Peyroux and Others v. HOWARD AND VARION.

delivered the-opinion of the Court.

This case comes up from the district court of the United *340 States for the eastern district of Louisiana. The proceedings in the court below were in rem against the steamboat Planter, to recover compensation for repairs made upon the boat.

The libel states that Howard and Varion, shipwrights, residing in the city of New Orleans, had found materials and performed certain work on the steamboat Planter, for which the said steamboat and her owners were justly indebted to them in the sum of two thousand orte hundred and ninety-three dollars and thirty-five cents; and alleges that by the admiralty law, and the laws of the state of Louisiana, they have a .lien and privilege upon the boat, her taclde, apparel and furniture for the payment of the same; and prays admiralty process against the boat, atid that the usual monition may issue.

The appellants afterwards appeared in court and filed their claim and plea, alleging that they are citizens of Louisiana, and residing in the city of New Orleans, and that they are the sole and lawful owners of the steamboat Planter; and alleging further, that the libellants are also citizens of the same state, and that the court had no jurisdiction of the case.

The plea to the jurisdiction of the court was overruled, and a supplemental and amended claim and answer filed, denying all and singular the facts set forth in the libel; and by consent of parties an order of court was entered; that the testimony of the witnesses for the respective parties be taken before the clerk of. the court, and read in evidence upon the trial, subject to all legal exceptions; and upon the hearing of the cause the. court decreed that the claimants should pay to the libellants two thousand one hundred and ninety-three dollars and thirty-five cents, and costs of suit. An appeal to this court was prayed and allowed.

Upon the argument here, the following points have been made.

1. It does not appear upon the proceedings, that the court, below had jurisdiction of the case.

2. That the. libellants had Waived any privilege or lien upon the steamboat under the law of Louisiana, and therefore proceedings in rem were improper.

3. If the court had jurisdiction, the decree is erroneous on the merits.'

*341 The want of jurisdiction in the district court is not put on the ground set dp in the plea in. the court below, that all the parties were citizens of the same state. This has been very properly abandoned here, as entirely inapplicable to admiralty proceedings in the district court. But it is said that it does not appear upon the face of the proceedings, that the- cause of action properly belonged to admiralty jurisdiction. There can be no doubt that it must appear from the proceedings, that the court had jurisdiction of the case.

The proceeding is in rexn against .a steamboat, for materials found and work performed in repairing the vessel in the port of New Orleans, as is alleged in the libel, under a contract entered into between the parties for that purpose. It is therefore a maritime contract; and if the service was. to be performed in a place within the jurisdiction of the admiralty, and the lien given by the Ipcal law of the state of Louisiana, it will bring the case within ttífe jurisdiction of the court.

By the Civil Code of Louisiana, article 2748, workmen employed in the construction ór répair of ships and boats enjoy the privilege established by the code, 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 right. The state law, therefore, gives a lien in cases like the present.

In the case of the General Smith, 4 Wheat. 438, it is decided, that the jurisdiction of the admiralty in such cases, where the repairs are upon a domestic vessel, depends 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 the ship 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 ship belongs, the case is governed altogether by the local law of the state, ánd 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.

it is said, however, that the place where these services were performed, was not: within the jurisdiction of the admiralty. *342 The services in this case were, performed in the port of New Orleans, and whether this was within the jurisdiction of the court or not, will depend upon the fact, whether the tide in the Mississippi ebbs and flows as high up the river as New Orleans.

This is a question of fact, and it is notimdesetvingof notice, that although there was a plea to the jurisdiction of the court interposed, the objection was not set up. Had it been put in issue,. the evidence would probably have removed all doubt upon that question; not having been set up, it affords an inference that the objection could not have been sustained by proof.

But we think we are authorized judicially to notice the situation of New. Orleans, for the purpose of determining whether the tide ebbs and flows as high * up the rivér as that place. In the case of the Apollon, 9 Wheat. 374, it is said by this court, that it has béen very justly observed at the bar, that the court is bound to take notice of public facts and geographical positions: and in. the case of the steamboat Thomas Jefferson, the libel claimed wages earned on a voyage from Shipping port in the state of Kentucky, up the river Missouri, and back again to the port of departure. And the court say, that the voyage, not only iri its commencement and termination, but in all its intermediate progress, was several hundred miles above the ebb and flow of the tide, and, therefore, in no just sense can the wages be considered as earned in a maritime employment. It is fairly to be inferred, that the court judicially noticed the fact, that the tide did. not ebb and flow within the range of voyage upon which the services were rendered, as there is no intimation of any evidence before the court to establish the fact.

