Chouteau v. United States, 95 U.S. 61

Chouteau v. United States.

A., having a claim against the government under his contract with the Navy Department for bpilding the iron-clad steam-battery “ Etlah,” executed to B. a power of attorney authorizing him to sue for, recover, and receive all such sum or sums of money, debts, goods, wares, and other demands whatsoever, and especially payments that were or would be due on his contract for building the “ Etlah,” with full power in and about the premises; to have, use, and take all lawful means and ways in his name for the purposes aforesaid; and to make acquittances or other sufficient discharges for him and in his name, and generally to do all other acts necessary and lawful to be done in and about the premises. The contract fixed the amount to be paid for the battery, and provided for its completion and delivery within eight months from June 24, 1868. For every month that the delivery might be made earlier than the time fixed, the contractor should receive $4,500, and for every month later he should pay a like sum. It also provided that the department might, at any time during the progress of the work, make such alterations and additions to the plans and specifications as it might deem necessary and proper, the extra expense caused thereby to be paid at fair and reasonable rates, to be determined when the changes were directed to be made. The battery was finished for delivery in November, 1865, and the proper authorities of the department certified that the extra work and materials, rendered necessary in making the alterations and additions that were ordered, amounted to $116,111. A portion of that sum having previously been paid, a voucher, in favor of A., for $26,658.17, “being the full and final payment on all extras, and in full for all claims and demands for that work,” was approved by the department April 24, 1866, and paid May 11 following to B., who, under his power of attorney, receipted it in full. A.’s assignee, asserting that the extra work amounted to $172,273.55, brought suit in the Court of Claims to recover the excess over the amount paid, and $118,288.30 alleged to be due, irrespective of extras, on account of an increase in the price of labor and materials during the time that the completion of the vessel was delayed by reason of such alterations and additions. Held, 1. That the power of attorney authorized B. to accept payment of the voucher, which upon its face declared it was the last and full payment for the extra work, and that his acceptance bound A., and barred a recovery for such work. 2. That the United States is not liable to A. for the increased cost of the labor and materials.

Appeal from the Court of Claims.

The vessel was not finished ready for delivery until November, 1865, more than twenty months after the date fixed by the contract; but the Court of Claims found that her completion within the stipulated time was prevented by the United States, and that the cost of the work required by the contract was, owing to the increased price of materials and skilled labor, enhanced $118,283.20 above the sum originally specified. Many and important changes were made in the plan and specifications for the battery by the bureau of construction and repair of the Navy Department; but no agreement as to the additional cost of the work was made, as the contract provided for, except in some matters not now in controversy.

This extra work the petition alleges was of the value of $172,273.55 ; and the Court of Claims so found. $116,111 was paid for it; and in this action the recovery of the difference of $56,162.55 is sought. Under the finding, the only defence to this branch of the case is that the sum paid was received and accepted as payment in full, as appears by the following voucher, certified by the auditor of the treasury for the Navy Department: —

“ Etlah. — Payment on Account of Extras. “New York, April 24, 1866. “ U. S. Navy Department to Charles JU Me Cord, Dr.

“ (Appropriation: ‘ Construction and Repair.’)

For work done to the light-draft monitor ‘ Etlah, which is extra to the contract dated June 24, 1863, being the full and final payment on all extras, and in full for all claims and demands n ’ t $31,114.00 for that work................................................

Less amount paid E. W. Barstow & Son, as per order.................................................................$605.65 Outfits and equipments called for by the contract, but not furnished ................ 3,852.18

---------- $4,457.83

$26,653.17

“ I certify that the materials and labor which are extra to the contract dated June 24, 1863, put upon the vessel ‘ Etlah,’ built by Charles W. McCord, amount in value to $116,111 (certificates having been previously given for $85,000), and they are according to directions which have been given from time to time.

“Robert Danby,

“ Approved:

“ F. H. Gregory,

“ Navy Department,

“ Bureau ‘ Construction,’ &c.,

“$26,653.17.] “April 26, 1866.

“Approved in triplicate for twenty-six thousand six hundred and fifty-three dollars and seventeen cents, payable by the paymaster at New York.

“John Lenthall, Chief of Bureau”

“ Paymaster’s Office, U. S. Navy,

“29 Broadway, New York, May 11, 1866.

“Received of J. C. Eldredge, paymaster, twenty-six thousand six hundred and fifty-three y1^ dollars, in full of the within bill, and have signed duplicate receipts.

