Broeck v. The John M. Welch

• Decision Date: 22 April 1880
• Citation: 2 F. 364
• Parties: BROECK and another v. THE BARGE JOHN M. WELCH.
• Court: U.S. District Court — Eastern District of New York

2 F. 364

BROECK and another v. THE BARGE JOHN M. WELCH.

United States Circuit Court, E.D. New York.

April 22, 1880

John J Allen, for libellants.

Edward D. McCarthy, for claimants.

BLATCHFORD C.J.

On the 20th of October, 1876, the libellants filed a libel in admiralty, in the district court of the United States for the eastern district of New York, against the barge John M Welch, in a cause of wharfage and dockage. It alleged that the libellants, being the lessees, and in possession of a wharf or pier, at or near the foot of Bank street, in the city of New York, and the slip or basin appertaining thereto and, in accordance with the laws of the state of New York in such behalf made and provided, authorized to collect wharfage and dockage from vessels lying at said wharf or pier, or within said slip or basin, furnished for said vessel a berth which she occupied from including October 9, 1876, to and including October 20, 1876; that thereby there became due and owing to the libellants, from said vessel, $34.20, for wharfage and dockage as aforesaid; that payment thereof was duly demanded of and from said vessel, that said amount is a maritime lien upon said vessel; and is a lien thereupon by the laws of the state of New York; that neither the master nor the owners of said vessel have paid to the libellants the said sum; and that said sum, with interest, is still due to the libellants. On process issued on this libel the vessel was attached. On the return day, James T. Easton and James McMahon appeared and put in a claim to the vessel, and gave stipulation for her value, and then filed an answer containing exceptions. The answer alleged that process of condemnation ought not to issue against said vessel, because-- (1) no maritime lien exists against the vessel, because of the matters set forth in the libel (2) no lien is given for wharfage, against vessels, by any law of the state of New York; (3) the law of the state of New York referred to in the libel as giving a lien for wharfage against boats and vessels, and which law was passed on the sixth day of May, 1870, is void and unconstitutional, for the following reasons: First, it imposes a restriction on commerce; Second, it imposes a duty of tonnage on all vessels of the character and description of the barge John M. Welch; Third, it draws a distinction, which is practical and effectual, between all such barges as the John M. Welch, owned by persons who are not citizens of the state of New York, and the same class of boats owned by citizens of the state of New York, which is done under cover of a nominal distinction between boats or barges plying on the canals, or between ports of the state of New York, and the same class of boats plying between any port of the state of New York and the ports of another state. The answer further set up that, while it was admitted that from the ninth to the twentieth days of October, 1876, the John M. Welch was given inside wharfage at the wharf aforesaid for which wharfage the claimants should pay a reasonable compensation to whomsoever said compensation is legally due, the claimants denied that for the use of said wharf for the period aforesaid, of eleven days, the sum of $34.20, claimed in the libel, is a reasonable and just compensation. It further alleged that seventy-five cents a day, for the use of said wharf by said boat, is a reasonable and just compensation, and the only sum that can be reasonably and lawfully claimed for the wharfage of a barge of the character of the John M. Welch, because it had been the price invariably charged for the wharfage of such boats for many years previous to the year 1870, and still is, and ever since has been, the rate of wharfage per day of the same class of boats as is the John M. Welch, which were engaged in navigating the canals of the state of New York, and were employed upon its rivers.

