McDonald v. Nimbus , 1884 Mass. LEXIS 271 ( 1884 )

Field, J.

We do not find it necessary to determine whether, under the existing decisions of the Supreme Court of the United States, and the existing admiralty rules, this court has jurisdiction to enforce a lien created by the statutes of the Commonwealth for materials used or labor performed in repairing a domestic vessel. See Donnell v. The Starlight, 103 Mass. 227; Foster v. The Richard Busteed, 100 Mass. 409; The Lottawanna, 21 Wall. 558, 580; The Guiding Star, 9 Fed. Rep. 521, and 18 Fed. Rep. 263; Stewart v. Potomac Ferry Co. 5 Hughes, 372; The Woolsey, 3 Fed. Rep. 457, and 4 Fed. Rep. 552; Hayford v. Cunningham, 72 Maine, 128; Weston v. Morse, 40 Wis. 455; Crawford v. The Caroline Reed, 42 Cal. 469.

It is conceded that a contract to construct a vessel is not a maritime contract; that a lien created by the statutes of a State for labor and materials furnished in the construction of a vessel is not a maritime lien; and that therefore the District Court of the United States, as a court of admiralty, has no jurisdiction to enforce such a lien. The jurisdiction is in the State courts. Foster v. The Richard Busteed, ubi supra. Wilson v. Lawrence, 82 N. Y. 409. Roach v. Chapman, 22 How. 129. Edwards v. Elliott, 21 Wall. 532. The Orpheus, 2 Cliff. 29. The facts, we think, show that the materials furnished in this case were furnished in the construction of the vessel. She was not so far constructed as to be fitted for sea, and used as a commercial vessel, until after her arrival in Gloucester. Wilson v. Lawrence, ubi supra. We do not find it necessary to determine whether, within the meaning of the Gen. Sts. c. 151, § 12, Walen was the owner of the vessel before January 31, 1877, when the bill of sale was made to him.

The statutes contemplate that the vessel must be in the Commonwealth when the debt is contracted, if a lien is to be established under the statutes. The Gen. Sts. c. 151, § 12, give a lien for labor, materials, and supplies “ furnished for or on account of such ship or vessel in this State.” This may be said to be ambiguous, and to leave it uncertain whether the ship or vessel must be in this State when the materials and supplies are furnished, or whether the materials or supplies must be furnished to the owner or other person in this State, without regard to the place in which he is constructing the vessel. But § 13 provides that " such lien shall be dissolved unless the person claiming the same files, within four days from the time the ship or vessel departs from the port at which she was when the debt was contracted, in the office of the clerk of the city or town within which the ship or vessel was at the time the debt was contracted, a statement,” &c. Section 14 makes provision for a ship or vessel partly constructed in one place and partly in another, and provides that “ either place shall be deemed the port at which she was when the debt was contracted, within the meaning of this chapter.” Section 15 provides that “ such lien may be enforced by petition to the Superior Court for the county where the vessel was at the time the debt was contracted or in which she is at the time of instituting proceedings.” It is manifest from reading these sections, that the clerk of the city or town in whose office the statement must be filed is the clerk of some city or town in this Commonwealth; and that the ship or vessel must have been within this city or town when the debt was contracted, unless the vessel was partly constructed in one place and partly in another place in the Commonwealth, and then only one statement is necessary, and that may be filed with the clerk of either place. It would be an extraordinary statute that should attempt to establish a lien upon property situated without the limits of the Commonwealth, and the Legislature clearly has made no such attempt.

The materials bought by Walen or his agent after the vessel came to Gloucester, which were used in the construction, amount in value to $18.57. These amounts were duly set out in the statement filed with the city clerk of Gloucester, within four days after the vessel’s first departure from Gloucester. The error in the record does not affect these items. It does not appear that the petitioner, in including the set of blocks and hoops sold while the vessel was in Maine, or in the mistake of ten cents made in the addition of the amount of the items, “ wilfully and knowingly claimed more than is due; ” Gen. Sts. c. 151, § 14; and the lien is not thereby invalidated. Young v. The Orpheus, 119 Mass. 179.

The only remaining question which has been argued is that of laches. The Gen. Sts. c. 151, § 12, provide that the lien “shall continue until the debt is satisfied.” It is a lien of record. In this case, as the vessel was principally constructed in Bath, Maine, a purchaser would naturally look there for the record of any statutory liens. Still, as we have held that she was not completely constructed there, but was partly constructed in Gloucester, the fact that the materials furnished for her construction in Gloucester were very small in amount cannot affect the principle. They “ were necessary to the rigging and equipment of a schooner, and were the first that were put upon the schooner.” Maritime liens, at least such as are created by the general maritime law, are liens of which there is no record, and must be seasonably enforced, especially when the vessel has passed into the possession of a purchaser for value without notice of the lien. But the legal record of a statutory lien is notice to all subsequent purchasers of the vessel.

We think the petition was seasonably filed. The petitioner is entitled to judgment for $18.57, and interest thereon from the date of filing the petition. Young v. The Orpheus, ubi supra. Ordered accordingly.