
    CHARLES J. FISHER, Plantiff and Appellant, v. CHARLES LULING and ISAAC TAYLOR, Defendants and Respondents.
    The claim of a stevedore for unloading a vessel is not a subject of admiralty jurisdiction; the contract not being a maritime contract. Whenever the admiralty jurisdiction prevails, it is exclusive; but when admiralty has no jurisdiction, the jurisdiction of the State courts is unimpaired and operative.
    The statute of New York, of April, 1863, providing for the collection of demands against ships and vessels, is constitutional, except so far as the same attempts to confer jurisdiction in the State courts, in a 'case of admiralty jurisdiction, of which the United States courts have exclusive cognizance, either in rem or in personam.
    
    The case of The Josephine (39 W. Y. 19), and The Belfast (7 Wall. 436) discussed. The applications of rulings in The Josephine, to the case of a stevedore, denied.
    Before Monell, McCunn and Spencer, JJ.
    
      Decided April 29, 1871.
    Appeal from judgment for costs.
    The plaintiff obtained an attachment against the bark Harriet, under State statute of April 3, 1863, on his claim for services as a stevedore, in loading the vessel.
    The defendants gave a bond to procure the discharge of the vessel, and. the action in the court below was brought to recover on this bond, the amount of the claim of the plaintiff.
    After the plaintiff had rested his case, the defendants’ counsel moved to dismiss the complaint, upon the grounds that no contract within the meaning of the statute is proven ; also, upon the ground that the statute is unconstitutional.
    
      The motion to dismiss was granted, and the plaintiff’s counsel duly excepted.
    The facts and points in the case appear fully from the opinion of the court and the points of counsel.
    
      William W. Goodrich, for appellant.
    A contract within the meaning of the statute was proven. 1. The statute provides, that whenever a debt “ shall be contracted by the master, owner, charterer,” &c., “ of any ship or vessel, or the agent of either of them,” “ on account of loading” such vessel, such debt shall be a lien upon the vessel, under the provisions of the statute.
    3. Such a debt was contracted by the master, by the owner, by the charterer, and also by the agent of each of them. The term, “ debt shall be contracted,” refers either to an actual or implied contract—not simply to the execution of any written or parol agreement—but to the incurring of an obligation on.the part of the vessel, or her owners or agents. On a given state of facts the law implies an obligation, and the contracting of a debt.
    3. The owner of the vessel, by Euger, his agent, chartered her to Comstock, for a voyage from New York to San Francisco, and in the written charter, agreed that the stevedores should be “satisfactory” to him (folio 36), and that the “ship should pay the stevedore” (folio 37). Accordingly, one of the Euger Bros, ordered the plaintiff to go aboard the vessel. He made his bargain with them, to be satisfactory with the charterers (folio 26), and Comstock sent the plaintiff to Euger Bros., the owner’s agent (folio 7), and in pursuance of these interviews, the plaintiff loaded the vessel. The master, another agent of the owner, was aboard the vessel while the plaintiff did the work (folio 28). These facts would sustain an action against the owner for the bill; in other words, the owner contracted a debt.
    4. But the plaintiff saw fit not to rely solely upon the personal liability of the owner of the vessel. He filed his lien under the statute, which gave him additional rights. If he can show that a debt was contracted by either owner, charterer, master, or the agent of either of them, he obtains under the statute a lien on the vessel in whose service the debt was contracted.
    
