THE B. F. WOOLSEY.

(District Court, S. D. New York. May 5, 1881.)

1. SHIPWRIGHT'S COMMON-LAW LIEN - POSSESSION-PROCEEDINGS IN STATE COURT TO FORECLOSE-FORFEITURE OR WAIVER OF LIENESTOPPEL-CONVERSION--SEIZURE BY SHERIFF--SEIZURE BY MARSHAL-ADMIRALTY JURISDICTION TO ENFORCE COMMON-LAW LIENSTATE STATUTE ENLARGING LIENOR'S RIGHTS--FINDING OF STATE COURT AS TO AMOUNT DUE, HOW FAR BINDING.

The common-law lien of a shipwright, who takes a vessel into his possession for repairs, and continues to hold it, is too well established as matter of authority to be open to dispute. The Marion, 1 Story, 68.

Where the libellant's ship-yard was partly on the libellant's premises and partly on those of the town of P., constituting a public dock, but used by him under an agreement with the town, and the master of the vessel surrendered her there into the actual custody of the libellant, who was understood by both parties to be responsible for her care and safety, although the master, who was also the owner, stayed by the vessel most of the time, and retained the cook and mate, who slept on board--the presence of the master, and the retention of the cook and mate, not being with the intent to retain the custody of the vessel, but to help in repairing and to lessen expenses-

Held, that the libellant had such actual possession of the vessel as would give him a common-law lien. The nature of the possession requisite, or the acts and circumstances indicating it, varies with the nature of the object on which the work is done.

Also held, that the act of the libellant, a shipwright, having a common-law lien on a vessel for repairs, in instituting a suit in the state court to foreclose his lien, advertising the interest of the claimant and that of a mortgagee in the vessel for sale at auction under a judgment in the suit, and buying it in at the sale and taking a bill of sale from the receiver, where the receiver never took actual possession, but the uninterrupted possession remained in the libellant, did not operate to extinguish the libellant's lien; the state court and the United States courts (3 FED. REP. 457; 4 FED. REP., 552) having declared the whole proceeding null and void, for want of jurisdiction, as affecting the title of the vessel. There was, in fact, no sale, but merely an attempt to sell. What was done created no new title, and vested no new possession in the libellant or in any other person. Although the libellant, believing he had thus acquired a new title, subsequently sought to bond the vessel in this court as owner, he is not estopped by such averment as owner, in his pleading in this court or in the state court, to deny now that he ever had such title, because the fact has since been conclusively found against him in a litigation relating thereto between himself and this claimant. Nor did that void sale, or attempt to sell the claimant's interest in the

vessel by the libellant, constitute such a tortious dealing with the property that he has thereby forfeited or waived his lien. There is no evidence or averment in the answer of any dealing with the vessel herself in connection with that sale.

Also held, that the lien was not extinguished by the sheriff seizing the vessel in a replevin suit brought by the claimant against the libellant.

Also held, that the libellant's rights as a lienor were not affected by the subsequent seizure of the vessel by the United States marshal, in a suit for seamen's wages, nor in a suit for wharfage.

Also held, that the libellant's act in procuring the marshal to seize the vessel in this suit to enforce the lien, cannot operate to extinguish the lien, provided this court has jurisdiction.

Also held, that this court has jurisdiction to enforce a simple common-law possessory lien, independent of the question whether the lienor's rights were enlarged or altered by the New York statute giving lienors the right to enforce their liens by a sale of the property. The power of a court of admiralty to order the sale of a vessel does not depend upon the right the libellant may have to sell her, or cause her to be sold, to enforce his demand; but it is a power inherent in the court, to be exercised in the interest of commerce. The cause being maritime in its nature, the court has jurisdiction of the parties and the subject-matter. It is immaterial that the vessel is a domestic vessel.

Held further, that the New York statute was intended to and did confer on this class of lienors the new and enlarged right to enforce their liens by a sale of the property, notwithstanding, in the particular case of a maritime contract, the proposed remedy fails because the state could not confer on any of its courts jurisdiction to make the sale.

That such failure of remedy does not prevent the statute from having its effect in thus modifying and enlarging the nature of the lien; and a court of admiralty, in enforcing the lien, will give it full effect, according to the intention of the statute, as a lien, carrying with it a right of enforcement by sale of the chattel. The statute is applicable to simple common-law possessory liens, such as that of the shipwright, and is not confined to cases of liens where by the existing law the lienor had already the right to enforce his lien by sale.

Also held, that the finding of the state court as to the amount due is not conclusive on the claimant as a judgment. The state statute did not provide for a separate money judgment for the amount due, in addition to the judgment for foreclosure, nor was such judgment in fact recovered in the case. The finding is incidental merely to the chief purpose of the action, which is the foreclosure of the lien.

In Admiralty.

Henry D. Hotchkiss, for libellant.