It cannot certainly be laid down as a universal,' or even as a general proposition, that the court can judicially notice matters of. fact. Yet it cannot be doubted that there are many facts, particularly with respect to geographical positions, of such public notoriety, and the knowledge of which is to be derived from other sources than parol proof; which the court may judicially notice. Thus in the case of the United States v. La Vengeance, 3 Dall. 297, 1 Peters’s Cond. Rep. 132, the court judicially noticed the geographical position of Sandy *343 Hook. And it mhy certainly take notice judicially of like notorious facts, as that the bay of New York, fór instance, is within the ebb and flow of the tide.

The appellants’ counsel has referred the court to Stoddard’s Louisiana, 164, for the purpose of showing that the tide does got ebb and flow at New Orleans; but we. think it affords a contrary conclusion.. The author Says, “the tides have little effect upon the water at:New Orleans; they sometimes cause it to swell, but never to slacken its current.” No distinction has eves' been attempted in settling the line between the admiralty and common law jurisdiction, growing out of the greater or less influence of the tide. So far as that admiralty jurisdiction depends upon locality, it is bounded by the ebb and flow of the tide; and if the influence of the tide is at all felt, it must determine the question. No other certain and fixed rule can be adopted: and hi determining this, we must look at the ordinary state of the water, uninfluenced by any.extraordinary freshets.

The authority of Mr Stoddard goes to show that the tides have some effect upon the water at New Orleans; they cause it to swell, but not so much as to slacken the current. In the case of Rex v. Smith and others, 2 Doug. 441, it became a question whether the sea could properly be said to flow above London bridge. It was contended that the tide beyond that limit was occasioned by the pressure and accumulation backwards of the river water. Lord Mansfield said, a distinction between the case of the tide occasioned by the flux of seawater or by the pressure backwards of the fresh water of a river, seemed entirely new.

We think that although the current in the Mississippi, at New Orleans, may be so strong as not to be turned,backwards by the tide; yet if the effect of the tide upon the current is so great as to occasion a regular rise and fail of the water, it may properly be said to be within the ebb and flow of the tide.

It has been argued on the part of the appellant, that the evidence shows that this steamboat was to be employed in navigating waters beyond the ebb and flow of the tide, and therefore not employed in the maritime service. In the case of the steamboat Jefferson, the court said, there is no doubt the juris *344 diction exists, although the commencement or termination of the voyage may .happen to be at some place beyond, the reach of the tide. The material consideration is, whether the service is essentially a maritime service, and to be performed substantially on the sea or on tide water. All the service in the caise now before the court was at New Orleans; and the first voyage, at all events, was to commence from'that port The objectiop, therefore, to the jurisdiction of the. court cannot be sustained.

2. The second exception is founded on a supposed waiver of any privilege or lien, and that the appellees trusted alone to the personal responsibility of the owners of the steamboats

To determine this question, it becomes necessary to look at the contracts, .under which the repairs were made..

The first bears date bn the 11th of September 1830, by which certain specified repairs were to be made, for which the appellants stipulated to pay one thousand five hundred dollars. No time is fixed for the payment. The repairs contemplated by this. contract were such only as could be made without hauling up the boat. In the progress of the work, however, it was discovered that more repairs were necessary than had béen supposed, and which could not be made without hauling up the boat. And on the 19 th of October 1830, another contract was entered into, by which the owners agreed to pay four hundred and seventy-five dollars for hauling up the boat, two hundred dollars of which was to be paid in cash, and the balance in one month after the boat shall be launched and set afloat. The boat was then to be repaired under the instruction of Captain Jarreau, the work to be paid for when the account shall be approved by Captain Jarreau. The boat to be repaired and delivered afloat by the 30th of November, ready to receive a cargo; the appellees were to allow twenty-five dollars a day for each day they retarded the delivery.

