7 F. Cas. 112 | D. Me. | 1840
Two questions arise upon the pleadings in this case, aud which have been elaborately argued by the
By the general maritime law of Europe, any person who furnishes materials or labor for the repair or equipment of a ship, or supplies her with things necessary for her employment, as provisions for the crew, acquires by this alone, without any express stipulation for that purpose, a tacit hypothe-cation of the ship itself for his security. In this country, no such implied hypothecation is recognized by the common or customary law, when the repairs are made, or the supplies furnished, in a port of the state to which the' vessel belongs. In some of the states, the local law gives a lien, and where it does, it may be enforced by the admiralty. Peroux v. Howard, 7 Pet. [32 U. S.] 12,324; Plarper v. New Brig [Case No. 6,090], But by the common maritime law of this country, if the supplies are furnished in the port of a state to which the vessel does not belong, the privilege is admitted, and the lien attaches. The Jerusalem [Id. 7,294]; The St. Jago de Cuba, 9 Wheat. [22 U. S.] 409; The Gen. Smith, 4 Wheat. [17 U. S.] 43S; The Aurora, 1 Wheat. [14 ü. S.] 105. The creditor, in such a case, is considered as giving credit both to the ship and the owners, and he may proceed in the admiralty against either. But it was contended, at the argument, that this privilege is confined to the persons who actually furnish the supplies or make the repairs, called, in the language of the admiralty, material-men, and is not extended to a party who loans money, Which is expended in repairs or in furnishing materials for the vessel. The ground assumed in the argument is, that such advances are to be considered as a common loan, not distinguishable from any other credit arising, in the common course of mercantile business, and that the purposes for which the money was advanced and to which it was applied, cannot be inquired into, to show that the consideration was maritime, and thus within the cognizance of the court as a cause of admiralty and maritime jurisdiction.
The first inquiry that is naturally suggested, as a test of the jurisdiction, is, whether such a loan is held by the maritime law to be a privileged debt, giving the creditor a lien on the vessel for his security. If It does, then I hold it to be clear, that it may be enforced by this court, for the admiralty has a general jurisdiction to enforce all maritime liens. The lien which material-men have against the ship, for repairs or supplies, has been supposed to be derived from the Roman law. Abb. Shipp, p. 102, c. 4, § 10. Now if this privilege of the creditor be admitted to be a principle borrowed by the maritime law from that of Rome, there would seem to be an end of the controversy as to the rights of the lender, for it is quite clear that in the Roman law he had this privilege. It was a general principle of the law of Rome, that any creditor who loaned money to be employed in preserving, repairing, or improving a thing, had a privilege against it for the reimbursement of the loan. Bomat. Lois Civiles, Liv. 3, tit 1, § 5, n. 6, 7. The very cnse, of repairing a vessel, is put as an illustration of the general doctrine. “Qui in navem extruendum vel instruendun credit vel etiam emendum privilegium ha-bet” Dig. 42, 5, 26, 34; Id. 20, 4, 5. 6. And the privilege, in the Roman law, extended to a creditor who loaned money for the purchase of a ship. Indeed, by the text of the law, the privilege seems to be confined to the lender, and it is only by analogs that it is extended to comprehend the immediate fur-nisher of the materials or labor by which the vessel is repaired. , Domat Liv. 3, tit 1, § 5, n. 9. And the principle was carried further in favor of lenders. If the master hired money of a third person, with which, he paid the creditor who loaned directly for the repairs of a ship, this new creditor was sub-rogated to the right of the first lender, and considered as giving credit to the owner. Big. 14, 1, 1, § 11. Domat Liv. 3, tit. 1, § 6, n. 6. But by the Roman law, this was a more personal privilege, and did not involve a tacit hypothecation of the thing. It gave to the creditor a right of preference, jus praelationis, a right of prior payment out of the tiling, over the general creditors of the owner; but his right was postponed to all hypothecary creditors. Emerigon, Contrate a la Grosse, c. 12, § 1; Vinnius, Select. Jur. Quaest. 42, c. 4 And the privilege of the creditor was postponed to that of the fisc. Dig. 42, 2, 34. But these personal privileges of creditors, independent of hypothecation, are unknown to the maritime law. In that law. every privilege implies a tacit or privileged hypothecation. Emerigon, Contrato a la Grosse, c. 12, § 2, § 1. Cleirac, Jurisdiction de la Marine, art. 13, No. 6. Whether the rules of the maritime law on this subject were derived xrom the Roman law, or what is more probable, had their origin in the customs aad usages of maritime commerce in the Middle Ages, there is no doubt, that a person who lends money for
Indeed, it appears to me, that upon the principles of the maritime law, it is very clear, that a person who lends money to bo expended in repairing a vessel, or in furnishing her with provisions, or fitting her for sea, has the same privilege against the vessel, which is allowed to material-men who are the actual furnishers, or the mechanics who perform the labor. The authorities are entirely conclusive. The lender is considered as trusting to the ship, as well as the owners; and by the loan itself, he acquires a privileged hypothecation, which is as sacred in every respect as that which is created by an instrument of bottomry, except that he is not entitled to maritime interest. Peckius, Ad Bern Nauticam, p. 99, and Vinnius’ note; Ku-rike, Quaest. Illust, QuaesL 13; Voet, Ad Pand. 20, 19; Stypman, Jus Maritimum, par. 4, c. 5, § 146. By the law of this country, the privilege exists only where the credit is g'ven to a vessel, in a port out of the state to which she belongs, unless it is allowed by the local law. Now, if the law allows to a creditor a lien on the vessel for his security, the jurisdiction of the admiralty follows of course. This is the appropriate court to enforce maritime liens, and the only court in which it can be done effectually. If the admiralty has jurisdiction over the matter in a proceeding in rem, I do not see on what principle the jurisdiction in personam can be denied. It is only on the ground that the contract is maritime, that the court can issue process against the thing. It is the subject-matter that determines