H. B. Kinghorn, for claimant.

CHOATE, D. J. This is a libel brought by a shipwright to recover, against the schooner B. F. Woolsey, a domestic vessel, his charges for repairing. The libel alleges that one Terrell, the master and owner of the vessel, delivered her into the possession of the libellant to be repaired; that repairs were made of the reasonable value of $869.46; that she has at all times remained in his actual possession; and that he has a "common-law lien" upon the vessel for the amount due him; and the libel prays that the vessel be condemned and sold to satisfy the libellant's claim. Terrell, the owner, alone appeared to contest the suit. He has set up several defences, by exception and answer, which will be severally considered:

1. In the first place, it is objected that the common-law lien or right to hold the thing on which work has been done in possession till payment of the charges incurred does not extend to ships; that it is a right appertaining to particular trades, but existing only where the usage of the particular trade has established it; that it can be proved to exist only by proof of such usage in the particular trade. Doubtless this right originated in usage or custom, at first being established by evidence of the existence of the usage in particular trades, and afterwards being taken notice of as established customary law; and it seems to have been first recognized as existing in favor of persons exercising a quasi public employment as inn-keepers, and the like, who were obliged to render the service; but it has been extended to all artisans bestowing labor on goods, whether they would have been compelled to accept the employment or not. Thus it is said by Chancellor

Kent, (2 Com. 635, 12th Ed.:)

"It is now the general rule that every bailee for hire, who, by his labor and skill, has imparted an additional value to the goods, has a lien upon the property for his reasonable charges."

And in the particular case of the shipwright who takes into his possession the vessel for repairs, and continues to hold it in his possession, the lien is too well established as matter of authority to be open to dispute. In the case of The Marion, 1 Story, 68, Mr. Justice Story and Judge Davis

affirm it as an undoubted principle of the common law. In many other cases, also, the right has been recognized. In a suit in the supreme court of New York, between these same parties, it was held to be the rule of the common law as it exists in this state. On such a question the opinion of that court is entitled to great weight, and this point must be held not well taken.

2. It is also objected that the libellant never had such an actual and exclusive possession of the vessel as is necessary to give him this common-law lien. On this point the evidence is that the libellant occupies certain premises adjoining a wharf at City Island, in this port, as a ship-yard for the repair of vessels. The premises are partly his own and partly belong to the town of Pelham, constituting a public or town dock. By an arrangement between him and the town authorities he uses this part of the town property for his own purposes. On his own part of the premises is a railway on which he hauls vessels out of the water. This vessel was brought to the place by Terrell, the master and owner. She came to anchor, and afterwards was hauled to the premises ordinarily used by libellant as a ship-yard, being moored at first on that part belonging to the town. She was afterwards hauled out on the railway, and again taken off the railway and moored in her former position. I am satisfied by the evidence that the owner surrendered the actual care, control, and custody of the vessel to the libellant. The crew were dismissed, except the cook and the mate, whom the owner wished to retain for future service. The owner and the cook and mate helped the libellant in his work. The cook and the mate slept on board the vessel all the time the repairs were going on, except a short time when the condition of the vessel made it impracticable, and then they slept in a building of libellant on the adjoining wharf. The owner stayed by the vessel and slept on board most of the time, but on Saturdays he went to his home in Brooklyn, returning on Monday morning. The libellant took his directions from the owner as to what repairs were to be made. It is clear from the testimony that the parties understood that the libellant was responsible for

the care and safety of the vessel. His men moored her, hauled her on and off the railway, tended her lines, and looked after her safety in bad weather. If the master and owner had remained, or kept the cook and mate there, for the purpose of retaining the possession or custody of the vessel, then the possession of the libellant would not probably have been such as to give him a lien. But it is clear they were not there for any such purpose, nor did they assume in any way to retain the actual custody of the vessel. Their acts upon and about the vessel were alio intuituto help on and hasten the repairs, and lessen the expense. The circumstances of the case are very much like those of The Marion, ut supra, where similar possession by a shipwright was held to be sufficient to give a common-law lien. The nature of the possession must be according to the nature of the object on which the work is done. A ship is an unwieldly subject, and the possession of it cannot be exactly like that which a mechanic obtains of a horse or a watch; or, rather, the fact of possession is evidenced by different circumstances and acts. In this case the evidence is satisfactory that the libellant had actual possession.

3. It is next objected that the libellant agreed to do the work on a credit of six or eight months without security. If this were so, of course there would be no lien. The agree ment would be inconsistent with an intention to retain the vessel till libellant's bill was paid. On this point the evidence of what conversation took place between the parties is conflicting. The claimant swears to a conversation importing some such agreement. The libellant positively denies it. If forced to determine this point on the relative credibility of the parties, I should find the alleged agreement not proved. There are, however, certain circumstances proved which are entitled to greater weight than testimony of conversations. The conduct of the claimant when the work was done, and payment of the bill demanded, shows clearly, I think, that he did not then understand that he was entitled to take the vessel away without payment of the libellant's bill. There being no other obstacle except the non-payment