Empire Warehouse Co. v. The Advance
Court | United States District Courts. 2nd Circuit. United States District Courts. 2nd Circuit. Southern District of New York |
Citation | 60 F. 766 |
Parties | THE ADVANCE. v. THE ADVANCE. THE SEGURANCA. THE VIGILANCIA. THE ALLIANCA. EMPIRE WAREHOUSE CO. SAME v. THE SEGURANCA. SAME v. THE VIGILANCIA. SAME v. THE ALLIANCA. |
Decision Date | 27 March 1894 |
Ullo Ruebsamen & Cochrane, for libelants.
Carter & Ledyard and Mr. Baylies, for mortgagee, Atlantic Mut. Co.
The above libels were filed to procure payment out of the proceeds of the vessels above named, which upon their sale have been paid into the registry, for wharfage and for certain gunny bags, and the hire of an engine on the wharf used in the discharge of cargo, and for the engineer's services. The vessels were all owned by the United States & Brazil Mail Steamship Company, and belonged in this port where all the claims in suit arose. The defense is that none of the claims are maritime liens; and that no lien was acquired under the state statute, because no specifications were filed as required by the state law.
The bills for the Advance accrued in January and February, 1893; for the Allianca, from October to February; for the Seguranca, from September to February; for the Vigilancia, from October to February, 1893. The steamship company became insolvent in February, 1893, and a receiver was soon after appointed. These libels were filed in March and April following.
Ever since the decision of Benedict, J., in the case of The Kate Tremaine, in 1871 (5 Ben. 60, Fed. Cas. No. 7,622), it has been the law and practice in this district to recognize a maritime lien for wharfage furnished to domestic vessels, when the wharfage is obtained in the ordinary course of navigation, on the engagement of the master, or officers of the ship. See, also, The Allianca, 56 F. 609, 613. In all cases, however, to sustain a maritime lien, there must be either in fact, or by presumption of law, a credit of the ship; and whenever such credit is negatived by the evidence, no such lien, whether maritime or statutory, will be recognized. The Samuel Marshall, 4 C. C. A. 385, 54 F. 396, 403. In the present case the wharfage was not furnished in the ordinary course of navigation, nor upon the request or upon any contract of the master, or any other officer of the ship. The evidence leaves no doubt that it was furnished in accordance with the terms of an unsigned memorandum of agreement, which had been previously drawn up upon negotiations between the libelant and the president of the steamship company some two years before, though the memorandum was never signed by the parties, through some difference as to the length of time the arrangement should continue, a consideration that in no way affects these cases. This oral agreement governed all the subsequent dealings of the parties, and the bills rendered were in conformity with it.
The agreement provided for the payment of $30 a day for 'the entire use of the Robert pier,' 'for loading and discharging outward and inward cargoes, and also for receiving and storing freight on the pier pending the...
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THE POZNAN, 243.
...80 and 82 of the Lien Law of the state of New York (Consol. Laws, c. 33). The facts in many respects are similar to those in The Advance (D. C.) 60 F. 766, 768. In that case Judge Addison Brown felt constrained to find that no lien existed, among other reasons "the evidence indicates beyond......
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