whether it is of admiralty and maritime jurisdiction or not; and if it is so, the court has jurisdiction as well in personam as in rem. In this case, the consideration of the contract is purely maritime. If this were the only ground on which the plea could be supported, I should feel no difficulty in overruling it, and requiring the respondents to answer to the merits. Upon the principles stated, the jurisdiction would attach for the money advanced for repairs in the first instance, before the vessel was sold, and when legal title was in Child & Dole. But for these advances the vessel was arrested and sold. The libellant was the purchaser, and took the legal title in his own name. If the jurisdiction of the court, rested on alien alone, it is clear that the libel could not be maintained on this claim, for by the sale the lien was discharged. But as the admiralty has jurisdiction in favor of material-men in per-sonam as well as in rem, if the proceeds of the sale were not sufficient fully to discharge the debt, the libellant’s claim may be good against the owners for the balance, for a decree against the vessel, without satisfac
The only question that remains is, whether the libel can be maintained on the transactions that took place after the sale. It is alleged in the libel, that the seizure was made and the vessel sold under a decree of court, on proceedings instituted by the direction of the agent of the owners; and that by an agreement between the libellant and the agent, he became the purchaser for the owners, and took the legal title in his own name, as a security for advances to be made, but for their use, and to be held for their benefit; and that all the subsequent' expenditures upon and on account of the vessel, were made in pursuance of his orders, and for the benefit of the original owners. The libellant, therefore, states himself to be the trustee of the respondents. All the expenditures were for the vessel while he was the legal owner. If the plea is overruled and the respondents are required to answer to the merits, the first question presented for decision, if the fact is denied by the answer, will be, whether the libellant is trustee or not; whether he took the legal title for the benefit of the respondents, or purchased on his own account. Now, let it be admitted, that the subject-matter of the contract set up in the libel—that is, the repairs made and the supplies furnished-are within the undoubted jurisdiction of the admiralty, can the court take cognizance of the case, where, in order to arrive at the merits, it must first decide a question covering the whole case, which is of the peculiar, and generally the exclusive, jurisdiciion of another tribunal, and is not within the jurisdiction of this court? In other words, can the court take jurisdiction of a trust ex directo, as constituting the very foundation of the suit? It seems to me that it cannot, and when the libel sets forth a trust, upon which the court must pronounce a judgment before it can look at the merits on which relief is sought, that the libellant states himself out of court. Matters of trust, whether in relation to real or personal property, belong to the peculiar and appropriate jurisdiction of courts of equity, and the modes of proceeding in equity are particularly adapted to the discovery and enforcing of trusts; and though it is true that courts of common law do take cognizance of some matter of trust, as in the case of bailments (1 Story, Eq. Jur. § 60), yet the general rule is, that mere matters of trust are within the exclusive jurisdiction of equity . (2 Story. Eq. Jur. § 960). It is admitted that the admiralty is competent to pronounce upon the question of title to vessels, but when this is said, I apprehend that generally the legal title is intended. It is not, however, intended to be denied, but that this court may take notice of an equitable title when it comes up incidentally, especially when it is alleged in the way of defense,- in a case over which the admiralty has a clear and unquestionable jurisdiction. In a suit for possession, it might well decline to interfere in favor of the legal title against one who had an equitable title, at least until the rights of the parties had been settled by a competent tribunal. It is admitted also, that when the a 1-mirálty has jurisdiction of the principal matter, it has authority to pronounce on the incidental questions which may arise in the cause. The Tilton [Case No. 14,054]. But my difficulty is, that in this case the equitable title does not arise incidentally, but is alleged in the libel as the very foundation of the libellant’s title to relief. Such a case, it appears to me, cannot be properly a subject of admiralty jurisdiction. Indeed, the libel seems to me to be a bill in equity in disguise.
But the case presents other objections to the jurisdiction, which, if not insuperable, are not easily overcome. The libellant alleges, that in pursuance of an agreement with the agent of the owners, he purchased the vessel for them, and took the title in his own name, to be held for' their benefit; that he expended on the vessel, at different times, large sums of money, in repairs and in the purchase of supplies, having the control and management of the vessel, and receiving for their use her earnings; and the libel concludes with a prayer that the respondent may be required to receive from him the legal title aDd pay him the balance of his account. The suit, therefore, in one aspect, partakes.of the nature of a bill in equity for a specific performance of an agreement. It was never contended, that a court of admiralty has the authority to decree a specific performance of an agreement If the court, in this case, should pronounce for the payment of the balance of the account, it might; perhaps, annex a condition that the libellant should reconvey the vessel to the respondent. But a direct suit for the specific performance of an agreement is a thing unheard of in the admiralty. But allowing this objection may be avoided, there is more difficulty in overcoming the other. The libel unavoidably involves the. taking of an account, for it is indispensably necessary, in order to ascertain the balance. There might be here, in equity, matter for a cross bill, if the defendants chose to resort to it, in order to extract the facts directly from the party, though the admiralty might, perhaps, obtain the same object by an examination of the party on interrogatories. But the suit itself seems to be primarily for an account Now the admiralty has no direct jurisdiction over matters of account, although they may relate purely to
