The Iris

• Citation: 100 F. 104
• Decision Date: 02 February 1900
• Docket Number: 280.
• Parties: THE IRIS. v. NUTE et al. WOODWORTH
• Court: United States Courts of Appeals. United States Court of Appeals (1st Circuit)

100 F. 104

THE IRIS.

WOODWORTH v. NUTE et al.

No. 280.

United States Court of Appeals, First Circuit.

February 2, 1900

Frederic Dodge (Gaston, Snow & Saltonstall, on the brief), for appellant.

Eugene P. Carver (Edward E. Blodgett, on the brief), for appellees.

Before COLT and PUTNAM, Circuit Judges, and ALDRICH, District Judge.

PUTNAM Circuit Judge.

The principles involved in this case have been so obscured by apparently conflicting decisions that they require thorough consideration, even at the cost of a protracted discussion.

The proceedings out of which this appeal arose grew out of alleged liens given by the Public Statutes of Massachusetts (chapter 192, Sec. 14), as follows:

'When by virtue of a contract, expressed or implied, with the owners of a vessel, or with the agents, contractors, or sub-contractors of such owners, or with any of them, or with a person who has been employed to construct, repair or launch a vessel or to assist therein, money is due 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 the provisions, stores, or other articles furnished for or on account of such vessel in this commonwealth, the person to whom such money is due shall have a lien upon the vessel her tackle, apparel and furniture, to secure the payment of such debt, and such lien shall be preferred to all others on such vessel except that for mariners' wages, and shall continue until the debt is satisfied.'

This statute was under consideration in The Glide, 167, U.S. 606, 17 Sup.Ct. 930, 42 L.Ed. 296, and in the cases in the supreme judicial court of Massachusetts out of which The Glide arose, namely, Atlantic Works v. The Glide, 157 Mass. 525, 33 N.E. 163, and 159 Mass. 60, 34 N.E. 258.

When the labor and materials were furnished for which liens are now claimed, the Iris formed a portion of the personal property domestic to Massachusetts, and was within that state; and, unless there is some peculiar reason to the contrary, she was subject to the control of the local legislature. No reason is suggested why it was not within the privilege of that legislature to create liens to arise out of local contracts with the owner of a domestic vessel, or with one who had control by consent of the owner, to the same extent that it might provide liens on buildings to be erected or repaired, or for labor and materials furnished in the reparation of personal property whose locus was in no sense maritime. Nowhere in the decisions of the supreme court with reference to this topic is there any suggestion that it is not in the power of a state, by legislation which is not retroactive, to impose a lien on a domestic vessel under the same conditions and to the same extent as it may impose liens on other property within its jurisdiction.

On the other hand, in several cases, nearly all of which are cited in The Glide, ubi supra, the power of state legislature in this particular is expressed in unqualified terms. Their general power over personal property domestically situated, with reference to the order of titles and liens, even when the owners are nonresidents, is fully maintained in Green v. Van Buskirk, 5 Wall. 307, 18 L.Ed. 599, and 7 Wall, 139, 19 L.Ed. 109, and in a number of other cases in which the principles of Green v. Van Buskirk have been applied by the supreme court. The rule was especially elaborated and applied in Walworth v. Harris, 129 U.S. 355, 9 Sup.Ct. 340, 32 L.Ed. 712. Accordingly, in The General Smith, 4 Wheat, 438,443,4 L.Ed. 609, cited in The Glide at page 610, 167 U.S. page 931, 17 Sup.Ct., and page 297, 42 L.Ed. it is said, 'But,;n respect to repairs and necessaries in the port or state to which the ship belongs, the case is governed altogether by the municipal law of that state, and no lien is implied unless it is recognized by that law. ' So, in The Planter, 7 Pet. 324, 341, 8 L.Ed. 700, cited in The Glide, at page 611, 167 U.S., page 931, 17 Sup.Ct., and page 297, 42 L.Ed., it is stated as follows: 'If the service was to be performed in a place within the jurisdiction of the admiralty, and the lien given by the local law of the state of Louisiana, it will bring the case within the jurisdiction of the court' (meaning the district court). So, in The St. Lawrence, 1 Black, 522, 529, 530, 17 L.Ed. 180, cited in The Glide, at page 615, 167 U.S., page 933, 17 Sup. Ct., and page 299, 42 L.Ed., Chief Justice Taney said that in The General Smith 'the court held that where, upon the principles of the maritime code, the supplies are presumed to be furnished upon the credit of the vessel, or where a lien is given by the local law, the party is entitled to proceed in rem in the admiralty court to enforce it. ' So, in The J. E. Rumbell, 148 U.S. 1, 12, 13, Sup.Ct. 498, 37 L.Ed. 345, the same unqualified language is used.

