2 F. 364 | U.S. Circuit Court for the District of Eastern New York | 1880
On the 20th of October, 1876, the libellants filed a libel in admiralty, in the district court of the United States for the eastern district of New York, against the barge John M. Welch, in a cause of wharfage and dock-age. It alleged that the libellants, being the lessees, and in possession of a wharf or pier, at or near the foot of Bank street, in the city of New York, and the slip or basin appeartaining thereto, and, in accordance with the laws of the state of New York in such behalf made and provided, authorized to collect wharfage and dockage from vessels lying at said wharf or pier, or within said slip or basin, furnished for said vessel a berth, which she occupied from including October 9, 1876, to and including October 20, 1876; that thereby there became due and owing to the libellants, from said vessel,
The foregoing pleadings having been put in, the claimants made an application to the supreme court of the United States for a writ of prohibition, to restrain the district court from exercising jurisdiction of the suit. The application was founded on a petition, which set forth the following matters: The John M. Welch is a vessel of about 209 tons carrying capacity. She is without sails or self-motive power of any kind. She cannot be used independently of extra motive agency. On the twentieth of October, 1876, the day when the process was issued against her, she had completed a trip from the .city of Baltimore, bringing a cargo of coal, and forming one of a tow of barges, all under the lead of a steam-tug, which made the trip from Baltimore to New York by way of the Chesapeake and Delaware canal, the Delaware river, and the Delaware and Baritan canal. She reached the port of New York on the tenth of October, 1876. She took wharfage at the pier or wharf at the foot of Bank street, North river, and remained there till the twentieth of the same month. A bill of wharf-age was rendered by the libellants, charging for nine days inside wharfage, at $3.60 a day, and for one day outside wharfage, at $1.80 a day, amounting in all to $31.20. The petitioners are, and for many years have been, the owners of a large number of such barges as the John M. Welch, all of them of the same description and character, and of the same tonnage. The petitioners have been engaged in the said business of transportation for nearly 20 years. Some of their
The statute of the state of New York as to wharfage and dockage, referred to in the libel, is the statute enacted on the sixth of May, 1870. This law was subsequently, amended in the years 1872, 1875 and 1876, but its essential feature as to distinction of wharfage between canal-boats plying on the waters of New York state exclusively, and all other canal-boats and barges, has not been changed. “The same rates as heretofore,” which are required by said statute to be paid by “all canal-boats navigating the canals in this state,” are the rates of 50 cents and 75 cents per day for each boat. The district court of the United States for the eastern district of New York, sitting as a court of admiralty, enforces a lien against canal-boats or barges, in causes of wharfage, and in favor of wharf owners, under the provisions of the said law of the state of New York, on one or both of the two following grounds: (1) That the law of the state of New York gives a lien, enforceable in admiralty, for wharfage, at the rate of two cents for every ton up to 200 tons burden, for each day’s wharfage, against all canal-boats .except those which navigate the canals of the state of New York; (2) that there is a general maritime lien for wharfage against canal-boats, enforceable in admiralty, the amount of which lien is to be determined by the law of the state of New York; that, as to canal-boats navigating the Erie canal, the amount of lien, as so determined, is 50 cents per day; and that, as to the same kind of craft navigating the Delaware and Raritan eanal, it is from $3.50 to $4 per day. A lien has been enforced by the said district court, for wharfage, against the canal-boat Ann Ryan, on a state of facts identical with the facts above set forth. The proceedings therein were under, and to enforce
The statute above referred to, enacted May 6, 1870, (Laws of New York, 1870, c. 707, § 1,) was in these words: “It shall be lawful to charge and receive, within the cities of New York and Brooklyn, wharfage and dockage at the following rates, viz.: From every vessel that uses or makes fast to any pier, wharf or bulk-head, within said cities, or makes fast to any vessel lying at such pier, wharf or bulk-head, or to any other vessel lying outside of such vessel, for every day, or part of a day, as follows: From every vessel of 200 tons burden and under, two cents per ton; and from every vessel over 200 tons burden, two cents per ton for each of the first 200 tons, and one-half of one cent per ton for every additional ton, except that all canal-boats navigating the canals in this state, and vessels known as North river barges, shall pay the same ratSs as heretofore; and the class of sailing vessels now known as lighters shall be at one-half the first above rates; but every other vessel making fast to a vessel lying at any pier, wharf or bulk-head within said cities, or to another vessel outside of such vessel, or at anchor within any slip or basin, when not receiving or discharging cargo or ballast, one-half the first above rates, and no boat or vessel shall pay less than 50 cents for a day, or part of a day; and from every vessel or floating structure other than those used for transportation of freight or passengers, double the first above rates. And. every vessel that shall leave a pier, wharf, bulk-head, slip or basin, without first paying the wharfage or dockage due thereon, after being demanded of the owner, consignee, or person in oharge
