7 F. 108 | S.D.N.Y. | 1881
This is a libel brought by a shipwright to recover, against the schooner B. F. Woolsey, a domestic vessel, his charges for repairing. The libel alleges that one Terrell, the master and owner of the vessel, delivered her into the possession of the libellant to be repaired; that repairs were made of the reasonable value of $869.46; that she has at all times remained in his actual possession; and that he has a “common-law lien” upon the vessel for the amount due him; and the libel prays that the vessel be condemned and .sold to satisfy the libellant’s claim. Terrell, the owner, alone appeared to contest the suit. He has set up several 'defences, by exception and answer, which will be severally considered:
1. In the first place, it is objected that the common-law lien or right to hold the thing on which work has been done in possession till payment of the charges incurred does not extend to ships; that it is a right appertaining to particular trades, but existing only where the usage of the particular trade has established it; that it can be proved to exist only by proof of such usage in the particular trade. Doubtless this right originated in usage or custom, at first being established by evidence of the existence of the usage in particular trades, and afterwards being taken notice of as established customary law; and it seems to have been first recognized as existing in favor of persons exercising a quasi public employment as inn-keepers, and the like, who were obliged to render the service; but it has been extended to all artisans bestowing labor on goods, whether they would have been compelled to accept the employment or not. Thus it is said by Chancellor Kent, (2 Com. 635, 12th Ed.:)
“ It is now tlie general rule tliat every bailee for hire, who, by his labor and shill, has imparted an additional value to the goods, has a lien upon the property for his reasonable charges.”
And in the particular case of the shipwright who takes into liis possession the vessel for repairs, and continues to hold it in his possession, the lien is too well established as matter of authority to be opón to dispute. In the case of The Marion, 1 Story, 68, Mr. Justice Story and Judge Davis .
2. It is also objected that the libellant never had such an actual and exclusive possession of the vessel as is necessary to give him this common-law lien. On this point the evidence is that the libellant occupies certain premises adjoining a wharf at City Island, in this port, as a ship-yard for the repair of vessels. The premises are partly his own and partly belong to the town of Pelham, constituting a public or town dock. By an arrangement between him and the town authorities he uses this part of the town property for his own purposes. On Ms own part of the premises is a railway on which he hauls vessels out of the water. Tills vessel was brought to the place by Terrell, the master and owner. She came to anchor, and afterwards was hauled to the premises ordinarily used by libellant as a ship-yard, being moored at first on that part belonging to the town. She was afterwards hauled out on the railway, and again taken off the railway and moored in her former position. I am satisfied by the evidence that the owner surrendered the actual care, control, and custody of the vessel to the libellant. The crew were dismissed, except the cook and the mate, whom the owner wished to retain for future service. The owner and the cook and mate helped the libellant in his work. The cook and the mate slept on board the vessel all the time the repairs were going on, except a short time when the condition of the vessel made it impracticable, and then they slept in a building of libellant on the adjoining wharf. The owner stayed by the vessel and slept on board most of the time, but on Saturdays he went to his home in Brooklyn, returning on Monday morning. The libellant took his directions from the owner as to what repairs were to he made. It is clear from the testimony that the parties understood that the libellant was responsible for
3. It is next objected that the libellant agreed to do the work on a credit of six or eight months without security. If this were so, of course there would be no lien. The agreement would be inconsistent with an intention to retain the vessel till libellant’s bill was paid. On this point the evidence of what conversation took place between the parties is conflicting. The claimant swears to a conversation importing some such agreement. The libellant positively denies it. If forced to determine this point on the relative credibility of the parties, I should find the alleged agreement not proved. There are, however, certain circumstances proved which are entitled to greater weight than testimony of conversations. The conduct of the claimant when the work was done, and payment of the bill demanded, shows clearly, I think, that he did not then understand that he was entitled' to take the vessel away without payment of the libellant’s bill. There being no other obstacle except the non-payment
4. It is also claimed in the answer that the libellant has lost his lien by causing the vessel to be sold at public auction under the judgment in said proceeding in the state court in satisfaction of his pretended lien. That proceeding in the state court has recently been the subject of litigation in this court and in the circuit court, and it has been held that it was void so far as it assumed to affect the title of the vessel for want of jurisdiction in the state court. The B. F. Woolsey, 3 Fed. Rep. 457; 4 Fed. Rep. 552. While, however, the proceeding as a legal proceeding was void for want of jurisdiction, yet it was promoted by an act of the libellant, and the question is whether the sale made under that proceeding has operated to extinguish the lien. The libellant instituted that suit, causod a receiver to be appointed therein, had the interest in the vessel of Terrell, the owner, and Whitehead, a mortgagee, the defendants in the suit, sold at auction under the judgment, and bought it in at that sale, and took a bill of sale from the receiver. The receiver never, in fact, took possession., The actual possession remained with the libellant as before. There was no delivery to him by the receiver except the delivery of the bill of sale. It is to be assumed, of course, now, that no title vested in the receiver, and no title passed by the sale or by the bill of sale. The whole proceeding was a nullity, and inoperative as effecting the title. It has been so declared to have been null and void by the state court in which the suit was brought on motion of this libellant, though against the opposition of this claimant. There was no sale, in fact, of anything, but a mere attempt to sell, which was futile and inoperative. There was the appearance of a sale merely. What was done created no new title, nor vested any new possession in the libellant or in any other person.