The foregoing pleadings having been put in, the claimants made an application to the supreme court of the United States for a writ of prohibition, to restrain the district court from exercising jurisdiction of the suit. The application was founded on a petition, which set forth the following matters: The John M. Welch is a vessel of about 209 tons carrying capacity. She is without sails or self-motive power of any kind. She cannot be used independently of extra motive agency. On the twentieth of October, 1876, the day when the process was issued against her, she had completed a trip from the city of Baltimore, bringing a cargo of coal, and forming one of a tow of barges, all under the lead of a steam-tug, which made the trip from Baltimore to New York by way of the Chesapeake and Delaware canal, the Delaware river, and the Delaware and Raritan canal. She reached the port of New York on the tenth of October, 1876. She took wharfage at the pier or wharf at the foot of Bank street, North river, and remained there till the twentieth of the same month. A bill of wharfage was rendered by the libellants, charging for nine days inside wharfage, at $3.60 a day, and for one day outside wharfage, at $1.80 a day, amounting in all to $34.20. The petitioners are, and for many years have been, the owners of a large number of such barges as the John M. Welch, all of them of the same description and character, and of the same tonnage. The petitioners have been engaged in the said business of transportation for nearly 20 years. Some of their boats, during this time, have plied between the ports of Buffalo and New York, by way of the Erie canal and the Hudson river. Others have plied on the Hudson river exclusively, while others, and much the largest number, have plied between Baltimore, Philadelphia and New York, by way of the Delaware and Raritan canal. But all of these boats have been and are of the same class, and the same boats have never exclusively been employed on the same waters. It has been, and still is, a matter of convenience simply whether the same boat should be sent to Baltimore or to Buffalo. From 1870 to 1874 the number of boats or barges thus owned and employed by the petitioners was about 300 each year. From 1874 to the present time the number has been about one-half as large each year. Previous to the year 1870, and, indeed, previous to the year 1875, (for until the year 1875 the distinction of rates of wharfage now complained of was not enforced practically, or, rather, generally,) the wharfage on all these boats or barges, at the port of New York, for the use of New York or Brooklyn wharves, was 50 or 75 cents per day for each boat, according as the boat had inside or outside wharfage. No question was made as to where the boat or barge came from. Her owners were required to pay only 50 or 75 cents per day, for use of the wharf, to the wharf owners. At the present time, and always heretofore, no greater sum is or has been demanded for wharfage of canal boats or barges plying on the canals and rivers of the state of New York than 50 cents or 75 cents per day for each boat. At this rate, the wharfage of the John M. Welch, for the period of 10 days, would have been not more than $5 or $7.50, which is about one-sixth of the amount claimed in the libel. No greater wharfage than $5 or $7.50, for ten days' wharfage, would have been demanded of the owners of the John M. Welch, as the petitioners, from their own experience, know, if the said barge had, on the tenth of October, 1876, completed a voyage from Buffalo to New York, instead of from Baltimore to New York. In respect of the petitioners' own business this distinction of wharfage rates, so far as any accurate calculation can be made, and speaking from the date given by the business transactions of the years from 1870 to 1874, would not be less than $5,000 per year. In the years 1875 and 1876 the distinction would amount to less, because the petitioners' business was lighter then than in the preceding years. For the coming season this distinction may be greater or less than $5,000. As regards the subject of any single lien sought to be enforced in a court of admiralty, the excess of wharfage on any one canal-boat or barge would seldom, if ever, be $50.

The statute of the state of New York as to wharfage and dockage referred to in the libel, is the statute enacted on the sixth of May, 1870. This law was subsequently amended in the years 1872, 1875 and 1876, but its essential feature as to distinction of wharfage between canal-boats plying on the waters of New York state exclusively, and all other canal-boats and barges, has not been changed. 'The same rates as heretofore,' which are required by said statute to be paid by 'all canal-boats navigating the canals in this state, ' are the rates of 50 cents and 75 cents per day for each boat. The district court of the United States for the eastern district of New York, sitting as a court of admiralty, enforces a lien against canal-boats or barges, in causes of wharfage, and in favor of wharf owners, under the provisions of the said law of the state of New York, on one or both of the two following grounds: (1) That the law of the state of New York gives a lien, enforceable in admiralty, for wharfage, at the rate of two cents for every ton up to 200 tons burden, for each day's wharfage, against all canal-boats except those which navigate the canals of the state of New York; (2) that there is a general maritime lien for wharfage against canal-boats, enforceable in admiralty, the amount of which lien is to be determined by the law of the state of New York; that, as to canal-boats navigating the Erie canal, the amount of lien, as so determined, is 50 cents per day; and that, as to the same kind of craft navigating the Delaware and Raritan canal, it is from $3.50 to $4 per day. A lien has been enforced by the said ...