The supreme court denied the petition for the writ of prohibition. Ex parte Easton, 5 Otto, 68. The opinion of the court was delivered by Mr. Justice Clifford. It holds that the admiralty jurisdiction extends to wharfage, as an essentially maritime contract, claim or service; that where a wharf is used without an agreement as to the measure of compensation, there is an implied contract, under which tho proprietor is entitled to recover what is just and reasonable for the use of his property; that the nature of the service and the character of the contract are not changed by the circumstance that the water craft which derives the benefit is, as in this ease, without sails or masts, or other motive power of her own; and “that the contract for wharfage is a maritime contract, for which, if the vessel or water craft is a foreign one, or belongs to the port of a state other than that where the wharf is situated, a maritime lien arises against the ship or vessel in favor of the proprietor of the wharf.” The opinion further states that the question whether the district court has or has not transcended its jurisdiction, in entertaining the suit in question, must depend not on facts stated dehors the record, but on those stated in the record on which the district court is called to act, and by which alone it can regulate its judgment; and that mere matters of defence, whether going to oust the jurisdiction of the court, or to establish the want of merits in the libellants’ case, cannot be admitted, under a petition for a writ of prohibition, to displace the right of the district court to entertain suits, the rule being that every such matter should be propounded by suitable pleadings, as a defence, for the consideration of the court, and be supported by competent proofs, provided the case is one within the jurisdiction of the district court. These remarks mean that the supreme court could only look at the allegations of the libel. The libel was the only record on which the district court was called to act when it entertained jurisdiction of the suit, by issuing process of attachment against the vessel. The libel alleged that there was a maritime lien on the vessel for the wharfage, and that
After the writ of prohibition was refused, the libel in the district court was amended, by inserting in it allegations that the vessel left the pier, wharf and slip without first paying the wharfage or dockage due thereon; that the libellants, therefore, became entitled to demand from the vessel, for wharfage, double the amount before named, to-wit, $60; that the vessel came to said wharf having on board a cargo of coal, from the city of Baltimore, Maryland, and made said trip by way of the Chesapeake and Delaware canal, Delaware river, and Delaware and Baritan canal; and that the owners of said barge reside in the state of New York. The amended libel claims to recover the $60, with interest, and retains the avermentsas to the maritime lien, and as to the lien by the laws of the State of New York. It was stipulated that the answer before filed should stand as the answer to the amended libel.
The parties then agreed, in writing, upon the following as-the statement of the facts in the action: “First, that, at the times stated in the libel, the libellants were lessees of, and in possession of, the wharf named in the libel, and authorized to demand and collect wharfage from vessels lying thereat; second, that the barge John M. Welch lay at said wharf during the period named in the libel, and left without payment of wharf-age, and that the amount of wharfage due the libellants on such account, as fixed by the wharfage law of New York, a copy of which is annexed, is $60, and the same has not been paid to the libellants; third, that said barge is owned by persons residing in the state of New York; fourth, that said barge came to said wharf, as aforesaid, with a load of coal, from Baltimore, Md., as set forth in the libeL”
On such pleadings and statement of facts the case was
The district judge, in his decision in this case, states, that the questions, first, whether a contract for wharfage is a maritime contract, and so within the jurisdiction of the admiralty, and, second, whether, by the maritime law of the United States, a lien upon the vessel arises out of such a contract, were set sat rest by the determination of the supreme court in Ex parte Easton; that the case before that court was that of a domestic vessel; that the libel claimed a lien by the maritime, law alone, without any reference to the statute of New York, or to any claim or right based thereon; that, from the pleadings, the petition, and the petitioner’s brief before the supreme court, there was no room to doubt that the case was understood by .that court to present the question, whether the contract of wharfage, by the maritime law of the United States, gives rise to a lien on the vessel; that the question of a lien for wharfage by the maritime law upon a foreign vessel was not the question presented by the ease before that court; that the question of a lien for wharfage by the maritime law upon a domestic vessel was the question presented to that court for its decision; that the opinion of that court declares the law to be, without exception, not only that the contract for wharfage is a maritime contract, but, also, that a maritime lien .arises in favor of the wharfinger against the vessel, for the payment of reasonable and customary charges for the use of his wharf; and that, therefore, the question is no longer open whether the rule applied to the demands of material-men .against -a domestic vessel is to be applied to demands for wharfage.
