37 F. 209 | E.D. Wis. | 1889
Ln the noted ease of De Lovio v. Boit, 2 Gall. 398, an action in personam upon a marine policy of insurance, decided in 1815, that eminent jurist, Judge Story, delivered an elaborate opinion concerning the jurisdiction of the admiralty. In a masterly review of the decisions of the English common-law courts seeking to restrict that jurisdiction, he showed them to he irreconcilable with any just conception of the admiralty jurisdiction. He challenged the limitation applied by those courts that jurisdiction extended only to causes of action arising “from things done upon the sea,” and asserted the true limitation to be “to things pertaining to the sea.” Ho held that the delegation by the constitution to the judicial power of the United States of all cases of admiralty and maritime jurisdiction “comprehended all marine contracts, whether made or to be executed on land or sea, which relate to the navigation, business, or commerce of the sea.” This doctrine was not finally established by the ultimate judicial authority without conflict. It encountered censure and opposition from both bench and bar. Chancellor Kent, (1 Kent. Comm. 370, note,) indeed, refers to insurance as a thing of settled admiralty jurisdiction; but no less an authority than Chief Justice Taney, in Taylor v. Carryl, 20 How. 615, decided in 1857, characterized the
Within the principle so recognized, and now beyond contention, can a claim for the services rendered by a stevedore in lading the ship or discharging cargo be déemed a maritime contract? The service was formerly done by and as part of the duties of mariners. The necessities of a developed and swelling commerce have superseded old methods, and have substituted a trained and skilled body of laborers, with a view to safe storage and prompt delivery of cargo, and the speedy dispatch’ of the ship. The service is essential to enable the ship to earn freight,—the .sole object for which the ship is constructed and navigated. The contract of affreightment is confessedly maritime. Why are not services -performed in fulfillment of the maritime contract equally maritime? The lading of the vessel or delivery of cargo upon the wharf is as essential an element of the contract as the carriage by sea. Freight cannot be earned without delivery. Ex parte Easton, 95 U. S. 75. It is well said .by Mr. B.enedict (Ben. Adm. § 285) that delivery is the “crowning act of maritime commerce, for which all others labor, and to which all other acts are subordinate, on which the right to freight depends, and which is in fact .the great purpose, and the only ultimate purpose, of a ship.” All acts, therefore, proper to be done in fulfillment of maritime contracts, must.be of a maritime nature, because done with respect to “things pertaining to the sea,” and constituting part of the service contemplated by the maritime contract. They “have reference to maritime service and to maritime transactions.” They are services “touching rights and duties appertaining to commerce and navigation.” The admiralty has cog
It may therefore fairly be said that the decisions denying the maritime nature of a stevedore’s contract all rely upon the views expressed by Judge Betts in The Amstel, and with one exception follow without indorsing them. “It is but one decision, of which the others are the echoes.” 'Judge Betts denies that delivery of cargo is in any sense a maritime service because performed partly on board and partly on shore after voyage ended. He asserts that the gist and foundation of the action in the admiralty is the marine service'. In 1832, in The Gold Hunter, Blatchf. & H. 300, the same learned judge cites approvingly the case of De Lovio v. Boit, and asserts that subjects of a maritime nature are things done upon or in relation to the sea; “in other words, all transactions and proceedings relating to commerce and navigation.” He declares the maritime nature of contracts of affreightment and bills of lading because they concern transportation by sea, “and the whole service
If, then, the contract of affreightment be maritime, T confess my inability to comprehend why services essential to the fulfillment of a maritime contract are not also maritime. Delivery is part of the service contemplated by the parties to the maritime contract of affreightment, and relates to maritime employment, and, as I conceive, conies within the ruling in The Gold Hunter. Naturally, therefore, we find that the decision of Judge Betts in The Amstel and kindred cases is no longer controlling within the district in which he presided. The Windermere; The Hattie M. Bain; and The Scotia, infra. With the exception of Hubbard v. Roach and The Ole Olesen, in which Judge Dyer repudiates the principles of the decisions considered, all the cases save The Ilex, and The E. A. Barnard, were decided before the deliverances of the supreme court in Insurance Co. v. Dunham. As to those two, The Ilex merely followed the prior decisions, without consideration of the principles then lately established by the supreme court, and without expression by Mr. Justice Bradley of his own views upon the subject. The E. A. Barnard likewise followed the older decisions, somewhat under protest, and without consideration of later and controlling authority. The maritime; character of the service has been sustained in The Williams, 1 Brown, Adm. 225, decided in 1873; The George T. Kemp, 2 Dow. 477, decided in 1876; The Senator, 21 Fed. Rep. 191, decided in 1876; The Windemere, 2 Fed. Rep. 722, decided in 1880; The Canada, 7 Fed. Rep. 119, decided in 1881; The Hattie M. Bain, 20 Fed. Rep. 389, decided in 1884; The Scotia, 35 Fed. Rep. 916, decided in 1888; and The Wyoming, 36 Fed. Rep. 495, decided in 1888. All of these cases were subsequent in point of time to Insurance Co. v. Dunham, are largely based upon the principles thereby established, and are the logical result of and accord with the broad and comprehensive spirit of that decision. Analogous eases are not wanting. Thus in The Kate Tremaine, 5 Ben. 60, decided in 1871; The J. H. Starin, 15 Blatchf. 