The libel in this case was filed against the steamship Poznan by the dock company as the owner of a private wharf under a license issued by the city of New York. The libelant claimed that for wharfage services extended to the vessel there was due to it the sum of $17,462.03, with interest. It asserted that demand of payment had been made, but payment had been negv lected or refused. It prayed that a decree for the amount named might be entered, and that the vessel might be condemned and sold to pay the demand.
It appears that, prior to the filing of the libel above mentioned, the ship had been libeled by Joseph H. Davis and various other libelants, including the John B. Harris Company. These libels were filed for breach of contract of affreightment. By order of the court they were consolidated into one suit, which is hereinafter referred to as the consolidated cause. In that cause a decree was entered in favor of the libelants, the vessel was sold, and the proceeds were paid into the registry of the court. They were insufficient to satisfy the decree.
In the meantime the dock company had *841 filed its libel (the instant ease) which libeled the vessel for wharfage, and the John B. Harris Company intervened, excepted, and later answered to protect its lien obtained in the consolidated cause.
The court below decreed in the instant case that the libelant, the dock company, should recover the sum of $20,325.41. This amount included interest and costs. It ordered and-decreed that this sum constituted a prior lien to that of the John B. Harris Company and the various other libelants in the consolidated cause who filed the earlier libel for breach of the contract of affreightment, and who obtained the decree under which the Poznan was sold, and which resulted in the deposit of the proceeds in the registry of the court. This decree was entered in the instant case on June 17, 1924.
At the time of this suit about $240,000 was left in the registry, being the proceeds of the sale. It is agreed that the libels in the consolidated cause claim damages aggregating about $1,700,000, and that the actual provable damage will exceed the amount left in the registry of the court.
The John B. Harris Company, in its own behalf and that of the other libelants in the consolidated cause which had been previously commenced against the Poznan, appealed from two decrees entered in the suit now before the court. These were:
(1) An interlocutory decree dated July 23, 1923, which decreed that the libelant (the dock company) had an equitable lien upon the proceeds in the registry for the value of its wharfage services, and that this equitable lien had priority to the prior maritime liens against such proceeds of the libelants in the consolidated suit.
(2) The final deeree of June 17, 1924, which decreed that the total sum duo to the libelant (the dock company), including interest and costs, amounted to $20,325.41. And it further decreed that the aforesaid amount constituted a prior lien upon the proceeds of the sale of the ship deposited in the registry of the court, and it directed that the said amount should be paid “and discharged in full out of said proceeds in priority and preference to any payment from said proceeds to John B. Haras Company, the intervener herein, or to the libelants in the said consolidated cause of Joseph II. Davis against the steamship Poznan, her engines, etc., et al., or to either of them; and it is further ordered, adjudged, and decreed that New York Dock Company, the libelant herein, recover of said John B. Harris Company, intervener, such part of the costs heretofore or hereafter taxed herein as shall not be satisfied from the proceeds of said vessel.”
The District Judge, disposing of the libel brought by the dock company, held that, after tlie vessel was arrested, no maritime liens arose against her, and that, in so far as the bill depended upon a maritime lien, it failed. But he held that the dock company, which furnished the wharf, while it did not have a maritime lien on the ship, nevertheless had an equitable claim on the fund in the registry of the court, and that this amounted to an equitable lien against the lienors’ (the John B. Harris Company and various other libelants) rights in the vessel arising after she was in custody. He held that it “was a lien on their liens justifiable in this court only because the court had custody of the vessel under the arrest. That was the holding in The St. Paul (C. C. A.)
It is therefore necessary for this court to determine whether the dock company’s claim against the Poznan for the use of the wharf gave rise to an equitable lien which is entitled to priority over the lien of the John B. Harris Company and the other libelants in the consolidated cause, whose liens arose out of a breach of contracts of affreightment.
No question is raised on this appeal as to the right of shippers to a lien on the ship for the performance of a contract of affreightment. It is a thoroughly established principle of the general maritime law that the vessel is liable in rem for the performance of its agreement for the transportation of goods; the goods having been laden on board. The Bark Edwin,
And in The Esrom,
The question which is here relates to wharfage. And it is not disputed in this case that wharfage accrues when a vessel makes use of a wharf for the purpose of receiving or discharging cargo or passengers, or as a-place for mooring.
Wharves and piers are properly regarded as a necessity of navigation, and as indispensable for ships that they may lie in port in safety, receive and land .their passengers, as well as load and unload their freight. They are necessary for the safety and convenience of commerce and navigation, and are as essential to commerce as are the ships that navigate the adjacent waters. And it has long been settled that wharfage charges constitute maritime liens. In Ex parte Easton,
And in The Shrewsbury (D. C.)
