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A treatise on maritime law. Including the law of shipping; the law of marine insurance; and the law and practice of admiralty (Volume 1) online

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not sue in rem for his wages for building a vessel. And in a case before Taney, C. J.,
in the United States Circuit Court of Delaware, cited in Crabbe, 199, it was doubted
whether the rigging of a new vessel came within the views or language of the mari-
time laws which give a lien to material men for repairs. But in Parmlee v. The
Charles Mcars, 1 Newb. Adm. 197, a contract for building a vessel, made with the
owners in another State, was enforced. This question came before the court in a
recent case. People's FeiTy Co. v. Beers, 20 How. 393. The libel was filed against
the vessel in rem to recover the balance due on a contract for building the vessel. The
libellant resided in New Jersey, and the respondent in New York. The vessel was
built in New Jersey and delivered to the owner in New York previous to the bringing
of this action. There was no lien given by any New Jersey statute, and the only
question was whether the contract for building a vessel was of such a maritime nature
that it could be enforced in admiralty. The court said : " The lien attaches toYoreign
ships and vessels only in favor of the carpenter who repairs in a case of necessity, and
in the absence of the owner. It would be a strange doctrine to hold the ship bound, in a
case where the owner made the contract in writing, charging himself to pay by instal-
ments for building the vessel at a time when she was neither registered nor licensed as a
sea-going ship. So far from the contract being purely maritime, and touching rights and
duties appertaining to navigation (on the ocean or elsewhere), it was a contract made
on land, to be performed on land." The case of Cunningham v. Hall, which we have
already referred to, ante, p. 69, was an action in personam against the builder to
recover damages for the breach of an implied contract to build a sea-worthy vessel.



CH. XIV.] MATERIAL MEN AND THEIR LIENS. 499

ing.^ These statute liens take precedence of the claims of all
other creditors.^ But a laborer employed in general work by a
shipwright or mechanic engaged upon the vessel, and who is



"When the case came before iMt circuit court, it was dismissed for want of jurisdiction,
on the ground that the contract was not one of a maritime nature. The decision was
given by Clifford, J., September 6, 1858.

1 The lien given by a State statute to persons building a vessel, has been enforced in
admiralty in numerous cases. The Calisto, Daveis, 29, s. c. nom. Read v. The
Hull of a New Brig, 1 Story, 244; The Hull of a New Ship, Daveis, 199; The
Young Mechanic, Ware, 2d ed. 535, 2 Curtis, C. C. 404; The Kearsarge, Ware, 2d
ed. 546, 2 Curtis, C. C. 421 ; Purinton v. The Hull of a New Ship, Ware, 2d ed.
556, 2 Curtis, C. C. 416; Sewall v. The Hull of a New Ship, Ware, 2d ed. 565;
Davis V. A New Brig, Gilpin, 473. And in The Ship Harriet, Olcott, Adm. 229, and
The Ship Harvest, id. 271, services which were not maritime in their nature, were
enforced in admiralty, as they were made a lien on the vessel by the State law. But
in the above case of the People's Ferry Co. v. Beers, 20 How. 893, the court said :
"It is proper, however, to notice the fact, that district courts have recognized the
existence of admiralty jurisdiction in rem against a vessel to enforce a carpenter's bill
for work and materials furnished in constructing it, in cases where a lien had been
created by the local law of the State where the vessel was built. Thus far, however,
in our judicial history, no case of the kind has been sanctioned by this court." Mr.
Justice Belts has acted upon the above suggestion in a late case by holding that the
lien given by a State statute for building and equipping a vessel could not be enforced
in admiralty. The Sch. Coernine, U. S. D. C, N. Y., 1858, 21 Law Reporter, 343.
A contrary ilecision was given in the case of The Revenue Cutter No. 1, U. S. D. C,
Ohio, 21 Law Reporter, 281. An action was brought i)i rem by a person furnishing
materials to the original contractor, under the statute of Ohio, which gives a lien to
parties building a vessel, and to those who furnish materials for building. The
assignees of the original builders intervened as claimants, alleging a lien by virtue of
their contract with the owner. The court held that as the contract between the
builders and owners was not a maritime contract no lien existed, in their favor ; that
there was no privity of contract between the libellant and the owner, but, for the sup-
plies furnished to the builders a lien was given by the State law which could be en-
forced in admiralty. See post, p. 501, n. 2.

