PEYROUX V. HOWARD, 32 U. S. 324 (1833)

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U.S. Supreme Court

Peyroux v. Howard, 32 U.S. 7 Pet. 324 324 (1833)

Peyroux v. Howard

32 U.S. (7 Pet.) 324


A libel was filed in the district Court of the United States for the Eastern District of Louisiana, against the steamboat Planter, by H. and V., citizens of New Orleans, for the recovery of a sum of money alleged to be due to them, as shipwrights for work done and materials found in the repairs of the Planter. The libel asserts that, by the admiralty law and the laws of the State of Louisiana, they have a lien and privilege upon the boat, her tackle &c., for the payment of the sutras due for the repairs and materials, and prays admiralty process against the boat, &c. The answer of the owners of the Planter avers that they are citizens of Louisiana residing in New Orleans; that the libellants are also citizens, and that the court had no jurisdiction of the cause. Held that this was a case of admiralty jurisdiction.

By the Civil Code of Louisiana, workmen employed in the construction or repairs of ships or boats enjoy the privilege of a lien on such ships or boats, without being bound to reduce their contracts to writing, whatever may be their amount, but this privilege ceases if they have allowed the ship or boat to depart without exercising their rights. The state law, therefore, gives a lien in this case.

In the case of The General Smith, 4 Wheat. 438, it is decided that the jurisdiction of the admiralty in cases where the repairs are upon a domestic vessel depend upon the local law of the state. Where the repairs have been made or necessaries furnished to a foreign ship, or to a ship in the ports of a state to which she does not belong, the general maritime law gives a lien on ships as security, and the party may maintain a suit in the

admiralty to enforce his right. But as to repairs or necessaries in the port or state to which the ships belong, the case is governed altogether by the local law of the state, as no lien is implied unless it is recognized by that law. But if the local law gives the lien, it may be enforced in the admiralty.

The services in this case were performed in the port of New Orleans, and whether this was done within the jurisdiction of the admiralty or not depends on the fact whether the tide in the Mississippi ebbs and flows as high up the river as the port of New Orleans. The Court considered itself authorized judicially to notice the situation of New Orleans for the purpose of determining whether the tide ebbs and flows as high up the river as that place, and being satisfied that although the current of the Mississippi at New Orleans may be so strong as not to be turned backwards by the tide, yet the effect of the tide upon the current is so great as occasions a regular rise and fall of the water; New Orleans may be

Page 32 U. S. 325

properly said to be within the ebb and flow of the tide, and the jurisdiction of the admiralty prevails there.

In order to the decision whether the admiralty jurisdiction attaches to such services as those performed by the libellants, the material consideration is whether the service was essentially a maritime service, and to be performed substantially on the sea or tidewater. It is no objection to the jurisdiction of the admiralty in the case that the steamboat Planter was to be employed in navigating waters beyond the ebb and flow of the tide. In the case of the steamboat Jefferson, it was said by this Court that there is no doubt the jurisdiction exists, although the commencement or termination of the voyage may happen to be at some place beyond the reach of the tide.

Some of the older authorities seem to give countenance to the doctrine that an express contract operates as a waiver of the lien, but it is settled at the present day that an express contract for a stipulated sum is not of itself a waiver of a lien, but that to produce that effect the contract must contain some stipulations inconsistent with the continuance of such lien or from which a waiver may fairly be inferred.

In the district court, a libel was filed on 10 December, 1830, by Howard & Varion, shipwrights, residing in New Orleans, against the steamboat Planter, claiming the sum of $2,193.35, being the balance asserted to be due to them for the price of work, labor, materials furnished and repairs made on the said boat under contracts of 13 September and 19 October, 1830, and alleging that, by the admiralty law and the law of the State of Louisiana, they had a lien on the said boat for the payment of the same, and that she was about leaving the port of New Orleans, and praying process, &c. The account for the work, materials, &c., was annexed to the libel.

The owners of the steamboat Planter filed a claim and plea setting forth that they were all citizens of Louisiana, all resided in the City of New Orleans, and that the libellants were also citizens of that state, and that therefore the district court of the United States had not jurisdiction of the case. By a supplemental answer, the respondents denied all the facts set forth in the libel.