A maritime lien, it has been often said, is a secret one which may operate to the prejudice of general creditors and purchasers without notice. It is therefore regarded stricti juris, and cannot be extended by construction, analogy, or inference. Osaka Shosen Kaisha v. Pacific Export Lumber Co., supra; The Yankee Blade,
It is a right of property and not a mere matter of procedure. The Lottawanna,
Rights arising out of contract are maritime, and so within the admiralty jurisdiction when they relate to a ship as an instrument of commerce, intended to be used as such or to facilitate its use as such. And a contract, express or implied, for wharfage furnished to a vessel is a maritime contract. And in 40 Cyc. 910, it is said that, where wharfage is furnished, “a lien arises therefor enforceable in admiralty, when the wharf-age is furnished in the ordinary course of navigation. But no such lien arises where the vessel has been withdrawn from navigation and is kept at the wharf for the mere purpose of storage.” So in 30 Am. & Eng. Encyc. of Law it is stated that, where a vessel has been “withdrawn from commerce and navigation, and is laid up at a wharf for storage, such wharfage does not constitute a maritime contract of which admiralty has jurisdiction.”
But wharfage charges do not, under all circumstances, constitute a maritime Hen. A maritime lien arises out of a maritime contract or out of a maritime tort. In order that a maritime lien may arise out of contract, the service must in some way be brought into relation with the ship itself, *843 and tend to facilitate her use as an instrument of commerce.
In Hughes on Admiralty (2d Ed.) 22, it is said: “The same transaction may be maritime in one ease and not maritime in another. As emphasizing this distinction, there is the maxim that ‘a ship is made to plough the seas, and not to lie at the walls.’ Hence wharfage rendered to a ship while loading or unloading, or in her regular use as a freight-earning enterprise, is a maritime contract. On the other hand, wharfage to a ship laid np for the winter while waiting for the season to open is not maritime.”
The same distinction is illustrated by the cases which hold that watchmen on a vessel while in port during voyages are regarded as serving under a maritime contract, but those who have charge of her while laid up have no such contract. Erinagh (D. C.)
If the vessel is in custodia legis, she is for the time being withdrawn from navigation, and no maritime lien arises for, wharf-age charges incurred during the period she is so withdrawn. Such a lien arises only when the wharfage is furnished in the ordinary course of navigation. In The C. Vanderbilt (D. C.)
In The Esteban do Antunano (C. C.)
In The Augustine Kobbe (D. C.)
In The Mary K. Campbell (C. C.)
In The Andrew J. Smith (D. C.)
In The Philomena (D. C.)
In The Nisseqogue (D. C.)
In The Astoria,
In Beard v. Marine Lighterage Corporation (D. C.)
A maritime lien arose out of the necessities of commerce. The maritime law recognized the principle that in contracts with a ship’ the ship herself is bound to the performance thereof; the other contracting party being given a lien on the ship herself for breach of the contract. A ship visits places where her owners are not known. The master is not usually of sufficient pecuniary ability to respond to the demands of the voyage, and he is the authorized agent of the owners. As Chief Justiee Marshall said in The United States v. The Schooner Little Charles, Fed. Cas. No. 15,612,
In this ease the wharfage contract was not made with the master of the vessel, but with the owner, the Polish-Ameriean Navigation Company, and the exact amount to be paid and the times of payment were expressly stipulated. The contract was not only made with the owner, but it included something more than wharfage services. It embraced a charge for lights at the rate of $1 per light, per night, for cleaning the pier, plus 10 per cent, and for carting dirt $2.50 per one horse load, and $1.30 for dump ticket when required, and $5 per two horse load, and $2.15 for dump ticket when required. .All of this was additional to the $250 per day which the parties agreed should be charged for the use of the wharf. The bills were not made out against the ship but against the Polish-Ameriean Navigation Company, the owner, and also bills were sent to the United States marshal. Two months after that official had notified the dock company that he •would not assume liability for any charges until he was directed to do so by order of the court, and, the Polish-Ameriean Navigation Company having been slow in making payments, and practically insolvent, the dock company filed its libel against the ship. But it at no time filed the notice claiming a lien against the vessel in the manner provided by sections 80 and 82 of the Lien Law of the state of New York (Consol. Laws, e. 33). The facts in many respects are similar to those in The Advance (D. C.)
