A libel was filed in the district Court of the United States for
the Eastern District of Louisiana, against the steamboat
Planter, by H. and V., citizens of New Orleans, for the
recovery of a sum of money alleged to be due to them, as
shipwrights for work done and materials found in the repairs of the
Planter. The libel asserts that, by the admiralty law and
the laws of the State of Louisiana, they have a lien and privilege
upon the boat, her tackle &c., for the payment of the sutras
due for the repairs and materials, and prays admiralty process
against the boat, &c. The answer of the owners of the
Planter avers that they are citizens of Louisiana residing
in New Orleans; that the libellants are also citizens, and that the
court had no jurisdiction of the cause.
Held that this was
a case of admiralty jurisdiction.
By the Civil Code of Louisiana, workmen employed in the
construction or repairs of ships or boats enjoy the privilege of a
lien on such ships or boats, without being bound to reduce their
contracts to writing, whatever may be their amount, but this
privilege ceases if they have allowed the ship or boat to depart
without exercising their rights. The state law, therefore, gives a
lien in this case.
In the case of
The General
Smith, 4 Wheat. 438, it is decided that the
jurisdiction of the admiralty in cases where the repairs are upon a
domestic vessel depend upon the local law of the state. Where the
repairs have been made or necessaries furnished to a foreign ship,
or to a ship in the ports of a state to which she does not belong,
the general maritime law gives a lien on ships as security, and the
party may maintain a suit in the
admiralty to enforce his right. But as to repairs or necessaries
in the port or state to which the ships belong, the case is
governed altogether by the local law of the state, as no lien is
implied unless it is recognized by that law. But if the local law
gives the lien, it may be enforced in the admiralty.
The services in this case were performed in the port of New
Orleans, and whether this was done within the jurisdiction of the
admiralty or not depends on the fact whether the tide in the
Mississippi ebbs and flows as high up the river as the port of New
Orleans. The Court considered itself authorized judicially to
notice the situation of New Orleans for the purpose of determining
whether the tide ebbs and flows as high up the river as that place,
and being satisfied that although the current of the Mississippi at
New Orleans may be so strong as not to be turned backwards by the
tide, yet the effect of the tide upon the current is so great as
occasions a regular rise and fall of the water; New Orleans may
be
Page 32 U. S. 325
properly said to be within the ebb and flow of the tide, and the
jurisdiction of the admiralty prevails there.
In order to the decision whether the admiralty jurisdiction
attaches to such services as those performed by the libellants, the
material consideration is whether the service was essentially a
maritime service, and to be performed substantially on the sea or
tidewater. It is no objection to the jurisdiction of the admiralty
in the case that the steamboat
Planter was to be employed
in navigating waters beyond the ebb and flow of the tide. In the
case of the steamboat
Jefferson, it was said by this Court
that there is no doubt the jurisdiction exists, although the
commencement or termination of the voyage may happen to be at some
place beyond the reach of the tide.
Some of the older authorities seem to give countenance to the
doctrine that an express contract operates as a waiver of the lien,
but it is settled at the present day that an express contract for a
stipulated sum is not of itself a waiver of a lien, but that to
produce that effect the contract must contain some stipulations
inconsistent with the continuance of such lien or from which a
waiver may fairly be inferred.
In the district court, a libel was filed on 10 December, 1830,
by Howard & Varion, shipwrights, residing in New Orleans,
against the steamboat
Planter, claiming the sum of
$2,193.35, being the balance asserted to be due to them for the
price of work, labor, materials furnished and repairs made on the
said boat under contracts of 13 September and 19 October, 1830, and
alleging that, by the admiralty law and the law of the State of
Louisiana, they had a lien on the said boat for the payment of the
same, and that she was about leaving the port of New Orleans, and
praying process, &c. The account for the work, materials,
&c., was annexed to the libel.
The owners of the steamboat
Planter filed a claim and
plea setting forth that they were all citizens of Louisiana, all
resided in the City of New Orleans, and that the libellants were
also citizens of that state, and that therefore the district court
of the United States had not jurisdiction of the case. By a
supplemental answer, the respondents denied all the facts set forth
in the libel.
