The Davis
77 U.S. 15 (1869)

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U.S. Supreme Court

The Davis, 77 U.S. 10 Wall. 15 15 (1869)

The Davis

77 U.S. (10 Wall.) 15


1. Personal property of the United States on board of a vessel, for transportation from one point to another, is liable to a lien for salvage services rendered in saving the property.

2. Such lien cannot be enforced by the courts by a suit against the United States.

Page 77 U. S. 16

3. Nor by a proceeding in rem when the possession of the property can only be had by taking it out of the actual possession of the officers or agents of the government charged therewith.

4. It may be enforced by a proceeding in rem where the process of the court can be enforced without disturbing the possession of the government, which, being thus compelled to appear in the court to assert its claim, must discharge the lien before the property will be delivered to it.

In 1865, Simeon Draper, treasury agent of the United States, shipped from Savannah a quantity of cotton on the schooner Davis, of which one Kemplen was master, to be carried and delivered to him, the said cotton agent of the United States, or his assigns, in New York. For this the master gave the usual bills of lading, and was to run freight at the rate of fifteen cents a ton per day. On the voyage the vessel met with a disaster, and she and her cargo were saved from total loss by the meritorious service of one Douglas and others. The vessel was carried by Douglas and the others, her salvors, to a place of safety, and left to find her way into the port of New York. Immediately on her arrival and before any of the cotton was delivered to the agent, Douglas libeled the vessel and cargo, and, a writ being issued, the marshal took possession of them under it. The United States appeared by attorney as claimant of the cotton, and interposed the defense that it was not liable to salvage under the circumstances.

The district court admitted that the services were salvage services, and fixing their worth at a certain sum, entered a decree against the vessel for its proportion of the same; but

"inasmuch as the cotton saved was in possession of and claimed by the United States, as the United States intervened, claiming the said cotton, and setting up that no lien existed, and that no attachment could be made against it in possession of the United States,"

dismissed the libel as to the cotton. The circuit court reversed the decree so far as it relieved the cotton, affirming it in other respects.

From this decree of the circuit court the United States appealed, and two questions were raised by the record:

Page 77 U. S. 17

1st. Whether personal property of the United States, on board a vessel for transportation from one point to another, was subject to a lien for salvage services rendered in saving the property.

2d. Under what circumstances, if any, could the lien be enforced, if any lien existed.

Page 77 U. S. 18

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