The C. Vanderbilt

• Decision Date: 12 April 1898
• Citation: 86 F. 785
• Parties: THE C. VANDERBILT. v. THE C. VANDERBILT. THE NIAGARA. THE AMERICA. THE SYRACUSE. THE BELLE. ROBINSON et al.
• Court: U.S. District Court — Eastern District of New York

86 F. 785

THE C. VANDERBILT. THE NIAGARA. THE AMERICA. THE SYRACUSE. THE BELLE. ROBINSON et al. v. THE C. VANDERBILT.

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

April 12, 1898

Asa F Smith (Frank D. Sturges, of counsel), for libelants.

George M. Van Hoesen (R. D. Benedict, of counsel), for claimants.

THOMAS District Judge.

The boats of the Schuyler Steam Towboat Company, operating between New York and Albany, since 1880, during the closed season of navigation, had laid up at the docks of Jeremiah P Robinson, at the foot of Court street, in Brooklyn. Mr Robinson died in August, 1886, and Jeremiah P. Robinson, his son, and others, his executors, appear as libelants, to enforce alleged liens for wharfage, as hereafter stated. The claimant, the Holland Trust Company, is the trustee of a mortgage dated December 24, 1890, and duly recorded December 26, 1890, covering the boats in question, and given to secure certain bonds held by the trust company and others.

The liens for wharfage are claimed against the following specified boats, for the following specified times:

Vanderbilt from 28th Nov., 1890, to June 9, 1891, 191 days.

Vanderbilt, from 27th July, 1891, to July 29, 1891, 3 days.

Syracuse, from 1st Dec., 1890, to March 28, 1891, 118 days.

Syracuse, from 29th July, 1891, to July 31, 1891, 3 days.

Belle. March 31, April 1-9, and July 31, 1891, 11 days.

America, from 3d Dec. 1890, to May 20, 1891, 169 days.

Niagara, from 27th March, 1891, to 31st July, 1891, 127 days.

The boats occupied berths as follows:

Vanderbilt, No. 1, inside, Nov. 28th to June 9th.

Vanderbilt, No. 1, inside, July 27th to July 29th.

America, No. 2, inside Dec. 3d to May 20th.

Syracuse, No. 3, inside Dec. 1st to March 28th.

Syracuse, No. 1, inside July 29th, 30th, and 31st.

Niagara, No. 3, inside March 27th to 30th.

Niagara, No. 1, outside, March 30th, to June 9th.

Niagara, No. 2, outside, June 9th to July 31st.

Belle, No. 3, inside, March 31st to April 9th.

Belle, No. 1, inside July 31st.

Although the boats had for several years laid up at these docks, and the libelants presumptively had the books and records of the owners thereof relating thereto, they produced no evidence, verbal or written, of the transactions between the parties previous to the season of 1890-91, nor any evidence, save as hereinafter mentioned, of the arrangement for the season of 1890-91. The libelants, however, did prove the following: That on November 28, 1890, the Schuyler Towboat Company, being unable to pay wharfage for the boats America, Syracuse, Vanderbilt, Niagara, and Belle, for a time previous to such date, but when does not clearly appear, gave notes for such indebtedness, and that at least one of such notes was renewed in whole or part on or about May 20, 1891, and that coincident with such renewal the following paper was executed:

'This note is given in renewal of a previous note for $1,409.00, dated Nov. 28th, 1890, which was given for wharfage of the steamboats America, Syracuse, Vanderbilt, Niagara, and Belle, said wharfage constituting a lien upon said steamboats.

'Albany, May 20th, 1891.

Schuyler Steam Towboat Company, 'Samuel Schuyler, President.'

The libelant Jeremiah P. Robinson testifies that Mr. Vosburgh, representing the Schuyler Company, when the note of November 28, 1890, was given, agreed that he would give the libelants a writing stipulating that they should not lose the lien for legal wharfage after having taken the note, or from taking the notes; that such agreement was reduced to writing, and was similar to that of May 20, 1891. On rebuttal, the same witness testified that, in connection with the giving of the notes for previous wharfage, one of which is mentioned above--

'Mr. Vosburgh asked us to take notes for the wharfage due. I declined to do it. He urged that we should take notes, as they were unable to pay cash, and he said we had our legal lien for wharfage on the boats, double wharfage for that matter, if the notes were not paid; and I told him that I would take the notes on that condition, that we should not lose our lien for wharfage according to law, which would be double wharfage, if it was not paid on demand.'

The witness also stated that Mr. Vosburgh wrote a letter to that effect. These notes so given and the collateral agreements or statements have no direct relation to the wharfage in question, and are useful, if at all, to give some glimpse of the understanding of the parties as to a lien for previous wharfage. Certain evidence, however, was given, which has a direct relation to the wharfage in suit. In May, 1891, the Schuyler Company gave the following note and accompanying paper: '$2,264.35

Albany, May 15th, 1891.

