1. Under the maritime law, there is no lien upon a vessel for
materials furnished and work done in repairing her at her home
port.
2. A creditor, claiming the benefit of the provisions of the
statute of New York, passed April 24, 1862, which purport to give
such a lien must, whether they be invalid or not -- a point which
the Court deems it unnecessary in this case to decide -- take it
subject to all the conditions which they impose, and he loses it if
it be not enforced within the time prescribed. Where a
Page 94 U. S. 519
seizure has been seasonably made, a bond in conformity to them,
when executed and delivered to him by the owner, is a substitute
for the lien, and works a discharge of the vessel.
3. The district court can marshal the fund in its registry only
between lienholders and owners.
In July, 1870, Buckman & Co., having done work and furnished
materials amounting to $3,597.37 in repairing the
Edith,
while she was lying in navigable waters in her home port of New
York, claimed a lien on the ship for materials and repairs under an
Act of the State of New York entitled "An Act to provide for the
collection of demands against ships and vessels," passed April 24,
1862. Acts of 1862, p. 456. The requisite notice was filed the
twenty-seventh day of July, 1870, a few days after the vessel had
left that port. Sometime after her return, the precise period not
appearing, proceedings were instituted by the firm and an
attachment was issued to the sheriff of the City and County of New
York, who, after seizing her, discharged her on a satisfactory bond
for the claim having been given on behalf of the owner. On the
first day of April, 1871, she was libeled in the District Court of
the United States, sitting in admiralty, and sold under a decree
rendered on the 8th of the following month. After satisfying the
decree and subsequent costs, there remained $31,176.82 in the
registry of the court. On the 17th of the latter month, the firm
filed their petition in that court praying that so much of the fund
as was necessary be applied to the payment of the amount so due
them, which they claimed was, at the time it accrued, a lien on the
Edith, she being a domestic vessel belonging to the port
of New York. At the time of filing the petition, a suit by the firm
on the bond, which had been given to release her from the
attachment, was pending in the state court.
The petition was resisted by Sedgwick, the assignee in
bankruptcy of the owner of the
Edith, and by Tyler. To the
latter more than the amount of the fund was then due from the
owner, who had executed a mortgage therefor on three-fourths of the
vessel Jan. 11, 1870. The instrument was recorded the same day in
the New York custom house, and
Page 94 U. S. 520
a copy of it filed in the office of the Register of the City and
County of New York. There was also a prior mortgage on one-half of
the vessel.
The district court decided that Buckman & Co. had not a lien
on the ship, nor any title to such fund as between them and the
assignee in bankruptcy and the mortgagees.
The petition of Buckman & Co. was dismissed; and they
appealed to the circuit court of the United states for that
district, where a decree of affirmance was passed. They then
appealed to this court.
MR. JUSTICE STRONG delivered the opinion of the Court.
Assuming that, by virtue of the provisions of the statute of New
York of April 24, 1862, 4 Gen.Stat. 632, the appellants had a lien
upon the ship for the repairs made and materials furnished by them,
it is a vital question whether that lien remained in existence when
the ship was sold on the eighth day of May, 1871. If it had expired
or if it had been discharged before that day, it is useless to
examine the other questions raised in the case, for however they
might be determined, the decree made in the court below must
necessarily be affirmed.
The repairs having been made upon a domestic vessel in her home
port, there was no lien for them by the maritime law, and therefore
whatever right the appellants had to a lien is that which was given
to them by the laws of the state. The statute undoubtedly gives a
lien, but not one of unlimited duration. The first section declares
that debts contracted for work done or materials furnished in the
state, for repairing seagoing or ocean-bound vessels shall be a
lien upon such vessels and be preferred to all other liens thereon
except mariners' wages. But the second section declares that
"Such debt shall cease to be a lien at the expiration of six
months after the said debt was contracted unless at the time when
said six months shall expire such ship or vessel shall be absent
from the port at which such debt was contracted, in which case the
said lien shall continue until the expiration of ten days after
such ship or vessel shall next return to said port. "
Page 94 U. S. 521
The repairs in this case were made upon the ship in the month of
July, 1870, and on or before the 22d, for the ship cleared on that
day, and sailed from the port a day or two afterwards. The lien
therefore expired in January, 1871, unless the ship was then absent
from the port of New York. If she was then absent, the lien expired
at the end of ten days after her next return. It does not appear in
the record exactly at what time she did return, but in the petition
of the appellants for an appeal to this Court, it is averred that
she was libeled in the Southern District of New York at the suit of
another party on the 1st of April, 1871, was duly attached, and was
sold by virtue of a decree obtained in that case. It is the
proceeds of that sale, made May 8, 1871, which are now in the
registry of the district court, and the petition of the appellants
for payment out of the proceeds was not presented until May 17.