2 The Hull of a New Ship, Daveis, 199 ; Sewall v. The Hull of a New Ship, Ware,
2d ed. 565 ; The Kiersage, 2 Curtis, C. C. 421, 423 ; Dudley v. The Steamboat Superior,
U. S. D. C, Ohio, 3 Am. Law Reg. 622. In The Young Mechanic, Ware, 2d ed.
535, 2 Curtis, C. C. 404, the lien of the material man was preferred to the claim of
one who had lent money to the owner for the purpose of building the vessel, and had
taken a mortgage from the owner. And this, though the person who employed the
libellant was dead, insolvent, and by the laws of the State such a claim was not a
preferred debt. See also, The Revenue Cutter No. 1, U. S. D. C, Ohio, 21 Law
Reporter, 281. In Reeder v. Steamship George's Creek, U. S. D. C, Maryland, 3
Am. Law Reg. 232, the vessel ran between New York and Baltimore. In the summer
of 1854 repairs were put upon her in Baltimore. In December, 1853, she was mort-
gaged by her owners to parties in New York to secure the payment of $30,000. This
mortgage was duly recorded in the office of the collector of customs at the port of
New York where the vessel was enrolled, and also in the office of the register of



500 ON THE LAW OF SHIPPING. [bOOK I.

employed sometimes on the vessel and sometimes elsewhere,
has no lien on the vessel for that part of his labor which is per-
formed upon it.^ The lien given by the maritime law or by a



conveyances for the city of New York. On the 17th ^ October, 1854, a decree wag
passed by the superior court for the city of New York for the sale of the vessel to pay
the mortgage debt. This libel was filed on the 18th of the same month. The court
held that the lien of the material man might still be enforced. The principle recog-
nized in this case that a vessel may be proceeded against, though in the hands of a
bona fide purchaser, is well settled. The Schooner Marion, 1 Story, 68, 72 ; The Barque
Chusan, 2 id. 455 ; Cole v. The Atlantic, Crabbe, 440. In the Barque Chusan, Mr.
Justice Storij said: "The lien, however, which is given by the maritime law on the
ship, although it is, or may be treated as, a permanent or abiding lien upon the ship,
until the debt is paid, as between the original owners, and the material men, and their
personal representatives, is liable to a very different consideration, when the ship has
passed into the hands of a bond fide purchaser, for a valuable consideration, without
notice of the lien. In respect to such a purchaser, the lien must be enforced within a
reasonable time after the debt is due, and the credit, if any, has expired ; otherwise a
court of admiralt)'- will protect him, as a court of equity would do, against the claim
as stale and inequitable. What will constitute a I'casonable time, must depend upon
the circumstances of each particular case, and is not a point susceptible of any definite
or universal formulary of interpretation." It is difficult to reconcile the cases where
the question of the loss of the lien by delay has arisen. See Reeder v. Steamship
George's Creek, and Cole v. The Atlantic, supra, on one side, and Leland v. The
Medora, 2 Woodb. & M. 92, 99; Bryant v. Brig Lillie Mills, U. S. D. C, Mass., 18
Law Reporter, 494; The Utilit.y, Blatchf. &. H. Adm. 218; on the oth^ side. If a
creditor advances money to the builder on a mortgage of the vessel, he succeeds to the
place of the owner, and takes an interest in the vessel subject to the liens of the mate-
rial men. The Kearsarge, Ware, 2d ed. 546.

