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SAME-VESSELS AFFECTED BY STATE STAT

UTES

52. The better opinion is that state statutes created this lien only on domestic vessels, and that the rights

of material men against foreign vessels depended upon the general maritime law.

As stated above, the distinction between supplies furnished to domestic vessels and to foreign vessels is largely artificial, and it is to be regretted that it was ever made. The symmetry of marine law requires that the general doctrine be modified as little as possible. If state statutes can regulate not only claims against domestic vessels, but against foreign vessels, they can add liens to maritime causes of action that did not exist before, and take them away where they did exist. Consequently, a foreign vessel would find a different law in every port. It is more consistent with principle to hold, as is historically true, that the sole purpose and object of these state laws were to put domestic vessels on the same footing as foreign vessels. The converse of this, that they can reduce foreign vessels to the basis of domestic vessels, would be a great anomaly. Accordingly, the best-considered decisions have held that the maritime rights of foreign vessels are independent of these state statutes (as an attempt to regulate them would be to interfere with the general admiralty jurisdiction), and that these statutes regulated only rights against domestic vessels.73

For this reason the fifth section of the act of June 23, 1910, provided that it should supersede all state statutes on the subject.

Co. v. Delaney Forge & Iron Co., 205 U. S. 354, 27 Sup. Ct. 509, 51 L. Ed. 836.

73 CHUSAN, 2 Story, 455, Fed. Cas. No. 2,717; Lyndhurst (D. C.) 48 Fed. 839; Electron, 74 Fed. 689, 21 C. C. A. 12; Roanoke, 189 U. S. 185, 23 Sup. Ct. 491, 47 L. Ed. 770; Corsica Transit Co. v. W. S. Moore Grain Co., 253 Fed. 689, 165 C. C. A. 283.

CHAPTER V

OF STEVEDORES' CONTRACTS, CANAL TOLLS, AND TOWAGE

CONTRACTS

53. Stevedores' Contracts-"Stevedore" Defined.

Maritime Character of Contracts, and Liens on Foreign

and Domestic Vessels.

54.

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53. A stevedore is a workman or contractor who loads or discharges a ship and properly stows her cargo.

SAME-MARITIME CHARACTER OF CONTRACTS, AND LIENS ON FOREIGN AND DO

MESTIC VESSELS

54. A contract for such service is maritime, and gives a maritime lien.

The services of a stevedore are essential to the financial success of a ship. The modern ship is intricate and complicated in her cargo spaces, and it requires the skill of an expert to load her to advantage. He must not only know how best to stow the cargo without loss of space, but also how to arrange it so as to trim her properly, putting the heavy nearest the bottom so as not to make her crank; and he must work with rapidity, for the daily demurrage of vessels amounts to a large sum, and every delay means heavy

loss. In view of the narrow margin on which business is conducted nowadays, the proper stowage, of the cargo makes all the difference between a profit and a loss.

In view of the importance of these services, it is surprising that its maritime character could ever have been questioned, yet until recently the preponderance of authority was against it. The probable explanation is that, when vessels were small, no great skill was required, and the loading was mainly done by the crew themselves.

In the Amstel,' Judge Betts denied the maritime character of the service on the ground that it was partly to be performed on land, and was no more connected with the good of the vessel than a man who hauls goods to the wharf, and many cases follow this decision without question.

But it has been seen that in matters of contract the test is the character of the service, and not its locality. Accordingly, in the GEORGE T. KEMP, Judge Lowell held that such services were maritime, and gave the stevedore a right to hold the vessel itself, at least if she was a foreign vessel, and this has been followed in many later cases.

Some of these cases hold that, although the service is maritime, the stevedore has his remedy in rem only against a foreign ship, or against a domestic ship where there is a state statute giving it. A typical case drawing this distinction is the Gilbert Knapp. It is a good illustration of the confusion caused in marine law by the distinction drawn between foreign and domestic vessels in connection with

§§ 53-54. 11 Blatchf. & H. 215, Fed. Cas. No. 339.

