23 F. 200 -

,

200

FEDERAL

maritime licD, by reason of the fact that a state court, perhaps, might in another proceeding ascertain the amount which was due him, because the relief which he seeks in admiralty is very different from the relief which he could obtain in a state court. The existence and the amount of the lien are next to be ascertained. 'rhat the Emily and her cargo were in distress and needed help are certain, and it is unavailing to say that she ought not to have been in distress. I think that the trouble happened because the schooner was very old, and, with a heavy cargo, was unable to withstand much of a strain, and, moreover, she was insufficiently manned. The libelant, whose business it is to save vessels in distress, was telegraphed to go to her aid, without any previous knowledge that his services were or would be wanted, and in response he sent his vessels amply equipped. They found the vessel in a safe land-locked place, on the mud, in the bottom of Norwalk harbor, but she could not be got away without skilled and energetic and expensive assistance. The contract which the captain of the Emily entered into was an improvident one, so far as the cargo is concerned, in view of the ease with which the libelant could furnish assistance and the lack of immediate peril to the cargo. The rate is too large, under the circumstances of the case, to receive the sanction of the court. The facts which bear upon the amount of compensation are that the assistance of a skilled man, whose property consists of vessels equipped and manned for saving cargoes, and whose business it is to render dangerous, laborious, and expensive servkes, was sought; that he sent a sailing vessel, a steam-tug, and 12 men, to aid the schooner and cargo; that the situation of the submerged vessel, though it needed assistance, was not immediately perilous; that the work of raising the vessel by the aid of the libelant's steam-pumps was easy; and that there was no danger to his crews or his property. It is not a case which calls for very large compensation, but the libelant should receive a liberal amount when he is honestly engaged in this uncertain and expensive business. The sum of $350 is allowed, with costs.

THE KINGSTON.

(District Court, D. New Jersey. :March 4,1885.)
1.

MARlTnm LIENS-MATERIAL AND LABOR USED IN CONSTRUCTION OF VeSSEL -CONTHACT.

",Vhen materials are furnished and the labor is performed under a contract with the owner of a vessel, no general maritime lien can be claimed.
2.

SAME-LIENS GIVEN BY STATE LAW-How ENFOHOJ£D IN UNrfED S'rATEB DIBTHIcn COUIiT.

When it is attempted in the district court to give effect to liens by state laws, they are enforced suLJject to all the qualiikations and limitations imposed by those laws.

THE XINGSTON.

201

3.

SAME-JURISDICTION OF DISTRICT COURTS-ADMIRALTY RULE

No. 12. 'l'he district courts of the United States have no jurisdiction to enforce liens arising under state laws, except when they are founded upon a contract maritime in its character.

Libel in rem. The libel is filed in this case against the ferry-boat Kingston, to recover for materials furnished and work done upon the said steamer while sbe was in the course of construction at Newburgh, in the state of New York, and after she was launched and removed to Weehawken, in the state of New Jersey. The libel alleges that in the year 1883 the said ferry-boat, being then at Newburgh, in the state of New York, and being in need of certain appliances and machinery for electric lighting, the libelant, at the request of the owners or authorized agents of said ferry-boat, did agree to furnish the boat with such machinery and appliances, for the sum of $2,625, to be paid upon trial and acceptance of the same. Certain of the materials and some of the labor necessary therefor were furnished by the libelant at Newburgh, and then the said feny-boat, having proceeded to Weekawken, in the state of New Jersey, the libelant did continue to furnish necessary materials and labor for such electric lighting, and did, in the month of November, 1883, complete the said machinery and appliances, which were thereafter, and in the month of December, 1883, accepted by the West Shore & Ontario Terminal Company, the owner of the said ferry-boat. The said West Shore & Ontario Terminal Company then was and still is a corporation organized and existing under the laws of the state of New Jersey. r.l'he libel further alleges that no part of the contract price for materials and labor has been paid, and claims that the libelant has a lien upon the saiel ferry-boat for the sum due under the general maritime law and the statutes of tile states of New York and New Jersey. The West Shore & Ontario Terminal Company have filed a claim as owner of the boat, and answered, setting up that on or about March 7, 1883, while the boat was in the course of construction at Newburgh, in the state of New York, by Ward, Stanton & Co., for the New York, Ontario & Western Railway Company, under contract, and before said ferry-boat was completed, or was even registered or enrolled, licensed or surveyed, the said libelant entered into a contract with the said New York, Ontario & Western Railway Company, at New York City, whereby s!l.id libelant contracted and agreed with said railway company to furnish said ferry-boat with certain electric lighting apparatus and appurtenances for the sum of $2,625; that afterwards the said railway company sold said boat, at a fair and bonafide sale, to the West Shore & Ontario Terminal Company, and the said terminal company did, by a certain agreement, dated July 15, 1883, between the said terminal company, of the first part, the New York, West Shore & Buffalo Railway Company, of the second part, and the New York, Ontario & Western Railway Company, of the third part,

