There is no doubt that Congress has the power to make all crimes committed within the admiralty jurisdiction punishable in the federal courts but it has not done so and is not likely ever to so enact. Neither is it likely ever to assert an exclusive jurisdiction over all or any such crimes except as may be in violation of a purely federal enactment. Where this exclusive jurisdiction has not been asserted, either in terms or by necessary implication, state laws are not superseded by federal, and the same act may be punished as an offense against the United States and also as an offense against the State; it may thus be within the jurisdiction of both federal and state courts or the one may have jurisdiction of it under one aspect and the other under a different phase. The rule of comity is the same as in civil cases; where there is concurrent jurisdiction, the court which first obtains it, will continue to act to the exclusion of the other. Where the defendant obtains an acquittal in one court of concurrent jurisdiction, the judgment is a bar to a subsequent trial in the other, since he is not subject, for the same offense, to be twice put in jeopardy of life or limb.
The right of the government to prosecute for a crime is not barred by any lapse of time unless its statutes so expressly provide. In the federal courts, there must be an indictment within three years after the offense was committed, in most instances; for the slave trade, the term is five years; but these terms do not run while the offender is a fugitive from justice.
While the majority of offenses under maritime law only differ from like offenses on land in respect of locality, piracy is confined to the water. Pirates are enemies of all mankind and the offense is against the universal laws of society. There is a piracy, therefore, by the law of nations and those guilty of it are subject to pursuit, seizure and punishment by the vessels of every nation. There is also a statutory piracy which is punishable only within the limits of the jurisdiction which defines it. The pirate by the law of nations is an outlaw whom any nation may capture and punish. He is one who, without legal authority from any state, attacks a ship with the intention to appropriate what belongs to it; in other words, his offense is that of depredation on the high seas without authority from any sovereign state. All private, unauthorized maritime warfare is piratical because it is incompatible with the peace and order of the high seas. It is not necessary that the motive be plunder or that the depredations be directed against the vessels of all nations indiscriminately; it is only essential that the spoliation, or intended spoliation be felonious, that is, done willfully and without legal authority or lawful excuse. In cases of this piracy by international law, it is of no importance, for purposes of jurisdiction, where or against whom, the offense is committed; such pirates may be tried and punished and the ship captured and condemned wherever found. Apart from international law, any government may declare offenses on its own vessels to be piracy and such offenses will be exclusively punishable by it like other crimes. St. Clair v. U. S., 154 U. S. 134, may be examined in regard to an instance of statutory piracy; while the Ambrose Light, 25 Fed. 408, is a very learned and authoritative opinion on the modern views of piracy under international law.
This expression frequently appears in maritime law and includes any act done by the master or crew, with criminal intent, in violation of their duty to the shipowner and without his connivance. It is a general term applicable to many criminal acts and therefore not properly classifiable as a crime by itself. The most flagrant form is where the ship is burned, scuttled or stranded by the master or crew. In Marine Insurance it includes every wrongful act willfully committed by the master or crew to the prejudice of the owner, or, as the case may be, the charterer.
Inasmuch as barratry must be directed against or in fraud of the owner, it cannot be committed by a master who is a part owner of the ship, either generally or for the voyage. Thus in the old case of Marcadier v. Ins. Co., 8 Cranch 39, the master abandoned the voyage at an intermediate port for his own emolument and advantage, and, as a result, a quantity of cargo was spoiled. It was contended that he had been guilty of barratry. The Court found, however, that he was the owner of the ship and therefore incapable of committing the offense. In Ins. Co. v. Coulter, 3 Peters 222, it was held that gross negligence might be evidence of barratry:
And when it is considered how difficult it is to decide where gross negligence ends and ordinary negligence begins, and to distinguish between pure accident and accident from negligence, we cannot but think that the British courts have adopted the safe and legal rule in deciding, that where the policy covers the risk of barratry, and fire be the proximate cause, they will not sustain the defense that negligence was the remote cause.
This case contains a quaint quotation from the doctrine of Malynes "whose book unites the recommendations of antiquity, good sense and practical knowledge." The passage follows:
Barratrie of the master and mariners can hardly be avoided, but by a provident care to know them, or at least the master of the ship upon which the assurance is made. And if he be a careful man, the danger of fire above mentioned will be the less for the ship; boys must be looked unto every night and day. And in this case let us also consider the assurers; for it has oftentimes happened, that by a candle unadvisedly used by the boys, or otherwise, before the ships were unladen, they have been set on fire and burnt to the very keel, with all the goods in them, and the assurers have paid the sums of money by them assured. Nevertheless, herein the assurers might have been wronged, although they bear the adventure until the goods be landed; for it cometh to pass sometimes, that whole ships' ladings are sold on shipboard, and never discharged.
