115 F. 218 | D. Wash. | 1902
It is shown by the uncontradicted evidence in this case that, while the Robert Dollar was being operated as a carrier of freight and passengers between Seattle and Nome and other places in Alaska, it was necessary for her to replenish her supplies of coal and water at Dutch Harbor, both in going north and returning; that her master did not have money to pay her bills for these necessaries; and that upon his request the libel-ant furnished coal, water, and provisions to the steamer, which were necessary for her use and to feed her passengers and crew; that neither the owner nor charterer had any credit at Dutch Harbor; and said supplies had to be obtained on the credit of the ship. These are the conditions under which, by the maritime law, a lien becomes attached to a ship, and the only semblance of a defense to this part of the case is made upon the ground that by the charter party it was agreed between the owner and the charterer that the latter should pay all the bills incurred in operating the vessel during the period for which she was hired, and should, at the expiration of said period, return the vessel to her owner free from liens. It is not pretended that the libelant had actual knowledge of this stipulation in the charter party; but it is claimed that the fact that the vessel was chartered to the Alaska & Pacific Steamship Company had been announced in newspapers, and was generally known among merchants and shipping men, and that the captain had possession of a copy of the charter party; so that if the libelants had made inquiry they might have become informed with respect to its condi
“In all suits by material-men for supplies, or repairs, or other necessaries, the libelant may proceed against the ship and freight in rem, or against the master or owner alone in personam.”
And no further amendment or modification of the rule has been made. In practice this rule has been construed in harmony with the principle that a suit in rem can only be maintained to enforce a lien, and when there is no lien the remedy of creditors is confined to suits in personam, but the rule is comprehensive in allowing suits in rem to be prosecuted for the collection of debts for supplies, repairs, and other necessaries, when the ship or vessel is subject to a lien, whether that lien is given by a local statute or by the general maritime laws. 19 Am. & Eng. Enc. Law, 1105. I think there is significance in the fact that when the rule was amended the second time, instead of restoring the original phraseology, which limited the application of statutory liens to domestic vessels, the rule was recast entirely, and the words indicating a distinction between domestic ships and foreign ships were omitted.
It has been often asserted, as if it were an axiom, that a state legislature has no power to amend or change the admiralty laws, nor to create a maritime lien; but all the force has been taken out of that idea by the decisions of the supreme court. A summary of the doctrine of the supreme court bearing upon this subject is contained in the opinion of that court by Mr. Justice Gray in the case of The J. E. Rumbell, 148 U. S. 1-21, 13 Sup. Ct. 498-503, 37 L. Ed. 345, and a concise statement of the doctrine is contained in the two paragraphs of that opinion which are here quoted:
“The settled rules of jurisdiction and practice on tbls subject were stated by Mr. Justice Bradley in Tile Lottawanna, as follows: ‘So long as congress does not interpose to regulate the subject, the rights of material men furnishing necessaries to a vessel in her home port may be regulated in each state by state legislation. State laws, it is true, cannot exclude the contract for furnishing such necessaries from the domain of admiralty jurisdiction; for it is a maritime contract, and they cannot alter the limits of that jurisdiction; nor can they confer it upon the state courts, so as to enable them to proceed in rem for the enforcement of liens created by such state laws, for it is exclusively conferred upon the district courts of the United States. They can only authorize the enforcement thereof by common-law remedies, or such remedies as are equivalent thereto. But the district courts of the United States, having jurisdiction of the contract as a maritime one, may enforce liens given for its security, even when created by the state laws.’ 21 Wall. 580, 22 L. Ed. 654. * * * According to the great preponderance of American authority, therefore, as well as upon settled principles, the lien created by the statute of a state, for repairs or supplies furnished to a vessel in her home port, has the like precedence over a prior mortgage that is accorded to a lien for repairs or supplies in a foreign port under the general maritime law, as recognized and adopted in the United States. Each rests upon the furnishing of supplies to the ship on the credit of the ship herself, to preserve her existence and secure her usefulness, for the benefit of all having any title or interest in her. Each creates a jus in re, — a right of property in the vessel, — existing independently of possession, and arising*224 as soon as the contract Is made, and before the initiation of judicial proceedings to enforce it The contract in each case is maritime, and the lien which the law gives to secure it is maritime in its nature, and is enforced In admiralty by reason of its maritime nature only.”