2 Fed. Cas. No. 5,341.

3 Luckenbach v. Pearce, 212 Fed. 388, 129 C. C. A. 64; Rupert City (D. C.) 213 Fed. 263; Atlantic Transport Co. of West Virginia v. Imbrovek, 234 U. S. 52, 34 Sup. Ct. 733, 58 L. Ed. 1208, 51 L. R. A. (N. S.) 1157. This last case was a suit by a stevedore for personal injuries, not a suit to enforce a lien for services rendered. It decided that such service is maritime in character, from which the right to proceed in rem ought to follow as a corollary.

4 (D. C.) 37 Fed. 209.

the doctrine of the rights of material men. The cases which hold that a stevedore has no lien upon a domestic vessel compare his work and character to that of a material man and follow those analogies. Most of these cases, when examined, will appear to be cases where the vessel actually was a foreign vessel, and where this qualification was put in by the judge, not as a decision, but as a cautious reservation which might protect him in future."

But the better opinion is that a stevedore is more like a sailor than a material man. The duties now performed by him under modern demands are the same as those that sailors used to perform. No one has ever supposed that a sailor had no lien on a vessel unless given by a state statute, and this distinction should not be drawn against a stevedore. Accordingly, in the SEGURANCA, Judge Brown reviews this question, holds that a stevedore is more like a sailor than he is like a material man, and decides that he ought to have a lien even in the home port, just as a sailor would have.

But, while the individual workman is like a sailor in his rights when he contracts directly with the ship, the above and other cases draw a distinction between his rights and those of a contracting`stevedore who employs laborers and does not work himself. He is held to resemble a material man and his service is on that footing. Hence, in the absence of statute, he would not on this theory have a lien on a domestic vessel."

The question is not important since the act of June 23, 1910, abolishing the distinction between domestic and foreign vessels as to the presumption of credit if his service is correctly classed as a necessary. If not a lien independent of the act, it would be by virtue of it.

Main, 51 Fed. 954, 2 C. C. A. 569; Norwegian S. S. Co. v. Washington, 57 Fed. 224, 6 C. C. A. 313; Scotia (D. C.) 35 Fed. 916. 6 (D. C.) 58 Fed. 908.

7 Rupert City (D. C.) 213 Fed. 263; ante, p. 108.

8 36 Stat. 604 (U. S. Comp. St. §§ 7783-7787).

SAME PRIVITY OF CONTRACT NECESSARY TO LIEN

55. This being a lien arising from contract, only those are entitled to it who have a contract with the vessel.

It is not like a subcontractor's lien under a state mechanic's lien law. Hence, if a vessel employs a stevedore to load her, he would have a lien, but the workmen employed by him would not, for their contract would be with him, and not with the vessel. So if a vessel comes under a charter party, by which the charterer is to load her and pay a lump sum for her use, it is no interest of the vessel whether the charterer loads her or not. If he does not, he will have to pay the charter price for her. use just the same, and no loss would be entailed upon the vessel, as she would get dead freight. In such case, the charterer would be an independent contractor, and, if he employs a stevedore, the latter would have no contract with the vessel itself, and would have to look to him. On principle, this doctrine is clear. The only confusion which has arisen under it at all is that frequently the charterer is not only charterer, but agent of the vessel, having authority from the vessel. If the stevedore deals with him in that capacity, and does not know the limitations of his power, or is not so put upon inquiry as to charge him with knowledge, it may sometimes be the case that the vessel will be bound, but the natural presumption would be the other way."

The relation between the stevedore and ship is but a branch of the general law of master and servant, and is foreign to the present subject. He is so far the agent of the ship as to bind the ship by his acts, even when the charter

That a contract with the vessel must be shown, see Hattie M. Bain (D. C.) 20 Fed. 389; Mark Lane (D. C.) 13 Fed. 800; Chicklade (D. C.) 120 Fed. 1003.

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