Humphreys Railways, Inc. v. F/V NILS S

• Decision Date: 12 December 1984
• Docket Number: Civ. A. No. 84-19-N.
• Citation: 603 F. Supp. 95
• Court: U.S. District Court — Eastern District of Virginia
• Parties: HUMPHREYS RAILWAYS, INC., Plaintiff, v. F/V NILS S, her engines, tackle, etc., in rem, Defendant.

603 F. Supp. 95

HUMPHREYS RAILWAYS, INC., Plaintiff, v. F/V NILS S, her engines, tackle, etc., in rem, Defendant.

Civ. A. No. 84-19-N.

United States District Court, E.D. Virginia, Norfolk Division.

December 12, 1984.

G.W. Birkhead, Vandeventer, Black, Meredith & Martin, Norfolk, Va., for plaintiff.

John D. Padgett, Jett, Agelasto, Berkley, Furr & Price, William B. Eley, Willcox & Savage, R.M. Hughes, Seawell, Dalton, Hughes & Timms, Norfolk, Va., for intervenors.

ORDER

DOUMAR, District Judge.

The plaintiff Humphreys Railways, Incorporated (Humphreys) and intervenors Eirik's Dock (Eirik's), Nils Sletten, and Bernice Isaksen, are parties in this in rem admiralty action brought to enforce various maritime liens against the defendant, a 120 foot fishing vessel called the NILS S. The vessel was arrested and sold at auction by the U.S. Marshal on March 16, 1984 to Mr. Nils Sletten, the owner of a ½ interest in the vessel at the time of the attachment. The resulting fund of $115,000.00 was held by the Court for disbursement to competing claimants. Upon the stipulation of the parties, $33,309.51 was disbursed to Humphreys as compensation for its prior repairs to the NILS S, and $844.50 was disbursed to Eirik's for fuel oil supplied the vessel. A remaining fund of $80,845.99 is being held by the Court with the following maritime claims outstanding in no particular hierarchy:

                                  F/V NILS S
                  1. Humphreys Railways - wharfage fees or custodial
                fees of $100/day as substitute custodian for
                152 days (11-29-83 to 5-1-84)         $30,400.00
                  2. Eirik's Dock wharfage fees at $100/day for
                118 days (4-12-83 to 8-5-83)          $11,800.00
                                                      __________
                                TOTAL CLAIMS:         $42,200.00
                

Mrs. Isaksen, the owner of ½ of this vessel, brought another action against Mr. Sletten, the other ½ owner, seeking to enforce or to claim damages by virtue of an alleged contract of sale. This action resulted in a jury verdict of no contract.

We are here concerned only with the lien claims against the vessel and the corresponding claims against the funds of the vessel after its sale by the Court.

I. EIRIK'S CLAIM

In April 1983, the NILS S was owned by a joint venture or partnership of Mr. Kristian Isaksen and Nils Sletten. Mr. Sletten was the absentee owner and Mr. Isaksen, either for himself, or through his sons, operated the vessel. Mr. Isaksen met his untimely death on April 12, 1983. Mrs. Bernice Isaksen, his widow, inherited and apparently succeeded to his interest in the NILS S. At her husband's death, she asked a friend, Eirik Kirkeberg, owner of Eirik's Dock, if the vessel could be moored at his dock in Wildwood, New Jersey, which he owned and operated. The NILS S had previously been docked at Eirik's in the past and the Kirkebergs and Isaksens evidently had a social relationship. Mrs. Isaksen, a nurse, had previously cared for Mrs. Kirkeberg. With respect to said prior occasions that the vessel was docked at Eirik's, it was not fishing out of nor being repaired there. However, there was no charge for the wharfage.

Mr. Kirkeberg testified that he agreed to allow the NILS S to be docked at his facility upon Mr. Isaksen's death. At the time of its docking, there was no charge set for wharfage. Mr. Kirkeberg felt that he was entitled to a reasonable fee for the wharfage for keeping the vessel, and this Court finds that no specific contract was entered into between Mr. Kirkeberg and Mrs. Isaksen for wharfage.

The vessel remained at Eirik's Dock from April 12, 1983 to August 5, 1983, or a total of 118 days. The Court finds as a fact that there was neither an express written, nor oral agreement, as to a wharfage charge. Indeed, there was no understanding whether a wharfage charge would be charged or when the charge, if any, was to commence or to end. After the death of her husband and the docking of the vessel, Mrs. Isaksen was contemporaneously negotiating with Nils Sletten on a possible sale of her interest therein to Mr. Sletten, or to one of Mrs. Isaksen's sons through Mr. Sletten. Mrs. Isaksen herself, it was indicated, did not desire to operate the vessel, or be in any way responsible for its operation.

In any event, it was agreed by Mr. Sletten and Mrs. Isaksen that the vessel would leave Eirik's Dock in Wildwood, New Jersey, and be transported to Weems, Virginia. The fuel for that trip, by agreement of the parties, was and has been disbursed from the amount of the monies held by the Court. Humphreys' Railways performed certain repairs on the vessel and ultimately brought an attachment on the vessel in this matter. It is Humphreys' attachment for its repairs that ultimately brought about the sale.

