suit of Thomas F. Neill and others for wages, commenced March 9, 1881, for the sum of $26,000, but the proceeds are not sufficient, after paying the claims against her which are admitted and have precedence over the claim of the mortgagees, to-wit, wages, bottomry bond, and towage and pilotage, to satisfy the same. If the case was one of first impression I should have no hesitation in holding that the contract and service of the libellants was a maritime one, and therefore that their claim is privileged and a lien on the vessel. It falls exactly within the definition of such a contract as given by the late learned and accurate admiralty judge of the district of Maine: "By the general maritime law, every contract of the master, within the scope of his authority as master, binds the vessel and gives the creditor a lien upon it for his security." The Paragon, Ware, 323. When this service was performed for the Canada, she was,
in the sense of the maritime law, in a foreign port,-that is, a port without the l::ltate where she belonged and her owner resided, (The Nestor, 1 Sumn.74; The Chusan, 2 Story, 460 i The Sultana, 19 How. 362 i)-and therefore the master was authorized as the agent of the owner to employ the libel· lants to aid in the "delivery of the cargo," by discharging it from the hold of the vessel upon the wharf,-that being the essential part of the undertaking and voyage of the ship; or, as it is appropriately characterized in Benedict's Admiralty, . § 285, "the crowning act of maritime commerce, that for which all others labor, and to which all other acts are subor. dinate, and on which the right to freight depends, and which is in fact the great purpose and the only ultimate purpose of a ship-the delivery of the. cargo." But in the cases of The A1nstel, B. & H. 215, (1831;) The Joseph Cunnard, Ole. 123, (1845;) and Cox v. Murray, 1 Abb. Ad. 341, (1848,) decided by Judge Betts; and The S. G. Owens, 1 Wall. Jr. 370, (1849,) decided by Mr. Justice Grier, it was held or said that the contract of a stevedore was not maritime, and therefore he had no lien upon the ship for his services. In The A. R. Dunlap, 1 Low. 350, (1869,) Judge Lowell followed these authorities under protest i but in The George T. Kemp, 2 Low. 482, (1876,) he refused to follow them, and decided in favor of the stevedore's lien, substantially upon the ground that the services and contract of a stevedore eon. cern the ship and her owner, her voyage and business, and are, therefore, clearly maritime in their nature; and, al· though he has no lien therefor upon a domestic vessel unless given by the local laws, yet in the case of a foreign ship the general admiralty law gives a lien, as in the case of a material man. And, in speaking of the contrary decisions and the reasons given for them, he says: "They are-Fil'st, that a stevedore works on land, or on a vessel at the wharf; and, second, that his concern is with the cargo rather than with the ship, and they liken him in this respect to the drayman who brings the cargo to the vessel. The notion that the maritime character of a contract for either labor or matexials, or of the remedy for furnishing them independently of
contract, depends upon the situation of the vessel as being upon the high seas or in a dock, reached its climax when it was held that a laborer who scraped the bottom of a foreign vessel, preparatory to her being coppered, had no lien. Bradley v. Bolles, Abb. Ad. 569. And that the ship-keeper of a dOItlestic vessel could not sue, even in personam, in the ad· miralty. Gurney v. Orockett, ·Id. 490. These decisions were made during the time, after Judge Story's death, when the supreme court seemed bent upon narrowing the jurisdiction in all directions, by decisions, some of which have been over· ruled and others explained to mean much less than they appeared to intend." And adds, (p. 484:) "It seems incredible that it ever could have been thought that the master, who in a proper case may charter, hypothecate, or even sell his ship, cannot bind it for the cost of stowing the cargo, which is one of the ordinary and self.evident necessities of It. voyage." And he might have said the same thing as to discharging it. In The Windermere, 2 FED. REP. 722, (1880,) Judge Choate held that the libellant had a lien for his services in removing ballast from a foreign ship, while in the port of New York, for the purpose of putting her in condition to receive cargo for a contemplated voyage. In the course of the opinion he says that the rule which denied the maritime character of a stevedore's services in stowing or discharging cargo could only be maintained "on the doctrine of stltre decisis, since it is now out of harmony with the accepted principles of maritime law as declared by the courts of admiralty." The same view was taken of the matter, on principle, by He says: "I Judge Benedict, in The Oircassian, 1 Ben. confess that I have never been able to see any sound distinction between the nature of the services performed in stowing and breaking out the cargo of a ship and the services performed in its transportation. The stowage and the landing of the cargo form a necessary part of the contract of affreightment. Without the performance of this duty no freight can be earned. The safety of the ship and cargo denends, in a great measure, upon the care and skill displayed
