The Arthur B. , 1 Alaska 353 ( 1901 )

WICKERSHAM, District Judge.

There is no statutory provision in the Code of Alaska upon the subject of maritime liens. There is no finding that the owner and charterer are residents of Nome, but that fact appears from the record, and it seems for that reason that this is the home port of the schooner, and that she rested upon the beach within the city limits at the time the service was performed. The court is not cited to any authority which holds that the services admittedly performed by these libelants would constitute a maritime or any lien against the vessel. Counsel cites the case of Frame v. The Ella (D. C.) 48 Fed. 569, and upon an examination of the citations made by counsel for libelants that case comes the nearest of any to supporting their contention. That is a case where the schooner Ella was carried 1,200 or 1,300 feet beyond the ordinary water’s edge, and beached high and dry upon the shore of the Elizabeth river. The owner employed a house mover with his outfit to move her back to the natural element from which she had been driven. The opinion discloses that he moved her about twice her length in that direction, and then changed the plan of procedure to digging a canal. For this purpose the dredge of one Culpepper was employed, and in stating the facts the court says:

“On the 5th of December the dredge was again hired, Frame and ■Condon, the master of the Ella, uniting with Culpepper in a written contract, by which they pledged the lien of the vessel for the $351 already earned and for the wages to be earned.”

Their efforts failed, and another party was employed, who successfully completed the canal to the vessel and launched her. Upon a proceeding in admiralty by Frame against the vessel to recover on the maritime lien, the court held that he was entitled to compensation for moving the vessel from the spot where he found her to that point to whfch the canal was dredged; and allowed him, beyond what Condon was paid, the sum of $300. It would seem as if this opinion goes as far as the court would be justified to go. How much force the contract-of lien entered into by the captain of the vessel with Frame and Condon may have had in inducing the court to uphold Frame’s lien, is not shown.

The libelants in this case have asked the court to go further. They ask that the rule there laid down be upheld in a case where the employment was made by the owner and charterer, at the home of the owner and charterer, and at the home port of the vessel. The labor performed by these libelants was not in the nature of a salvage service, for the vessel was not in any danger. ' She was lying where she had rested the, whole winter in safety. She was lying where all such small vessels lie in the winter time at this port. They were only ordinary laborers, employed by the charterer, presumably upon his own credit, for the performance of labor upon land in digging ice, snow, and sand from around the vessel.. They were not employed to perform any dangerous service, nor did their labor in any wise tend specially to preserve the vessel. Their services were not in any way connected with the navigation of the ship nor in the performance of any voyage, nor in any preparation of the vessel for a voyage. There is nothing in the evidence or findings to show that they performed their services depending upon any lien upon the vessel, or that they had any contract of that kind. The C. Vanderbilt (D. C.) 86 Fed. 785.

In the case of The Mary Morgan (D. C.) 28 Fed. 196, the court said, in speaking of liens of this kind:

“Liens are implied for necessary repairs and supplies, where the debt is contracted by the master in a foreign port. The implication is founded on the ship’s situation and presumed necessities. The master representing the owner, with authority to pledge the ship whenever his necessities require it, the law implies a pledge where repairs are made or supplies furnished abroad, on his order.”

And, after citing the authorities, concludes that, where the owner is present, he may authorize an expressed lien, and that an implied lien will not be presumed. Where the services are performed upon the credit of the owner or chaiterer, who are present, at their home and at the home port of the vessel, an implied lien in admiralty will not be presumed. Unless a contract lien is shown, and unless a lien is specially given by the legal owner for such services as that rendered in his case, none will be presumed. The Mary Morgan (D. C.) 28 Fed. 196; The Now Then, 5 C. C. A. 206, 55 Fed. 523; The Ella (D. C.) 84 Fed. 471.

The objections to the libels will be sustained.