After the attachment, Eirik's made a claim for the fuel and claimed $100 per day wharfage charges running from April 12, 1983, the day of Mr. Isaksen's death, until the NILS S left for Weems, Virginia on August 5, 1983. In addition, Eirik's has also claimed 24 percent interest under "custom and usage" for the account since the facility claims it is beyond thirty days overdue.

Mr. Kirkeberg testified that a "laid up" vessel was essentially occupying valuable dock space which would otherwise yield profits. Further, he asserted that no other dock wanted to accept a "laid up" vessel such as the NILS S at any fee because it was a losing proposition. Mr. Kirkeberg testified that in Wildwood, New Jersey, if a vessel wanted to be laid up for one day, and occupy space which would otherwise be working, that it would likely be charged $100 for that particular day. There was no testimony concerning any other normal rates other than that offered by Mr. Kirkeberg which discussed $100 a day for a working day. The testimony overall indicated that there were five working days in a week insofar as wharfage is concerned.

Wharfage contracts are within the maritime jurisdiction of this Court, Ex Parte Easton, 95 U.S. (5 Otto) 68, 24 L.Ed. 373 (1877), and subject to a maritime lien under the general maritime law and the statutory provisions of 46 U.S.C. § 971; The Western Wave, 1935 A.M.C. 985, 77 F.2d 695 (5th Cir.1935), cert. denied, 296 U.S. 633, 56 S.Ct. 156, 80 L.Ed. 450 (1935); 1935 A.M.C. 1444; The William Leishear, 21 F.2d 862 (D.Md.1927). 46 U.S.C. § 971 states:

Persons entitled to lien. Any person furnishing repairs, supplies, towage, use of dry dock or marine railway, or other necessaries, to any vessel, whether foreign or domestic, upon the order of the owner of such vessel, or of a person authorized by the owner, shall have a maritime lien on the vessel, which may be enforced by suit in rem, and it shall not be necessary to allege or prove that credit was given to the vessel.

There was no oral or written contract between the NILS S and Eirik's. On April 12, 1983, Eirik was performing a service out of good neighborliness to his friend and his wife's nurse. On a previous occasion, Eirik had kept the NILS S for a period of approximately two months without any charges whatsoever even though the vessel was not then operating out of his wharf. In this case, the Court finds that Eirik intended to allow the NILS S to remain for a reasonable period of time without charge. By virtue of the previous conduct of the parties, the Court finds that a reasonable period of time without charge would be approximately two months until a period beginning June 12. The Court finds as a fact that Eirik did not expect payment nor did the widow expect to pay, at the inception of the arrangement.

Any contract between the parties would be one implied at law under a quantum meruit theory. Ordinarily, when one person renders services for another which are requested and accepted by him, the law creates an obligation, which is an implied-in-law contract, on his part to pay a reasonable compensation, unless something in the relationship of the parties indicates otherwise. Marine Development Corp. v. Radak, 225 Va. 137, 300 S.E.2d 763 (1983); Burke v. Gale, 193 Va. 130, 67 S.E.2d 917, 919 (1951). The crux of a quantum meruit cause of action lies in the unjust enrichment of one party. Kern v. Freed Co., 224 Va. 678, 299 S.E.2d 363, 363-64 (1983). Merely rendering services alone does not create a contract implied-in-law, nor is such a contract implied when one officiously confers benefits upon another. Weitzel v. Brown-Neil Corp., 152 F.Supp. 540, 549 (N.D.W.Va.1957); United States v. Lias, 154 F.Supp. 955, 958 (N.D.W.Va.1957). See also Annot. 54 A.L.R. 548. Thus, a promise will not be implied by law to pay a lifelong friend and neighbor for unsolicited services as a nurse during a last illness. Teawalt v. Ramey, 103 Va. 42, 48 S.E. 505 (1904). Further, even though one may have benefitted from another's services, the latter cannot recover unless he can show sufficient additional facts that imply a promise to pay. Mullins v. Mingo Lime Co., 176 Va. 44, 10 S.E.2d 492, 494-95 (1940).

This Court finds as a fact that the plaintiff gave and the widow expected gratuitous services for a reasonable time, without compensation under the circumstances of this case at least until June 12. On the 12th of June, the NILS S was accruing benefits and was the recipient of valuable services for which in equity it should pay. Certainly, it is not to be expected that Eirik's would continue indefinitely to provide free services of a valuable nature to this vessel, as it had to be moored at some place or spot, and the widow's testimony buttresses this fact. The Court finds that weekends, that is, Saturdays and Sundays, would not be reasonably charged since no business was conducted then and the testimony during this trial indicates that a five-day week is generally considered a work week even in the fishing industry. Eirik Kirkeberg testified that the charge levied was based on what the dock space would yield in the way of fishing business on a one day basis. This Court has no other basis upon which to find a charge other...