“$26,653.17.] Charles W. McCord,

“ Per Gilman, Son & Co., AtVus.

“1,887. 21,519 B2.”

“ I certify that the above is a true copy of the voucher on file in this office.

“ S. J. W. Tabor, Auditorf

The powers of attorney under which the voucher was signed by Gilman, Son & Co. are as follows : —

“ In witness whereof, I have hereunto set my hand and seal the twenty-fourth day of November, in the year 1863.

“ Charles W. McCord, [seal.]

“ Sealed and delivered in the presence of

“ Thomas L. Thornell.”

“ State of New York, )

County of New York, f 8S*

“ Be it known, that, on the twenty-fourth day of November, 1863, before me, a notary public in and for the State of New York, duly commissioned and sworn, dwelling in the city of New York, personally came Charles W. McCord, and acknowledged the above letter of attorney to be his act and deed.

“ In testimony whereof, I have hereunto subscribed my name and affixed my seal of office the day and year last above written.

“ Thomas L. Thornell, Notary Public.”

[Internal-revenue stamp, one dollar.]

“In witness whereof, I have hereunto set my hand and seal, this second day of January, in the year of our Lord 1864.

“ Charles W. McCord.” [seal.]

“State ok Missouri,)

“Be it remembered, that on the second day of January, 1864, before me, the undersigned, John Jecko, a notary public duly commissioned and qualified, within and for the county aforesaid, came Charles W. McCord, who is personally known to me to be the same person whose name is subscribed to the foregoing instrument of writing as party thereto, and acknowledged the same to be his act and deed for the purposes therein mentioned.

“ In witness whereof, I have hereunto set my hand and affixed my official seal the day and year last above written.

“ John Jecko, Notary Public”

The court decided that the claim for extras was barred by McCord’s receipt, and that the United States was not liable to the contractor for the enhanced cost of labor and materials. Chouteau, assignee of McCord, brought the case here.

M^r. Edward Lander and Mr. A. L. Merriman for the appellant.

The receipt by Gilman, Son & Co. of a less amount than Was actually due on McCord’s claim, and which was outside

The extension of time required by the contractor for completing the work was caused solely by the changes and alterations in the original plan and specifications that were ordered by the bureau of construction and repair. The United States is therefore liable to him for such an amount as will cover his increased outlay, occasioned by the rise in the price of work and materials that took place during that time. Dermott v. Jones, 2 Wall. 1; Dubois n. Delaware $ Hudson Canal Co., 4 Wend. (N. Y.) 291; Robson n. Godfrey, 1 Hall (N. Y.), 236; Lee et al. n. Partridge, 2 Duer (N. Y.), 463; Merrill v. Ithaca $ Owego Railroad Co., 16 Wend. (N. Y.) 556.

Mb. Justice Miller, after stating the case, delivered the opinion of the court.

It appears from the findings of the Court of Claims that the proper officer of the Navy Department estimated the same extra work and material at $116,111, which that court now estimates at $172,273.55; and that McCord accepted this sum, if the voucher is binding on him, as the full value of his labor and materials, and acknowledged it to be payment in full.

His name is signed to this receipt by Gilman, Son & Co., his attorneys ; and it is insisted by counsel that they could only bind him for the sum received, and not for its acceptance as ful compensation. It is said in argument that they were bankers in New York, and had no other power than to receipt for sue sums as might be paid them.

We are of opinion that this authorized Gilman, Son & Co. to accept payment of a voucher which declared on its face that it was the last, the full payment for the extra work done on the vessel, and thereby bind their principal to such acceptance.

But if we could be mistaken in this, the reasonable presumption is that Gilman, Son & Co. had nothing to do with obtaining this voucher from the Navy Department, but that it was so obtained by McCord himself, and forwarded by him to Gilman, Son & Co. for collection of the paymaster at New York. This is quite consistent with the fact that they were mere bankers. It is certainly fair to suppose that McCord presented his own statement of the account to the navy officers, and the final approval of the chief of the bureau of construction at Washington is dated April 26, 1866. The payment as indorsed on that same voucher by the paymaster at New York to Gilman, Son & Co. is dated May 11, 1866, which is just about a reasonable time for the voucher to have been received from Washington by McCord at St. Louis, and by him forwarded to Gilman, Son & Co. at New York for collection. If this be the true history of the voucher, McCord is bound by his own actions; for the voucher, while in his hands, had on its face the clearest statement that the sum therein allowed was “ the full and final payment on all extras, and in full for all claims and demands for that work,” and if he forwarded it in this shape to his bankers to get the money on it, without protest, he must be bound by that statement in the voucher.