5. It is further claimed that the lien was extinguished by the seizure of the vessel by the sheriff, in a suit of replevin brought by this claimant against this libellant, or by her seizure by the marshal under the process of this court. It appears that in January, 1880, this claimant brought a suit of replevin against this libellant to recover the vessel, and the usual requisition to take possession of her was given to the sheriff; that the sheriff, without removing her, or otherwise disturbing the possession of this libellant, put a keeper on board, and maintained a sufficient possession to satisfy the requirements of the replevin suit till some time in March, 1880, when a suit for wages by one Terrill, the mate, was commenced in this court. This suit for wages w'as instigated by this claimant, mid, with his consent, the sheriff abandoned whatever possession be had, to enable the marshal to seize her under his process. Afterwards, a suit for wharfage was commenced in this court by the town of Pelham, and now this present suit to enforce libellant’s lien. The marshal holds the vessel under the several processes in these three actions. As to
6. Finally, it is objected that the court has no jurisdiction to .enforce such a common-law possessory lien; that the lien is a bare right to hold till payment-is made; that it is unaccompanied by any right to have the chattel sold. It is argued that the nature of the right is such that no court will or can give effect to it by a. sale of the property.
Assuming that the right of the libellant was nothing more than the simple common-law possessory lien, and that it is not enlarged or altered in its character by the statute of New York giving lienors a right to have the lien foreclosed by a sale of the chattel, the objection is not well taken. The power of a court of admiralty to order the sale of a vessel does not depend upon the right which the libellant may have to sell her, or cause her to be sold, to enforce his demand. It is a power inherent in the court—an essential part of its jurisdiction—to be exercised in the interest of commerce to extricate the vessel and the parties from the impediments that stand in the way of her legitimate use as an instrument of commerce. See The Anna H. Smith, D. C. S. D. N. Y., Oct. 14, 1878. The precedent of The Marion, ut supra, is sufficient authority for the exercise of the jurisdiction in this case, even if the lien is a mere common-law lien or right to
It is not, however, true, as it seems to mo, that the libellant’s lien is amere common-law possessory lien, without any right to have the vessel sold to satisfy the lien. The state statute, as to all after-made contracts under which a lien would arise at common law, has enlarged the rights of the lienor and given him a lion not merely to hold, hut a lien with the right to have it enforced by a sale of the chattel. Although in the particular case of a maritime contract the proposed remedy fails because the state could not confer on any of its courts jurisdiction to make the sale, yet none the less is the purpose of the statute evident to confer upon the lienor this new and enlarged right. This court has no difficulty in enforcing the right of having the vessel sold to satisfy the lien, and it will give full effect to all the rights intended to be granted to the lienor according to its own method of procedure. If this is the correct view of the statute, then, of course, there is nothing in this objection. A question is suggested in the opinion of the learned circuit judge, (4 Fed. Rep. 558,) whether this statute of New York is not confined to cases of liens where, by the existing law, the lienor had already the right to enforce his lien by sale; the statute being intended to provide a convenient and safe remedy and mode of procedure in such cases. I think, however, that the terms and evident purpose of the statute indicate that it is applicable to simple comm on-law possessory liens, such as that of the shipwright, and that it was intended to give new rights to such lienors, and to provide a remedy for their enforcement. The statute enumerates among the persons within its operation “any innkeeper, hoarding-house
The claimant’s objections to the libellant’s reeoveiy not being well taken, there must be a decree for the libellant.
7. The libellant insists that the judgment in the proceeding in the state court, though void as a proceeding for foreclosure, is yet a conclusive determination of the fact of the existence of the lien and the amount of the debt due to him; that to this extent the remedy given by the statute is a common-law remedy, which the state court had jurisdiction to administer; and therefore, to this extent, the judgment is valid and binding on the parties. If the statute provided for a separate money judgment for the amount of the debt, in addition to the judgment for foreclosure, this argument would seem to be well founded. But it does not do so, nor was such judgment' in fact recovered in the case. It appears to me that the ascertainment of the amount due is incidental, merely, to the chief purpose of the action, which is the foreclosure of the lien; and the court not having jurisdiction to make a decree of foreclosure, the judgment is not binding as to such incidental finding of the amount due. It is true
Decree for the libellant, with costs, and a reference to compute damages.