1 The Calisto, Daveis, 29 ; s. c. Read v. The Hull of a New Brig, 1 Story, 244.
The question has been considerably discussed whether sub-contractors, and' day
laborers, not employed by the owner, master, or consignee, have a lien for work done,
or materials furnished at the request of a person employed by the owner, master, or
consignee. In Maine it is held that such a lien exists, in favor of a person performing
labor on a vessel. Purinton r. The Hull of a New Ship, Ware, 2d ed. 556, 2 Cur-
tis, C. C. 416. But a doubt has been intimated whether a sub-contractor furnishing
supplies would have the same right. The Young Sam, 20 Law Reporter, 608, 610,
per Curtis, J. In the State courts it has been held that a sub-contractor cannot sue
the owner and attach the vessel, but he should sue the person who employed him, and
attach the vessel. Ames v. Swctt, 33 Maine, 479 ; Atwood v. Williams, 40 Maine, 409.
In Doc V. Monson, 33 Maine, 430, an action against the contractor, and the owner as
trustee, was sustained. In Smith v. Steamer Eastern Railroad, 1 Curtis, C. C. 253, it
was held that no lien existed in such a case under the Massachusetts statute of 1848.
But in a subsequent case before Mr. Justice Sprague, it was held that that decision did
not apply to the case of a person furnishing materials to the builder of a ship, he not
knowing that the vessel was owned by another party. Hooper v. The Sam Slick,
U. S. D.'C, Mass., 18 Law Reporter, 162. In Smith v. Steamer Eastern Railroad,
the repairs^wcre made on an old vessel known to be owned by parties other than the
contractors. The Act of 1855, ch. 231, has put the matter at rest by^roviding that a



CH. XIV.] MATERIAL MEN AND THEIR LIENS. 501

State statute may be enforced against the vessel though she is
owned by government, in the same way as if a private citizen
was the owner.^

All persons having a lien on a ship by a State statute, may
enforce it in the State courts ; and there have been many decis-
ions permitting the enforcement of this lien in the admiralty
courts sitting in that district.^ But as the maritime law does not
give a lien, for repairs or supplies furnished to a domestic ship,
the courts of admiralty can enforce the lien only because the
statute gives it ; and in applying the statute and enforcing the
lien, they would doubtless be governed by the terms of that



lien shall exist in all such cases. In the case of Otis v. Brig Whitaker, U. S. D. C,
Mass., 18 Law Reporter, 496, which seems to follow Smith v. Steamer Eastern Rail-
road, it does not appear whether the services were rendered before or after the passing
of the statute, and the vessel was proceeded against as a foreign vessel. But there
can be no doubt that in a case under the statute of 1855, under similar circumstances,
alien would exist. The lien exists in Ohio, "Webster v. Brig Andes, 18 Ohio, 187.
So in Kentucky, unless the owner of the vessel has paid the person who employed the
sub-contractors. Stephens v. Ward, 11 B. Mon. 337. But there is no lien in New
York, Pennsylvania, or Indiana. Hubbell v. Denison, 20 Wend. 181 ; Harper v. The
New Brig, Gilpin, 536 ; Southwick v. Packet Boat Clyde, 6 Blackf. 148. And in
Childs V. Steamboat Brunette, 19 Mo. 518, it was held that a ship-carpenter who con-
tracts to repair a boat and furnish materials is not an agent within the meaning of the
act concerning boats and vessels, and cannot create a lien on the boat in favor of a
party from whom he purchased materials.

1 The Revenue Cutter No. 1, U. S. D. C, Ohio, 21 Law Reporter, 281. In this
case, Wilso7i, J., said : " If the property is legally incumbered by mortgage or other
liens, the transfer of title does not divest it of those incumbrances. In this respect the
government stands upon precisely the same footing as that of individuals. In contro-
versies in courts of justice, involving the rights of property, it has no muniments of
title sanctified by sovereignty which should exempt it from the rules of law governing
individuals in like cases."

