11 F. Cas. 630 | D.S.C. | 1860
The principal, if not the only question in this case is, how far a material-man waives or affects his lien for repairs or supplies under the general maritime law, by taking from the owner or captain a negotiable security. As yet no decision of a court of supreme and controlling authority can be cited; although judges of
It has been held that whatever makes the repairs or supplies a special contract excludes the lien. Bull. N. P. 45. But still the question recurs, what is meant by a special contract? At one time, if the price was named, the lien was excluded. But that doctrine could not be maintained, and is now rejected. Hutton v. Bragg, 7 Taunt. 14. In Stevenson v. Blakelock, 1 Maule & S. 535, an express antecedent contract was held to ex-elude an implied contract, and with that, the lien which grew out of it. In Ex parte Lewis [Case No. 8,810], a personal contract for a specific sum discharged the implied lien. In The Nestor [Id. 10,126], it was held that in cases of repairs or supplies to a vessel in a foreign port, in addition to the maritime lien, there is an obligation upon the owner and master cumulative to the remedy of the lien. In Murray v. Lazarus [Id. 9, 962], a bill of exchange was held as the substitution for the lien which otherwise would have been created; while a recent commentator inclines to the opinion that if the bill or note is that of the master or owner, such would not be the proper conclusion (Fland. Mar. Law, 193); and Judge Betts, insists upon a qualification still broader (The Active [CaseNo.34]). At the common law,possession is essential to the lien, and possession excludes the idea of credit; because credit is inconsistent with a continuing possession of the creditor, and without that possession there is no lien. In a question of lien at the common law, if credit is proved as a part of the contract, the lien by the same proof is displaced; the credit and the lien being in. consistent. In all cases, therefore, where the decision is to be made by the rule of the common law, an easy and practical test is supplied.
But it is prolific of confusion to attempt a reconcilement of the rule which applies to the lien at common law with that of the general maritime law. In the one, to lose possession is to destroy the lien; in the other, the purpose of the lien is to allow the owner to have possession; that by it he may derive benefit from the labor which the material-man has bestowed, in being enabled to prosecute his voyage and secure his profits. In the one possession is its essence; in the other it is not a necessary, or even proper quality. In the one, possession is consistent; in the other, inconsistent with the lien. It is obvious how inapplicable to the consideration of a maritime lien are cases deciding questions under the lien of the common law.
In the case before me the lien is implied— created by law — existing independently of contract or agreement as necessary for its support It is prima facie the security which the law presumes one party intended to give, and the other to take. It survives without possession, or other act sustaining it, until discharged by payment, lost by neglect, or waived by a special contract which excludes it So high is it held that it will not be affected by the owner’s act which creates a forfeiture; takes precedence of a sale to a bona fide purchaser without notice; and is not postponed to a debt to the United States. It is created and supported by the consideration of its indispensable necessity; and is, therefore, not lightly superseded or destroyed by courts, in which its enforcement in proper cases is asked. It must be borne in mind in the consideration of this and cognate questions, that the judgment of courts in Great Britain rested upon a basis not admitted here to be true or just. Who will reconcile the law in questions of this kind as laid down by Lord Coke or Lord Holt, with the more recent legislation of the parliament of Great Britain: And how can we regard as rules for our guidance, decisions founded upon a jealousy no longer tolerated^ and intended to subvert a jurisdiction created by the constitution of the United States? In the consideration of a maritime lien in this court we should search for the rule of the maritime law'; or for the special legislation ot the United States, if it has modified oi changed the rule; for the maritime law is the common law of the commercial world: and to nations in their commercial relations, is what its common law statutes or customs are to each. Starting from this point we will find that the lien claimed here is the security which the maritime law implies iu the case of those utiio, in contracts like this, occupy the relation of debtor and creditor. If the lien does not arise it is because it has been wrnived, lost, or paid. It may be
We have seen that a bill of exchange drawn by the captain and accepted by the owner, if taken by the creditor, has been held a waiver of the implied lien. Murray v. Lazarus [supra]. Because, it is said, a right to detain for the future event of the bill is inconsistent with the bill. But the reason would be stronger if the bill was per se payment, or if the credit involved in the time for which the bill was drawn was inconsistent with the lien. If the bill is not per se payment and if the time allowed for its payment is consistent with the lien, the conclusion that its mere existence is proof of waiver, is in the case of a maritime lien perhaps hastily made. The Albatross [Case No. 13,645]. The acceptance of a bill thereby establishing a credit, may be conclusive as to the extinguishment of a lien at the common law; though even in that case I express no opinion; but it is far from conclusive in the case of a maritime lien. In The Nestor [Case No. 10,126], Judge Story considers at great length the nature of the maritime lien, and the modes in which it may be waived or lost. He holds that supplies or repairs in a foreign port are taken, as prima facie furnished on the credit of the