Lever Transp. Co. v. Standard Supply Co.

• Decision Date: 11 November 1920
• Docket Number: 1 Div. 145
• Parties: LEVER TRANSP. CO. et al. v. STANDARD SUPPLY CO.
• Court: Alabama Supreme Court

87 So. 598

205 Ala. 24

LEVER TRANSP. CO. et al. v. STANDARD SUPPLY CO.

1 Div. 145

Supreme Court of Alabama

November 11, 1920

Appeal from Circuit Court, Mobile County; Saffold Berney, Judge.

Bill by the Standard Supply Company against the Mississippi Shipbuilding Corporation and the Lever Transportation Company, to enforce a lien, under section 3085 of the Mississippi Code, for materials and supplies furnished in the construction of a vessel. From a decree overruling demurrers to the bill, respondents appeal. Affirmed.

Harry T. Smith & Caffey, of Mobile, for appellants.

Palmer Pillans and Stevens, McCorvey & McLeod, all of Mobile, for appellee.

THOMAS J.

A bill was filed in Mobile county to enforce a materialman's lien for supplies and materials furnished and used for original construction in the building of the schooner Elizabeth Ruth. A case pertaining to the same vessel and materials furnished and used in its construction at Mobile is Lever Transportation Co. v. Ollinger, 87 So. 597, decided at this term, where the question of jurisdiction under the Alabama statute was declared. The observations made of the Alabama statute (Code, § 4790) under the former construction placed thereon by this court, and its limitation to supplies and materials used in the building and repairs made in the "home port" are without application to the instant suit. The Mississippi court has not so construed the statutes of that state, giving a lien for labor and materials for and used in the original construction of vessels in Mississippi, when the owner resided elsewhere. The enforcement of such lien in Mississippi without regard to the residence of its owner would not conflict with federal laws or jurisdiction, for contracts for shipbuilding are not of a maritime nature. Edwards v. Elliott et al., 88 U.S. (21 Wall.) 532 22 L.Ed. 487; Elliott v. Edwards, 35 N.J.Law, 265; In re Oregon Iron Works, 4 Sawy. 169, Fed.Cas. No 10,562; Davis v. Mason, 44 Ark. 553, 555; Warren v. Kelley, 80 Me. 512, 525, 15 A. 49; Atlantic Works v. Tug Glide, 157 Mass. 525, 528, 33 N.E. 163, 34 Am.St.Rep. 305; Globe Iron Works Co. v. The John B. Ketcham, 2d, 100 Mich. 583, 589, 59 N.W. 247, 43 Am.St.Rep. 464; Andrews v. Durant, 11 N.Y. 35, 62 Am.Dec. 55; Steamer Petrel v. Dumont, 28 Ohio St. 602, 618, 22 Am.Rep. 397; Baizley v. The Odorilla, 121 Pa. 231, 237, 15 A. 521, 1 L.R.A. 505; Keating v. Spink, 3 Ohio St. 105, 62 Am.Dec. 214, and notes. The case of McDonald v. The Nimbus, 137 Mass. 360, 363, holding that no lien can be enforced in the state of Massachusetts for materials furnished and used in the construction of a vessel in another state, is in line with Scatcherd Lbr. Co. v. Rike, 113 Ala. 555, 21 So. 136, 59 Am.St.Rep. 147.

An examination of the foregoing cases discloses that it has been the admitted and recognized rule of federal jurisprudence, since the decision in The General Smith (1819) 4 Wheat. 438, 443, 4 L.Ed. 609, that so long as Congress does not interpose by general law to regulate the subject, the state (although it cannot create a lien and attach it to a service or contract not maritime in its nature and thereby extend the jurisdiction of the United States courts) may extend a lien based upon a maritime service or contract to parties thus furnishing such repairs or necessaries to such vessel; that is, a contract for building a ship or supplying materials for her construction is not a maritime contract and may be enforced in the state court. The Belfast, 7 Wall. 624, 644, 19 L.Ed. 266; The Lottawana, 21 Wall. 558, 580, 22 L.Ed. 654; People's Ferry Co. v. Beers, 20 How. 393, 15 L.Ed. 961; Roach v. Chapman, 22 How. 129, 16 L.Ed. 294; Foster v. The Richard Busteed, 100 Mass. 409, 1 Am.Rep. 125; Wilson v. Lawrence, 82 N.Y. 409. There being no maritime lien for materials and supplies furnished and work done in constructing or building a ship, the state may provide and enforce such lien. The foregoing rule, given statement in Edwards v. Elliott et al., supra, permitting the enforcement of a shipbuilder's lien under the statute of the state, has been followed in The Winnebago, 205 U.S. 354, 27 Sup.Ct. 509, 51 L.Ed. 836; Knapp v. McCaffrey, 177 U.S. 638, 643, 20 Sup.Ct. 824, 44 L.Ed. 921; Rounds v. Cloverport Fdy. & Mach. Co., 237 U.S. 303, 307, 35 Sup.Ct. 596, 59 L.Ed. 966; North Pac. S.S. Co. v. Hall Bros., etc., Co. 249 U.S. 119, 39 Sup.Ct. 221, 63 L.Ed. 510. The act of Congress of June 23, 1910, only affected the state statute as related to repairs on completed vessels, and not for a lien in the construction of vessels. Act Cong. June 23, 1910 (36 Stat. at L. 604 [U.S.Comp.St. §§ 7783-7787]); The Oceana, 244 F. 82, 156 C.C.A. 508; Perkins v. The Golden Girl, 185 Mich. 200, 151 N.W. 660.