An express contract having been entered into between the parties under which these repairs were made is no waiver of the lien, unless such contract contains stipulations inconsistent with the lien, and from which it may fairly be inferred that a waiver was intended, and the personal responsibility of the party only relied upon. Express contracts are generally made *345 for freight and seamen’s wages,- but this.has never b'een.supposed to operate as a waiyer of a lien on the véssel- for the same. There are certainly some of the older authorities which would seem to give countenance to-the doctrine that an express contract operated as a waiver of-, the Hen; but whatever, -may have been, the old vide on the subject, it is settled at the present day, that an-express contract, for a specific, sum'is not of itself a waiver of the lien,.but that to produce -that effect, the contract must contain -some, stipulations .-inconsistent with the - continuance of-such lien, or.from-which a waiyer may fairly be inferred.- Hutton v. Bragg, 2 Marshall, '339.;. 4 Camp. -145,'and the cases cited in note. - ' . .

Applying these rulés to the case before us, we can -discpver nothing (except as to' two. hundred and seventy-five' dollars, the balance for hauling-out the boat,- which will be noticed hereafter), inconsistent with the right of a lien, or. indicating any intention to waive it. In the first contract no time is fixed .for the payment of the one thousand five hundred dollars; it became payable, therefore, as soon as the work was completed. And the repairs under the sepond contract were tq.be paid for as soon as the account was approved by Captain Jarreau. There is nothing, therefore, from which it can be inferred-that any.time of credit.was .to be -allowed:. The- balance of-two hundred and-seventy-five dollars, for hauling out the steamboat, stands upon a footing a little different. That was to be paid in one month after the boat was launched and set afloat. A credit was here given;- and a credit too beyond the time when, in. all probability,- the boat would have left the port of New Orleans; for it can hardly be supposed that -it would have taken thirty, days to load her. And by the Civil Code of Louisiana, Art. 2748, the privilege ceases' if the ship or-boat is allowed to depart without exercising, the right:

As to this sum, therefore, the decree is erroneous.

3. The principal ground of complaint under the third point made at the bar is, that the appellants have been made to pay twice for some part of the work. That .is, that part of the work which was to be done under the first Contract, and for which thev were to pay one thousand five hundred dollars, has *346 ..been charged under the second contract; There is certainly some confusion growing but of the manner in which this work w as' carried on under the different contracts. The work which was to be performed under the first, was not completed when tire second was entered into, and both being carried on at the same time, might very easily occasion some mistake. And in addition to .this, there was, under the first contract, some extra work to be done and paid for over and above the stipulated sum of one thousand five hundred dollars, which rendered it still more difficult to keep the accounts for materials and labour under the different contracts, separate and distinct. The evidence was taken in writing out of court, and no opportunity afforded for explanation upon these points. The district judge, feeling the difficulties .growing out of these circumstances, ordered Wilson, one of the witnesses whose deposition had been taken and read in evidence, to appear, and answer in open court. He was the lerk of the appellees, who-had kept an account of the timber used and work performed; arid on his examination he' swore that all the charges and items for work done, in the account-qf the libellants, were over and above the work done under the, first; contract for one thousand five hundred, dollars. That, the libellants had hands at Work at the repairs under the contract and the extra work at the same time; That there is not a day’s work nor á foot of plank charged in the account which was to-be done under the first contract. This testimony leaves no reasonable doubt of the correctness of the account. By the second contract,'payment was to be made when the account vyas-approved by. Captain Jarreau no formal approval appears to have been made. But hewas a part owner,-arid'superintended the repairs; and one of the Witnesses .says'he' was present when the account was presented to Captahl .Tarréau, who. said he was not surprised at-it, because there was .a great deal.; more work than he had any idea of and that he did noi think at first that she required so much. This, although not a direct, was an implied approval of the account.

The delay in not delivering the boat to the appellants by the time specified in the contract, was occasioned by her unexpected state and condition, and the extent of repairs required. *347 And besides the delivery at the time mentioned in the contract, was dispensed with by captain Jerreau.

Upon the whole, we are of opinion, that the decree of the district court, as to the two hundred and seventy-five dollars, must be reversed, and in all other respects affirmed.

This cause came on to be heard on the transcript of the record from the circuit court of the United States for the eastern district of Louisiana, and was argued by counsel: on consideration whereof, it is the opinion of this court that the decree of the said district court as to the two hundred and seventy-five dollars is erroneous and should be reversed, and that in all other respects the sáid decree should be affirmed: whereupon,” it is ordered, adjudged and decreed by this court, that the decree of the said district court in this cause,- as to the balance of two hundred and seventy-five dollars for hauling out the steamboat, be, and the same is hereby reversed, and that the said decree in all other respects be, and the same is hereby affirmed; and it is further ordered, that each party pay his own costs in this court.

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