The opinion of the court was delivered by: BYERS
This cause was heard pursuant to an order made in response to a motion to vacate the attachment of the S.S. Meteor, and to dismiss the libel 'on the ground that the subject-matter is outside the maritime and admiralty jurisdiction of this Court'. The order inter alia directed that the cause be placed on the day calendar of the admiralty term for the purpose of presenting the jurisdictional question; 'and if a trial is necessary on the other issues, a trial date be fixed therefor'.
The controversy is whether the libellant is entitled to a lien for wharfage of the Meteor for the period between July 1, 1947, and October 7, 1947, under the circumstances brought to light at the hearing.
The amended libel alleges that the ship is a domestic vessel, owned by a citizen of the United States, and that on June 18, 1947, the owner agreed with the libellant that the latter should furnish wharfage for the ship at the rate of $ 250.00 per month; that such wharfage was furnished to and including October 7, 1947.
Seemingly wharfage at the agreed rate was paid until August 1, 1947, but not thereafter. The libellant has filed a notice of lien in the Clerk's Office of the County of New York pursuant to Article 4 of the Lien Law of the State of New York, Consol. Laws, c. 33, covering the period from August 1, 1947, to October 7, 1947, and on the following day the original libel was filed, and on October 9, 1947, the Marshal duly attached the vessel.
It is alleged that the fair, reasonable and agreed value of the wharfage is $ 808.73.
The answer denies that the libellant is the lessee of the property containing the wharf and is entitled to collect wharfage; that the Meteor is within the jurisdiction of this Court; that she is a domestic vessel as alleged, but admits that 'the owners of the Meteor are citizens of the United States of America'.
Further, all material allegations of the libel are denied, save non-payment of the amount claimed.
The affirmative defense is that the libellant misrepresented his status as lessee of the pier at which wharfage was had; that it was in fact in Bayonne, New Jersey, and not in New York; and that access to the Meteor was agreed to be possible by special arrangement with the owner of an adjoining pier, which in fact was not the case, whereby cost for transportation was incurred by the former and present owners of the Meteor.
The hearing developed the following facts, which are hereby found:
1. The libellant was, at the times material to this controversy, the permittee of the pier at Shooters Island, New York Bay, at which the Meteor was furnished wharfage, and, as such, was legally entitled to collect the wharfage described in the amended libel.
2. So much of the said pier as was occupied at the said times by the Meteor for the purpose of wharfage lay entirely within the boundary of the City and State of New York, and within the jurisdiction of this Court.
3. This Court has jurisdiction of this cause, and over the vessel Meteor.
4. At all times material hereto, the Meteor was not an instrument of commerce, and had ...