Page 32 U. S. 326
The plea to the jurisdiction of the court was overruled and
dismissed, and the parties proceeded to take the testimony of
witnesses by depositions which were filed as part of the
proceedings in the case. By the first contract, the shipwrights
stipulated to do certain specified work and furnish certain
materials, the same to be approved by "experts," for which they
were to be paid the sum of $1,150. By the contract of 19 October,
the
Planter was to be hauled on shore, and in
consideration of $475, of which $200 was to be paid in cash and
$275 in one month after the boat should be launched and set afloat,
certain other repairs were to be done to her, and she should be
delivered and ready to receive a cargo by 20 November, under a
penalty of $25 per day for each day her delivery should afterwards
be retarded by the shipwrights. The evidence in the case is fully
stated in the opinion of the Court.
The district court made the following decree:
"The libellants claim a balance due them of $2,193.35 for work
and materials furnished in the repairs of the steamboat
Planter at the request of the claimants and for which they
have a lien by the local law. The claimants, in their first answer,
deny the jurisdiction of the court on the ground that all the
parties were citizens of the same state, to-wit, of Louisiana; that
objection, however, was not insisted upon at the trial, and is not
sustainable on the admiralty side of this court. In their
supplemental answer, they deny generally the allegations of the
libellants and pray for the dismissal of the libel and damages. The
whole account of the libellants against the owners amounts to
$3,693.35, including the amount of the written contracts entered
into between the parties; of this sum they acknowledge the payment
of $1,500, leaving, as they allege, a balance of $2,193.35 due
Page 32 U. S. 327
them. By the first contract, made on 11 September, 1830 (the
boat being then in the water), the libellants agreed, for the sum
of $1,150, to make certain repairs on that part of the boat which
was above water, from the wheelhouse to the bow, and it was further
stipulated that if they made any other repairs by replacing unsound
timbers in any other part of the boat above water not then
discovered, they were to be paid separately for so much."
"After commencing the work, it was perceived, that the boat
required repairs under the water as well as above, and in
consequence of that discovery the claimants, through Captain
Jarreau, master of the boat, and one of the owners, agreed to pay
the libellants $475 for hauling out the boat and for launching her
when she should be repaired, and as the quantity of work to be done
was uncertain, it was stipulated that an account of it should be
kept, and if approved by Captain Jarreau, under whose inspection
the work was to be done, the claimants bound themselves to pay the
amount thus to be ascertained; this latter contract was made on 19
October last. After the boat was hauled out, it appears the work
under both contracts was carried on simultaneously. On a first view
of the account current exhibited in this case, it would seem, from
the dates, that at least a part of the work to be done under the
first contract was again charged, but the subsequent testimony
taken in this case shows that these charges were made on account of
the extra repairs provided for under the first contract, and it
further appears that all the charges made after 19 October have no
relation to the first agreement, but all relate to the work
contemplated by the second contract. From the complexion of the
testimony taken by the complainants, their real defense seems to be
that the prices of the work charged are greater than they should
be, that it was not executed in a proper manner, and that the
libellants have forfeited a considerable sum of money in
consequence of not delivering the boat within the time stipulated
in the contract. As to the first two objections, the evidence is
conclusive in favor of the libellants; Captain Jarreau, himself,
upon being shown the account, did not object to it; on the
contrary, expressed himself satisfied with the work and said
Page 32 U. S. 328
he was 'not surprised at it, because there was a great deal more
work done than he had any idea of;' with respect to the nondelivery
of the boat at the time agreed upon, the fault chiefly attaches to
Captain Jarreau, who in several instances retarded the work by
opposing repairs which were proposed by the libellants, but which
turned out to be indispensable, and were afterwards ordered by him
to be made; besides, he promised them indemnity against their
obligation to pay $25 a day for every day they were in default in
delivering the boat, and gave as the reason that they had to do
more work than was at first anticipated. The charge of $475, is for
the specific service of hauling out and launching the boat, and
must be allowed as such. On the whole, the evidence and exhibits in
the case fully sustain the demand of the libellants; it is
therefore ordered, adjudged and decreed that the claimants pay to
them the said sum of $1,193.35, and costs of suit."
From this decree the owners of the
Planter appealed to
this Court.
Page 32 U. S. 339
MR. JUSTICE THOMPSON delivered the opinion of the Court.
This case comes up from the District Court of the United
Page 32 U. S. 340
states for the Eastern District of Louisiana. The proceedings in
the court below were
in rem against the steamboat
Planter, to recover compensation for repairs made upon the
boat.
