141 F. 945 | 6th Cir. | 1905
having stated the case as above, delivered the opinion of the court.
The questions discussed by counsel may be resolved into the following :
I. Whether the Michigan statute, in its application to such a case as this, is in derogation of the admiralty jurisdiction conferred upon the District Courts of the United States by the Constitution and the judiciary act of 1789. It would be superfluous for us to canvass anew the many decisions of the Supreme Court of the United States upon this general subject. This has been so often done by that court that
It seems to follow by obvious sequence that, in creating liens of this character and conferring upon their own courts the power to enforce them, state legislation does not derogate from the jurisdiction of the admirality courts of the United States. It may be that in its application to ships already engaged in commerce there would be such derogation, and that to that extent its provisions would not be enforceable. But that is no valid reason why the statutes should .not be given effect so far as they may. We have, therefore, no occasion to consider whether the remedy provided by the Michigan statute is to be regarded as one strictly in rem, or as one which, like a proceeding in foreign attachment, contemplates the recovery of a judgment against
2. One ground of defense made by counsel for the plaintiff in error is that the steamer Winnebago was, at the time of her construction and seizure, not intended to be used only in navigating the waters or canals of the state of Michigan; and the question presented and argued is whether the statute intends a vessel exclusively used in navigating the waters of the state, or one which is to be used in such waters, or there and elsewhere, as the business in which she is engaged may require. The construction of the provision of the statute in this regard was presented to the Supreme Court of the state in The City of Erie v. Canfield, 27 Mich. 479, and was decided adversely to the contention which counsel for plaintiff in error now makes; the court holding that the vessel need not be one intended to be exclusively used on the waters of that state. Apparently this settles the question for us, if, as we think, it could make no difference in determining the maritime nature of the transaction, whether the ship was intended to be used wholly in Michigan waters, or elsewhere as well.
3. Another question is presented by the point made that the plaintiff (below) could not recover because it was a subcontractor only, and could not recover, unless there was something due the contractor. But the premise is bad. It rests upon the predicate that the Columbia Ironworks was at work upon, and obtained these materials for, a vessel not its own, but one belonging to the Iroquois Transportation Company; whereas the contrary was the fact. The ownership was in the Columbia Ironworks until she was delivered. This was the ruling made by us in the case of The John'B. Ketchum, supra, upon a contract like that upon which this vessel was built, and we see no reason for reconsidering the point.
4. Again, it is urged that, because the vessel was enrolled and licensed and was already engaged in interstate commerce, the seizure
5. Again, counsel for plaintiff in error contends that the supplies were not furnished on the credit of the vessel, but on the credit of the Columbia Ironworks. The statute declares a lien in favor of the party furnishing material for the building of the ship. But it does not contemplate that credit shall not be given to the owner, or that he shall not be liable personally for the debt. It is possible, no doubt, for the furnisher to waive the lien; but, unless he' does so, the lien exists. The burden of showing the waiver rests upon the party who alleges it. There is nothing in the bill of exceptions which would justify a finding that the lien was waived.
6. It is contended, also that the Michigan statute requires as a condition for a lien that the materials should have been in fact used in and about the construction of the vessel, and that the mere fact that materials were supplied for that purpose is not sufficient. This question was presented in the case of The James H. Prentice (D. C.) 36
7. It appears that, at one time during the course of the transactions, the Columbia Ironworks gave two notes for amounts desired by the defendant in error to use in raising funds. These notes were not for any payment particularly stipulated in the contract, but for arbitrary amounts. The notes were never paid, and were afterwards returned to the maker. There was no evidence which tended to show that these notes were received upon an express agreement that they should be taken as payment, and the presumption is to the contrary. See The Kimball, 3 Wall. 37, 18 L. Ed. 50; The Emily Souder, 17 Wall. 666, 21 L. Ed. 683; The Atlas S. S. Co. v. Columbia Land Co., 102 Fed. 358, 42 C. C. A. 398, and our own decision, Pflueger v. W. Eewis, etc., Co., 134 Fed. 28, 67 C. C. A. 102.
8. As has been stated, the vessel was launched on March 21, 1903. But she was not completed before July 19, 1903. Some of the materials for her construction were furnished in the interim; and it is contended that for these there could be no recovery. This distinction between materials furnished before and after the launching of the vessel was not taken in the court below, and seems to have been an afterthought. However, we are disposed to say that we do> not think it sound. A ship launched, but still in the course of construction, does not become subject to the maritime law, because she rests in the water rather than on land, and does not become so until she is put into use as an agency of commerce, or, at least, until she is fitted for that purpose; and she ceases to possess a maritime character when she is permanently withdrawn from such service. City of Detroit v. Grummond, 121 Fed. 963, 971, 58 C. C. A. 301, and cases there cited.
Our conclusion is that there is no error, and that the judgment should therefore be affirmed, with costs.