The review before given of the decision of the supreme court in Ex parte Easton shows that this court does not concur with the district court in its interpretation of that decision. Having .decided that there was, in this case, a maritime lien, the district court did .not consider the question as to whether there was a lien by the law of New York, as alleged in the libel, which the court could and would enforce
The statute of New York, of 1870, before set forth, was followed by the act of 1872, hereafter referred to, and that again by the act of May 21, 1875, (Laws of New York, 1875, c. 405, p. 482.) The present case arose after the latter date. The act of 1875 amends section 1 of the act of 1872, so as to read as follows: “Section 1. It shall be lawful to charge and receive, within the cities of New York, Brooklyn and Long Island City, wharfage and dockage at the following rates, namely: Thom every vessel that uses or makes fast to any pier, wharf or bulk-head within said cities, or makes fast to any vessel lying at each pier, wharf or bulk-head, or to any other vessel lying outside of such vessel, for every day or part of a day, as follows: From every vessel of two hundred tons burden and under, two cents per ton, and for every vessel over two hundred tons burden, two cents per ton for each of the first two hundred tons, and one-half of one cent per ton for every additional ton, except that all canal-boats navigating the canals of this state, vessels known as North river barges, market boats, and sloops employed upon the rivers of this state, and schooners exclusively employed upon the rivers of this state, shall pay the same rates as such boats or barges were liable to pay under the provisions of the act passed April tenth, eighteen hundred and sixty; but no boat or vessel shall pay less than fifty cenus for a day, or part of a day, and the class of sailing vessels now known as lighters shall be at one-half the first above rates; but every other vessel making fast to a vessel lying at any pier, wharf or bulkhead within said cities, or to another vessel outside of such vessel, or at anchor within any slip or basin, when not receiving or discharging cargo or ballast, one-half the first above rates; and from every vessel or floating structure other
The act of April 10,1860, (Laws of New York, 1860, e. 254, p. 416,) contained these provisions: “Section 1. It shall be lawful to charge and receive wharfage or dockage at the following rates, from every vessel that uses or makes fast to any pier, wharf or bulk-head within the cities of New York or Brooklyn, for every day, or part of a day’s use of the same, viz.: From every vessel of two hundred tons burden or under, one cent per ton; and for every vessel over two hundred tons, one cent per ton for each of the first two hundred tons, and for every additional ton burden, one-fourth of one cent per ton; and from every vessel making fast to another vessel lying at any pier, wharf or bulkhead, and for every vessel lying at anchor within any slip or basin, one-half of the above rates. Sec. 2. The captain or owner of any vessel that shall leave a wharf without paying for the wharfage due thereon, and shall neglect to pay the same for twenty-four hours after demanded of the captain, owner or consignee, shall forfeit and pay to the owners of the wharf double the rates of wharfage hereby established, and the wharfage shall be a lien on the vessel. * * * gee. 6. Nothing contained in this act shall be construed as altering the rates of wharfage chargeable on lighters, canal-boats or barges, by existing laws. Sec. 7. The collection of the rates of wharfage established by this act shall be enforced in the manner prescribed in the two hundred and seventh section of the act of ninth of April, eighteen hundred and thirteen.”
The act of 1860 is entitled “An act in relation to the rates of wharfage, and to regulate piers, wharves, bulk-heads and slips in the cities of New York and Brooklyn. ” It was followed by the act of 1870, before recited, which is entitled “An act to
Before reaching the question as to whether there was alien on the John M. Welch, enforceable in admiralty, by a suit in rein, either by the maritime law or by the state statute, it is necessary to examine the provisions of the act of 1875 to see whether that act is a valid and constitutional enactment, in its application to that boat. The district court held that it is.