The libel states that Howard & Varion, shipwrights, residing
in the City of New Orleans, had found materials and performed
certain work on the steamboat
Planter, for which the said
steamboat her owners were justly indebted to them in the sum of
$2,193.35, and alleges that by the admiralty law and the laws of
the State of Louisiana, they have a lien and privilege upon the
boat, her tackle, apparel, and furniture for the payment of the
same, and prays admiralty process against the boat and that the
usual monition may issue. The appellants afterwards appeared in
court and filed their claim and plea, alleging that they are
citizens of Louisiana and residing in the City of New Orleans, and
that they are the sole and lawful owners of the steamboat
Planter, and alleging further that the libellants are also
citizens of the same state and that the court had no jurisdiction
of the case. The plea to the jurisdiction of the court was
overruled, and a supplemental and amended claim and answer filed
denying all and singular the facts set forth in the libel, and by
consent of parties, an order of court was entered that the
testimony of the witnesses for the respective parties be taken
before the clerk of the court and read in evidence upon the trial,
subject to all legal exceptions, and upon the hearing of the cause,
the court decreed that the claimants should pay to the libellants
$2,193.35 and costs of suit. An appeal to this Court was prayed and
allowed.
Upon the argument here, the following points have been made.
1. It does not appear upon the proceedings, that the court below
had jurisdiction of the case.
2. That the libellants had waived any privilege or lien upon the
steamboat under the law of Louisiana, and therefore proceedings
in rem were improper.
3. If the court had jurisdiction, the decree is erroneous on the
merits.
Page 32 U. S. 341
The want of jurisdiction in the district court is not put on the
ground set up in the plea in the court below that all the parties
were citizens of the same state. This has been very properly
abandoned here as entirely inapplicable to admiralty proceedings in
the district court. But it is said that it does not appear upon the
face of the proceedings that the cause of action properly belonged
to admiralty jurisdiction. There can be no doubt that it must
appear from the proceedings that the court had jurisdiction of the
case. The proceeding is
in rem against a steamboat for
materials found and work performed in repairing the vessel in the
port of New Orleans, as is alleged in the libel, under a contract
entered into between the parties for that purpose. It is therefore
a maritime contract, and if the service was to be performed in a
place within the jurisdiction of the admiralty, and the lien given
by the local law of the State of Louisiana, it will bring the case
within the jurisdiction of the court.
By the Civil Code of Louisiana, article 2748, workmen employed
in the construction or repair of ships and boats enjoy the
privilege established by the code, without being bound to reduce
their contracts to writing, whatever may be their amount; but this
privilege ceases if they have allowed the ship or boat to depart
without exercising their right. The state law therefore gives a
lien, in cases like the present. In the case of
The
General Smith, 4 Wheat. 438, it is decided that the
jurisdiction of the admiralty in such cases, where the repairs are
upon a domestic vessel, depends upon the local law of the state.
Where the repairs have been made or necessaries furnished to a
foreign ship or to a ship in the ports of a state to which she does
not belong, the general maritime law gives a lien on the ship as
security, and the party may maintain a suit in the admiralty to
enforce his right. But as to repairs or necessaries in the port or
state to which the ship belongs, the case is governed altogether by
the local law of the state, and no lien is implied unless it is
recognized by that law. But if the local law gives the lien, it may
be enforced in the admiralty.
It is said, however, that the place where these services were
performed was not within the jurisdiction of the admiralty.
Page 32 U. S. 342
The services in this case were performed in the port of New
Orleans, and whether this was within the jurisdiction of the court
or not will depend upon the fact whether the tide in the
Mississippi ebbs and flows as high up the river as New Orleans.
This is a question of fact, and it is not undeserving of notice
that although there was a plea to the jurisdiction of the court
interposed, the objection was not set up. Had it been put in issue,
the evidence would probably have removed all doubt upon that
question; not having been set up, it affords an inference that the
objection could not have been sustained by proof.
But we think we are authorized judicially to notice the
situation of New Orleans for the purpose of determining whether the
tide ebbs and flows as high up the river as that place. In the case
of
The
Apollon, 9 Wheat. 374, it is said by this Court
that it has been very justly observed at the bar that the Court is
bound to take notice of public facts and geographical positions,
and in the case of
The Steamboat Thomas Jefferson, the
libel claimed wages earned on a voyage from Shippingport, in the
State of Kentucky, up the river Missouri, and back again to the
port of departure. And the Court said that the voyage, not only in
its commencement and termination but in all its intermediate
progress, was several hundred miles above the ebb and flow of the
tide, and therefore in no just sense can the wages be considered as
earned in a maritime employment. It is fairly to be inferred that
the court judicially noticed the fact that the tide did not ebb and
flow within the range of voyage upon which the services were
rendered, as there is no intimation of any evidence before the
court to establish the fact.