2 Peyroux v. Howard, 7 Pet. 324 ; Weaver v. The S. G. Owens, 1 Wallace, Jr.
358 ; Sutton v. The Albatross, 2 id. 327 ; Raymond v. Schooner Ellen Stewart, 5
McLean, C. C. 269 ; The Ferax, U. S. D. C, Mass., 12 Law Reporter, 183 ; Phillips
V. The Thomas Scattergood, Gilpin, 7 ; Hooper v. The Sam Slick, 18 Law Reporter,
162 ; The John Walls, Jr. 12 id. 24. But see ante, p. 498, n. 5. The 12th Admiralty
nile of the Supreme Court provides that there shall be a proceeding in rem in cases of
domestic ships, where by the local law a lieu is given to material men for supplies,
repairs, or other necessaries. The general doctrine, then, that the admiralty has juris-
diction where the State law gives a lien, must be taken as subject to this rule, that the
party claiming the lien must be a material man, and that the lien must be for " sup-
plies, repairs, or other necessaries." It has accordingly been held that although the
law of a State gives a lien to a wharfinger, yet as he is not a " material man," he can-
not enforce his lien in the admiralty. Russel v. The Asa R. Swift, 1 Newb. Adm.
553.



502 ON THE LAW OP SHIPPING. [bOOK I.

statute, and not by the maritime law generally, wherever those
terms were explicit.^ But in construing those terms where
doubtful, they would probably be influenced by admiralty prin-
ciples, which are those of equity, and would doubtless apply
them to a case distinctly before them ; although the case itself
might not come within their jurisdiction, except by force of the
statute.

It has been said that if a person furnishing a foreign ship,
gives credit, the lien is discharged or does not attach, so that a
suit in rem will not lie to enforce it.^ But this is stated too
broadly. The lien is not waived unless the contract contains
stipulations inconsistent with it.^



1 The General Smith, 4 Wheat. 438 ; The Barque Chusan, 2 Story, 455, 462 ; The
Ship Eobert Fulton, 1 Paine, C. C. 620, 626; The Calisto, Daveis, 29, 33; The
Stephen Allen, Blatchf. & H. Adm. 175, 179; Harper v. The New Brig, Gilpin, 536;
Tree v. The Indiana, Crabbe, 476.

2 Zane v. The Brig President, 4 Wash. C. C. 453.

3 Peyroux v. Howard, 7 Pet. 324, 344 ; The Brig Nestor, 1 Sumner, 73, 80 ; Phillips
V. Wright, 5 Sandf. 342. Thus if the duration of the lien is fixed by law, and credit
is given which extends beyond that time, the lien is considered as waived. Peyroux v.
Howard, 7 Pet. 324, 344 ; Remnants in Court, Olcott, Adm. 382 ; Veltman v. Thomp-
son, 3 Comst. 438. But if the credit may expire before the lien, then, whether it is
waived or not, is a question of intention. The Kearsarge, Ware, 2d ed. 546. If credit
is given for a definite time, the lien is suspended till that time expires, but may be
enforced afterwards. The Brig Nestor, 1 Sumner, 73, 85 ; The John Walls, Jr.,
U. S. D. C, Mass., 12 Law Reporter, 24. If a party furnishing materials before the
vessel is completed or named, charges them to the owner on his books, this is no
waiver of the lien, it appearing that he had no intention of relinquishing it. Hooper
V. The Sam Slick, U. S. D. C, Mass., 18 Law Reporter, 162. The giving of a note
does not, as a general thing, amount to a waiver of the lien, and the claim will be
enforced against the ship if the note is surrendered at the trial. The Brig Nestor, 1
Sumner, 73, 86 ; The Bark Chusan, 2 Story, 455, 467 ; Leland v. The Ship Mcdora, 2
Woodb. & M. 92, 100; Raymond v. The Schooner Ellen Stewart, 5 McLean, C. C.
269; Sutton v. The Albatross, 2 Wallace, C. C. 327; The Schooner Active, Olcott,
Adm. 286 ; The Steamer Fashion, U. S. D. C, Mich.-; 18 Law Reporter, 50; Merrick
». Avery, 14 Arkan. 370 ; Steamboat Charlotte v. Kingsland, 9 Mo. 66.



