
    Woodruff v. One Covered Scow.
    
    
      (District Court, E. D. New York.
    
    February 18, 1887.)
    1. Vitare and ViiAitEiNGiaii,— Floating Boat-House — Maritime Contract — ■ Lien.
    An implied contract for Uie wliarfago of a floating boat-liouso is a maritime contract by reason of the subject-matter, and a lion attaches for the wharfage, enforceable in admiralty.
    2. Same — Rate—-New York State Statute.
    
      Held, that the rate of wharfage fixed by the Hew York state statute regulating wharfage in Hew York and Brooklyn should bo adopted here as the rate chargeable against the structure in question.
    In Admiralty.
    
      J. E. Luddm, for libelant.
    
      E. 11. Chevalier, for claimant.
    
      
       Reported by Edward G. Benedict. Esq., of the New York bar.
    
   Benedict, J.

This is a proceeding in revi to enforce a lien for wharf-age against a structure termed in the libel a scow. The facts are not in dispute. The structure proceeded against consists of a float, made of timbers, in width some 11 feet, and in length some 23 foot, constructed to float in the water, and to support above the surface of the water a floor and a house nearly the size of the float. One use of the structure is to store within the house the oars and sails of small boats landing at the float, and to afford persons a means of egress from small boats coming to the slip 'to the adjoining wharf, and thence to the shore. This structure was never used as a means of transporting upon it from place to place either passengers or freight. It has for a long period been moored alongside the libelant’s wharf, in one of the slips of this harbor, being attached to the wharf by lines, and there safely rising and falling with the tide. For the use thus made of the libelant’s wharf the libelant seeks to enforce a lien.

The action is sought to be upheld by reference to the statute of the slate of Now York, winch fixes the rates of wharfage in New York and Brooklyn, and gives a lien for the same. This statute, after fixing rates of wharfage for certain kinds of vessels, proceeds as follows:

“And from every other vessel or floating structure other than those above named, or used for transportation of freight or passengers, double the first above rates; except that floating elevators shall pay one-half the first above 'rates.”

This provision is manifestly imperfect, and the question arises, what effect can be given to the words, “or used for transportation of freight or passengers.” As the words read, they are without moaning, and if no effect is to be given them, tbe statute, by the previous words “floating structure” includes in its provisions the structure hero proceeded against. But if, as the claimant contends, the word “or” be stricken out, and the word, “and” inserted in its place, the previous words, “floating structure,” will be so qualified as to exclude the structure here proceeded against; while, as the libelant suggests, effect may be given to all the words used, by inserting the words “airy craft,” after the word “or.” So read, the statute would include the structure proceeded against.

It has been supposed by the advocates that this case must stand or fall, as one or the other of these constructions is placed rjpon the statute referred to. But while the statute, if construed as the libelant contends, would determine the rate of wharfage chargeable against this structure, the right of the libelant to maintain this action cannot depend upon the statute; for a statute of the state, while it may create a liability on the part of the owner of this structure to pay wharfage, and may attach a lien upon the structure to enforce such liability, cannot confer upon this court jurisdiction to enforce such a lien by a proceeding in admiralty. The jurisdiction of this cou,rt to entertain the present proceeding depends not upon any statute, but upon the question whether the implied contract to pay the libelant for the use made of his wharf 'by the structure in question is a maritime contract. If the contract be maritime, this court, sitting in admiralty, has jurisdiction to enforce it; otherwise not. The case in this aspect would be easily disposed of, if the structure in question could be held to be a ship or vessel; the supreme court having, in Ex parte Easton, 95 U. S. 68, held a contract for the wharfage of a ship or vessel to be maritime. . But this structure, being stationary, and never employed in the transportation of freight or passengers from place to place upon the water, cannot be held to be a ship or vessel. The case therefore is not covered by Ex parte Easton. Neither in Ex parte Easton, nor in any other case to which I have been referred, has the precise question here involved been determined; nevertheless, the grounds upon which the decision in Ex parte Easton proceeds afford reason, in my opinion, to hold the present contract to be maritime in character. For it will be observed that the subject-matter is the same in the one case as in the other, save only in this: that the structure accommodated is not engaged in the transportation of passengers or freight from place to place upon the water. ’ What the wharfinger furnishes, under contract with a ship or vessel, the libelant furnished to this structure, namely, a resting place, safe from the influence of currents and of tides, and this he did by means of a wharf, which is an incident to navigation. Moreover, the object of this resting place was to facilitate the landing of sails, oars, and persons from the small boats accustomed to use this structure, and en-. gaged in navigation. The object sought to be secured by the contract with the libelant for the use of his wharf for this float was similar in character to the object sought to be secured by a contract for the wharf-age of a ship. Furthermore, the structure itself, although not a ship or vessel in the legal sense, and perhaps not one of the other “kind of water craft,” to which the supreme court, in Ex parte Easton, alludes as distinct from a ship or vessel, is used in connection with navigation on the water and the transportation on the water of passengers and freight, and in no other occupation,

If no boats bad frequented this slip for the purpose of landing persons or goods this float would not have been there. It was there because the boats coming there required it, in connection with the navigation in which they were engaged. The use to which the float was put seems clearly maritime in character. The necessities which made a wharf necessary for the float were necessities of the sea, while the benefit derived from the use of the wharf by this structure inured to persons and things transported on the sea. These considerations appear to me to be sufficient to authorize a determination that a contract for the wharfage of such a structure is a maritime contract by reason of the subject-matter. The contract sued on being maritime, the jurisdiction of the admiralty to enforce it follows of course.

There remains the question whether the maritime law attaches to such a contract a lion for the wharfage. Upon this question there is little room to doubt. By the maritime law a lion for wharfage always attaches to a ship or vessel, and the reasons for the lien in the case of a structure like this are as forcible as in the case of a ship. Of course, if the libel-ant’s construction of the state wharfage statute ho adopted, a lion is created by that statute, and being attached to a maritime contract by the law, may be enforced in a court of admiralty as part of the contract. But whether such a construction of the statute is possible, the view I have take]! of the ease renders it unnecessary to decide.

The final question relates to the rate of wharfage which the libelant is entitled to charge. If the rale of wharfage of this structure as a floating structure bo fixed by the statute, that is the rate to ho enforced herein as being the rate contemplated by the parties. If, on the other hand, the state statute does not fix any rate of wharfage for such a structure as this, then the rale must bo fixed by the court, and in that case no juster rate could be adopted, as it seems to mo, than the rate which would be statutory if the statute bo read as the libelant contends. I therefore adopt that rato as the just and proper rate of compensation for the wharf accommodation furnished by the libelant to the structure proceeded against. At that rato, as I. understand it, there is due the libelant tire sum of $584, and for that sum, with costs, the libelant may have a decree.  