The Court of Claims finds that the delay in completing the vessel was caused by the changes ordered by the United States, and that, owing to the rise in the prices of the labor and materials on the work done under the original contract, and without reference to the changes, the cost of tKat work was increased to the builder $118,283.20.

The appellants asserted a claim for this amount also, which the court refused.

It is very clear that both parties contemplated the probability that the work would not be completed at the precise period of eight months from the date of the contract. They also contemplated that changes would be made in the construction of the battery. They made such provision for these matters as they deemed necessary for the protection of each party. For the reasonable cost and expenses of the changes made in the construction, payment was to be made; but for any increase in the cost of the work not changed, no provision was made. There was a provision for delay, by which the contractor was to submit to pay $4,500 for every month of that delay. This provision, the only one on that subject, if strictly enforced, might have made him a still greater loser; but it seems to have been waived. But we are very clear that without any such provision he must be held to have taken the risk of the prices of the labor and materials which he was bound to furnish, as every other contractor does who agrees to do a specified job at a fixed price. It is one of the elements which he takes into account when he makes his bargain, and he cannot expect the other party to guarantee him against unfavorable changes m those prices. Judgment affirmed.

Ex parte Easton.

1. Claims for wharfage, arising out of either an express or an implied contract, are cognizable in admiralty.

2. Where the wharfage has not been agreed upon by the parties, the wharfinger is entitled, as upon an implied contract, to a just and reasonable compensation for the use of his wharf.

3. If the vessel or water-craft is a foreign one, or belongs to a port of a State other than, that where the wharf is used, the claim of the wharfinger or such use is a maritime lien against the vessel, which he may enforce by a proceeding in rem, or he may resort to a libel in personam against the owner of such vessel or water-craft. 4. Whether a writ of prohibition should be issued to the District Court, when

proceeding as a court of admiralty and maritime jurisdiction, depen s upon the facts stated in the record upon which that court is called to act. ters dehors that record, which are set forth in the petition for the writ,canno be considered here.

Petition for a writ of prohibition to restrain the District Court of the United States for the Eastern District of New York from exercising jurisdiction in a proceeding in rem to enforce an alleged lien for wharfage against the canal-boat or barge “John M. Welch.”

As the facts in the case are fully stated in the opinion of the court, they are omitted here.

Mr. Edward D. McCarthy and Mr. J. E. Growen for the petitioners.

The District Court has no jurisdiction over the barge “ John M. Welch,” because, 1, a contract of wharfage is not a maritime contract. The Grenesee Chief, 12 How. 443; The Lottawanna, 21 Wall. 558; The Belfast, 7 id. 624; Insurance Company v. Bunham, 11 id. 1; Rex v. Humphrey, 1 McCle. & Yo. 194; Platt v. Hibbard, 7 Cow. (N. Y.) 497; Barry v. Langmore, 12 Ad. & E. 640; Speares v. Hartley, 3 Esp. 81; Richardson v. Goss, 3 Bos. & Pul. 119.

2. The maritime law gives no lien for wharfage. The Coal Barges, 3 Wall. Jr. 53; The Grenerdl Smith, 4 Wheat. 438 ; The Lottawanna, 21 Wall. 558; Cunningham v. Hall, 1 Cliff. 51; The Thomas, 7 Am. Law Rev. 381; The Grem, Browne, Adm. 37; The Asa R. Swift, 1 Newb. Adm. 543; The Alexander McNeil, 20 Int. Rev. Rec. 175.

3. If the statutes of New York gave a lien against the vessel, which they do not, it could not be enforced in a court of admiralty by a proceeding in rem. Wick v. The Samuel Strong, 6 McLean, 587; The Laurel, 1 Newb. Adm. 269; Maguire v. Card, 21 How. 248; The Lottawanna, 21 Wall. 558; Delovio v. °it, 2 Gall. 398; People's Ferry Company v. Beers, 20 How. 393, The Circassian, 1 Ben. 209; Grraham n. Haskins, Olc. Adm. 227; The Ship Harriet, id. 229; The Ottawa, 5 Am. Law ' 47» New Jersey Steam Navigation Co. v. Merchant's Bank, am°W* ^11™ v* Newberry, 21 id. 246; Ransom v. Mayo, ö Blatchf. 71; Cunningham v. Hall, 1 Cliff. 51; The Two Friends, Bee, Adm. 440 ; Brig Hannah, id. 421; The Lady Horatio, id. 4Qn * ^°X V* Abb. Adm. 343; Garvey v. Crocket, id.

