Macy v. Remnants

31 F. 840 | U.S. Circuit Court for the District of Southern New York | 1887

Wallace, J.

The result of the decree of the district court is to subordinate the lien of the mortgage of a vessel upon the proceeds in the registry of the court to the subsequent lien of a creditor who brought suit in a state court against one of the joint owners of the vessel, and in that suit caused an attachment to he levied hpon the vessel by the sheriff of the city and county of Now York. This singular and anomalous result has been worked out through a supposed lien upon the vessel, acquired by a wharfinger to-whose wharf the vessel was taken by the sheriff under the attachment. The wharfinger know that the vessel was in charge of the sheriff when she was brought to and while she remained at the wharf. Although wharfage is a maritime contract which creates a maritime lion in favor of the wharfinger against the vessel, it is essential to an hypothecation that the contract be made by some person who has authority to pledge the vessel to the performance of the contract. Very clearly a sheriff who has seized the vessel upon legal process, and resorts to a wharf in order to tie Tier up, and prevent her from completing her voyage, has no such authority. There is nothing in the slate staiute (Consolidation Act, Law's 1882, c. 410, § 798) which, in terms or by implication, makes the vessel liable when she is brought to the wharf on legal process, and is while there in the custody of the law.

The wharfinger could not acquire any lien upon the vessel, and consequently could not upon the proceeds in the registry, unless he did so by the act of the sheriff who brought the vessel to the wharf, and kept her there. In this behalf the sheriff was merely the agent of the attaching creditor. Consequently, if it be assumed that the wharfinger could acquire any interest in the proceeds in the nature of an equitable lien, it could not rank above the lien of the attaching creditor, but should rank as one derived under the attachment. It represents nothing more than the right of the attaching creditor to include in his recovery against the joiut owner whose interest was attached, the expenses of the wharfage as part of the costs or taxable expenses of the suit. If the vessel had been sold on final process in the suit in which the attachment issued, the right of the mortgagee to take possession and exercise his power of sale under the mortgage would not have been impaired. The purchaser on the execution sale would have acquired an interest which would have permitted him to redeem upon tendering the mortgage debt, but the sale could not have prejudiced the mortgagee, or deprived him of the security of the vessel to the full extent of the mortgage debt. Certainly the mortgagee is in no worse plight under the stipulation by which the vessel was sold, and her proceeds brought into the district court, than he would have been if she had been sold upon an execution in the suit of the attaching creditor. The wharfinger must look to the sheriff personally for the wharfage, and the sheriff must look to the attaching creditor. There is no hardship in requiring the wharfinger to look for his wharf-age to the person who brought the vessel to his wharf. Although there is an implied license to vessels upon navigable waters to use such structures in the manner and for the purposes contemplated by their erection, the wharfinger may terminate this general license, or may withhold permission to a particular person. Heaney v. Heeney, 2 Denio, 625; Swords v. Edgar, 59 N. Y. 28.

Inasmuch as the proceeds of the sale in the registry were not sufficient to satisfy the lien of the mortgage, the decree of the district court, in effect, compelled the mortgagee to pay the claim of the attaching creditor against one of the joint owners of the vessel, to the extent of his expenses for wharfage.

The decree of the district court is reversed, with costs of the district court and of this court, to be paid by the appellee.