      5. A “debt was contracted by the charterers” of the vessel, Comstock & Co., “on account of the loading of vessel.” They sent the plaintiff to Huger & Co. for the purpose of loading the vessel, and in pursuance of that, he loaded the vessel (folio 7). This was an employment of the plaintiff by the charterers, and the debt was contracted by them.
    6. Again: the debt was contracted by the owner himself. William Huger, one of the firm of Huger Bros., testifies that Ms firm were the brokers of the bark Harriet, and acted as brokers for her (folios 16, 17) up to the spring of 1867 (folio 18) ; to the time of the execution of charter-party (folio 18); and that they closed the charter-party (folio 19) under which the vessel sailed (folios 31, 23), and that they had such authority from Isaac Taylor, the owner (folio 19). The vessel sailed on her voyage with the cargo on board (folios 21, 23). These facts constitute a ratification of the acts and agency of the Huger Bros., in making the charter and providing for, and employing the stevedore, which renders the owner of the vessel liable for the plaintiff’s services, and implies a contract on his part to pay for them.
    7. Again: the master, by the general maritime law, has authority to contract a debt for loading a vessel, and a debt or obligation of the owner therefor, may be incurred by a special contract of the master, or by such a course of conduct pn the part of the master, as to imply the obligation of the owner. The master was aboard the vessel while she was being loaded (folio 28). He permitted it to be done. He adopted and derived the benefit of the plaintiff’a services, on behalf of the owner,- by accepting the services, and sailing with his vessel on the voyage named in the identical charter-party, which provided also for the employment of the stevedore, and his payment by the ship’s owner. This ’ implies an obligation on the part of the owner, none the less actual than that which would arise under the special contract of the master.
    The statute is constitutional, so far as it relates to stevedores. The Constitution of the United States provides that the judicial power of the government shall extend, among other things, “to all cases of admiralty and maritime jurisdiction” (U. S. Const. art. 3, sect. 2, subd. 1). The act of Congress, passed in September, 1789, and .familiarly known as the judiciary act, declared that the district court “shall also have exclusive cognizance of all civil causes of admiralty and maritime jurisdiction,” “saving to suitors in all cases the right of a common law remedy where the common law is competent to give it” (Brightl. Dig. p. 230, § 11.) The term “cases of admiralty and maritime jurisdiction,” in the constitution and judiciary act, have been held to mean all such cases of a maritime character as were cognizable in the admiralty courts of the State at the time when the constitution was adopted, and the best guides as to the extent of that jurisdiction are the federal courts (The Belfast, 7 Wall. 636 ; Waring v. Clarke, 5 How. U. S. 454). The claim of a stevedore for loading a vessel is not a civil cause of admiralty and maritime jurisdiction, and is not within the exclusive cognizance of the courts of the United States, and these courts have repeatedly so decided, refusing to entertain jurisdiction either in rem or in personam, on the ground that a contract for such services was not a maritime contract (The Amstel, 1 B. & H. 215 ; The Joseph Cunard, Olcott, 120 ; The S. G. Owens, 1 Wall. Jr. 370 ; The Circassian, 1 Bened. Ad. 209 ; Davis v. 
      Child, Davies, 71 ; The Sophie, 1 W. Rob. 368 ; 1 Parsons’ Mar. L. 489).
    The court oí appeals, in the case of The Josephine (39 N. Y. 19), only held the statute to be unconstitutional in attempting to confer jurisdiction on the State courts, where the case was one of admiralty or maritime jurisdiction, of which the United States courts have exclusive cognizance, either in rem,, or in personam. The above cases show that this does not apply to the claim of a stevedore.
    In the case of The Belfast, (above cited) at page 645, the supreme court of the United States virtually overruled the decision of the court of appeals in the case of The Josephine, to this extent—that wherever there is no lien in admiralty, although there may be a right of action in personam (as for instance, in a contract for materials and supplies furnished to a vessel in the home port, where there is no lien in admiralty, but where there is, by the 13th admiralty rule, a right of action in personam), “it is competent for the States, under the decisions of this court, to create such liens as their legislatures may deem expedient.” Applying this doctrine to our statute, it will be evident that, so far as the claim of a stevedore is concerned, the statute is constitutional.
    The statute is remedial, not penal, and should be so construed as to secure the end it was designed to meet (Weed v. Tucker, 19 N. Y. 433 ; Pillow v. Bushnell, 5 Barb. 156 ; Matter of Smith, 10 Wend. 449 ; People v. Tibbets, 4 Cowen, 384 ; Gildersleeve v. People, 10 Barb. 35.)
    . Vessels are transitory, and the object of giving a lien is two-fold, to secure the person furnishing the labor, and to give vessels a credit, which enables them to be put in a proper condition for pursuing their duties, though the owner may be unknown.
    
      
      James K. Hill and Thos. C. T. Buckley, for respondent.
    The proceedings under the statute in question, by virtue of which the attachment in question was issued and the bond taken, being a proceeding against the vessel by name, is a proceeding in the nature of, and with the incidents of an admiralty action, and as such is not within the scope of State jurisdiction; but is exclusively a matter for the cognizance of and within the jurisdiction of the federal courts ; consequently the State statute is unconstitutional and void (The Josephine, 39 N. Y. 19 ; Ferran v. Hosford, 54 Barb. 208.
    By the statute of 1862, to create a lien, there must be:
    1. A debt contracted.
    2. With the master, owner, charterer, builder, or consignee, or the agent of either of them.
    3. For some one of the five purposes specified in the Act (Laws of 1862, p. 960, § 13).
    By the complaint (folio 46) this debt was alleged to have been contracted with Huger Brothers as “the owners, charterers and consignees” of the Harriet. By the specifications of the lien, filed pursuant to the statute, see Exhibit “A” (fol. 68), the debt is stated to have been contracted by Huger Brothers, the owners, charterers or consignees of said vessel, or their agent.
    1. By the proofs on the trial it appeared that the plaintiff dealt directly with Huger, and not with any agent of theirs. See testimony of plaintiff (fols. 6 and 7).
    2. That Huger Brothers were not the owners. See folio 22.
    3. Nor charterers, in the sense in which the term is obviously used in the statute; that is, persons who are owners pro Tiac vice, by charter from the owners.
    4. Nor consignees, but only persons who procured business for the ship as brokers (folios 25, 26).
    There was, therefore, a perfect failure of proof to establish that, the debt was contracted with any person or persons answering the description in the statute or specification, whose relation to the vessel would entitle the party contracting with him or them to any lien.
    The plaintiff, however, not only failed to prove that Huger Bros, were either “ owners, charterers or consignees but he gave no evidence showing who were the owners.
    He sought to recover by introducing a new element in the statute, viz : the introduction of the word “vessel,” and to that end offered certain evidence, which was excluded (See folios 23, 20, 29, et seq.).
    
