REPORTER.
THE MARY' K. OAMPBELL. MACY 'I).
REMNANTet, ETo.;. OF
MARY
K.
CAMPBELL ""
and another.
(CircuitCowrt, ,',
,'.
$. .ii1vew York. July 7.1887.) "'-
1.
MARtTlME LIEN-WHARFAGE.
S. SAME:...!-.VES8EL UNDER ATTACHM:EJNT-MORTGAGlI:.
Where a vessel is brought to the wharf by the sherifl', under attachment in a suit in ,a state court agaiu.st apart owner, tbe wharfinger will not obtain a Hen on the vessEll. or proceeds of her sale, superior to the lien of a mortgage which is prior to the attachment. . I -,
THE :MARY K. CA:MPBELL.
841
guire, alleged by said creditors to be composed of James and Charles Maguire,the said James being the said mortgagor, caused the vessel to be seized by the sheriff of New York county, under process of foreign attachment, in actions to enforce payment ofcertain notes and drafts made by the said D. & J. Maguire, upon dates partly prior and partly subsequent to the date of said mortgage; that possession of said bark was voluntarily relinquished by the said sheriff to the marshal of this court, under stipulation, on or about the third day of' January, 1887, but without knowledge of said wharfingers, and she was sold for the S,IDl of $3,800 under process in rem, upon action for seamen's wages, which have been paid, and there now remains in the registry of this court the sum of $2,390.33; that the said firm of D. & J. Maguire became bankrupton PI' about the fifth day of December, 1886; that no part of said mortgage has been paid. It stipulated that ill the eventl,(!):f the judgment of the district court hereiri' being reversed, the wharfirlgel's, Maay and Hitchcock, still reserve the right to require proof in the district court 'of due execution and delivery of the mortgage, and that it is stilFdue and unpaid. The fund shall remain in thisl'court pending decision on the a p p e a l . , : Samuel B. (]larke,: for appellee. Geo. Bethu,rte Adams, for appellant. ,1.'. 'J
WALLACE,
ordinate the lien of the mortgage of vessel upon the proceeds in the registry of the court to. t,he subsequent lien of a cteditor who brought suit in a state Court against one of the joint owners of the vessel; and in tMt suit caused an attachment to be levied upon 'the vessel by the sheriff of the city and county of New York. This singular and anomalous result has been worked out t4rough a sUI'posed lien upon the vessel, acquired by a wHarfinger to whose wharf the ,ressel was taken by the sheriffundel' the attachment. The wharfinger' knew'that the· vessel was in chnrge of the sherifi' when she was brought to and while she remained at the wharf. Although wharfage is a maritime contract which creates a maritime lien in favor of the wharfinger against the vessel, it is essential to an hypothecation that the contract be made by some person who has authority to pledge the vessel to the performll!1Ce of the contract. Very clearly a sheriff who has seized the vessAI upon legal process, and resorts to a wharf in order to tie her up, and prevent her from completing her voyage, has no such authority. There is nothing in the state statute (Consolidation Act, Laws 1882, c. 410, §798) which, in. terms or by iIbplication, makes the vessel liable when she is brought to the wharf on legal process, and is while there in the custody of the law. The wharfinger could not acql1he any lien upon the vessel, and consequently could not upon the .proceeds in the registry, unless he did so by the act of the sheriff who brought the vessel to the wharf, and kept her there. In this behalf the sheriff was mt'rely the agent of the attaching creditor. (Jonsequently,' if it be assumed that the wharfinger'could acqUire any interest in the proceeds in the nature ofan equitable lien,it
J. The result ofthedecree afthe district court is to sub-
; ':FEDl,iJRAL)tEPORTER.
couldnO>tll'ankabov,e the lien of the attaching creditor, ,but should rank the attaohment. It represents nothing more than the ,J:',ight\ of the atta,cQing include in his ,recovery against the ,jpjnt ownerwhose Jl.tta,ched, the expenses of the wharfage as part ofthe<yOfltsor of the suit. If the vessel had been sold on finalproooss in the, suit in which the attachment issued, the right of the mortgagee to take possession and exercise his power of sale under themortg",ge would not' have,:J;>eenimpaired. The purphaser on the ecution sale would have acqtiireQ; an which wotud have permitted upon mortgage debt, but the sale could oot have p:tejudiced the mortgagee, or deprived him of the security of the full extent mortgage dellt. CeIi;ainly gaged$ in no worsepligbt bYJvhich the vesselwas her proceeds the district court, than he would have been, if I'lhe had been sold' an execution in) the suit of the TpEl wharfinger must look to, t4e sheriff personally ;and',the ahetiff ,must look to,the !\ttaching creditor.. for ,ThereiB' no. ,hardship in, the wharfinger,tpJopk for his. wharfage to the person who brought the vessel to his wharf. Althoughthere is an implied license to vessels upon navigable waWI;sto use suchstructures in the manner and for the purposes contemplat\'ld:by their erection, the wharfinger may terminate this general license, or may withhold perP.t1'SPPe" . lieaney v. Heeney, 2 Denio, 625; SW(Jrds v · .&lgar"p{}N., Y. b':' WI, proceeds I " , :. '
,fect,
for
in the were not sufficient lien mortgage"the decreeQf district court, in efthe mortgagee to; the claim pf ,the) :f!ottaching creditor :e;>(,the joint oWl'),arsof the vessel, to of his expenses : ':1'" , .!" Iii district rev.ersed, with, costs of the district to be paid by the appellee" 1:'Ii
',J · .""': 1'(
CARR. :" j :,
,
, "'j ;.
(Distriot t,
No,]).,.Nf/IJ) York. July .; ,.,
t ,
··,
',13oth,Connollyand Carr-claImed wages as mate of the H: C. during the I 'same se8ison:.He1,d" on the i.idence, that the libel of Connolly must be dis'Qlaim of Ca17r ,,' , missed, all,d ARGUltEN'l'. ,
LIJIET,. J:OJf.. WAGES-EvIDENCE.,..
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2.AI>)lIRAJ,',l'Y:.,..-StnllIlTTING CAVSE,
. Thll prMtice of submittin,g a ciLusein admiralty without argument or brief, "'and'\e&'qoi!lg'thecourt'to asoo,rtain and determine the issues upon the plead"I" is, not to be I
d'
'i,. !"
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of June, 1&86, :Ed,ward Carr filed a against the qarr" to recover.$281.67 t · the alleged palance due to