A maritime lien arose only where credit was' given to the vessel, not where it was given to the owner or charterers. If- the agreement was made with the owner, unless there
*845
was an express agreement for a lien or the circumstances indicated that the services were rendered or the supplies furnished with the understanding that the ship itself would be responsible, no lien arose. The Valencia,
In The St. Jago de Cuba,
And in The C. W. Moore (D. C.)
The Act of Congress approved June 23, 1910, e. 373, 36 Stat. part I, p. 604, § 1 (Comp. St. § 7783), provided that any person furnishing repairs, supplies, or other necessaries, including the use of dry dock or marine railway, upon the order of the owner shall have a lien on the vessel which may be enforced by a proceeding in rem, and it shall not be necessary to allege or prove that credit was given to the vessel. And the act approved on June 5, 1920, e. 249, 41 Stat. part I, § 30, subsec. (p), p. 1005, repeated the words quoted from the provision in the act of 1910. The only change made was to add in the act of 1920 the word “towage” after the word “supplies.” These acts have undoubtedly enlarged the right to a maritime lien. The United States v. Carver,
The Supreme Court has pointed out that one o£ the objects of the act of 1910 was to do away with the doctrine that, when the owner of a vessel contracts in person for “necessaries,” or is present in the port when they are ordered, it is presumed that the material-man did not intend to rely upon the credit of the vessel, and no lien arises. Piedmont Coal Co. v. Seaboard Fisheries Co.,
The question of what is meant, in the act of 1910, by the words “other necessaries” is discussed in 24 Harvard Law Review, 182, 196, 197, and the opinion was expressed that “wharfage would clearly appear to be brought within the scope of the act by tbie specific enumeration among 'other necessaries’ of the use of a dry dock.” That conclusion is strengthened by the use of the word “towage” in the act of 1920. And see United States v. Certain Subfreights Due Steamship Neponset (D. C.)
This court, in The Muskegon,
The question whether wharfage is a “necessary” within the meaning of the act of *846 1920 was not argued when this case was heard. As it is not important in the view which we take of the ease, we express no opinion concerning it at this time. It is enough for the present purpose that no lien attached while the ship was in custodia legis, which was practically the entire period for which the bill was rendered.-
But, if no maritime lien existed for the wharfage services afforded to the vessel while it was withdrawn from navigation and was in the custody of the United States marshal, as we have held is the ease, is the libelant nevertheless entitled to an equitable lien, and, if so, one which is entitled to priority over the liens of the libelants in the consolidated suit? We confess that at first blush the suggestion strikes us with surprise that, while the wharf owner has no maritime lien during the period the ship was in custodia legis, he nevertheless has an equitable lien, and that such lien is entitled to priority over the maritime lien of the shippers.
The learned judge who decided this ease in the court below relied upon the decision of this court in The St. Paul, 271 E. 265. And counsel at- the argument in this court told us that that ease is on all fours with the case at bar, and'fully sustains the decree below. We do not at all agree with any such conclusion. There is nothing in The St. Paul Case which lends support to the doctrine now contended for. The question which the District Judge decided in the present ease, instead of being as he assumed, the question which was decided in The St. Paul, is precisely the one which was not presented, or litigated, or decided in that-case. The wharf - age in that case was incurred pursuant to an order made by the court, and with the consent of all the libelants. It was made in the only way in which a maritime lien can be validly created against property in custodia legis; namely, by an order of the court. The assignment of errors in The St. Paul contained no reference to the subject of a lien either maritime or equitable; and an examination of the briefs submitted shows that no question-of any kind of lien was in any way discussed therein. There were but two questions before this court in that case: One was whether this court could entertain the appeal ; the other was the amount of wharfage to be paid, and for what period. There is nothing whatever in the opinion as to an equitable lien. The only reference to a lien contained in the opinion is in the following paragraph, which explains why this court thought it had a right to hear the appeal: “The method here pursued is without precedent, and not to be approved as such; but we feel justified in treating the claim as it was below, viz., as a demand for preferential payment, or as an asserted superior lien on the proceeds of the steamship. Consequently a final order refusing (in part) such payment out of, or lien upon, a fund in the registry is the subject of appeal. Trustees v. Greenough,
Strictly speaking, a lien is not either a jus in re or a jus ad rem. It is not a property in the thing itself, nor does it constitute a right of action for the tiling. It rather constitutes a charge upon the thing. Story, in his work on Equity Jurisprudence, vol. 2, § 1215, speaks of equitable liens “by which we 'are to understand, such liens as exist in equity, and of which courts of equity alone take cognizance.” And Bouvier’s Law Dictionary, defining equitable liens, states that they “are such as exist in equity, and of which courts of equity alone take cognizance.” And Pomeroy, in his work on Equity Jurisprudence, vol. 3, § 1334,. speaks of the doctrine of equitable liens as of wide application in administering the rights and remedies “peculiar to equity jurisprudence.”
