Summary
In Murray a lien for wharfage was asserted against a vessel which, at the time of the services, lacked proper documentation; whose propelling machinery, pumps and lights were inoperable; and which needed extensive repairs before she could sail.
Summary of this case from Frank B. Hall Co. v. S.S. Seafreeze Atl.Opinion
No. 246, Docket 21306.
May 27, 1949.
Appeal from the United States District Court for the Eastern District of New York.
Libel in rem by James J. Murray against the steamship Meteor for wharfage, wherein Mae Schwartz annd Frances Kay Katowitz intervened as claimants. From a decision for libelant, 78 F. Supp. 637, claimants appeal.
Reversed.
See also 83 F. Supp. 212.
This action was commenced on October 8, 1947, by the filing of a libel in rem against the S.S. Meteor, and the arrest of the vessel. On June 16, 1948, an amended libel was filed, and appellants, who had become owners of the vessel by virtue of the foreclosure of a chattel mortgage, filed their claim on June 17.
The facts are stated in detail in the opinion below, D.C., 78 F. Supp. 637. The libellant seeks to enforce a lien for wharfage for the period between July 1, 1947, and October 7, 1947. Previously the S.S. Meteor had been purchased from the United States while she was lying idle in Norfolk, Virginia, and had been towed to New York. After being berthed briefly at Pier 69, East River, she was towed to libellant's pier at Shooters Island, New York Bay, in the Borough of Richmond. While there, her physical condition was as follows: Her propelling machinery was not in condition to operate; her pumps were disassembled; her auxiliary engines and lighting facilities were inoperable. Before she could resume navigation, extensive repairs would be necessary and she would have to be furnished proper documentation. The trial judge found that she "was not an instrument of commerce, and had been withdrawn therefrom."
The judge also found that § 80 of the New York Lien Law, McK.Consol.Laws, c. 33, created a lien for wharfage, which libellant had properly perfected; he gave judgment for libellant.
Section 80 of the New York Lien Law reads, in part:
"A debt which is not a lien by the maritime law, and which amounts to fifty dollars or upwards, on a sea-going or ocean-bound vessel, or fifteen dollars or upwards on any other vessel shall be a lien upon such vessel, her tackle, apparel and furniture, and shall be preferred to all other liens thereon, except mariners' wages, if such debt is contracted by the master, owner, charterer, builder or consignee of such ship or vessel, or by the agent of either of them, within this state, for either of the following purposes: * * * 3. For wharfing and the expense of keeping such vessel in port, and for the expense of employing persons to watch her."
Mahar Mason, New York City (Frank C. Mason and Anthony J. Randolph, New York City, of counsel), for libellant-appellee.
Bernard Tompkins, New York City, for claimants-appellants.
Before L. HAND, Chief Judge, and AUGUSTUS N. HAND and FRANK, Circuit Judges.
It is conceded that, in the absence of the state statute on which appellees rely, the federal courts have no jurisdiction in admiralty to enforce this lien. A wharfage contract touching a dead ship is not maritime, and a contract which is not maritime cannot create a lien subject to the jurisdiction of admiralty. The Poznan, 2 Cir., 9 F.2d 838, 842-843; Robinson, Admiralty, 180.
The trial court, in full agreement with this proposition, nevertheless decided that there was jurisdiction to enforce the lien, by virtue of § 80 of the New York Lien Law. Even if that statute is by its terms applicable, we think the decision was erroneous. This case comes exactly within The H.E. Willard, C.C., 52 F. 387, 388, 389. There a statute of Maine purported to create a maritime lien on domestic vessels for the payment of debts for labor and materials necessary for their repair, provisions, stores and supplies, and for their wharfage. The libellants were part owners of the vessel; the libel was held to be equivalent to an accounting between the part owners; and Gray, Justice, said, "Nothing is better settled than that matters of account between part owners properly belong to a court of equity, and are not within the general jurisdiction in admiralty." The Maine statute, he said, could not give jurisdiction to the admiralty courts over such matters, for the jurisdiction of those courts was conferred by the Constitution and laws of the United States, and could not be changed by state legislatures. That holding applies with full force here. This case is quite different from those where the federal courts have enforced, in admiralty, maritime rights created by state statutes, such as The Lottawanna, 21 Wall. 558, 579, 580, 22 L.Ed. 654; The J.E. Rumbell, 148 U.S. 1, 12, 13, 13 S.Ct. 498, 37 L.Ed. 345; Just v. Chambers, 312 U.S. 383, 387, 392, 61 S.Ct. 687, 85 L.Ed. 903; and see the discussion in The City of Norwalk, D.C., 55 F. 98, 106. All those cases dealt with subject matters recognized to be maritime in nature.
We do not find it necessary to consider whether Congress could enlarge the admiralty jurisdiction to embrace this case. Cf. Detroit Trust Co. v. Barlum, 293 U.S. 21, 55 S.Ct. 31, 79 L.Ed. 176. Since we decide that the court had no jurisdiction, it is also unnecessary to pass upon appellant's alternative claim, that the Act of June 5, 1920, 46 U.S.C.A. §§ 911 et seq., 975, has superseded § 80 of the New York Lien Law.
The decision must be reversed, without costs, and the libel dismissed.
Reversed.