The Allan Wilde

255 F. 171 | E.D.N.Y | 1918

GARVIN, District Judge.

Two libels for wharfage have been filed, and tbe cases tried together by consent. Tbe contract in each case was made with the libelants by one Novelly, and a question at once arises as to whether claimant is bound by his acts as its agent.

[1, 2] The court is of the opinion that the evidence is sufficient to establish that tbe claimant of the Allan Wilde authorized Novelly to arrange dockage for her so that her cargo might be loaded, the wharf-age to be at the regular rates. The usual rates were those at which Novelly closed the contract. If the claimant had intended Novelly to fix the charge for wharfage on the very much lower basis provided for by chapter 466 of the Laws of 1901, to which reference will be presently made, it should have so indicated, either by reference thereto or by using the expression “rate provided by law,” or its equivalent. Furthermore, the ship accepted the benefit of the arrangement made, and tbe claimant may not receive the benefit of this agreement, and at the same time repudiate the obligations by it raised.

[3] The claimant insists, further, that these contracts for wharfage, which were at $75 and $100 per day, if in fact made by it, are unenforceable, being contrary to law. Chapter 466 of the Laws of 1901 provides:

“Sec. 859. It shall be lawful to charge and receive, within the city of New York, wharfage and dockage at the following rates, namely: From every vessel that uses or makes fast to any pier, wharf, or bulkhead, within said city, or makes fast to any vessel lying at such pier, wharf, or bulkhead, or to any other vessel lying outside of such vessel, for every day or part of a day except as hereinafter provided, as follows: * * * For every vessel over 200 tons burden, two cents per ton for each of the first two hundred tons ■burden, and one-half of one cent per ton for every additional ton. * * * ”

And again:

“Sec. 863. * * * Any person owning or having charge of any pier, wharf, bulkhead, or slip as aforesaid, who shall receive for wharfage any rates in excess of those now authorized by law, shall forfeit to the party aggrieved treble the amount so charged as damages, to he sued for and recovered by the party aggrieved.”

The rate under the statute would be only $4.97 per day.

The court has not been referred to, nor has it found, any decided case which is directly in point; but, unless constrained by authority, it is not disposed to allow a boat under these circumstances to avail itself of wharfage which is worth at least $75 per day for $4.97 per day. The court holds rather that the claimant by its express contracts waived the statute. As Judge Thomas remarks in The Antonio Zambrana (C. C.) 88 Fed. 546:

“The statute is supreme, and confers a right; and unless the person upon whom the right is conferred waives it, by contract or otherwise, a court is technically barred from declaring that the exercise of the right is unlawful.”

Decree for libelant in each case.