THE SHADY SIDE.
'/31
THE SHADY SIDE. I THE MORRISANlA. 1
(Vistl'ict Oourt, E. D. New York. November 13, 1884.) 1. WHARFAGE-STNrE STATUTE-DEMAND-DoUBLE WHARFAGE.
The statute of the state of New York (Laws 1877, c. 315) provides that double wharfage may be recovered by a wharfinger from a vessel which leaves the pier without paying wharfage. Held, that to entitle the wharfinger to such double wharfage under that statute, there must be proof of a demand of single wharfage before the vessel departs from the pier, though the statute does not require the demand to be made at the vessel. A lien created by a state statute, which fixes no limit the lien must be enforced, is not lost by delay. OJ
2. 3.
S.un;-STATUTORY LIEN-LIMITATION.
.ime within which
SAME-PLEADIKG-LACHES.
The defense that a lien has been lost by laches, if not pleaded, must be excluded. The decision in l'lte Francese" 1'. 9 Ben. 34, mouified.
In Admiralty. A. d C. Van Sn.ntl!oord, for libelant.
T. C. Cronin, for claimant. J. These actions, which were tried together, are to enforce a lien upon the vessels proceeded against respectively for wharfage. One question presented is whether the libelant is entitled to recover wharfage at double rates by virtue of the law of the state, (chapter 315, Laws 1877,) notwithstandilJg the conceded fact that no demand for the single wharfage due was made prior to the vessels' leaving the wharf. Upon this question this court is asked to reconsider the opinion expressed in the case of The Francesca T. 9 Ben. 34, where it was said that a demand of the single wharfage due, made of the owner, consignee, or a person in charge of the vessel, at the vessel and before she lea.ves the pier, was necessary to entitle the wharfinger to collect double wharfage. I have accordingly again considered the question, but am unable to see how the statute can be so construed as to entitle a wharfinger to recover double wharfage without proof of the demand of the single wharfage, made before the vessel departs from the wharf, of the owner or the consignee of the vessel, or at the vessel of the person in charge thereof at the time of the demand. In the opinion delivered in the case of The Francisca '1'. it is said that, in order to recover double wharfage, demand of single wharfage must be made at tne vessel of the owner, consignee, or person in charge; but this was inaccurate. 'rhe demand of single wharfage due must be made of the owner, the consignee, or the person in charge of the ves8el; but the statute does not ;require the demand to be made at the vessel. With this exc,eption, the opinion delivered in the case of The BENEDICT, 1
Reported by H. D. & Wyllys Benedict, Esqs., of the New York bar.
'732
Francisca T. states what seems to me the correct construction to be given the statute. The argument in opposition to this construction is that the single wharfage does not become due until the vessel has left the wharf, and a lawful demand prior to the departure of the vessel is for this reason impossible, and also for the further reason that the wharfinger has no means of knowing when the vessel intends to leave, and the amount of single wharfage to be demanded cannot be known prior to the vessel's departure. But the statute must be presumed to have been passed in view of the well-known practice to collect wharfage at the wharf by a. person then present for the purpose, who, by observation and inquiry, learns the time when each vessel intends to depart, and collects the wharfage of each vessel as the vessel is about to leave. No real difficulty is found in making out and presenting a proper bill for wharfage prior to the vessel's departure. The object of the provision in the statute respecting double wharfage was to induce the payment of wharfage when so demanded. This customary demand of single wharfage, substantially contemporaneous with the departure of the vessel, is the demand referred to in the stattute where it says every vessel that shall leave a wharf without first paying the wharfage after being demanded, shall be liable to pay double wharfage. No other construction can be given the statute without, as it seems to me, doing violence to the language employed. I am therefore of the opinion that the libelant, having failed to prove a demand of single wharfage before the vessels left the wharf, cannot recover double wharfage. The question remains whether single wharfage can bo recovered. The ground here taken in defense is that the liens have been lost by laches. But no such defenst:l iF Aet up in the answer, and it must therefore be excluded. The Swallow, Olcott, 334. Aside from the
,
FEDERAL REPORTED.