Page 32 U. S. 326

The plea to the jurisdiction of the court was overruled and dismissed, and the parties proceeded to take the testimony of witnesses by depositions which were filed as part of the proceedings in the case. By the first contract, the shipwrights stipulated to do certain specified work and furnish certain materials, the same to be approved by "experts," for which they were to be paid the sum of $1,150. By the contract of 19 October, the Planter was to be hauled on shore, and in consideration of $475, of which $200 was to be paid in cash and $275 in one month after the boat should be launched and set afloat, certain other repairs were to be done to her, and she should be delivered and ready to receive a cargo by 20 November, under a penalty of $25 per day for each day her delivery should afterwards be retarded by the shipwrights. The evidence in the case is fully stated in the opinion of the Court.

The district court made the following decree:

"The libellants claim a balance due them of $2,193.35 for work and materials furnished in the repairs of the steamboat Planter at the request of the claimants and for which they have a lien by the local law. The claimants, in their first answer, deny the jurisdiction of the court on the ground that all the parties were citizens of the same state, to-wit, of Louisiana; that objection, however, was not insisted upon at the trial, and is not sustainable on the admiralty side of this court. In their supplemental answer, they deny generally the allegations of the libellants and pray for the dismissal of the libel and damages. The whole account of the libellants against the owners amounts to $3,693.35, including the amount of the written contracts entered into between the parties; of this sum they acknowledge the payment of $1,500, leaving, as they allege, a balance of $2,193.35 due

Page 32 U. S. 327

them. By the first contract, made on 11 September, 1830 (the boat being then in the water), the libellants agreed, for the sum of $1,150, to make certain repairs on that part of the boat which was above water, from the wheelhouse to the bow, and it was further stipulated that if they made any other repairs by replacing unsound timbers in any other part of the boat above water not then discovered, they were to be paid separately for so much."

"After commencing the work, it was perceived, that the boat required repairs under the water as well as above, and in consequence of that discovery the claimants, through Captain Jarreau, master of the boat, and one of the owners, agreed to pay the libellants $475 for hauling out the boat and for launching her when she should be repaired, and as the quantity of work to be done was uncertain, it was stipulated that an account of it should be kept, and if approved by Captain Jarreau, under whose inspection the work was to be done, the claimants bound themselves to pay the amount thus to be ascertained; this latter contract was made on 19 October last. After the boat was hauled out, it appears the work under both contracts was carried on simultaneously. On a first view of the account current exhibited in this case, it would seem, from the dates, that at least a part of the work to be done under the first contract was again charged, but the subsequent testimony taken in this case shows that these charges were made on account of the extra repairs provided for under the first contract, and it further appears that all the charges made after 19 October have no relation to the first agreement, but all relate to the work contemplated by the second contract. From the complexion of the testimony taken by the complainants, their real defense seems to be that the prices of the work charged are greater than they should be, that it was not executed in a proper manner, and that the libellants have forfeited a considerable sum of money in consequence of not delivering the boat within the time stipulated in the contract. As to the first two objections, the evidence is conclusive in favor of the libellants; Captain Jarreau, himself, upon being shown the account, did not object to it; on the contrary, expressed himself satisfied with the work and said

Page 32 U. S. 328

he was 'not surprised at it, because there was a great deal more work done than he had any idea of;' with respect to the nondelivery of the boat at the time agreed upon, the fault chiefly attaches to Captain Jarreau, who in several instances retarded the work by opposing repairs which were proposed by the libellants, but which turned out to be indispensable, and were afterwards ordered by him to be made; besides, he promised them indemnity against their obligation to pay $25 a day for every day they were in default in delivering the boat, and gave as the reason that they had to do more work than was at first anticipated. The charge of $475, is for the specific service of hauling out and launching the boat, and must be allowed as such. On the whole, the evidence and exhibits in the case fully sustain the demand of the libellants; it is therefore ordered, adjudged and decreed that the claimants pay to them the said sum of $1,193.35, and costs of suit."

From this decree the owners of the Planter appealed to this Court.

Page 32 U. S. 339

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