Courts of admiralty, it is sometimes said, are courts of equity. This is because the principles of equity rather than the strict rules of the common law are those upon which the courts of admiralty act. But it is perfectly clear that a court of admiralty is not a court of equity, and that it is not entitled to draw within its jurisdiction matters. primarily of nonmaritime jurisdiction. United Transportation & Lighterage Co. v. New York & Baltimore Transportation Line (D. C.)
In the separate and concurring opinion of the present writer in The Ada,
In Kellum v. Emerson,
In The Amelia,
In Benedict’s Admiralty (4th Ed.) § 261, it is said: “In the exercise of its appropriate jurisdiction, the court of admiralty exercises equitable, as well as legal jurisdiction. If the subject be of a maritime nature, and so within the power of the court, and be of such a nature that the relief must be in the nature of equitable relief, the court is entirely competent to give the equitable, as well as the legal, relief. It has the capacity of a court of law, and in certain respects, the capacity of a court of equity. * * * It cannot, in a technical sense, be called a court of equity. It is rather a court of justice.”
And this court in The Ada,
In The Eurana, 1 E. (2d)- 684, the Circuit Court of Appeals for the Third Circuit has recently decided that, in the absence of an express agreement therefor, or facts from which it would be implied, a general agent does not have a maritime lien for advances and disbursements made in -behalf of vessels of his principal during his agency. It was pointed out that a maritime lien has its origin in a desire to protect the ship, and that such a lien, being secret and unrecorded, is stricti juris, and cannot be extended by judicial construction, analogy or inference. “Such liens,” said the court, “are an exception to the rule that all creditors have equal rights in the property of their debtor. They rest upon an entirely different principle.” In that case the Pleet Corporation claimed that the funds and fuel oil belonging to it had been used for the benefit of the vessel and/or her owners, and on that account claimed a lien on the vessel or her proceeds. But their claim was denied.
It is no doubt true that a party may by express agreement create a claim on property of which he is the owner or in possession and that in a proper ease a court of equity will establish and enforce it. Pomeroy, in his work on Equity Jurisprudence, vol. 3, par. 1235, states the doctrine as follows: “The doctrine may be stated in its most general form that every express executory agreement in writing, whereby the contracting party sufficiently indicates an intention to make some particular property, real or personal, or fund, therein described or identified, a security for a debt or other obligation, or whereby the party promises to convey or assign or transfer the property as security, creates an equitable lien upon the property so indicated, which is enforceable against the property in the hands not only of the original contractor, but of his heirs, administrators, executors, voluntary assignees and purchasers or encumbrancers with notice. * * * The ultimate grounds and motives of this doctrine are explained in the preceding section; but the doctrine itself is clearly an application of the maxim, equity regards as done that which ought to be done.”
*848
The above doctrine was quoted approvingly, and applied, in Walker v. Brown,
But in the instant ease it does not appear from the agreement made between the dock company, as' owner of the wharf, and the Polish-Ameriean Navigation Company, as the owner of the ship, that any intention existed to make the ship a security for the wharfage and other expenses which were incurred.
In Bispham’s Equity (8th Ed.) § 351, it is said: “In modern times the doctrine of equitable liens has been liberally extended for the purpose of facilitating mercantile transactions, and in order that the intention of parties to create specific charges may be justly and effectually carried out.”
But we find nothing in the facts of this ease which indicates that any intention existed to make the ship a security for the charges incurred, or which took the case out of the rule that, where the ship is in custodia legis,' no lien arises for wharfage services. And if, under those circumstances, no maritime lien arises in admiralty, we certainly 'have no reason for thinking that it arises in equity and that the courts of equity will accord it priority over the maritime liens created by maritime law, to say nothing of its recognition by the courts of admiralty. No decision asserting any such doctrine is known to us. We think it unsupported by authority •and- contrary to principle. The effect of creating an equitable lien and giving it priority over the maritime lien is, in plain language, an attempt to extend the maritime lieni by. construction by not calling it a maritime but an equitable lien. • The courts, have . said many times that a maritime lien is strieti juris, and not to be extended by construction, analogy, or inference. ■ What was decided in •the court below seems, to us to have been wholly unwarranted.
Decree reversed.