Citations
- 3 F.2d 1015
Full opinion text
LOWELL, District Judge.
This is a petition to review an order of Mr. Referee Black.
The proceeding involves a question of considerable doubt and difficulty, which, so far as I am aware, has never been decided. It relates to the true construction of the Maritime Lien Act of 1920 (Comp. St. Ann. Supp. 1923, § 8146% et seq.). The section involved is an amendment of the prior Act of June 23,1910 (Comp. St. § 7783 et seq.). The former act was passed to remedy an intolerable situation which had arisen in the courts of the United States over the very varying decisions which had been rendered on the question of liens on vessels for repairs and supplies. The distinction had been drawn between a vessel in her home, port and a vessel in a foreign port; this gave rise to conflicting rules of law. There was also a discrepancy in the decisions as to when and under what circumstances the repairs or supplies should be hold to have been furnished on the credit of the vessel. State statutes of various kinds further complicated the matter. The various confusing questions above outlined have been very ably described by FitzHenry Smith, Jr., Esq., in 21 Harv. Law Rev. 332, and 24 Harv. Law Rev. 182.
The act of 1910 was passed to clarify this situation. It did away with the state statutes, with the distinction between home and foreign ports, and also with the necessity of proving that the credit of the vessel had been relied on. On the latter point, the act designated certain persons who alone were authorized to bind the vessel. A further element of confusion, not yet entirely removed, was the question of what happenéd when a vessel was chartered. We are not concerned with this in the present ease.
The original act of 1910- was strictly construed by the courts who took a narrow view of the 'statute. The Federal Maritime Lien Act, by John W. Griffin, Esq., 37 Harv. Law Rev. 15.
The decision in the case at bar depends on the meaning of the-amendment of 1920. The phraseology of the amendment is significant. The original act was as follows:
“Any person furnishing repairs, supplies, or other necessaries, including the use of dry dock or marine railway, to a vessel, whether foreign or domestic, upon the order of the owner or owners of such vessel, or of a person by him or them authorized, shall have a- maritime lien on the vessel which may be enforced by a proceeding in rem, and it shall not be necessary to allege or prove that credit was given to the vessel.” 36 Stat. 604 (Comp. St. § 7783).
Under this act it was held that towage was not covered by the act, because the act read, “repairs, supplies and other necessaries, including the use of dry dock. * * * ” Several courts held that the words “and other necessaries” should be limited to a class similar to that indicated by the words “repairs and supplies,” and that therefore. towage, and also stevedoring, did not come within the terms of the statute. The J. Doherty (D. C.) 207 F. 997; The Muskegon (D. C.) 275 F. 117; Griffin, op. cit.
In the amendment of 1920 the Congress added “towage” and changed the position of the words “and other necessaries,” and the statute now reads as follows:
“4-ny person furnishing repairs, supplies, towage, use of dry dock or marine railway, or other necessaries, to any vessel, whether foreign or domestic, upon the order of the owner of such vessel, or of a person authorized by the owner, shall have a maritime lien on the vessel, which may be enforced by suit in rem, and it shall not be necessary to allege or prove that credit was given to the vessel.” Subsection P of section 30, Act of June 5, 1920, 41 Stat. 1005 (U. S. Comp. St. Ann. Supp. 1923, § 8146*4 . necessity. That ease is not precisely an authority for the present one, since the Monongahela river could not have been' used by the tugboat without using the lock, while-in the present ease,the steamboat could have-gone around Cape Cod without using the-canal. This hardly seems, however, a sufficient reason for making a distinction. In my opinion the act of 1920 was passed by Congress to give a more extended scope to-the original act. I am therefore of the opinion that the charges for the use of the canal-gave rise to a lien on the steamship Carisco. As I have said before, the question is not' free from doubt, and it is with some hesitation that I overrule the finding of the learned referee.
Petition allowed; finding of Mr. Referee-Black reversed.