APPENDIX.



APPENDIX.



Two modes of arranging these statutes and statutory provisions have been consid-
ered; one, to place them in tlie chronological order of their enactment; the other, to
group them by their subjects, so that those which relate to the same matter, may be
found together. The latter method has obvious advantages, and has been given up
only because it was found to be open to very serious objections. The most important
•P these arise from the fact that many provisions of great moment are intercalated in
statutes where they have no legitimate place. For example, the enactment against
flogging of seamen is contained — not in a separate section — but in a mere proviso,
in an appropriation bill ! This prevailing want of an arrangement by subjects in the
statutes tliemselves, makes it difficult to arrange them thus in this Appendix. And,
upon the whole, it has seemed best to place them clu-onologically, and facilitate a ref-
erence to them, partly by a list, and much more by a full index of the matters in the
Appendix, which will follow immediately after the Appendix itself.



ACT OF 1789, CHAPTEK IX. (1 U. S. Stats, at Large, 53).

An Act concerning Pilots.

Sec. 4. And be it further enacted, That all pilots in the bays, inlets,
rivers, harbors, and ports of the United States, shall continue to be regu-
lated in conformity with the existing laws of the States respectively
■wherein such pilots may be, or with such laws as the States may respec-
tively hereafter enact for the purpose, until further legislative provision
shall be made by congress.



ACT OF 1790, CHAPTER IX. (I U. S. Stats, at Large, 112).

An Act for the Punishment of certain crimes against the United States.

Sec. 8. And be it further enacted., That if any person or persons shall
commit upon the high seas, or in any river, haven, basin, or bay, out of the
VOL. I. 43



506 APrENDix.

jurisdiction of any particular State, murder or robbery, or any other offence
which if committed within the body of a county, would by the laws of the
United States be punishable with death ; or if any captain or mariner of
any ship or other vessel, shall piratically and feloniously run away with
such ship or vessel, or any goods or merchandise to the value of fifty dol-
lars, or yield up such ship or vessel voluntarily to any pirate ; or if any
seaman shall lay violent hands upon his commander, thereby to hinder
and prevent his fighting in defence of his ship or goods committed to his
trust, or shall make a revolt in the ship ; every such offender shall be
deemed, taken, and adjudged to be a pirate and felon, and being thereof
convicted, shall suffer death ; and the trial of crimes committed on the
high seas, or in any place out of the jurisdiction of any particular State,
shall be in the district where the offender is apprehended, or into which
he may first be brought.

Sec. 9. And be it further enacted, That if any citizen shall commit any
piracy or robbery aforesaid, or any act of hostility against the United
States, or any citizen thereof, upon the high sea, under color of any com-
mission from any foreign prince, or State, or on pretence of authodfc'
from any person, such offender shall, notwithstanding the pretence of any
such authority, be deemed, adjudged, and taken to be a pirate, felon, and
robber, and on being thereof convicted, shall suffer death.

Sec. 10. And he it further enacted, That every person who shall, either
upon the land or the seas, knowingly and wittingly aid and assist, procure,
command, counsel, or advise any person or persons, to do or commit any
murder or robbery, or other piracy aforesaid, upon the seas, which shall
affect the life of such person, and such person or persons shall thereupon
do or commit any such piracy or robbery, then all and every such person
so as aforesaid aiding, assisting, procuring, commanding, counselling, or
advising the same, either upon the land or the sea, shall be, and they are
hereby declared, deemed, and adjudged to be accessary to such piracies
before the fact, and every such person being thereof convicted shall suffer
death.

Sec. 11. And be it further enacted, That after any murder, felony, rob-
bery, or other piracy whatsoever aforesaid, is or shall be committed by
any pirate or robber, every person who knowing that such pirate or rob-
ber has done or committed any such piracy or robbery, shall on the land
or at sea receive, entertain, or conceal any such pirate or robber, or receive
o'r take into his custody any ship, vessel, goods, or chattels, which have
been by any such pirate or robber piratically and feloniously taken, shall
be, and are hereby declared, deemed, and adjudged to be accessary to such
piracy or robbery, after the fact ; and on conviction thereof, shall be im-
prisoned not exceeding three years, and fined not exceeding five hundred
•dollars.