'Four months after date, we promise to pay to the order of Mr. Samuel Schuyler twenty-two hundred and sixty 35/100 dollars at the First National Bank, New York City. Value received.

'Due Sept. 18th.

Schuyler Steam Towboat Company, 'Samuel Schuyler, Treasurer.'

'The accompanying note is given for wharfage of the steamers America, Niagara, Syracuse, and Vanderbilt, for the months of December, 1890, January, February, March, and April, 1891, and interest as per annexed memorandum, said wharfage constituting a lien upon said boats.

'Albany, May 20th, 1891.

Schuyler Steam Towboat Company, 'Samuel Schuyler, President.'

The further evidence proffered by the libelants, bearing on the arrangement, is that of Egan, libelants' clerk, who stated that he kept a record of the wharfage of the boats, and rendered bills therefor. He stated that he understood that the Schuyler Company were to pay $5 for each berth occupied. His book containing the account of the wharfage of these boats shows that, contrary to his custom in respect to other boats, he made no entry of tonnage, no entry of the charge for the wharfage (save for the first month, which he erased under direction), and that he apparently rendered one bill for each berth, however many boats were stored in it.

The evidence of the claimants relating to the arrangement for this wharfage is given by one witness, Mr.Vosburgh, agent of the Schuyler Company, who testified:

'Q. State under what arrangement those boats went to that wharf in 1890. A. They went there. They paid $5 a day for each boat lying next to the wharf; nothing for any outside boats lying outside of the boats lying next to the wharf.'

Vosburgh states that no charge was ever made for any boat save the one lying abreast the wharf; that this arrangement was made with Jeremiah P. Robinson after the death of his father, and was renewed every year. The only negative that Mr. Robinson gives to this evidence is this:

'Q. At that time (November, 1890) was any agreement made between you and Mr. Vosburgh with regard to the wharfage being five dollars a day for the future wharfage of the inside boats? A. There was not.'

Such is the evidence of the parties as to a lien and to compensation. The disposition intended to be made of the suits does not require more precise finding of the facts than is indicated in the foregoing summary. Under the facts above presented, the libelants claim for the wharfage furnished liens upon the boats, purely maritime, unaided by the local statute. This involves the inquiry (1) whether wharfage furnished to domestic vessels is a maritime service; (2) whether it entails a lien upon domestic vessels; (3) whether wharfage for the purpose of storing vessels in the winter time, or when out of commission, is maritime in its nature, and whether a lien therefor results.

The following authority holds that wharfage furnished to a domestic vessel is not maritime in its nature: Delaware River Storage Co. v. The Thomas (Cir. Ct. E.D. Pa.) 7 Fed.Cas. 413. The following authorities hold, directly or by implication, that wharfage furnished to a domestic vessel is maritime in its nature: Ex parte Easton, 94 U.S. 68; The Virginia Rulon, 13 Blatchf. 519, 520, Fed. Cas. No. 16,974; The Shrewsbury, 69 F. 1017 (hence the lien authorized by local statute attached): The Atlantic Dock Co. v. Wenberg, 9 Ben. 464, Fed. Cas. No. 622; Town of Pelham v. The B. F. Woolsey, 16 F. 418; The Mary K. Campbell, 24 Blatchf. 475, 476, 31 F. 840; The Geo. E. Berry, 25 F. 780. The following cases hold that a maritime lien upon a domestic vessel attaches on account of wharfage furnished it; The Advance (Dist. Ct. S.D.N.Y., 1894) 60 F. 766; Woodruff v. One Covered Scow, 30 F. 269; The Kate Tremaine, 5 Ben. 60, Fed. Cas. No. 7,622; The Allianca, 56 F. 609. The following cases hold that a maritime lien upon a domestic vessel does not attach on account of wharfage furnished it: Russell v.Swift, 1 Newberry, 553, Fed. Cas. No. 12,144; Ex parte Lewis, 2 Gall. 483, Fed. Cas. No. 8,310. The supreme court of the United States has held that wharfage furnished a foreign vessel entails a lien (Ex parte Easton, 95 U.S. 68); but in that case the court did not decide that a lien for wharfage exists, by the maritime law, against a domestic vessel. The John M. Welch, 18 Blatchf. 54, 62, 63, 2 F. 364. The opinion of the supreme court in Ex parte Easton carefully confines the right of lien to the case of wharfage furnished to a foreign ship, although the discussion in the opinion of the maritime nature of the service is general.

It will be observed that while it may be accepted safely that wharfage furnished to a domestic vessel, in the ordinary course of navigation, is maritime in its nature, and while the authorities allow a maritime lien therefor, yet that there are two reasons for hesitating respecting the attitude of the appellate court when the question shall come before them: (1) The careful exclusion of domestic vessels from the benefit of alien, in the opinion in Ex...