VOL. 1. by the several states, does not appear to furnish any valid ground for the denial of this jurisdiction to the American courts of admiralty. Rate of compensation. To make pilotage a lien on the ship, the contract must be made by the master or acting as the authorized agent of the owner. When the fees for the pilotage service are fixed by the state laws, these laws, as we have seen, are alone to be looked to for the measure of compensation. In cases to which the state regulations do not extend, as, for example, the piloting of a vessel through the East river into New-York, unless there was an express contract or established custom, the quantum meruit will govern. There are but few reported decisions in the admiralty which properly belong to the subject of this chapter(a). In a case in the Circuit Court of the United States for the District of Massachusetts (b), the vessel had sailed from Cork with a large number of passengers other person ostensibly destined for Quebec; but on approaching the American coast, the passengers insisted on being carried to New-York or Philadelphia, alleging that they had contracted with the charterer to be landed at one of those ports. The master refusing to comply with their request, they rose upon him, drove him with threats and violence to the cabin, and having compelled the mate to take an oath that he would carry the vessel into one of the above (a) For the decisions defining the rights of pilots to claim as salvors, see the chapter on Salvage. For a collection of the cases arising in the state courts, under the state pilot laws, see Abbot on Shipping, Boston edition of 1846, p. 266, note. For a full digest of the state laws on this subject, see Mr. BLUNT's valuable work, entitled "The Shipmaster's Assistant and Commercial Digest." (b) The Ann, 1 Mason's R., 508. mentioned ports or into Boston, put him in com- CHAP. 6. mand. One of the crew of a fishing vessel was afterwards engaged to pilot the schooner into Boston; and having performed this service, he instituted a suit in the admiralty against the schooner to recover compensation. His demand was resisted on the ground that he came on board the vessel at the request of the mate and passengers, who, it was insisted, had no authority to bind her, and that he must therefore look to them for remuneration: and so the court decided. pensation for piloting a foreign No suit can be maintained for piloting a foreign No comvessel into an enemy's port, it being a service recoverable performed in aiding the commerce and importation of the enemy (a). vessel into an enemy's port. Where a ship is detained with a pilot on board at an intermediate place of quarantine, he is not Lay days. entitled to charge as lay days, the day on which the vessel enters and leaves the place of quaran tine(b). (a) The Benjamin Franklin, 6 Robinson's R., 350. (b) The Bee, 1 Dodson's R., 408. This case, however, seems to have depended on the construction of the act of 52 George III. VOL. 1. has an admiralty lien. CHAPTER VII. WHARFAGE. WHARFAGE, like pilotage, is, in this country, the subject of local regulations, and by these the rates of compensation to the wharfinger are prescribed. It has been held in the courts of the United Wharfinger States, that in addition to the personal claim which the wharfinger has upon the master and owner of a ship for wharfage, he has also a lien on the ship which may be enforced by admiralty process in rem. In a case decided by Judge PETERS, he states it to have been his practice to allow wharfage out of proceeds, "as the wharfinger might detain the ship until payment(a);" and his example, in this respect, was followed in the same court by the late Judge HOPKINSON(). This jurisdiction was maintained, in an early case(c), by Mr. Justice STORY, who held it to be "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 (a) Gardiner v. The Ship New Jersey, 1 Peters's Adm. Decisions, 223, 228. (b) Johnson v. The Schooner M'Donough, Gilpin's R., 101. made upon the ship." "If it has been due," he CHAP. 7. added, "for a former voyage, or the wharfinger had parted with his possession, the case would have been entirely altered." The existence of this lien has also been asserted by the learned judge of the District of Maine(a). Mr. Justice STORY also held, in the case above cited, that the lien for wharfage or dockage was a privileged lien, having a priority over the bottomry interest. In that case, the ship Jerusalem had been libelled on a bottomry bond, while lying at the petitioners' wharf, and had been sold by an interlocutory order of the court. The petitioners subsequently intervened, claiming payment, out of the proceeds of the sale, of the dockage of the ship. It appeared, however, that there had been a personal contract between the wharfingers and the ship-owner, for the payment of a specific rate of dockage, and an order drawn on the ship's agents for the payment thereof quarterly. The case presented the question, therefore, whether the petitioners had not parted with their lien; and upon this question the learned judge expressed himself as follows: "It did not strike me, that upon principle, such a contract could amount to a waiver of the lien; because it was in effect only ascertaining the rate of dockage, instead of leaving it in uncertainty, and upon the footing of a quantum meruit, or the usual rate of dockage. But there is a series of authorities directly in point, which decide, that where the parties enter into a (a) The Phebe, Ware's R., 354. Lien of the wharfinger lien. whether the lien is waived by an express contract. personal Lien not lost by the removal of the vessel from the wharf, if brought back with out fraud or force. A wharfin ger cannot detain a personal contract for a specific sum, it is a discharge of the implied lien resulting by operation of law; and I cannot find that these authorities have ever been doubted or denied. I am free to confess, that I am better satisfied with authorities, when I can perceive the reason of them; but sitting in a court of admiralty, and exercising an equitable relief against highly meritorious parties, I should not choose collaterally to overrule such explicit decisions. I must therefore dismiss the present petition; reserving, however, the right to reconsider these doctrines, when they shall come directly in judgment upon an original libel in rem." If a vessel is secretly or wrongfully removed from a wharf, and afterwards, without fraud or force, brought back, the lien of the wharfinger is revived. Thus, where a vessel which had been levied on by the marshal at the suit of the United States; but not by him retained in actual possession, was removed from the wharf without the knowledge of the wharfinger, and subsequently returned to the same wharf, the wharfinger was held to be entitled to the payment of the previous wharfage, out of the proceeds of the subsequent sale under the execution(a). a When a vessel is under arrest on admiralty Vessel, when process, the wharfinger cannot enforce his lien by detention of the vessel, but must apply to the court for its allowance(b). in the custody of the law. Nature of the wharfin ger's lien. The remark of Mr. Justice STORY in Ex parte Lewis, that if the wharfage had been claimed "for a (a) Johnson v. The Schooner M'Donough, Gilpin's R., 101. |