Objection is made to that clause of the act of 1875 which subjects canal-boats navigating the canals of the state of New York to a less charge for wharfage than canal-boats not navigating the canals of that state. It is urged that that clause makes a discrimination between the property of citizens of different states; that it discriminates against the claimants’ barge in this case, because it did not come through a canal of this state, but came from Baltimore, with a load of coal, through other canals; and that the reasonable compensation for the wharfage of two canal-boats of equal tonnage must be the same, although one comes through the canals of this state and the other comes through other canals. It is contended that the statute is in conflict with section 8 of article 1 of the constitution of the United States, which provides that the congress shall have power “to regulate commerce with foreign nations, and among the several states; ” and with section 9 of article 1, which provides that “no preference shall be given, by any regulation of commerce or revenue, to the ports of one state over those of another; ” and with section 10 of article 1, which provides that “no state shall, without the consent of congress, lay any duty of tonnage;” and with section 2 of article 4, which provides that
The John ,M. Welch, it is admitted, came to New York through the canals named in the libel. Consequently, she does not fall within the exception of a canal-boat navigating the canals of the state of New York. Her exact tonnage is not stated, but it is inferred to have been 180 tons. At two cents per ton per day, her single rate of wharfage would, under the act of 1875, be $3.60 per day. If she were a canal-boat of 180 tons, navigating the canals of the state of New York, her rate of wharfage, under section 6 of the act of 1860, would be the rate prescribed by section 212 of the act of April 9, 1813. 2 Eev. Laws of 1813, 429. That rate would be 87rr cents per day. Under all circumstances, whatever her tonnage, (if over 25 tons,) her wharfage rate would be higher under the act of 1875, if not navigating the canals of New York, than if navigating those canals.
In the case of The Ann Ryan, 7 Benedict, 20, the district court for the eastern district of New York held that the act of 1870 was valid, even though a regulation of commerce, in the absence of any statute of the United States on the subject of wharfage, and that, while the act made discrimination in favor of the canal navigation of the state of New York, it made none in favor of the citizens of that state.
In the recent case of Guy v. The Mayor, etc., of Baltimore, (12 Chicago Legal News, 262,) decided by the supreme court of the United States, it is said that it must be regarded as settled, in view of the decisions of that court in Woodruff v. Parham, (8 Wall. 123,) in Hinson v. Lott, (8 Wall. 148,) in Ward v. Maryland, (12 Wall. 418,) in Welton v. State of Missouri, (91 U. S. 275,) and in other cases, that no state can, consistently with the federal constitution, impose upon the products of other states brought therein for sale or use, or upon citizens because engaged in the sale therein, or the transportation
These views cover the question in the present case. It is a burden upon inter-state commerce to exact from a canal-boat of a given tonnage, bringing a cargo of coal from Baltimore, through canals not in the state of New York, and discharging it on a given wharf in the port of New York, larger fees per day for the use of such wharf than are charged to a canal-boat of the same tonnage bringing a like cargo from Buffalo through the Brie canal. The same thing is true in respect to the two canal-boats, if coming to the same-wharf empty, to load with like cargoes; the one to go to Buffalo through the Brie canal, and the other to go to Baltimore through canals not in the state of New York. Boats are presumed to bring or take cargoes, and to seek wharf accommodations to discharge or receive cargoes. The increased wharfage rates must, presumably, be added by the carrier to the charge of carriage, and then added by the owner of the cargo to the price of the cargo, and thus become a tax to the prejudice of inter-state commerce, and the building up of the purely internal commerce of the state. The wharfage fees are not equal on two canal-boats of the same tonnage, but a discrimination is made against one of them because she does not ply from the city of New York to places situated on a canal in the state of New York, but plies to and from Baltimore through canals not in the state of New York. The state of New York authorizes the wharf owner to obstruct inter-state commerce, in the interest of commerce wholly internal to the state of New York. This view of the act of 1875 further appears by its placing in the same category
The suggestion that it does not appear that what is charged the John M. Welch is more than a reasonable compensation, is met by what is said by the supreme court in the case of Guy. The power to discriminate as to the rate of wharfage, between vessels engaged in different occupations, must be exercised without conflicting with the power of congress over the subject of inter-state commerce.
The question under consideration was not passed upon in the case of The Virginia Rulon, 13 Blatchf. C. C. R. 519. The point there ruled was only that, by the terms of the act of 1875, the double rate was wharfage, and that that act created a lien for such double rate, under the circumstances there presented, which could be enforced by a suit in fern in admiralty.
Under the foregoing views, the act of 1875, and the act of 1860, as amended by the act of 1875, cannot be upheld as a valid law, in so far as it prescribes a charge for wharfage against the John M. Welch.
Inasmuch as the libel claims to charge wharfage solely under the provisions of the statute of New York, and claims a lien only in respect to the amount of wharfage claimed as authorized to be charged by that statute, and does not claim
These considerations show that the libel must be dismissed, and that no decision need he made, in this case, as to the existence of a maritime lien for wharfage on a domestic vessel, or as to the circumstance's under which any lien for wharfage may now exist against a vessel under the statutes of New York.
The libel is dismissed, with costs to the claimants in this court and in the district court.