    The evidence was excluded properly.
    1. It had no bearing on the question of ownership, and was not offered except to show that the firm acted as agents for the vessel.
    2. It was not stated in the specification, as a ground of lien, that the debt was contracted with them as agents at all.
    ■ 3. The mere receipt of the charter money was immaterial, the inquiry not being as to the party who received it.
    4. The charter-party when admitted proved nothing" as to agency. It was a mere personal obligation of the Rugers, binding no one but themselves personally.
    There is nothing in the statute which allows a lien like this to be created against the property of an owner of a vessel, simply by the performance of the service.
    That is only one element, and it would be contrary to the statute and to the general policy of law to hold, as the appellant’s council contended, that the assumption of the function of agents, or as he expressed it, “ the acting as agents” by any outside party, bound the real owner of this vessel in this case, Mr. Harper, who, finding his property seized, applied for discharge, in the absence of proof of recognition of their acts, or approval by him of the service.
    There is not a scintilla of such proof, nor any proof who were owners, or of any authority from any one having any interest in the vessel, authorizing any one to make this contract.
    It is quite evident that the plantiff supposed Huger Brothers to be owners, and the idea that they acted as “agents for owners” is an afterthought opposed to the complaint and the specifications.
    In fact he relied entirely on the personal credit of that firm, against whom he has a personal action now pending, commenced before the attachment was sued out (See folio 13).
   By the Court.—McCunn, J.

In my judgment the only question on this appeal is whether the court have jurisdiction of the cause of action ? The respondent contends that it is a cause of admiralty and maritime jurisdiction, and as such is exclusively within the cognizance of the Federal judiciary.

I cannot conceive it my duty to be astute in discerning pretexts for ousting the jurisdiction of the State courts; but am inclined rather to maintain that jurisdiction if I can find any solid ground on which to support it. Perhaps, in view of the progressive aggrandisement of the admiralty in this country, it is chimerical to oppose any boundary of principle to its ever expanding jurisdiction. As far as I can see, the only limit to its growth is its own impulse of development. At the present state of its progress, the admiralty j urisdiction of the Federal courts, if it obtain at all, appear^ to be exclusive. It has not yet proceeded so far as to deny the jurisdiction of the State tribunals in cases confessedly beyond its own province.

How the federal courts themselves have uniformly declared that the claim of a stevedore for loading a vessel is not the subject of admiralty jurisdiction, the contract out of which it arises not being a maritime contract (The Sophie, 1 W. Rob. 368 ; The Joseph Cunard, Olcott, 120 ; The Circassian, 1 Bencd. Ad. Rep. 209 ; 1 Parsons’ Mar. L. 488; The Amstel, 1 B. & H. 215 ; The S. G. Owens, 1 Wall. Jr. 370, and Davis v. Child, Davies, 71).

But the judiciary act of 1789 goes no further than to assert, that where the admirality jurisdiction prevails at all it is exclusive. In The Belfast, 7 Wall. 436, the United States supreme court explicitly concedes that when the admiralty has no jurisdiction the jurisdiction of the State courts is unimpaired and operative.

In the case of The Josephine (39 N. Y. 19) the court of appeals, in endeavoring to explain away the act, held it to be unconstitutional only so far as it conferred jurisdiction on the State courts where the case was one of admiralty or maritime jurisdiction ; the United States courts having exclusive cognizance of such cases. But this rule does not apply to the claim of a stevedore.

The supreme court of the United States however, in the Belfast case, has overruled the doctrine laid down in the Josephine case, so far as it conflicts with this view of the act. But apart from all this, the act is a remedial act, not penal, and the most liberal construction should be given it so as to enable the law to meet amply the ends for which it was designed. Certainly, if the legislature intended it to apply to a certain class of cases, this case is one of those cases wherein a special application of the act should be made.

The admiralty itself pretended no jurisdiction of the claim in controversy. I am at a loss to understand why this court is not competent to enforce it.

The nonsuit should be set aside, a new trial ordered with costs to abide the event.

Spencer, J., dissented, but without any written expression of his views of the case.  