FEDEBALBEPOBTEB.

lease said boat and other property to the said two railway companies, jointly, for the period of 99 years from the first day of August, 1883; for which reasons they allege that the libelant has no claim or lien on said boat, but its remedy, ifany, is against the New York, Ontario & Western Railway Company; that the services performed and materials furnished were not performed or furnished upon the credit of the boat, but under said contract, and upon the credit of the New York, Ontario & Western Railway Company; and that the libelant is not entitled to the lien claimed by it under the statutes of New Jersey, because the contract was not made within the state of New Jersey, and because the greater part of said materials and services were furnished and performed, not in the state of New Jersey, but in the state of New York, and because more than nine months have elapsed since said debt was contracted. The receivers of the New York, West Shore & Buffalo Railway Company have also answered as lessees of the said ferry-boat, and have set up substantially the same defense. Butler, Stillman <t Hubbard, for libelants. Vredenburgh <t Garretson, for respondents. NIXON, J. 1. Does a lien exist under the general maritime law? The libel admits, the answers claim, and the testimony shows that the materials were fumished and the labor performed under a formal written contract, executed in New York, between the libelant and the owner of the boat then in the course of construction, and not yet finished, or documented in any custom-house. I will not stop here to inquire whether any maritime lien can be implied for materials and labor fumished to a vessel thus circumstanced, with neither enrollment nor license, and not yet ready for employment in commerce or navigation. Waiving that, for the present, it seems to be settled in the American admiralty that, where the materials are furnished and the labor is performed under a contract with the owner of the vessel, no general maritime lien can be claimed. The question was discussed and settled by the supreme court in The St. Jago de Cuba, 9 Wheat. 416, and I am not aware that their decision has been qualified or overruled, in any subsequent case. The court there said:
"The necessities of commerce reqUire that, when remote from his owner, he (the master) should be able to subject his owner's property to that liability, (a lien,) without which it is reasona1>le to suppose he will not be able to pursue his owner's interests. But when the owner is present the reason ceases, and the contract is inferred to be with the owner himself, on his ordinary responsibility, without a view to the vessel as the fund from which compensation is to be derived."

The same question was before Judge HOPKINSON, of the district of Pennsylvania, in Sarchet v. The Davis, Orabbe, 196, and was examined with his usual discrimination and care, and he reached the same result. But it is insisted that if no general maritime lien exists, a lien has been created by the state laws of New York and New Jersey which

'rIlE KINGSTON.

