3 F. 457 | S.D.N.Y. | 1880
Tills is a libel for wharfage against the schooner B. P. Woolsey, which belongs to this port. She is a vessel engaged in commerce not confined to ports within the state of New York. After she was seized by the marshal, upon the process issued in this case, two parties appeared as. claimants, each insisting that he is entitled, as owner, to bond the vessel and defend the suit. The facts respecting their several claims are not disputed. The claimant Daniel H. Terrell is conceded to have been the owner of the vessel. The other claimant is John P. Hawkins. His only title is a bill of sale from a receiver appointed in a suit brought and prosecuted to judgment in a state court; and the question is whether this transfer is valid, and has extinguished the title of Terrell.
The suit in which the receiver was appointed was brought under a statute of New York passed on the eighth day of
The first section provides that any innkeeper, mechanic, workman, or bailee, who shall have a lien upon any chattel property, may commence an action in any court having jurisdiction of the amount of such lien for 'the enforcement and foreclosure .thereof.
The second section provides that such action shall proceed in all respects as civil actions in the court in which the same is commenced..
The third section provides that the judgment in such action may be the same as in other civil actions in the same court, and in addition thereto, if in favor of the plaintiff, may fix the amount of such lien, and adjudge the foreclosure of the same, and the sale of the chattel property affected thereby, and specify the officer who shall make such sale, and in such case shall direct the disposition of the proceeds thereof to the payment of the amount of such lien, with the costs of the .action, and the costs and expenses of such sale, and shall provide for the safe-keeping of any surplus arising thereon, and the payment thereof to the owner of such chattel property, or his assigns or representatives.
The fourth section gives a right of appeal as in other cases.
The fifth section provides that nothing in the act shall be construed to affect or impair the right of any person to enforce or foreclose a lien upon chattel property in any other manner than is therein provided.
Hawkins 'commenced his action in the supreme court of the state, making Terrell, the owner, and one Whitehead, a mortgagee, the defendants. His complaint alleges that he was, at the times mentioned therein, a shipwright, engaged in the business of building and repairing vessels at City Island, New York; that on the twentieth day of August, 1879, the defendant Terrell was the owner of the schooner, and employed the plaintiff to make certain alterations and repairs
The complaint then prays judgment that the defendants he foreclosed of all right, title, and interest or equity of redemption in said schooner, and that she may be decreed to be sold according to law; that out of the proceeds of such sale there be paid to the plaintiff the amount of his said claim, with interest, and the costs of the action, and the expense of keeping the vessel, and that the defendant Terrell be adjudged to pay any deficiency that may remain after the payment of said claim, interest, costs, and expenses, and that the plaintiff have such other and further relief as in the premises may seem just. Both defendants appeared and answered. Terrell admitted his ownership, subject to a mortgage held by Whitehead. He admitted the employment of the plaintiff to do work and make repairs on the schooner, but denied that the plaintiff had possession of the vessel, or had any lien on it for his bill, and denied the value and amount of the work and materials, and set up certain damages by way of set-off or
The only question is whether the state court had jurisdiction, or power and authority, to direct by judgment the sale of the vessel, or, rather, of the defendants’ interest therein; for the proceeding does not purport to be, in a strict sense, a proceeding in rem, — that is, against all the world, — but only a proceeding affecting by judgment and sale the right, title, and interest of the defendants sued in this action.
It has been argued on behalf of the claimant Terrell that the testimony in the case did not show any possession on the part of the plaintiff in the action; that the finding of the court was in respect thereto against the evidence, or without
It is claimed, on behalf of the purchaser Hawkins, that the state court had jurisdiction to order the sale of Terrell’s interest in its judgment in that action. It is conceded that the contract set forth in the complaint in that action, being a contract for the repair of a domestic vessel, is a maritime contract. This has been held alike by the courts of the United States and by the court of appeals of New York. The Josephine, 39 N. Y. 19; Brookman v. Hamill, 43 N. Y. 554; Poole v. Kermit, 59 N.Y. 554-556; The General Smith, 4 Wheat. 438. The fact that the work consisted of alterations as well as repairs cannot make it the less a maritime contract; and the averment in the complaint that the vessel was new, must be taken as qualified by the other averment that before that it was already a vessel which was altered and repaired. This averment cannot make the contract one for building a vessel, which would not bo maritime, although the vessel may be called in one sense now or rebuilt as the result of the alterations and repairs; and I understand that it is not claimed that the contract was not maritime.
No question, also, can be made on the other hand that a mechanic who takes possession of a vessel, and does work on her upon the employment of the owner, has his common-law lien on the vessel, so long as he remains in possession, for the amount of his proper charges, in the same manner that he would have upon any other chattel. That a suit to enforce a maritime contract is within the admiralty and maritime jurisdiction of the district courts of the United States, is also unquestionable; and that jurisdiction is exclusive,
The question, then, is whether the remedy given by the state court, under the act of 1869, is a common-law remedy, which the common law, as understood in the act of congress, was competent to give. I think it entirely clear that the remedy was not a common law remedy, nor one which the common law, so understood, was competent to give. It is too clear for argument that the action is not a common-law action, either in its form or effect, or in the nature of the judgment. It is more in the nature, both in its form and in the character of the remedy given, of a bill in equity' to foreclose a mortgage. The reservation of the act of congress relates to well-known forms of action and remedies, distinguished alike from those prosecuted in rem in courts of admiralty, and from those that are peculiar to courts of equity. Equitable remedies, and those which it was competent for equity to give, are not saved where the suit, is brought for the enforcement of a maritime contract. It is no answer to say that the proceeding is not strictly in rem because it affects only the right or title of certain defendants against whom the suit is brought. That which is saved to the suitor is not all forms of action, and all remedies other than actions and remedies strictly in rem, but only common-law remedies. It is no answer to say that the lien sought to be enforced is not a maritime lien, but strictly a common-law lien. That does not make the new remedy given by this statute a common-law remedy. No lien created by a state law, whether it be by the unwritten and traditional law, which collectively we call the common law, or by express statute, is a maritime lien. Maritime liens are created and exist only by force of the maritime law. The Belfast, 7 Wall. 624-644.
Thus the lien given by state statute to a material man against a vessel is not a maritime lien. Yet a court of
For these reasons I am of opinion that the state court had no jurisdiction in the action brought therein to direct a sale of the vessel under its decree for the purpose of enforcing the plaintiff’s lien. Consequently, the claimant Terrell is alone entitled, as claimant, to bond the vessel and defend.