It cannot certainly be laid down as a universal or even as a
general proposition that the court can judicially notice matters of
fact. Yet it cannot be doubted that there are many facts,
particularly with respect to geographical positions, of such public
notoriety, and the knowledge of which is to be derived from other
sources than parol proof, which the court may judicially notice.
Thus, in the case of
United States v. La
Vengeance, 3 Dall. 297, the Court judicially
noticed the geographical position of Sandy
Page 32 U. S. 343
Hook. And it may certainly take notice judicially of like
notorious facts, as that the Bay of New York, for instance, is
within the ebb and flow of the tide.
The appellants' counsel has referred the court to Stoddard's
Louisiana, 164, for the purpose of showing that the tide does not
ebb and flow at New Orleans, but we think it affords a contrary
conclusion. The author says, "the tides have little effect upon the
water at New Orleans; they sometimes cause it to swell, but never
to slacken its current." No distinction has ever been attempted in
settling the line between the admiralty and common law
jurisdiction, growing out of the greater or less influence of the
tide. So far as that admiralty jurisdiction depends upon locality,
it is bounded by the ebb and flow of the tide, and if the influence
of the tide is at all felt, it must determine the question. No
other certain and fixed rule can be adopted, and in determining
this, we must look at the ordinary state of the water, uninfluenced
by any extraordinary freshets. The authority of Mr. Stoddard goes
to show that the tides have some effect upon the water at New
Orleans; they cause it to swell, but not so much as to slacken the
current. In the case of
Rex v. Smith, 2 Doug. 441, it
became a question whether the sea could properly be said to flow
above London Bridge. It was contended that the tide beyond that
limit was occasioned by the pressure and accumulation backwards of
the river water. Lord Mansfield said a distinction between the case
of the tide occasioned by the flux of sea water, or by the pressure
backwards of the fresh water of a river, seemed entirely new. We
think, that although the current in the Mississippi at New Orleans
may be so strong as not to be turned backwards by the tide, yet if
the effect of the tide upon the current is so great as to occasion
a regular rise and fall of the water, it may properly be said to be
within the ebb and flow of the tide.
It has been argued on the part of the appellant that the
evidence shows that this steamboat was to be employed in navigating
waters beyond the ebb and flow of the tide, and therefore not
employed in the maritime service. In the case of
The Steamboat
Jefferson, the Court said there is no doubt the
Page 32 U. S. 344
jurisdiction exists, although the commencement or termination of
the voyage may happen to be at some place beyond the reach of the
tide. The material consideration is whether the service is
essentially a maritime service, and to be performed substantially
on the sea or on tidewater. All the service in the case now before
the Court was at New Orleans, and the first voyage, at all events,
was to commence from that port. The objection, therefore, to the
jurisdiction of the Court cannot be sustained.
2. The second exception is founded on a supposed waiver of any
privilege or lien, and that the appellees trusted alone to the
personal responsibility of the owners of the steamboat. To
determine this question, it becomes necessary to look at the
contracts under which the repairs were made. The first bears date
on 11 September, 1830, by which certain specified repairs were to
be made, for which the appellants stipulated to pay $1,150. No time
is fixed for the payment. The repairs contemplated by this contract
were such only as could be made without hauling up the boat. In the
progress of the work, however, it was discovered that more repairs
were necessary than had been supposed, and which could not be made
without hauling up the boat. And on 10 October, 1830, another
contract was entered into by which the owners agreed to pay $475
for hauling up the boat, $200 of which was to be paid in cash, and
the balance in one month after the boat shall be launched and set
afloat. The boat was then to be repaired under the instruction of
Captain Jarreau, the work to be paid for, when the account shall be
approved by Captain Jarreau. The boat to be repaired and delivered
afloat by 20 November, ready to receive a cargo; the appellees were
to allow $25 a day for each day they retarded the delivery.