> The Amstel, 1 Blatchf. & H. Adm. 215; McDermott v.

Mr. Justice Clifford delivered the opinion of the court.

Judicial power under the Federal Constitution extends to all cases of admiralty and maritime jurisdiction, and it was doubtless the intention of Congress, by the ninth section of the Judiciary Act, to confer upon the District Court the exclusive original cognizance of all admiralty and maritime causes, the words of the act being in terms exactly coextensive with the power conferred by the Constitution. In order, therefore, to determine the limits of the admiralty jurisdiction, it becomes necessary to ascertain the true interpretation of the constitutional grant. On that subject three propositions may be assumed as settled by authority, and to those it will be sufficient to refer on the present occasion, without much discussion of the principles on which the adjudications rest: 1. That the jurisdiction of the district courts is not limited to the particular subjects over which the admiralty courts of the parent country exercised jurisdiction when our Constitution was adopted. 2. That the jurisdiction of those courts does not extend to all cases which would fall within such jurisdiction, according to the civil law and the practice and usages of continental Europe. 3. That the nature and extent of the admiralty jurisdiction conferred by the Constitution must be determined by the laws of Congress and the decisions of this court, and by the usages prevailing in the courts of the States at the time the Federal Constitution was adopted. No other rules are known which it is reasonable to suppose could have been in the minds of the framers of the Constitution than those which were then in force in the respective States, and which they were accustomed to see in daily and familiar practice in the State courts.

Sufficient appears to show that the respondents are the owners of the barge named in the libel; that on the 10th of October, 1876, she completed a trip from the port of Baltimore for the port of New York, and that she took wharfage at the wharf or pier of the libellants, where she remained for eleven days. For the use of the berth occupied by the barge the libellants charged $34.20, as wharfage and dockage. Due demand was made; and, payment being refused, the libellants instituted the present suit, which is a libel in rem against the barge to recover the amount of that charge. Process was served; and the respondents appeared and excepted to the libel, and set up that process of condemnation should not issue against the barge, for the following reasons: 1. Because no maritime lien arises in the case for the matters set forth in the libel. 2. Because no lien in such a case is given for wharfage against boats or vessels by the laws of the State. 3. Because the law of the State referred-to in the libel as giving a lien for wharfage is unconstitutional and void, for the following reasons: (1.) Because it imposes a restriction on commerce. (2.) Because it imposes a duty of tonnage on all vessels of the character and description of that of the respondents. (3.) Because it discriminates against the boats or barges of persons who are not citizens of the State where the proprietors of the wharf reside.

Pending the proceedings in the District Court, the respondents presented a petition here, asking leave to move this court for a prohibition to the court below forbidding the District Court to proceed further in the case.

Pursuant to said petition, this court entered an order permitting argument upon the merits of the petition, and directing that due notice be given to the libellants and the clerk of the District Court. Hearing was had in conformity to that order, and the case was held under advisement.

Power is certainly vested in the Supreme Court to issue the writ of prohibition to the District Court, when that court is proceeding in a case of admiralty and maritime cognizance of w ich the District Court has no jurisdiction. 1 Stat. 81; United States v. Peters, 3 Dall. 12.

Where the District Court is proceeding in a cause not of admiralty and maritime jurisdiction, the Supreme Court cannot issue the writ, nor can the writ be used except to prevent the doing of something about to be done, nor will it ever be issued for acts already completed. Ex parte Christy, 3 How. 292; United States v. Hoffman, 4 Wall. 158.

Admiralty and maritime jurisdiction is conferred by the Constitution, and Judge Story says it embraces two great classes of cases, — one dependent upon locality, and the other upon the nature of the contract.

Damage claims arising from acts and injuries done within the ebb and flow of the tide have always been considered as cognizable in the admiralty; and, since the decision in the case of The Genesee Chief, 12 How. 443, it is considered to be equally well settled th.at remedies for acts and injuries done on public navigable waters, not within the ebb and flow of the tide, may be enforced in the admiralty, as well as for those upon the high seas and upon the coast of the sea.

