The opinion of the court was delivered by: BYERS
This is a motion by claimants for an order 'dismissing the within libel on the ground that the subject matter is outside the jurisdiction of this court'.
The proper method of attack upon a libel is by the filing of Exceptions according to the Admiralty Rules, 28 U.S.C.A., and the claimants' motion will be dealt with as though it had been so formulated, and the affidavit in support will be treated as an acceptive allegation for present purposes, although laxity of practice is not intended thereby to be condoned.
Concededly the third cause is the only one now before the Court, the first and second having been effectually disposed of heretofore by adverse ruling upon the libellant's asserted lien for wharfage under the state statute.
The surviving cause is to recover wharfage charges for eighteen days during a period embraced between January 29, 1948, and May 27, 1948, as to which no lien is asserted, but a decree is sought for payment to libellant 'of a fair and reasonable amount to represent fair compensation to the libellant upon the claim of unjust enrichment stated in the third cause of action herein and that such decree will run against the claimants, their stipulators for value and costs and that libellant may have such other and further relief as in law and justice he may be entitled to receive'.
Article Sixteenth of the amended libel alleges that during the said period the steamship Meteor was under attachment pursuant to process issued out of this Court in the admiralty cause of Hanna et al. v. S.S. Meteor, D.C., 92 F.Supp. 530; and that during such period, with the knowledge of these claimants, the vessel 'remained on the premises of this libellant and was afforded wharfage facilities with the result that it was safely kept and maintained until after security was posted by said claimants for its release in such action, as well as in the instant suit'.
The foregoing is denied in the answer except for the admission that 'between January 29, 1948 and May 27, 1948, the steamship Meteor was under attachment pursuant to process * * * in an admiralty suit brought by James Hanna and others * * * which attachment and process were illegal and void in that the subject matter of the said suit was outside the jurisdiction of the court'.
The affirmative defense is:
(a) The Meteor was a dead ship, entirely withdrawn from commerce and navigation.
(b) The services (wharfage) were not maritime and hence the cause is outside the jurisdiction of the court.
The question which seems to emerge is whether wharfage can be furnished to a dead ship; and if it can, whether it ought to be paid for.
Thus far, on non-meritorious grounds, these claimants have succeeded in relieving their ship of any obligation for wharfage, although concededly it was provided, on the theory that no maritime lien can be recognized for such service to a vessel which has been withdrawn from commerce.
It is perhaps late in the day to observe that this is a harsh holding which visits upon a wharfinger an unjust burden which may rob him of any compensation for stewardship, if the owner of such a vessel happens to be judgment proof, or can successfully elude the reach of civil process.
If the cause of Hanna had resulted in a decree for libellant, and the vessel had been sold under it, the proceeds would have been subject to a charge for wharfage incurred while the vessel was in the custody of the Marshal. New York Dock Co. v. The Poznan, etc., et al., 274 U.S. 117, 47 S. Ct. 482, 71 L. Ed. 955; Larsen et al. v. New York Dock Co., 2 Cir., 166 F.2d 687. At least that would have been true as to a live ship.
The claimants' position seems to be that a court of admiralty is impotent to provide by decree that such a vessel while subject to its process can incur charges for its safekeeping ...