.
absence of any averment of laches in the pleadings, it would seem that a lien created by a statute of the state which fixes' no limit of
time within which the lien must be enforced, is not lost by delay. Limitations declared by statutes creating liens for repairs, etc., and made dependent on the movements of the vessel, are recognized and enforced by courts of admiralty, and any limitation made by such statute to depend upon lapse of time would no doubt be recognized and enforced by admiralty courts. Upon the same principle these courts must recognize and give effect to the absence of such a limitation from the statute. My conclusion, therefore, is that the libelant is entitled to recover against the above-named vessels, respectively, single wharfage, at the rate prescribed by the statute of the state, for the time such vessel lay at the libelant's wharf. The amount can doubtless be agreed upon. If not, let there be a reference.
THE MABi BBADFOBD. THE MARY BRADFORD.1
738
(Oircuit Oourt, E.
n. New
York. JUly 16,1884.)
BILL OF LADING-INDORSEMENT FOR VALUE-MASTER'S COPY-DELIVERY OJ!' CARGO.
The decree of the district court ill the same case (18]fED. REP. 1811) affirmed.
In Admiralty. F. E. & A. Blackwell, for libelant. Beebe & 'Wilcox, for claimants. BLATCHFORD, Justice. In this case I find the following facts: The agent of the owners of the schooner Mary Bradford chartered her to William L .. Carbin, of New York, for a voyage from New York to Nickerie, and back to New York, by the charter-party, dated September 12,1881, of which a copy is set forth in the apostles. D. C. Cobb was the master of said schooner. William L. Carbin shipped on her from New York a cargo consigned to his brother R. J. Carbin at Nickerie. William L. Carbin directed the master to follow the instructions ofR J. Carbin on the arrival of the vessel at Nickerie. Bills of lading were signed in New York by the master for the cargo shipped by the vessel to Nickerie. When she arrived at Nickerie, the master discharged the cargo. He then received on board of the vessel from R. J. Carbin the merchandise covered by the bill of lading, libelant's Exhibit A, dated November 24, 1881, of which a copy is set forth in the apostles. This cargo being on board, the master signed a set of four bills of lading for it, all of the tenor of said Exhibit A. Three of these he delivered to R. J. Carbin, and one he kept himself. This last-named bill of lading was the "captain's copy," and was understood by R. J. Carbin and by the master to be such. When such captain's copy was so left with the master, no instructions were given to him in respect to it. R. J. CarlJin took the said three bills of lading, and before the vessel sailed from Nickerie, hypothecated them with the libelant as collateral security for the payment of the sum of $4,800, or its equivalent in Dutch money, and duly indorsed said bills of lading over to the libelant, and received from it said sum of money. In the bills of lading in the hands of the libelant, the words "as per charter-party" appear written between the words "said produce" and the words" with primal{e," as in libelant's Exhibit D in the apostles, which words are not in said libelant's Exhibit A. The libelant was and is a foreign corporation, duly organized and existing pursuant to a charter and under the laws of the kingdom of the United erlands. At the time of the receipt by R. J. Carbin of the said sum of $4,800, or its eqUivalent in Dutch money, to-wit, November 29,1881, he drew three bills of exchange in a set (first, second, and third) upon his brother William L. Carbin of the tenor of Exhibit No.1, annexed to the deposition of Arend d' Angremond, in the apostles; and also executed and delivered to the libelant a paper writing, dated November 29, 1881, a correct translation of which is contained in lilJelant's Exhibit F in the apostles. The libelant duly transmitted two of said bills of exchange and two of said bills of lading to its agent in the city of New York, who received them December 28, 1881. On one of said bills of exchange was duly accepted in writDecember 29, ing by the drawee, William L. Carbin. It fell due March 2, 1882. On the eighteenth of December, 1881, the said vessel arrived at the port of New York, from Nickerie, and thereupon B. J. Wenberg, the agent of the vessel, t'Reporled by B. D. & Wyllys Benedict, Esqs., of the New York bar.