Speaking of the second great class of cases cognizable in the admiralty, Judge Story says, in effect, that it embraces all contracts, claims, and services which are purely maritime and which respect rights and duties appertaining to commerce and navigation. 2 Story, Const., sect. 1666.

Public navigable waters, where inter-state or foreign commerce may be carried on, of course include the high seas, which comprehend, in the commercial sense, all tide-waters to high-water mark.

Maritime jurisdiction of the admiralty courts in cases of contracts depends chiefly upon the nature of the service or engagement, and is limited to such subjects as are purely maritime, and have respect to commerce and navigation within the meaning of the Constitution.

Wharf accommodation is a necessity of navigation, and such accommodations are indispensable for ships and vessels and water-craft of every name and description, whether employed in carrying freight or passengers, or engaged in the fisheries. Erections of the kind are constructed to enable ships, vessels, and all sorts of water-craft to lie in port in safety, and to facilitate their operation in loading and unloading cargo and in receiving and landing passengers.

Piers or wharves are a necessary incident to every well-regu-lated port, without which commerce and navigation would be subjected to great inconvenience, and be exposed to vexatious delay and constant peril.

Conveniences of the kind are wanted both at the port of departure and at the place of destination, and the expenses paid at both are everywhere regarded as properly chargeable as expenses of the voyage. Commercial privileges of the kind cannot be enjoyed where neither wharves nor piers exist; and it is not reasonable to suppose that such erections will be constructed for general convenience, unless the proprietors are allowed to make reasonable charges for their use.

Compensation for wharfage may be claimed upon an express or an implied contract, according to the circumstances. Where a price is agreed upon for the use of the wharf, the contract furnishes the measure of compensation; and when the wharf is used without any such agreement, the contract is implied, and t e proprietor is entitled to recover what is just and reasonable or the use of his property and the benefit conferred,

Instances may, doubtless, be referred to where wharves are erected as sites for stores and storehouses; but the great and usual object of such erections is to advance commerce and navigation, by furnishing resting-places for ships, vessels, and all kinds of water-craft, and to facilitate their operation in loading and unloading cargo and in receiving and landing passengers.

Nor is the nature of the service or the character of the contract changed by the circumstance that the water-craft which derived the benefit in the case before the court was without masts or sails or other motive power of her own. Sail-ships, and even steamships and vessels, are frequently propelled by tugs ; and yet, if they secure a berth at a wharf, or in a slip at the place of landing or at the port of destination, and actually occupy the berth as a resting-place or for the purpose of loading or unloading, no one, it is supposed, will deny that the ship or vessel is just as much liable to the wharfinger as if she had been propelled by her own motive power.

Neither canal-boats nor barges ordinarily have sails or steam-power, but they usually have tow-lines; and it clearly cannot make any difference, as to their liability for wharfage, whether they are propelled by steam or sails of their own, or by tugs, or horse or mule power, if it appears that the boat or barge actually occupied a berth at the wharf or slip at the commencement or close of the trip as a resting-place, or for the purpose of loading or unloading cargo, or receiving or for landing passengers.

Goods to a vast amount are transported by such means of conveyance, and all experience shows that boats of the kind require wharf privileges as well as ships and vessels, or any other water-craft engaged in navigation. The Northern Belle, 9 Wall. 526.

Access to the ship or vessel rightfully occupying a berth at a wharf, for the purpose of lading and unlading, is the undoubte right of the owner or charterer of such ship or vessel for whic such right has been secured. Wendell v. Baxter, 12 Giay (Mass.), 494.

Privileges of the kind are essential to the carrier by water, whether he is engaged in carrying goods or passengers.

Repairs to a limited extent are sometimes made at the wharf ; but contracts of the kind usually have respect to the voyage, and are made to secure a resting-place for the vessel during the time she is being loaded or unloaded. Such contracts, beyond all doubt, are maritime, as they have respect to commerce and navigation, and are for the benefit of the ship or vessel when afloat.

Carrying-vessels would be of little or no value unless they could be loaded; and they are usually loaded from the wharf, except in a limited class of cases, where lighters are employed, the vessel being unable to come up to the wharf in consequence of shallow water.