503, decided in 1879; Ex parte Easton, 95 U. S. 68, decided in 1877,—a contract for wharfage is held to be a maritime contract. In rTh,e J. II. Starin a libel in rem for cargo discharged and car.ted over the wharf, and to enforce lien given by state authority, was sustained, because “the use of the wharf pertains to navigation by water to such an extent that the implied contract for wharfage in respect of the goods, may properly be regarded as a maritime contract of benefit to the steamer,” and held to be cognizable and enforceable in the admiralty. In Ex parte Easton it is asserted that accommodations at the port of destination are equally indispensable for the voyage as at the port of departure. Consignments of goods and passengers must be landed, else the carrier is not entitled to freight or fare. In The Emily Souder, 17 Wall. 666, decided in 1873, the court held that custom-house dues, consular fees, and charges for medical attendance upon the crew stood
It does not necessarily follow-, the contract being maritime, that-a lien upon the vessel is allowed. The stevedore stands in no such relation to the ship as a mariper. He is neither bound to like control, subject to like liabilities, nor are his rights so peculiarly protected by statute. His. services are not connected with the navigation of the ship. They are incidental to the execution of the maritime contract of carriage and delivery. He is not, strictly speaking, a material-man, but he stands on the same footing when he has rendered service necessary to the business of the ship. The George T. Kemp, 2 Low. 483. It is established law that material-men furnishing repairs and supplies to a ship in her home port do not acquire any lien by the .general maritime law as received in the United States, notwithstanding the maritime nature of the contract. The Belfast, 7 Wall. 645; The Lottawanna, 21 Wall. 559; Norton v. Switzer, 93 U. S. 366. This proceeds upon the ground that the origin of the maritime lien for supplies and services is based upon the necessities of trading vessels visiting distant localities, where neither the master nor the owners have, credit. Hen. Adm. § 43; The St. Jago de Cuba, 9 Wheat. 409; The Lottawanna, supra, 579. At the home port they are presumed to have been furnished upon the credit of the owner. In the cases cited to sustain the maritime nature of the services performed by stevedores, all, with the possible exception of The Senator, were for services rendered at a port to which the vessel was foreign. In that case the report does not disclose the fact, and no reference is made thereto. In The E. A. Barnard the lien was denied mainly because the services were rendered at the home-port. The George T. Kemp expressly rules that the service, though-maritime, gives no lien to a domestic vessel, unless by the state law. The twelfth rule in admiralty, adopted in 1859, limited proceed
It is believed to be no longer doubtful that executory contracts, maritime in their nature, and within the master’s authority, are within the scope of the admiralty jurisdiction. Whether or not for breach of such contract a remedy in the admiralty is given in rem as well as in personam has been the subject of conflict in the courts. It is unnecessary to consider that question here, since the highest authority determines that, although the state cannot grant jurisdiction to the admiralty, a state may give certain liens on ships for services or supplies in the home port, which the admiralty, the subject-matter being maritime, and within its jurisdiction, will recognize and enforce. The Lottawanna, 21 Wall. 558; Weston v. Morse, 40 Wis. 455. By Rev. St. Wis. § 3348, subd. 3, a lien is constituted on every vessel used in navigating the waters of Wisconsin “for all demands or damages accruing from the non-performance or mal-jierformance of any contract of affreightment, or any contract touching the transportation of persons or property entered into by the master,' agent, owner, or consignee of the” ship, boat, or vessel on which such contract is to be performed.” Executory contracts are manifestly within the provision of this statute. The J. F. Warner, 22 Fed. Rep. 345. It covers the claim of a stevedore for breach ofmontr&et to unload a vessel. This conclusion compels an examination into the merits of the claim of the libelants.
The Gilbert Knapp was owned, one-third by her master, Michael Maloney, and two-thirds by Mr. liazelton, her managing owner, both residents of Kenosha, the home port of the vessel. She arrived at Kenosha on the 17th day of May, 1888, with a cargo of lumber. At this time it is charged by the libelants that they contracted with the master to unload the cargo then in the vessel, and three other cargoes which the master slated the vessel had contracted to deliver at Kenosha, for a certain agreed price for the unloading of each cargo. They assert that under such contract they unloaded three cargoes, and were, without cause, forbidden and prevented from unloading the fourth, by the refusal of the master and owners to accept or allow performance of the contract. This is all denied by the respondents, who affirm that libelants were only employed upon each arrival of the vessel on the first three trips, to unload the particular cargo, and were not employed to unload the fourth cargo. Without entering into details of the evidence, it is satisfactorily established
In view of this conclusion upon the evidence it may be said that inquiry into the maritime nature of stevedores’ services was unnecessary. Possibly that is so: It seemed essential, however, that the obviously correct views upon that subject entertained by my predecessor, Judge Dyer, should hereafter have practical effect given to them in this district, and that they should not be throttled by a supposed weight of authority, which I think a critical examination of the cases does not disclose. At all events, the current of authority now is quite in accord with his expressed views. The rule, therefore, in this district will hereafter obtain as stated, until overborne by superior authority.
The libel will be dismissed, with costs.