in the performance of this duty, and for its non-performancein a proper manner the ship is liable in the admiralty. It is a service which, when performed by the crew, as is frequently the case, is considered a maritime service, and compensated in the admiralty under the name of wages. And, when not performed by the crew, it devolves upon a class as dearly identified with maritime affairs as are the mariners, and fitted for their duty by a special and peculiar experience." In Ins. Co. v. Dunham, 11 Wall. 26, the supreme court .say that as to contracts the jurisdiction in admiralty does not depend upon the place where the contract is made, but the nature and subject-matter of it-Uas, whether it was a maritime contract, having reference to maritime service or maritime transactions;" and (p. 29) whether maritime or not maritime depends, not on the place where the contract was made, but on the subject-matter of the contract. If that is maritime the contract is maritime. In The Emily Souder, 17 Wall. 669, Mr. Justice Field says: uThe steamer was detained at Maranham nearly five weeks, and the moneys advanced by the libellants, it is true, were not entirely for the repairs of the vessel and the supplies needed for the voyage; they were intended and supplied in part to meet the expenses of her towage int" port and of pilotage, and to pay the custom-house dues, consular fees, and charges for medical attendance upon the sailors. These various items, however, stood in the same rank with necessary repairs and supplies to the vessel, and the libellants advancing funds for their payment were equally entitled, as security, to a lien upon the vessel." It is understood that in England, since the passage of the 3 & 4: Viet. c. 65, § 6, giving, or, rather, restoring, to the court of admiralty jurisdiction of all claims for "necessaries supplied" to foreign vessels, that not only what is directly furnished to the ship, but what is reasonably proper for the promotion of the voyage, such as tonnage and harbor dues, brokerage for procuring a charter, insurance, and stevedore's services, comes within the act, and entitles the party furnish-
ing the same to a lien upon the vessel. The Kemp, supra, 488; The Windermere, supra, 728. To the contrary is the case of The Ilex, 2 Woods, 229, in which Mr. Justice Bradley, on the circuit, decided, upon the authority of Cox v. Murray, and The S. G. Owens, supra, that a stevedore has no lien for his services, because they are not of a maritime nature. The supreme court have never passed upon this question directly, but the plain effect of its decision in The Emily Souder, supra, is in favor of the stevedore's lien; for certaInly the stowing and discharge of cargo as nearly concern the fitment and business of the ship, and are as much maritime in their character, as the payment of custom-house dues or consular fees, both of which were held in that case to be necessary supplies, for which the admiralty gave a lien. Neither has it been decided in this district; and therefore I feel at liberty to follow what I conceive to be the true rule, as deduced from first principles, and as indicated by the later decisions of the supreme court and the district courts of New York and Massachusetts. To my mind it is very plain that the services of a stevedore are maritime in their nature. A voyage cannot be begun or ended without the stowing or discharge of cargo. T() receive and deliver the cargo are as much a part of the undertaking of the ship as its transportation from one port to another. Indeed, it is an essential part of such transportation. Freight is not due or earned until the cargo is, at least, placed on the wharf at the end of the ship's tackle. To say that the final delivery or discharge of the cargo is not a maritime service, because it is, or may be, performed partly on shore, is simply begging the question, as it is the nature of the service, and not the place where rendered, th:at determines its character in this respect. Without the sen-ices performed by the libellants the Canada would have been unable to accomplish the object of her voyage, or to commence another one. The ship was in a foreign port, and the master without funds or credit. Standing in the place of the owner, he was under obligation to deliver the
THE ST. PATRICK.
cargo of iron as he did. How was he to procure the neces· sary labor otherwise than upon the credit of the vessel? As it turns out, the owners are insolvent, the freight is hypothecated, the master is probably unable to pay, and, unless the ship is liable, the libellants will lose their labor, for which the ship or owners have received the value from the freighters. Under these circumstances it would not only be au inconvenience but a gross failure of justice if the libellants were denied the right to recover from the vessel for the labor thus performed· upon its account and credit. In my judgment the law and the right of this case are with the libellants, and I decline to follow the decisions to the contrary. The exception is overruled, and there will be a decree for the libellants for the amount claimed, with legal interest from March 21st to date.
NoTJll. See Tke E. A. Barnard, 2 FED. REP. 712.
(DisfJrice Oourt, E. D. Pennsylvania.
April 4, 1881.)
ADMIRALTy-COMMON CARRmR-LIABILITY FOR STOWING CARGO IN CONTACT WITH CHEMICALS.
A carrier is responsible for stowing merchandise in unsafe pronm. ity to chemicals liable to injure it. 2.
SAME-EXTRAORDINARY INJURY RESULTING FROM PECULIAR NATURE OF MERCHANDISE.
Whether the carrier is liable for extraordinary injury resulting from the peculiar character and value of the. merchandise not communicated or known to the carrier, not decided.
SAME-STOWAGE OF LIMA WOOD IN CONTACT WITH BLEACHING POWDER.
Lima wood, a delicate wood, peculiarly liable to injury from chemicals, was shipped on a vessel having as part of its cargo soda-ash and bleaching powder. No notice was given to the master of the character or value of the wood, and he supposing it to be logwood stowed it in contact with the casks of bleaching powder by which it was injured. Held, that, as bleaching powder was known to be liable to .Reported by Frank P. Prichard, Esq., of the Philadelphia bar.