Mack S.S. Co. v. Thompson

• Decision Date: 08 February 1910
• Docket Number: 1,992.
• Citation: 176 F. 499
• Parties: MACK S.S. CO. v. THOMPSON.
• Court: U.S. Court of Appeals — Sixth Circuit

176 F. 499

MACK S.S. CO. v. THOMPSON.

No. 1,992.

United States Court of Appeals, Sixth Circuit.

February 8, 1910

G. H Eichelberger, for appellant.

Before SEVERENS and WARRINGTON, Circuit Judges, and KNAPPEN District judge.

SEVERENS Circuit Judge.

The Jenks Shipbuilding Company under contract with the appellant the Mack Steamship Company, built during the season of 1903 the steamship F. B. Squire at its works on Black river, an affluent of the St. Clair river. The vessel had been substantially completed, but had not been taken out. She had been launched and inspected, but whether a license had been issued does not appear. Her engines and boilers had been put in, and she had been completed, except that the 'fittings,' as they are called in the record furniture and the like, which the contractors had agreed to supply, had not yet been put on board. These were incidentals which it was customary to put in when the vessel was about to leave. Otherwise she was ready to go. By the terms of the contract, the vessel was to be delivered at the shipbuilding company's works on Black river. She had been paid for, and a bill of sale had been given by the contractor to the owners. But she stayed over winter at the dock of the contractor, and was remaining there, when, on March 12, 1904, the Jenks Shipbuilding Company, being apprehensive of danger to the vessel from the spring freshets, sent the following letter to the managing owner:

'Port Huron, March 12, 1904.

'Mr. Charles O. Jenkins, Cleveland, Ohio.

'Dear Sir: Thinking it might be advisable to move the 'F. B. Squire' out into the river, I ask for your consent. We thought perhaps it might be advisable to have her moved out the first of the week. We haven't had any high water of water up in the country, and it is liable to come down with a sudden rush of water up in the country, and it is liable to come down with a sudden rush and cause some damage. I wish you would wire us on receipt of this if we shall have her moved.

'Yours very truly,

'The Jenks Shipbuilding Company, by A. O. Carpenter.'

On March 15th the managing owner telegraphed the following reply:

'Cleveland, Ohio, March 15, 1904.

'The Jenks Shipbuilding Company, Port Huron, Michigan.

'Shift 'Squire' as per your letter of 12th.

Charles O. Jenkins.'

Black river is a small and rather tortuous stream, and it was customary to take large vessels like the Squire (which was 430 feet long) out by using tugs, one at each end, to manage their course down the stream.

The Jenks Shipbuilding Company on getting the telegram procured tugs of the libelant, which towed the Squire out of Black river and down the St. Clair to a dock called Miller's Coal Dock, where she was laid up. The owner of the tugs presented his bill to the appellant for the towage, and, payment being refused, he filed this libel against the ship to enforce a lien he claimed to have. The owner answered, setting up his claim of title to the steamer, and averring that:

'The said Jenks Shipbuilding Company, for their own convenience and economy, and at their own instigation and acting in their own behalf, caused said vessel to be moved from their shipyard, where the vessel was under contract to be delivered to the Mack Steamship Company, to a place on the Detroit river, and the said libelant at no time acted at the request of the Mack Steamship Company or its agent.'

The proofs were taken in open court, and a decree was awarded to the libelant.

The principal grounds on which the appellant relies are, first, that there was no admiralty jurisdiction; and, second, that the towage was done at the instance and in behalf of the Jenks Shipbuilding Company, and not for the appellant.

It is admitted, and cannot be doubted, that a towage contract is a maritime contract. 1 Conk. Adm. 28, note; The May Queen, Spr. 558, Fed. Cas. No. 9,360; Porter v. The Sea Witch, 3 Woods, 75, Fed. Cas. No. 11,289; The W. J. Walsh, 5 Ben. 72, Fed. Cas. No. 17,922. And, if the contract was made by or on behalf of the appellant and the appellant resided in another state (questions we shall take up later), we suppose it is not doubted that a libel in personam would be a proper remedy, in admiralty against the owner. That seems to be admitted, if the facts are as above supposed. But the stress of the appellant's contention is that the 'Squire' was not a completed vessel, and therefore was not a subject for a maritime lien. And, if the vessel was not so far complete as to come within the range of a general maritime lien, it must be admitted that, if there were nothing more, this libel, which is one in rem, would fail for the lack of any lien upon the vessel. But a Michigan statute supplies this lack. Section 2 of chapter 298 of Compiled Laws of 1897 gives a lien upon watercraft constructed or being constructed for, among other things, 'towage.'

Now, it is the well-settled law of this court and elsewhere that where the admiralty court has jurisdiction of a maritime claim, in this case a charge for towage, under contract with the owner, express or implied, the libelant may as a general rule proceed against the owner in personam; and, if he has a lien upon the vessel towed given either by the general rules of the maritime law or by a local statute, he may proceed in rem. The admiralty court will recognize and enforce by its own procedure a lien given by a local statute for the security of the claim where the provision of the local law does not antagonize or derogate from the principles of the maritime law. This subject was given much consideration and the rules upon which the admiralty court will enforce, as incident to a maritime claim, liens given by state laws, laid down in the case of The Samuel Marshall decided by this court in 1893, 54 F. 396, 4 C.C.A. 385. One of those rules was the one last above stated. And to the like effect are The Lottawana, 21 Wall. 558, 22 L.Ed. 654, The J. E. Rumbell, 148 U.S. 1, 13 Sup.Ct. 498, 37 L.Ed. 345, and The Glide, 167 U.S. 606, 17 Sup.Ct. 930, 42 L.Ed. 296. 'But the District Courts,' it was said in The Lottawana, 'having jurisdiction of the contract as a maritime one may enforce liens given for its security, even where created by the state laws.'

The court below seems to have put its decision upon the ground that the Squire was a completed vessel ready to proceed in its business of navigation on being supplied with certain incidentals which were not a substantive part of the ship. We are not disposed to controvert that conclusion. But the condition of the Squire puts her upon debatable ground, and we prefer to rest our own decision upon the presence of the local statute. The libel is wide enough to enable the court to grant relief upon either ground.

A question is made as to whether towing was done upon the credit of the owner, or is a proper charge against the vessel. If the owner had been a resident of the state, so that it might or should be presumed that the tug company looked to him for payment, it would be open to the appellant to insist that the vessel could not be properly charged. And the decisions on that subject have settled the law to that effect. The testimony is not quite positive on that point. It was not made a ground of defense by the answer, nor does it appear to have been raised upon the trial. Mr. C. O. Spencer was 'managing owner' of the Mack Steamship Company and had his office and place of business at Cleveland, Ohio and the correspondence in this business was conducted by him from that place. It is not shown where the other owners reside. If there was any ground in fact for claiming the benefit of this objection, we should have expected some allegation or proof to sustain it. The objection rests upon an exception to the general rule. We think it should be held that the owners were resident in Ohio. It seems necessary to settle this question and to find ground for settling it in this way; for, if the owner has not a foreign residence, there could be no presumption that a credit for the services was given to the vessel, and the giving credit to the vessel is a condition to the lien which the libelant seeks to enforce, as was held by this court in the case of The Samuel Marshall, 54 F. 396, 4 C.C.A. 385. We notice that the Court of Appeals for the First Circuit in the case of The Iris, 100 F. 104, at page 112, 40 C.C.A. 301, speaks of the statement made in the opinion of this court in the case of The Samuel Marshall to the effect 'that a local lien can be enforced in admiralty only when credit is given the vessel,...