How, then, can it be maintained that the statutory lien for the
debt had not expired? It is argued the presumption is that the ten
days next after the return of the ship had not elapsed when the
appellants filed their petition. Were it possible that any such
presumption could be accepted, it would be a presumption of fact,
and there is quite enough in the case to overcome it. The ship was
libeled in admiralty, as we have noticed, on the 1st of April,
1871. She was duly seized, a decree against her was made, and under
it she was sold on the 8th of May. It is hardly possible that the
seizure, decree, and sale could have been made within ten days. It
could not have been if in accordance with the usual course of
admiralty practice. As the seizure was made in the Southern
District of New York, it would be an inadmissible presumption that
the ship had not returned to the port of New York more than ten
days prior to the sale, or certainly more than ten days prior to
the 17th of May, when the appellants filed their petition. And this
is not all. The evidence shows that after the return of the ship,
the appellants caused an attachment to be issued out of the supreme
court of New York, in virtue of which the sheriff of the city and
county seized the ship, and a satisfactory bond was given, as
allowed by the statute of the state, and the ship was discharged.
This must have been before the marshal had taken the ship into
custody under the process of the admiralty court.
Page 94 U. S. 522
The sheriff could not have attached her after the marshal's
seizure. It is reasonably clear, therefore, that she had returned
to the port of New York more than ten days before she was sold.
This is the result of affirmative proof.
But were there no such proof, the burden of showing the contrary
would rest upon the appellants. Six months having expired after the
repairs were made to the ship, they had no lien unless the ship was
absent from the port at the expiration of that period, and then
only during ten days after her next return. The lien during those
ten days was a special privilege given to them by statute -- an
exceptional right. Hence, it was incumbent upon them to show that
such a right existed, and by proof to bring themselves within the
exception. This is always the rule when a party claims a peculiar
right given by a statute -- a right not common to all and which is
given only when a prescribed state of facts shall exist. Such proof
the appellants have not adduced, and therefore they have failed to
show that their statutory lien had not expired before they
presented their petition for payment, and even before the ship was
sold.
And were this not so, still, on the facts of the case as
exhibited by the record, it must be held that the lien was
discharged.
It is almost superfluous to remark that whatever lien the
appellants ever had, they held it subject to all the provisions of
the statute which gave it to them. They sued out an attachment
against the ship, after her return to New York, for the recovery of
the claim they now set up. The ship was seized by the sheriff of
the city and county, and, a satisfactory bond having been given
according to the provisions of the lien law, the ship was
discharged from the custody of the sheriff, and from the
attachment. Upon that bond a suit has been brought which is now
pending. The effect of such an attachment and bond is plainly
declared by the statute. The twelfth section enacts, that
"Upon such bond's being executed and delivered to such attaching
creditor or his attorney, . . . no further proceedings against the
said vessel so seized shall be had under the provisions of this
title, founded upon any demand secured by such bond."
The bond is thus made a substitute for the lien, and its purpose
and effect are to work a discharge of the vessel. It matters not
that the statutory provisions for enforcing
Page 94 U. S. 523
the lien have been adjudged invalid because beyond the power of
the state legislature. If they are invalid, it may be doubted
whether all the provisions purporting to give a lien are not also
invalid because inseparable from the prescribed means of enforcing
it. But without deciding that we may remark that clearly the state
had power to enact that the lien it created should terminate if a
bond was given in place of the vessel, and the creditor claiming
the lien must take it subject to the conditions imposed.
It need hardly be added that, though a proceeding
in
rem and a petition for payment of a claim out of proceeds of a
sale remaining in the registry are distinct things -- the former
proceeding on the ground of a lien -- yet no one except an owner is
entitled to payment out of the registry unless he has a lien upon
the fund therein. The court can marshal the fund only between
lienholders and owners.
Decree affirmed.
