The Muskegon

275 F. 117 | S.D.N.Y. | 1921

LEARNED HAND, District Judge

(after staling the facts as above). [1] 1 shall assume, without deciding, that the libelants had no notice that the Muskegon was on charter. If so, they may recover, but only in case the Maritime Lien Act of 1910 (Comp. St. §§ 7783-7787) applies. The putative lienor is not bound, whenever he gets an order to supply or serve the ship, to institute an inquiry; else he would never be safe, and the act would be idle. The Yankee, 233 Fed. 919, 926, 147 C. C. A. 593; The Oceana, 244 Fed. 80, 83, 156 C. C. A. 508. Whether it is enough to charge the lienor with notice that he knows the ship to be on charter, and the order to come from the charterer, I need not say. The Yarmouth (C. C. A.) 262 Fed. 250; The George Dumois, 68 Fed. 926, 15 C. C. A. 675. I agree that The Kate, 164 U. S. 458, 17 Sup. Ct. 135, 41 L. Ed. 512, and The Valencia, 165 U. S. 264, 17 Sup. Ct. 323, 41 L. Ed. 710, do not rule that question.

[2] With this fact presupposed, the case raises squarely the question whether services of a master stevedore are “necessaries” within the act of 1910. He stands in a different position from the stevedore himself. He has no lien (The Seguranca [D. C.] 58 Fed. 908), as does the stevedore (The Harrie M. Bain [D. C.] 20 Fed. 389; The Main, 51 Fed. 954, 2 C. C. A. 569). He ranks with repairmen and suppliers of the ship, and must show that he gave credit to the ship, being entitled to the same presumptions. Norwegian S. S. Co. v. Washington, 57 Fed. 224, 6 C. C. A. 313; The Luckenbach, 212 Fed. 388, 129 C. C. A. 64. Yet a lien he may have for the rendition of the services, if the facts warrant the conclusion. In this respect he is quite in the same position as a tower, who may have a lien, and in foreign ports presumptively does have one. The J. Doherty (D. C.) 207 Fed. 997, 1001; The Hatteras, 255 Fed. 518, 166 C. C. A. 586; The Alligator, 161 Fed. 37, 88 C. C. A. 201.

If the act of 1910 was intended to establish rules of proof and procedure for all classes of maritime liens, hoth master stevedoring and towage liens would fall within it. As to master stevedoring, this has been decided by Judge Neterer in The Rupert City (D. C.) 213 Fed. 267-269, and as to towage, by the Circuit Court of Appeals of the Fifth Circuit in The Yarmouth, supra, 262 Fed. 257. The contrary was decided by Judge Veeder in The J. Doherty, supra, and The Hatteras, supra, and the last ruling is of course authoritative in this court. Moreover, Judge Veeder, in The Oceana (D. C.) 233 Fed. 139, appears to have ruled that the statute did not cover master stevedores, though that point was not presented on the appeal. 244 Fed. 80, 156 C. C. A. 508.

This being, for the present, anyway, the fixed law, it seems to me clear that the master stevedore’s lien is in the same class as towage, and that in this circuit the act of 1910 includes neither, whatever may be the rule in the Fifth or the Ninth. The reason why the act has been thought to exclude towage is that the word “necessaries” is to be read ejusdem generis, and includes only the outfitting of the ship, as opposed to her carriage of freight. For this .reason the statute did not affect all maritime liens, but only those which were related in kind to repairs and supplies, except as specifically added. But stowage is as little akin to repairs and supplies as towage. Each is a part of the earning of freight; properly each is a part of the carriage, for the ship must lift her cargo before she can carry it. Hence, if towage is not ejusdem generis with repairs and supplies, I can see no rational distinction between it and stowage or discharge. It must result, therefore, that liens for these remain as they were, unaffected by the act of 1910, and that there was no lien here, since the ship was in her home port.

Whether any of the language of Piedmont Coal Co. v. Seaboard Fisheries Co., 254 U. S. 1, 11, 41 Sup. Ct. 1, 65 L. Ed. -, will be thought to change the ruling in The Hatteras, supra, is not for me to say. It is at best doubtful, for the c.ase was very different. If it be eventually settled that the act of 1910 covers all kinds of liens for work or materials, then of course I shall be wrong; but. for the present I have only to apply the rule as I.find it, and I can see no distinction between the case at bar and The Halteras, supra, which would leave possible an intelligible rule for general application.

The libel is dismissed, with costs.