The bill set out the statutes of Mississippi (Code 1906, §§ 3080, 3081, 3085, 3086), and the construction of like provisions of the Code of 1880 of that state by the Supreme Court thereof, giving the chancery court jurisdiction to enforce such lien, the justice saying:

"Chapter 55 of the Code of 1880 creates a lien, i.e., a binding charge, on all water craft, good against all the world, and to continue for six months, in which to commence judicial proceedings in the state or United States court according to the exigency. A purchaser without notice during the existence of the lien takes the subject of his purchase cum onere. The lien may be enforced in a chancery court, the appropriate tribunal for enforcing liens. This chapter is entirely separate from and independent of the mechanic's lien law, chapter 53 of the Code, and the lien it creates is not subject to any of the provisions of chapter 53. Its enactment was suggested by the decisions of the Supreme Court of the United States, and the plan adopted to meet them was to create the lien, and leave its enforcement to the appropriate tribunal determinable by the facts of each case." Archibald v. Citizens' Bank of La., 64 Miss. 523, 1 So. 739.

After the adoption of the Code of Mississippi of 1906, containing section 3086, that court, in Kornosky v. Hoyle, 97 Miss. 562, 52 So. 481, said:

"The court below held that chapter 85, Code of 1906, which gives a lien, and a remedy therefor, on water craft for work done or materials supplied in building, repairing, and furnishing the same, was appellant's only remedy for the collection of the amount due him by appellee. In so holding the court erred. At common law the appellant had a possessory lien for work done and materials furnished in repairing the boat, carrying with it the right to hold the same against the owner until his charges were paid. 'It is a principle of the common law that every man who has lawful possession of a chattel upon which he has expended his money,

labor, or skill at the request of its owner, thereby enhancing its value, may retain it as security for his debt. This right extends to all such manufacturers, tradesmen, and laborers as receive chattels for the purpose of repairing or otherwise improving their condition.' 19 Am. & Eng.Ency. of Law (2d Ed.) 8. 'There is a lien at common law for the building of a ship, if the shipwright has not parted with the possession thereof, and the owner's assignee in bankruptcy cannot take the ship without paying all that is due for her construction.' 19 Am. & Eng.Ency. of Law (2d Ed.) 1090. Chapter 85, Code 1906, does not abrogate the common-law right. On the other hand, its purpose is to enlarge the same, and give a better remedy, though not exclusive. The court below should have given the peremptory instruction requested on behalf of the appellant. Under the facts in this record, the appellant is entitled to judgment against the appellee and his bondsman for the return of the boat, or, in lieu thereof, for the amount of his indebtedness, with 6 per cent. interest thereon, from the time it was due, with costs."

The averments of the amended bill as to the contents of the foregoing Mississippi statutes, touching the building, furnishing, and supplying of vessels, so construed are as follows:

" '3085 (2725) Lien Declared.--There shall be a lien on all ships, steamboats and other water craft for work done or materials supplied by any person in this state for or concerning the building, repairing, fitting, furnishing supplying or victualing such ships, steamboats, or other water craft, and for the wages of the persons employed on board such vessel, boat, or craft, for work done or service rendered, in preference to all other debts due and owing from the owners thereof.

" '3086 (2726) How Enforced.--The lien herein provided may be enforced and trial and judgment had in the same manner as the lien for purchase money is enforced under the provisions of the chapter on lien for purchase money of goods.'

"The foregoing statutes hereinabove quoted and set out constitute sections of chapter 85 of the Code of Mississippi of 1906. The 'chapter on lien for purchase money of goods' referred to in section 3086 of the Code of Mississippi quoted and set out in full above is chapter 83 of the said

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