APPENDIX. 507

Sec. 12. And be it further enacted, That if any seaman or other person
shall commit manslaughter upon the high seas, or confederate, or attempt,
or endeavor to corrupt any commander, master, officer, or mariner, to
yield up or to run away with any ship or vessel, or with any goods, wares,
or merchandise, or to turn pirate, or to go over to or confederate with
pirates, or in anywise trade with any pii'ate knowing him to be such, or
shall furnish such pirate Avith any ammunition, stores, or provisions of any
kind, or shall fit out any vessel knowingly and with a design to trade with
or supply or coiTespond with any pirate or robber upon the seas ; or if
any person or persons shall any ways consult, combine, confederate, or
correspond with any pirate or robber on the seas, knowing him to be
guilty of any such .piracy or robbery ; or if any seaman shall confine the
master of any ship or other vessel, or endeavor to make a I'evolt in such
shipf such person or persons so offending, and being thereof convicted,
shall be imprisoned not exceeding three years, and fined not exceeding
one thousand dollars.

Sec. 13. And he it further enacted, That if any person or persons,
within any of the places ujion the land under the sole and exclusive juris-
diction of tlie United States, or upon the high seas, in any vessel belong-
ing to the United States, or to any citizen or citizens thereof, on purpose
and of malice aforethought, shall unlawfully cut off the ear or ears, or
cut out or disable the tongue, put out an eye, slit the nose, cut off the
nose or a lip, or cut off or disable any limb or member of any person,
with intention in so doing to maim or disfigure such person in any the
manners before mentioned, then and in every such case the person or per-
sons so offending, their counsellors, aiders, and abettors (knowing of and
privy to the offence aforesaid) shall, on conviction, be imprisoned not ex-
ceeding seven years, and fined not exceeding one thousand dollars.



ACT OF 1790, CHAPTER XXIX. (1 U. S. Stats, at Large, 131).
An Act for the Government and Refjulation of Seamen m the Merchant Service. •

Section 1. Be it enacted by the Senate and House of Representatives
of the United States of America in Congress assembled, That from and
after the first day of December next, every master or commander of any
ship or vessel bound from a port in the United States to any foreign port,
or of any ship or vessel of the burden of fifty tons or upwards, bound
from a port in one State to a port in any other than an adjoining State,
shall, before he proceed on such voyage, it^ake an agreement in writing or
in print, with every seaman or mariner on board such ship or vessel (ex-
cept such as shall be apprentice or servant to himself or owners) declar-



508 • APPENDIX.

ing the voyage or voyages, term or terms of time, for which such seaman
or mariner shall be shipped. And if any master or commander of such
shiji or vessel shall carry out any seaman or mariner (except apprentices
or servants as aforesaid) without such contract or agreement being first
made and signed by the seamen and mariners, such master or commander
shall pay to every such seaman or mariner the highest price or wages
which shall have been given at the port or place where such seaman or
mariner shall have been shipped, for a similar voyage, within three
months next before the time of such shipping : Provided such seaman or
mariner shall perform such voyage : or if not, then for such time as he
shall continue to do duty on board such ship or vessel ; and shall more-
over forfeit twenty dollars for every such seaman or mariner, one half to
the use of the person prosecuting for the same, the other half to the use
of the United States : and such seaman or mariner, not having signed
such contract, shall not be bound by the regulations, nor subject to the
penalties and forfeitures, contained in this act.

Sec. 2. And he it further enacted, That at the foot of every such con-



Online LibraryTheophilus ParsonsA treatise on maritime law. Including the law of shipping; the law of marine insurance; and the law and practice of admiralty (Volume 1) → online text (page 68 of 99)