Accommodations at the port of destination are equally indispensable for the voyage as those at the port of departure. Consignments of goods and passengers must be landed, else the carrier is not entitled to freight or fare. Where the contract is to carry from port to port, an actual delivery of the goods into the possession of the owner or consignee, or at his warehouse, is not required in order to discharge the carrier from his liability. He may deliver them on the wharf ; but, to constitute a valid delivery there, the master should give due and reasonable notice to the consignee, so as to afford him a fair opportunity to remove the goods, or to putthem under proper care and custody. Delivery on the wharf, under such circumstances, is valid, if the different consignments be properly separated, so as to be open to inspection, and conveniently accessible to their respective owners. The Eddy, 5 Wall. 481.

These remarks are sufficient to show that wharves, piers, or landing-places are wellnigh as essential to commerce as ships and vessels, and are abundantly sufficient to demonstrate that t e contract for wharfage is a maritime contract, for which, if t e vessel or water-craft is a foreign one, or belongs to a port of a fate other than that where the wharf is situated, a maritime len arises against the ship or vessel in favor of the proprietor of the wharf.

From an early period, wharf-owners have been allowed to exact from ships and vessels using a berth at their wharves a reasonable compensation for the use of the same; and the ship or vessel enjoying such a privilege has always been accustomed to pay to the proprietor of the wharf a reasonable compensation for the use of the berth. The Kate Tremaine, 5 Ben. 60.

Ancient codes and treatises, such as are frequently recognized as the source from which the rules of the maritime law are drawn, usually treat such contracts as maritime contracts, for which the ship or vessel is liable. The Maggie Hammond, 9 Wall. 435; Delovio v. Boit, 2 Gall. 398.

Charges for wharfage were adjudged to be lien claims in the District Court of the third circuit more than seventy years ago; and, in speaking of that case, Judge Story says, that it seems to him that the decision was fully supported in principle by the doctrines as well of the common law as of the civil law, and by the analogous cases of materials furnished and repairs made upon the ship. Gardner v. Ship New Jersey, 1 Pet. Adm. 223; Ex parte Lewis, 2 Gall. 483, where it was expressly adjudged that the contract was necessarily maritime, giving as the reason for the conclusion that the use of the wharf is indispensable for the preservation of the vessel. Johnson v. McDonough, Gilpin, 101.

Other eminent admiralty judges have decided in the same way, and among the number the late Judge Ware, whose opinion in cases involving the question of admiralty jurisdiction is entitled to the highest respect. The Phoebe, Ware, 265; * 2 Conkl. Adm. (2d ed.) 515; Bark- Alaska, 3 Ben. 391; Hobart v. Drogan, 10 Pet. 108; The Mercer, 1 Sprague, 284; The Ann Ryan, 7 Ben. 20 ; Dunlap, Adm. 75 ; Abbott, Ship.. (5th ed.) 423.

Application for the writ of prohibition is properly made in such a case, upon the ground that the District Court has transcended its jurisdiction in entertaining the described proceeding; and whether it has or not must depend not upon facts stated dehors the record, but upon those stated in the record upon which the District Court is called to act, and by which alone it can regulate its judgment. Mere matters of defence, whether going to oust the jurisdiction of the court or to establish the want of merits in the libellants’ case, cannot be admitted under such a petition here to displace the right of the District Court to entertain suits, the rule being that every such matter should be propounded by suitable pleadings as a defence for the consideration of the court, and to be supported by competent proofs, provided the case is one within the jurisdiction of the District Court. Ex parte Christy, 3 How. 292.

Congress has empowered the Supreme Court to issue writs of prohibition to the district courts “ when proceeding as courts of admiralty and maritime jurisdiction,” by which it is understood that the power is limited to a proceeding in admiralty. Conkl. Treatise (5th ed.), 56. Such a writ is issued to forbid a subordinate court to proceed in a cause there depending, on suggestion that the cognizance thereof belongeth not to the court. F. N. B. 39; 3 Bl. Com. 112; 2 Pars. Ship. 193; 8 Bac. Abr. 206.

iewed in the light of these considerations, it is clear that a contract for the use of a wharf by the master or owner of a ship r vessel is a maritime contract, and, as such, that it is cogniza e in the admiralty; that such a contract, being one made .XC,?S1Ve^ ^or of the ship or vessel, a maritime lien e case supposed arises in favor of the proprietor of the 7 arf against the vessel for payment of reasonable and custb^+h C^ar^es behalf for the use of the wharf, and e same may be enforced by a proceeding in rem against e vesse, or by a suit in personam against the owner.

Many other questions were discussed at the bar which will not be decided at the present time, as they are not properly involved in the application before the court.