Ex parte Lewis

| U.S. Circuit Court for the District of Massachusetts | Oct 15, 1815

STORY, Circuit Justice.

The first question is, whether this charge, being against a foreign ship, constitutes a lien upon the ship itself. No case in point has been cited. In Gardner v. The New Jersey [Case No. 5,233], Mr. Justice Peters stated, that he had allowed wharfage out of remnants and surpluses, as the wharfinger might detain the ship until payment.' His opinion is therefore very clearly in favor of the lien. And it seems to me fully supported in principle by the doctrines, as well of the common law (Vaylor v. Mangles, 1 Esp. 109; Spears v. Hartly, 3 Esp. 81; Savill v. Barchard, 4 Esp. 53), as of the civil law (1 Domat. lib. 3, tit. 1. § 5, p. 9), and by the analogous cases of materials furnished and repairs made upon the ship. See Roccus de Nav. notes 92, 93; 2 Brown, Adm. 142, 198; Abb. Shipp, pt. 2, c. 3, § 9. To be sure, the case of Justin v. Ballam (2 Ld. Raym. 805) looks strongly the other way, as to a lien for repairs; but, after much consideration, 1 have, in a former case in this court, felt myself bound to decide against its authority. The Jerusalem [Case No. 7,294.] Vide 9 East, 426; 13 Ves. Jr. 594; 3 Ves. & B. 135; Franklin v. Hosier, 4 Barn. & Ald. 341. If the dockage be a lien, is it a privileged lien, having a priority over the bottomry interest? It being indispensable for the preservation of the vessel, it seems to me that it must necessarily be so considered. If it had been due for a former voyage, or the wharfinger had parted with the possession, the case would have been entirely altered.

The remaining question is, whether the plaintiffs have parted with their lien in the present case. Here is a personal contract, between them and the ship owner, for the payment of a specific rate of dockage, and an order drawn on the ship’s agents for the payment thereof quarterly. It did not strike me, that upon principle such a contract could amount to a waiver of the lien; because it was in effect only ascertaining the rate of dockage, instead of leaving it in uncertainty, and upon the footing of a quantum meruit, or the usual rate of dockage. But there is a series of authorities directly in point, which decide, that where the parties enter into a personal contract for a specific sum, it is a discharge of the implied lien resulting by operation of law. And I cannot find that these authorities have ever been doubted or denied. ² I am free to confess, that I am better satisfied with authorities, when I can perceive the reason of them; but sitting in a court of admiralty, and exercising an equitable relief against highly meritorious parties, I should not choose collaterally to overrule such explicit decisions. I must therefore dismiss the present petition, reserving however the right to reconsider these doctrines, when they shall come directly in judgment upon an original libel in rem. It is proper to add, that the admiralty jurisdiction in this class of cases is altogether independent of the doctrine of liens. Petition dismissed.

2 Anon.. Yel. 166; 2 Rolle, Abr. 92, “M,” 1, 2; Brenan v. Currint, Sayer. 224; more fully Selw. N. P. 1163; Collins v. Ongley, cited Selw. N. P. 1163; Francis v. Wyatt. 3 Burrows, 1498; Cowell v. Simpson, 16 Ves. 275. But see Hutton v. Bragg, 2 Marsh, 339, 345, per Gibbs, C. J. See, also, Brennan v. Currant, Bull. N. P. 45; Phillips v. Rodie, 15 East, 547; Birley v. Gladstone, 3 Maule & S. 205; Id., 2 Mer. 401; Hutton v. Bragg, 7 Taunt. 14, per Gibbs, C. J. See, also, Stevenson v. Blakelock, 1 Maule & S. 535. In Chase v. Westmore, 5 Maule & S. 180, the whole doctrine is reviewed by Lord Ellen-borough, and Brennan v. Currant is overruled, and the same doctrine is established, as Story, J., would seem to contend for on principie. S. P. Crawshay v. Homfray, 4 Barn. & Ald. 50; Christie v. Lewis, 2 Brod. & B. 410.