By the maritime law, no lien for supplies or labor furnished a vessel is presumed to arise on a contract made by the owner, and proof is required that the minds of the parties to the contract met on a common understanding that such a lien should be created. Neither is it sufficient that the party who furnished the labor or supplies gave credit, so far as his own intentions were concerned, to the vessel, or would not have furnished them except on the belief that he was acquiring a lien for them. In this respect the status is different from what it is with reference to liens for labor and supplies furnished a vessel on the order of her master. This general rule is stated in The St. Jago de Cuba, 9 Wheat. 409, 417, 6 L.Ed. 122; Thomas v. Osborn, 19 How 22, 29, 40, 43, 15 L.Ed. 534; The grapeshot, 9 Wall. 129, 136, 137, 19 L.Ed. 651; The Kalorama, 10 Wall. 204, 214, 215, 19, L.Ed. 944; The Emily Souder, 17 Wall. 666, 671, 21 L.Ed. 683; and The Stroma, decided by the circuit court of appeals for the Second circuit, and reported in 3 C.C.A. 530, 53 F. 281,283. It is expressly stated to the same effect in The Valencia 165 U.S. 264, 270, 271, 17 Sup.Ct. 323, 41 L.Ed. 710.

This distinction has been emphasized with regard to alleged liens for supplies furnished on the order of the charterers of a vessel, especially where there was no apparent necessity for pledging her credit.

The Kate, 164 U.S. 458, 17 Sup.Ct. 135, 41 L.Ed. 512; The Valencia, ubi supra, at page 271, 165 U.S., page 323, 17 Sup.Ct., and page 710, 41, L.Ed.; and The Samuel Marshall, decided by the circuit court of appeals for the Sixth circuit, reported in 4 C.C.A., 385, 54 Fed 396, and cited in The Valencia, at pages 271 and 272, 165 U.S., page 323, 17 Sup.Ct., and page 710, 41 L.Ed. In The Philadelphia and The Baltimore, 21 C.C.A. 501, 75 F. 684, decided by the circuit court of appeals for the First circuit where it was maintained that the facts were similar to those in The Kate and The Valencia, the question which arose in those cases was laid aside, because the court found that the supplies were obtained under such circumstances that they were to be held as furnished in a foreign port on the orders of the master; thus bringing the circumstances within The Patapsco, 13 Wall. 329, 20 L.Ed. 696, and within the supposed hypothetical case stated in The Kate, at pages 470 and 471, 164 U.S., page 135, 17 Sup.Ct., and page 512, 41 L.Ed. In respect to this entire subject-matter, there is a distinction recognized throughout between supplies, on the one hand, and seamen's wages and contracts of affreightment, on the other, as to which liens presumptively arise.

This distinction between supplies ordered by the master and those ordered by the owner was given in detail, and practically applied, in The Regulator, 1 Hask. 17, Fed.Cas.No. 11,665; The Advance (decided by the circuit court of appeals for the Second circuit) 19 C.C.A. 194, 72 Fed 793; The Kalorama, already cited; and The Stroma, already cited.

It is necessary to notice what was said in The Kate, ubi supra, at page 471, 164 U.S., page 140, 17 Sup.Ct., and page 518, 41 L.Ed., to the effect that, though the statute of New York giving a lien was general in its terms, yet, 'reasonably construed,' it was not to be held to 'assume to give a lien where supplies are furnished to a foreign vessel upon the order of the charterer, lith knowledge upon the part of the person or corporation furnishing them that the charterer does not represent the owners, but, by contract with them, has undertaken to furnish such supplies at his own cost. ' The court also at the same place laid aside the question whether, if so interpreted, the statute would not be repugnant to the commerce clause of the constitution. No question of the latter character can arise in this case, because, while the Kate was a foreign vessel at the port where the supplies were furnished her, here the vessel is domestic, and therefore presumably subject to the general rules which we have stated lith reference to the power to affect the title of property domestically located, and to give liens thereon.

It is not necessary to state in detail the undisputed facts of the case, because they are mainly given in the opinion of the learned judge, of the district court. It is sufficient to say that the person holding the legal title to the vessel, who is now the claimant, had given an agreement for her sale for $7,000, of which $3,000 had been paid, and the corporation agreeing to purchase obligated itself to pay the balance. The agreement also provided that the purchasing party might make alterations and repairs 'at the expense' of that party. The repairs permitted were of such a character as to imply that the purchasing party should take possession of the vessel, which it did; and all the supplies and labor in issue were obtained on...