The Two Marys

Citation10 F. 919
PartiesTHE TWO MARYS.
Decision Date06 March 1882
CourtUnited States District Courts. 2nd Circuit. United States District Courts. 2nd Circuit. Southern District of New York

H. B Kinghorn and R. D. Benedict, for libellant.

Scudder & Carter and G. A. Black, for Hawkins, lienor.

BROWN D.J.

This hearing arises upon the report of the clerk, to whom it was referred on December 23, 1879, to take such testimony as might be offered concerning the interest of John P. Hawkins in the schooner Two Marys, and his right to appear as claimant. The claim of Hawkins was filed September 22, 1879 and averred that he was in possession of the schooner at the time she was seized by the marshal on September 17th; that he had been repairing and reconstructing her; that his work was not completed, and the sum of $5,000 was due him. Libellant filed exceptive allegations to this claim, averring that Hawkins had no lien, was not in possession, had surrendered and abandoned her, that nothing was owing him, and that he had no interest in the vessel.

At the time of seizure, Hawkins, and Crowley, the master, each claim to have been in possession. On the twenty-second of September, Hawkins, as claimant, gave a bond for libellant's claim under the act of 1847, and the usual order for the release of the vessel was given on that day and Hawkins received from the marshal a notice to the keeper for the discharge of the vessel. On going aboard he found Crowley already there. A controversy arose, the result of which was that Hawkins was taken away under arrest by a police officer. The keeper of the marshal left the vessel with Crowley aboard.

Upon a subsequent hearing before this court the marshal was ordered to retake possession, on the ground that the process had not been properly executed, (see 10 Ben.) and a reference was ordered to inquire into Hawkins' interest as above stated. Subsequently, on February 12, 1880, Crowley, who was the owner of one-sixteenth and intervened as claimant, gave a bond in the sum of $7,000 to Hawkins for the safe return of the vessel, and was allowed by the court thereupon to receive possession from the marshal. Before the present hearing Crowley died, and subsequent proceedings were had, upon notice to his administratrix and the stipulators on his bond.

The libel was filed on the twenty-fifth of January, 1879, for supplies and materials furnished to the schooner in this, her home port. She was at that time in the ship-yard of Hawkins, undergoing repairs. The process was served upon the vessel and upon Hawkins, but possession was not taken by the marshal. The libellant was at that time owner of five-sixteenths, and the object of filing the libel was shown to be to facilitate his acquiring the interests of the other owners who had dissented to the repairs which the libellant had ordered to be made, and which were then going on in Hawkins' ship yard; while Crowley, the owner of one-sixteenth, was acting in concert with the libellant. Shortly after the libel was filed, the libellant obtained a transfer of the interests of all the other owners for a small sum, except that of one Wheaton, of Philadelphia, the owner of one-sixteenth, who had also protested against the repairs, and who has not intervened in this suit. Hawkins was notified of the intention of McLean to file a libel, and of his purpose in doing so,-- to facilitate the completion of the repairs and of rebuilding, as desired. The work was substantially proceeded with by Hawkins, at the libellant's request, and the vessel launched on August 27th. Her seizure by the marshal on the sixteenth of September was made without prior notice to Hawkins, while some work still remained to be done upon her, and seems to have been designed as a means of cutting off any claim of Hawkins to the possession of her. There was no other person asserting any opposing claim. It is upwards of three years since the action was commenced, and there is no other controversy than that with Hawkins.

The reference and the testimony on it involve substantially all the merits upon Hawkins' side of the case, and a large mass of testimony has been taken. On behalf of the libellant it is claimed (1) that Hawkins never had any lien upon the vessel; (2) that if he ever had such a lien it was lost by surrendering the vessel before the seizure by the marshal on the sixteenth of September.