ship and owners until the contrary is proved. But that taking a negotiable promissory note implies a waiver of the lien, because the lien may be in the hands of one person and the note in the possession of another. Whatever might be the effect of such a rule, if it were operative as a presumption of law, it is to me quite clear that it cannot be supported foi the reason now given. It is admitted in the same case that a continuing liability of the owner and master is not inconsistent with the lien, because they all by law arise at the same time from the same contract. The promissory note is the admission of a liability; and in itself adds nothing to what the law intends; and the promise to pay is no more than the law implies from the liability it has imposed. In fact, therefore, to use the language of Lord Eldon, “the contract for payment for money is itself, in a sense, a security full as good as a note.” 15 Ves. 346. That the creditor cannot pursue his remedy while the note is maturing is in effect a credit, but that is not inconsistent with the maritime lien. How far, in any case, a promissory note or bill of exchange super-cedes a former contract, is not a rule of law, but results from the agreement of the pan ties. If then, taking a bill or note is in no respect inconsistent with a maritime lien, it cannot become so because of the allegation that the note may be in the hands of one person and the lien be claimed by another. If that consequence could result in any case, the objection made would have weight in that case, supposing it possible that the lien survives after the transfer of the debt But it cannot have weight in a case where the note or bill and the lien continue in the hands of the same person to whom they were originally given. Such would be the conclusion in a court of law. 2 Speer, Law, 448; 1 Rich, Law, 228; 2 Rich. Law, 244; 8 Cow. 77; 2 Story, Eq. Jur. p. 474. And such, of course, must be the conclusion in this court from which we look not only to the court of equity for guidance in certain cases, but to the civil law so far as we can adopt it. I readily concede that the apprehension of damage sometimes leads to the adoption of an arbitrary rule, which may in its operation even embrace cases in which there is no room for that apprehension. But in such cases the rule is positive; and in law a rule which is positive in the construction of rights and liabilities cannot be oppressive. If a bond is taken in settlement of a pre-existing simple contract debt, it extinguishes that debt This is a presumption, and its general operation is fixed; but evidence may control it and the security of the bond become cumulative. 2 Rich. Law, 608. If the pre-exist-ing contract is asserted as discharged by a negotiable instrument, and if it is so held, it is not because of a rule' of law, but from evidence showing that to have been the agreement of the parties. In Ramsay v. Allegre, 12 Wheat [25 U. S.) 611, the supreme court declined to lay down the rule, although it may be inferred what it would have been if the case had rendered a judgment necessary.
In determining from circumstances, as distinguished from evidence establishing an agreement, how far from them a certain consequence will result, affecting another matter; the nature of the thing to be affected is of much consideration. A greater security merges a lesser; and in securities of equal rank there is room for an easy acquiescence in the conclusion that the latter was intended as a substitute for the former. But the presumption that a higher security was intended to be extinguished by one of less value calls for evidence of the intention of the parties to support it. It is well then, for us to understand the value and nature of this lien or security, and the general principles which are applicable in cases of the substitution of one debt for another. It has been said that the term “lien,” used in the sense we have been considering, |is technical
It seems to me the result of cases directly adjudged; and of such others as afford us a basis of deduction; that where a lien arises under the maritime law, for the benefit of a material-man, it is not waived or lost because a note or bill between the parties to the original contract has been taken by the creditor (The Hilarity [Case No. 6,480]); unless there is some evidence showing that the note or bill was taken as payment. But if the party taking the note or bill transfers it to another for a consideration, so that it becomes the property of that person; and thereby loses all right to the note or bill; the implied lien of the maritime law does not follow the debt which has been transferred: while the original creditor by the transfer of the debt, has ceased to have a right to the lien, which is created only for his benefit. That thus,'by the transfer, assumed to be absolute, the lien is extinguished; nor will it be revived by taking back the note. An. agreement made, may give a new lien; but the implied lien -of the law is discharged.
The facts of the ease to which this opinion is to be made applicable, are few and plain. The libellant advanced money for repairs and supplies to a vessel in a foreign port. That the advance was made is proved by the draft or bill of exchange which the captain drew on his owner: that it was recognized as proper by the owner, is proved by his acceptance of the draft. The William & Emmeline [Case No. 17,687]. I have said, that merely taking this draft was not a waiver of the lien. The libel avers that it has been the property of the libellant, and subject to his control; and he now brings it into court to be cancelled; delivered to the owner, or otherwise disposed of as the court shall direct. It seems to me that the libellant is entitled to the relief he seeks. The decree will be entered that the draft or bill of exchange be deposited with the clerk, to be delivered to the owner who is the acceptor; and that the vessel be condemned and sold to pay the libellant the amount of his advances, with interest and costs.