By Act of Congress approved June 24, 1910, 36 St. at L. 629, it is provided that it shall be unlawful for any oceangoing steamer, whether American or foreign, carrying passengers and carrying fifty or more persons, including passengers and crew, to leave any port of the United States unless equipped with efficient apparatus for radio communication in good working order, capable of communicating over a distance of at least one hundred miles, night or day, and in charge of a competent operator. To be efficient the apparatus must be capable of exchanging messages with stations using other systems of radio communication. A fine of not more than $5,000 is assessed against the master or other person in charge for violation of the act and as has been said (§ 5 supra) the fine is a lien upon the ship. Regulations for the enforcement of the act are made by the Secretary of Commerce. The act does not apply to steamers plying between ports less than 200 miles apart.
By the Ship Mortgage Act, 1920 (see Appendix, Merchant Marine Act, Sec. 30), a mortgagor of a preferred mortgage is required, upon request of the mortgagee, to disclose the existence of any maritime lien, prior mortgage or other liability upon the vessel, known to the mortgagor, and to refrain, until the mortgagee has had an opportunity to record the mortgage, from incurring liens upon the vessel except for wages, general average and salvage. Disobedience to this injunction with intent to defraud is made a misdemeanor punishable by a fine of not more than $1,000 and imprisonment of not more than two years, or both, and the mortgage debt is to become due immediately.
This term is most often used with reference to an offense committed on shipboard, although technically it is not peculiar to shipping, but may be committed by soldiers and servants. Mutiny on shipboard is defined as follows: "A revolt or mutiny consists in attempts to usurp the command from the master or to deprive him of it for any purpose by violence or in resisting him in the free and lawful exercise of his authority; the overthrowing of the legal authority of the master, with an intent to remove him against his will and the like." Mere refusal of duty or disobedience by a seaman while liable to punishment by the master is not mutiny, and the conduct may be very aggravating and contumacious without amounting to mutiny. The Stach Clark, 54 Fed. 533.
In a legal sense, the word wreck includes ships and cargoes, or any parts thereof, which have been cast on shore by the sea, and derelict applies to similar property abandoned on the sea. The terms should be understood as limited to things of a maritime nature and as including the old subdivisions of flotsam, jetsam and ligan,—flotsam being the name for the goods which float when the ship is sunk, jetsam meaning those which are jettisoned or thrown overboard, and ligan those cast into the sea but tied to a buoy or marker so that they might be found again. Derelict is the term applied to a thing which is abandoned at sea by those who were in charge of it, without any hope of recovery or intention of return.
It is said in Murphy v. Dunham, 38 Fed. 503, that the disposition of wrecks and derelicts is usually a fair index of the degree of civilization of the people within whose domains such property is found. In primitive societies, wrecks are treated as the plunder of the finder, or lord of the soil, since title depends on possession and the owner's rights disappear when his goods are separated from him. The common law of England long exhibited this imperfect notion of property. Blackstone, writing about 1760, points out that by the ancient common law, wrecked goods belonged to the King since by the loss of the ship all property left the original owner. This harsh rule was modified by statutes which declared, in substance, that if a man, dog, or a cat escaped alive out of the disaster, it was no wreck but might be reclaimed by the owner within a year and a day. In this country, colonial laws and current statutes have alike repudiated these primitive notions, and reënacting appropriate provisions of Roman and medieval sea-law, provide for safely keeping the property for the space of a year, or other reasonable time, for the owner, and delivering it to him on the payment of reasonable salvage; only in the event of the total failure of the owner to appear, do the goods or their proceeds pass to the state. The Act of Congress (10 U. S. Comp. St. 1916, § 10470) provides that whoever plunders, steals, or destroys any money, goods, merchandise, or other effects, from or belonging to any vessel in distress, or wrecked, lost, stranded, or cast away, upon the sea, or upon any reef, shoal, bank, or rocks of the sea, or in any other place within the admiralty and maritime jurisdiction of the United States, shall be fined not more than five thousand dollars and imprisoned not more than ten years; and whoever willfully obstructs the escape of any person endeavoring to save his life from such vessel, or the wreck thereof; or whoever holds out or shows any false light, or extinguishes any true light, with intent to bring any vessel sailing upon the sea into danger, or distress, or shipwreck, shall be imprisoned not less than ten years and may be imprisoned for life.