208

the courts of the United States should enforce. In the first place, it is questionable whether any lien has in fact arisen under the provisions of the laws of either of these states. When it is l1ttempted here to give effect to liens created by state laws, they are enforced subject to all the qualifications and limitations imposed by those laws. It is provided in the New York statute that debt contracted for materials or labor on any ship or vessel "shall cease to be a lien whenever the ship 0': vessel shall leave the port at which such debt was contracted, unless the porson having the lien shall, within twelve days after such departure, cause to be drawn up and filed specifications of such lien, which may consist either of a bill of particulars of the demand or a copy of any written contract under which the work may be done, with a statement of the amount claimed to be due from such vessel, the correctness of which amount shall be sworn to by such person, or his agent or representative." The debt in this case was oontracted in New York while the boat was being built at Newburgh; but after the commencement of the work she was removed out of the port of New York and takEin to Weehawken, a port in New Jersey, where the residue of the labor was performed and the materials furnished. There is no proof that any specifications or copy of the contract have been filed in New York, verified by the oath of the parties, which seems to have been necessary in order that any lien should continue to attach. The New Jersey statute agrees to give liens only for debts contracted within that state. The materials were furnished and the labor done under a contract executed in New York, and made with the owner of the boat before she was finished and ready for service on the water. Does it not follow, under such circumstances, that the libelant waived the lien, and intended to look to the personal responsibility of the owner? But, in the next place, and without expressing an opinion on the above facts, have the district courts of the United States any jurisdiction to enforce liens arising under state laws, except where they are founded upon a contract maritime in its character? The proceedings in this case are under the twelfth rule of admiralty practice. This rule, as prescribed by the supreme court in 1844, authorized a libel in rem where the local law of a state gave a lien upon a vessel for supplies or repairs in her home port. Another change was made in 1859, taking away the right to proceed in rem against domestic vessels for supplies or necessaries, although a lien was created by the state law. It stood thus until 1872, when the court announced the rule as it now is, to-wit:
"That in all suits by material-men for supplies Qr repairs or other necessaries, the libelant may proceed against the ship and freight in rem, or against the master or owner alolle in personam."

There has been much conflict in the courts as to the meaning of the new rule, but since its adoption the supreme court, in The Lottawanna, 21 Wall. 580, beld that the district courts of tbe United

204

FEDERAL REPORTE&

States, having jurisdiction of the contract as a maritime one, might enforce liens given for its security, even when created by the state laws. The inference is plain that the court meant to affirm that no such jurisdiction existed when the contract was not of a maritime nature. The libel is therefore for want of jurisdiction.

THE

PAVONIA. 1

February 27, 1885.)

(District Oourt. S. lJ. New York.

1.

COLLISION-MISCALCULATION OF PILOT-LoOKOUT.

The ferry-boat P. was approaching: her New York slip on the North river on a strong flood· tide, which compelled her to go below her slip and swing into it as the tide swept her up. The ferry-boat W., running on a different ferry, at this moment came out of her slip, 744 feet below that of the P. it was the custom of the W. to go to the right of the P. on such occasions, if the P. were" well out" in the river, otherwise to go to the left. On this occasion, the pilot of the W., judging that the P. was well out in the stream, attempted to go to the right, when the P. was already swinging in, and in ahout 45 seconds aher leaving her slip struek the \Y. on he'" port side. The pilot of the P. was giving his entire attention to making his slip; the deck hand who should have acted as lookout was under the hood, and did not see 01' report the W. until a few seconds before collision, when the P., too late, reversed full speed. Held, that the W. was in fault in misjudging the distance of the P. aud in atto go inside and across her bows; and that the l'. was in fault in not having a lookout besides the pilot properly stationed and attentive to his duties; and that the damages should be diVided.
OF LOOKOUT.

2.

'rhe legal obligation of ferry-hoats to maintain an efficient lookout has been repoatedly declared, and can never be relaxed.

In Admiralty.

Abbett d: Fuller, for libelants. Wilcox, Adams d: Macklin, for claimants.

BROWN, J. At about 6: 30 P. M. on the fifteenth of October, 1883, as the Erie ferry-boat Pavonia was approaching her slip at the foot of Chambers street on the North river, she ran into the starboard side of the ferry-boat Weehawken, of the Hoboken ferry, running from the foot of Barclay street. This libel was filed for the recovery of the damages arising from the collision. The tide was strong flood, and the wind heavy from the north-wesb. It was dusk; but bright moonlight and clear. The upper side of the Barclay-street slip is 744 feet below the upper corner of the Providence pier, which forms the lower side of the Chambers-street slip. The Pavonia was intending to make the upper division of the Chamhers-street slip; the lower division being occupied by her sister boat. The flood-tide, at its strength, sweeps past these piers at about the rate of three knots or over. To make their landings on the New York shore at such a time,
1 Heported

by R D. & Edward Benedict, Esqs., of the New York bar.