In the case of The Glide, 167 U. S. 606-624, 17 Sup. Ct. 930, 42 L. Ed. 296, Mr. Justice Gray delivered another instructive opinion, reviewing all the previous decisions of the court touching the subject of jurisdiction to enforce state lien laws by proceedings in rem against vessels, and reiterated the declaration that a lien given by a statute of a state to secure a debt created by a maritime contract is for all practical purposes the same as a maritime lien. If a lien upon a ship may not be called a “maritime lien” without offending against accuracy in the use of terms, still the name is not of vita! importance, since the supreme court has affirmed that the nature and effect of liens created by state laws, enforceable in the admiralty courts, are the same as liens which have their foundation in the system of laws commonly known as the general maritime law. Substantially, and for all practical purposes, one kind of a lien is as much a maritime lien as the other. The most arbitrary of the state laws affecting commerce and burdensome upon ships are the compulsory pilotage laws, which authorize licensed pilots to tender their services to vessels, and provide that the pilot first to offer his services to an inward bound vessel may,- if he is not required, and if his services are declined, collect half the compensation which he would have earned if employed. These laws are admitted to be regulations of navigation, and of interstate and foreign commerce; and yet, so long as congress refrains from enacting laws on the subject, these local statutes, and the rights and obligations which they create, may be enforced by the process of admiralty courts. By its decision in the case of Ex parte McNiel, 13 Wall. 236-243, 20 L. Ed. 624, the supreme court in effect affirmed a decree of the United States district court for the Eastern district of New York, which obtained jurisdiction by attaching a foreign ship for half pilot-age fees claimed by the libelant under a New York statute, and the concluding paragraph of the opinion by Mr. Justice Swayne contains the following broad and comprehensive statement of the rule on this subject:
“A state law may give a substantial right of such a character that where there is no impediment arising from the residence of the parties the right may be enforced in the proper federal tribunal, whether it be a court of equity, of admiralty, or of common law.”
See, also, The China, 7 Wall. 53-71, 19 L. Ed. 67; Homer Rams-dell Transp. Co. v. La Compagnie Generale Transatlantique, 182 U. S. 406-417, 21 Sup. Ct. 831, 45 L. Ed. 1155; Huus v. Steamship Co., 182 U. S. 392-397, 21 Sup. Ct. 827, 45 L. Ed. 1146.
In this country suits in rem cannot be maintained to recover damages for a personal injury resulting in death caused by a maritime tort, when there is no local statute creating a lien upon an offending vessel for such damages. The Corsair, 145 U. S. 335-348, 12 Sup. Ct. 949, 36 L. Ed. 727; The Jane Gray (D. C.) 95 Fed. 693; Id., 99 Fed. 582. But the law of the forum, or the law of the country
I cannot hope, and will not attempt, to exhaust the subject in this opinion. All the matters above set forth confirm my belief that foreign vessels are not exempt from liability under the lien law of this state. We must not be blind to the existence of things which are obvious, nor ignore conditions which exist, and it is true in fact that in spite of theories state lien laws have, with the sanction of the supreme court of the United 'States, become ingrafted upon the maritime law administered by the federal courts in this country, and the changes which have been made by the state laws adopted in practice by the federal courts are likely to be permanent. In view of' what has actually taken place, I have no hesitation in holding that vessels which are foreign to the ports of this state are, as to all transactions by their masters, owners, and charterers within this state, subject to the liabilities created by the statutes of this state to the same extent as domestic vessels.
The libel of F. A. Buck & Co. is for the price of liquors and supplies for a bar which was conducted on board the Robert Dollar for the profit of the charterer. It is always optional with the owner of a vessel whether to conduct a bar on board or not, and, as it is not essential to the navigation of the vessel, or to the safety and comfort of passengers, I cannot regard bar supplies as “necessaries” in the sense in which that word is used in the twelfth admiralty rule. Under that rule, material men cannot sue in rem for supplies furnished, other than necessaries. The bill of Frederick & Nelson includes an item of $12 for an ice box, which was required as part of the bar fixtures, and therefore not one of the “necessaries” for the equipment of the ship as a carrier of passengers and freight. This item, and the entire bill of F. A. Buck & Co., must be disallowed. I find from the evidence that all of the other demands of the libelants and the several intervening libelants are for necessary supplies furnished upon the credit of the vessel, and constitute valid liens. A decree will be entered for the several amounts sued for, with interest and costs, except as I have indicated.