119 Mass. 179 | Mass. | 1875
The St. of 1855, c. 231, § 1, under which the rights asserted in these cases arose, gave a lien upon a vessel whenever by virtue of any contract, express or implied, with her owners, or with any agent or contractor of such owners, or with any person employed to construct, repair or launch her, money was due to any person “ for labor performed, materials used, or labor and materials furnished, in the construction, launching or repairs of, or for constructing the launching ways for, or for pro
1. The words “or labor and materials furnished” were inserted to make it clear that the statute covered the case of a person who did not himself perform the labor or own the materials, but obtained labor or materials from third persons to carry out his contract with the owners or their representative. But the “ labor and materials furnished,” as well as the “ labor performed ” and “ material used,” must be “ in the construction, launching or repairs of, or for constructing the launching ways for ” the ship, The statute does not allow labor and materials, as it does stores and provisions, to be merely furnished “ on account of ” the ship ; and the difference in the language of the two clauses is significant. The statute doubtless includes materials fitted and adapted to be parts of the ship, and accepted as such by the other party to the contract, even if they have not been put in place upon the ship. But it gives no lien for materials which have neither been built upon or attached to her, nor been prepared and fitted for that purpose, and which have not been actually or constructively made part of her. The Antarctic, 1 Sprague, 206. The Peruvian, 3 Ware, 154. Rogers v. Currier, 13 Gray, 129, 132. Barstow v. Robinson, 2 Allen, 605. Jones v. Keen, 115 Mass. 170, 184, 185.
It follows that the petitioners were entitled to liens for so much only of the lumber and plank furnished by them, as was actually used in the construction of the vessel'. Although a small portion of the rest was used in launching her, it does not appear how much in amount or value was so used, and no lien can therefore be sustained because of such use.
2. Neither the allowance of credit in one of the cases, nor the fact that in that case, and in one of the others, the materials were delivered primarily on the credit of the builders, defeated the lien i— no note or security having been taken, and it being clear that in neither case was it the intention to give exclusive credit to the builders, personally. The Nestor, 1 Sumner, 73. The Chusan, 2 Story, 455. The Guy, 9 Wall. 758. The Patapsco, 13 Wall. 329. Jones v. Keen, 115 Mass. 182.
3. The St. of 1855, c. 231, § 2, does not (like the St. 1851, c 343, § 2, under which the case of Lynch v. Cronan, 6 Gray, 531,
It follows that these proceedings were not invalidated by the including in the certificates, in two of the cases, of a claim for the portion of lumber not actually used in the construction of the ship, and which we have therefore held not to be covered by the lien, but which was supplied under each petitioner’s contract in relation to this ship, and to which he might well believe that his lien extended ; nor by the merely clerical error in the certificates, in the other case, in adding up the items of the account, which themselves clearly show the amount of the demand claimed and actually due.
4. The same section provides that the certificate shall be filed “ within four days from the time such ship or vessel shall depart from the port at which she was when the debt was contracted in the office of the clerk of the city or town within which such ship or vessel was at the time the debt was contracted.”
For purposes of the customs, pilotage and navigation, the port of Boston is not limited to the municipal limits of the city of Boston, but includes the opposite shore of Chelsea. U. S. St. 1850, c. 79, § 13. Gen. Sts. c. 52, § 28. Martin v. Hilton, 9 Met. 371. The taking of the vessel in an unfinished state from one part of the port to another was not a departure from port in any sense, and the ship did not “ depart from the port at which she was when the debt was contracted,” until she sailed upon her voyage.
5. The provision that the certificate shall be filed “ within four days from the time ” of her departure, allows it to be filed at any time before the expiration of the four days. Whether it was filed before or after the beginning of the four days is immaterial.
The certificates filed by the petitioners were therefore all that the statute required.
7. The extent of the lien depends upon the terms of the statute which creates it. In each of these cases, interest was not due as part of the debt under the original contract between the petitioners and the builders, and can only be claimed as damages for the neglect to pay. Such damages are not mentioned in the statute, and form no part of the claim secured by the Hen against the ship and her owners. Interest is therefore to be computed only from the filing of these petitions, being the first lawful demands for the enforcement of the Hens against the vessel. Barstow v. Robinson, 2 Allen, 605. It was held in that case that interest could not be computed, in a petition against the vessel to enforce the Hen, from the time of a previous demand, although, as appears by referring to the original biH of exceptions, such demand had been made upon those who then were, and at the time of filing the petition continued to be, the owners of the ship, and although the contractors to whom the goods were furnished had expressly promised to pay interest. The unsuccessful attempt to invoke the jurisdiction of the federal courts can have no greater effect in this respect than a demand in the country upon the parties interested.
In the matter of interest, the practice of courts of admiralty, in the exercise of the discretion incident to their general jurisdiction, can afford no guide to a court of common law, administering a new remedy lonferred and limited by express statute. But it may be doubted whether even a court of admiralty would allow interest before the commencement of the suit in such a case as those now before us. See The Isaac Newton, Abbott Adm. 588, Exceptions sustained.