1. The lien claimed is simply that of a common-law possessory lien by Hawkins, the shipwright, for repairs while in his possession. The libellant contends that he never acquired any common-law lien, for the reason that he was notified by several of the owners, before proceeding with the work, that they protested against the proposed repairs; that, consequently, neither such owners nor their property could be made liable for repairs made against their consent; that no lien could, therefore, bind their interest in the schooner; that there could be no common-law lien upon the interests of part owners only; and that under such circumstances the repairs must be presumed to have been made upon the personal credit of those who ordered them. It is also contended that Hawkins never had such exclusive possession as would sustain a common-law lien.

The vessel was sent by the libellant, about December 1, 1878, to Hawkins' ship-yard at City Island to be repaired, with directions to make first a preliminary examination to ascertain how much repair was necessary. The schooner was hauled on the ways and found to be in need of greater repairs than were anticipated. In February, 1879, after the libellant had acquired almost the entire interest in the vessel, it was determined to substantially rebuild her. Captain Crowley accompanied the vessel to the yard, and remained with her a few days. The mate, Lawrence, in the employ of the libellant, remained with her while the repairs were going on, down to the time of her seizure by the marshal. He slept in the cabin until it was removed in the course of the repairs, and then continued to sleep in it, near by, until he was again put aboard the vessel. His meals were furnished by the libellant. He did such work as was assigned to him by Hawkins upon the schooner, as well as some odd jobs upon other vessels. The work of doing the repairs and rebuilding was under the exclusive management and control of Hawkins. While this was going on, the vessel, in my judgment, must be deemed to have been in the possession of Hawkins sufficient to sustain a common-law possessory lien. The presence of the mate during these repairs, in the pay of the libellant, whether as seaman or assistant, or for any other purpose, in looking after the interest of the libellant, was in no way incompatible with Hawkins' control of the work upon the vessel while in his yard undergoing repairs, or his possession for that purpose; and the same possession is sufficient for a common-law lien. The Schooner Marion, 1 Story, 68, 75.

I do not think it requisite to determine in this case whether necessary repairs upon a domestic vessel in her home port can be made a lien or charge upon her as against the individual interest of an owner who gives express notice of dissent to the shipwright. Part owners of vessels are, for the most part, regarded as tenants in common of other chattels are regarded, neither of whom, at common-law, can bind the others, or the others' interest in the property, except through their consent, expressed or implied. It seems to be settled that a part owner of a vessel who has not authorized repairs is not personally liable for any part of the expense incurred therefor by the direction of the other port owners. Stedman v. Fiedler, 20 N.Y. 437; Brodie v. Howard, 17 C.B. 109. The common lau affords no remedy to one tenant in common of a single indivisible chattel against another part owner who retains it to his own exclusive use. Russell v. Allen, 13 N.Y. 173; Gilbert v. Dickerson, 7 Wend. 449. He is, therefore, not liable for any part of the expense of keeping and repairing it while in the possession and use of the other part owner; nor does the latter have any lien for his charges and expenses. 1 Pars.Shipp. & Adm. 115. Only in case of a destruction of the property or a sale or secret removal of it by one part owner, the other may, at his option, recover in trover the value of his interest as for a conversion; or, at his election, he may treat the vendee as only a co-tenant with himself, and retake and use the property himself, if he can get it, with equal exemption from any liability to account for its use. Wilson v. Reed, 3 Johns. 175; Hyde v. Stone, 9 Cow. 230; White v. Osborne, 21 Wend. 72; Fiero v. Betts, 2 Barb. 633; Tyler v. Taylor, 8 Barb. 585; Dain v. Cowing, 22 Me. 347.

These rude and semi-barbarous incidents of the common law in regard to co-tenants of chattels have necessarily been much modified to meet the exigencies of commerce and the equitable rights of part owners of vessels. A managing owner, or a ship's husband, has a general implied authority to bind all the owners for necessary repairs, unless the party dealing with them have notice of dissent, (Story, Ag. Sec. 40;) and in this country it may be deemed settled that necessary repairs or supplies furnished on the order of...

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