An express contract having been entered into between the
parties, under which these repairs were made, is no waiver of the
lien unless such contract contains stipulations inconsistent with
the lien and from which it may fairly be inferred that a waiver was
intended and the personal responsibility of the party only relied
upon. Express contracts are generally made
Page 32 U. S. 345
for freight and seamen's wages, but this has never been supposed
to operate as a waiver of a lien on the vessel for the same. There
are certainly some of the older authorities which would seem to
give countenance to the doctrine that an express contract operated
as a waiver of the lien, but whatever may have been the old rule on
the subject, it is settled at the present day that an express
contract for a specific sum is not, of itself, a waiver of the
lien, but that to produce that effect, the contract must contain
some stipulations inconsistent with the continuance of such lien or
from which a waiver may fairly be inferred.
Hutton v.
Bragg, 2 Marsh. 339; 4 Camp. 145, and the cases cited in
note.
Applying these rules to the case before us, we can discover
nothing (except as to $275, the balance for hauling out the boat,
which will be noticed hereafter) inconsistent with the right of a
lien or indicating any intention to waive it. In the first
contract, no time is fixed for the payment of the $1,150; it became
payable, therefore, as soon as the work was completed. And the
repairs under the second contract were to be paid for as soon as
the account was approved by Captain Jarreau. There is nothing,
therefore, from which it can be inferred that any time of credit
was to be allowed. The balance of $275 for hauling out the
steamboat stands upon a footing a little different. That was to be
paid in one month after the boat was launched and set afloat. A
credit was here given, and a credit, too, beyond the time when, in
all probability, the boat would have left the port of New Orleans,
for it can hardly be supposed, that it would have taken thirty days
to load her. And by the Civil Code of Louisiana, Art. 2748, the
privilege ceases if the ship or boat is allowed to depart without
exercising the right. As to this sum, therefore, the decree is
erroneous.
3. The principal ground of complaint under the third point made
at the bar is that the appellants have been made to pay twice for
some part of the work. That is that part of the work which was to
be done under the first contract, and for which they were to pay
$1,150, has
Page 32 U. S. 346
been charged under the second contract. There is certainly some
confusion growing out of the manner in which this work was carried
on under the different contracts. The work which was to be
performed under the first was not completed when the second was
entered into, and both being carried on at the same time, might
very easily occasion some mistake. And in addition to this there
was, under the first contract, some extra work to be done and paid
for over and above the stipulated sum of $1,150, which rendered it
still more difficult to keep the accounts for materials and labor
under the different contracts separate and distinct. The evidence
was taken in writing, out of court, and no opportunity afforded for
explanation upon these points. The district judge, feeling the
difficulties growing out of these circumstances, ordered Wilson,
one of the witnesses whose deposition had been taken and read in
evidence, to appear and answer in open court. He was the clerk of
the appellees, who had kept an account of the timber used and work
performed, and on his examination he swore that all the charges and
items for work done in the account of the libellants were over and
above the work done under the first contract for $1,150. That the
libellants had hands at work at the repairs under the contract and
the extra work at the same time. That there is not a day's work,
nor a foot of plank, charged in the account which was to be done
under the first contract. This testimony leaves no reasonable doubt
of the correctness of the account. By the second contract, payment
was to be made when the account was approved by Captain Jarreau; no
formal approval appears to have been made, but he was a part owner,
and superintended the repairs, and one of the witnesses says, he
was present when the account was presented to Captain Jarreau, who
said he was not surprised at it because there was a great deal more
work than he had any idea of, and that he did not think at first
that she required so much. This, although not a direct, was an
implied approval of the account.
The delay in not delivering the boat to the appellants by the
time specified in the contract was occasioned by her unexpected
state and condition and the extent of repairs required.
Page 32 U. S. 347
And besides, the delivery at the time mentioned in the contract
was dispensed with by Captain Jarreau.
Upon the whole, we are of opinion that the decree of the
district court, as to the $275, must be
Reversed, and in all other respects affirmed.
This cause came on to be heard on the transcript of the record
from the Circuit Court of the United States for the Eastern
District of Louisiana, and was argued by counsel, on consideration
whereof it is the opinion of this Court that the decree of the said
district court as to the $275 is erroneous and should be reversed,
and that in all other respects the said decree should be affirmed,
whereupon it is ordered, adjudged, and decreed by this Court that
the decree of the said district court in this cause as to the
balance of $275 for hauling out the steamboat be and the same is
hereby reversed, and that the said decree in all other respects be
and the same is hereby affirmed, and it is further ordered that
each party pay his own costs in this Court.