It is interesting to note, in connection with this statute, two Articles of the Rooles of Oléron,—
Article XXV
If a ship or other vessel arriving at any place, and making in towards a port or harbour, set out her flag, or give any other sign to have a pilot come aboard, or a boat to tow her into the harbour, the wind or tide being contrary, and a contract be made for piloting the said vessel into the said harbour accordingly; but by reason of an unreasonable and accursed custom, in some places, that the third or fourth part of the ships that are lost, shall accrue to the lord of the place where such sad casualties happen, as also the like proportion to the salvors, and only the remainder to the master, merchant and mariners: the persons contracting for the pilotage of the said vessel, to ingratiate themselves with their lords, and to gain to themselves a part of the ship and lading, do like faithless and treacherous villains, sometimes even willingly, and out of design to ruin ship and goods, guide and bring her upon the rocks, and then feigning to aid, help and assist, the now distressed mariners, are the first in dismembering and pulling the ship to pieces; purloining and carrying away the lading thereof contrary to all reason and good conscience: and afterwards that they may be the more welcome to their lord, do with all speed post to his house with the sad narrative of this unhappy disaster; whereupon the said lord, with his retinue appearing at the places, takes his share; the salvors theirs; and what remains the merchant and mariners may have. But seeing this is contrary to the law of God, our edict and determination is, that notwithstanding any law or custom to the contrary, it is said and ordained, the said lord of that place, salvors, and all others that take away any of the said goods, shall be accursed and excommunicated, and punished as robbers and thieves, as formerly hath been declared. But all false and treacherous pilots shall be condemned to suffer a most rigorous and unmerciful death; and high gibbets shall be erected for them in the same place, or as nigh as conveniently may be, where they so guided and brought any ship or vessel to ruin as aforesaid, and thereon these accursed pilots are with ignominy and much shame to end their days; which said gibbets are to abide and remain to succeeding ages on that place, as a visible caution to other ships that shall afterwards sail thereby.
Article XXVI
If the lord of any place be so barbarous, as not only to permit such inhuman people, but also to maintain and assist them in such villanies, that he may have a share in such wrecks, the said lord shall be apprehended, and all his goods confiscated and sold, in order to make restitution to such as of right it appertaineth; and himself to be fastened to a post or stake in the midst of his own mansion house, which being fired at the four corners, all shall be burnt together, the walls thereof shall be demolished, the stones pulled down, and the place converted into a market place for the sale only of hogs and swine to all posterity.
The Act of Congress and the ancient articles are both occasioned by the persistent notion of loss of title by shipwreck and the right of people on shore to appropriate what they can of the property at risk.
It is sometimes said that the admiralty has no jurisdiction over wrecks, but the statement is correct in only a limited sense. In cases where the property had become quite removed from all connection with commerce or navigation, as where a ship had been thrown far inland by a tidal wave and been converted into a dwelling, or cargo was incorporated into the common mass of property on shore, the admiralty would probably decline jurisdiction. On the other hand, the admiralty law of salvage is based, in large part, on the law of wrecks and derelicts; contracts for the lightering of stranded cargoes or the release of wrecked vessels are obviously maritime and the conversion of shipwrecked property may be a maritime tort when consummated on navigable waters. A steamer which had been wrecked and abandoned to the underwriters as a total loss, and incapable of self-propulsion or of carrying a cargo, still remained within the admiralty law of limited liability (Craig v. Insurance Company, 141 U. S. 638). The fact is that the two jurisdictions are largely concurrent on most matters in regard to wrecks and the instances, in which an adequate remedy can not be found in either, are rare.
It is a general doctrine of the law that the owner of a vessel wrecked without his personal fault may relieve himself from all further personal liability on its account by abandoning it. If sunk through his fault, or if he still retains his title, he may be liable for damage which it occasions, or for maintaining a nuisance, or for obstructing navigable waters. If wrecked by unavoidable accident or without the owner's negligence, he may abandon all his rights and interest in what remains and be freed from all further responsibility; he will be under no obligation to remove it nor subject to indictment on its account, nor liable in damages for injuries caused by it. This abandonment is not required to be in any formal way but is shown by evidence of acts and intention. A notice to any public authorities who may be concerned, like local United States engineers, or harbor masters, or commissioners of wrecks, is often sufficient. Where, however, the owner does not abandon, he remains liable in many respects. The wreck may be a nuisance which the courts will compel him to abate at the suit of property owners injuriously affected. It may be an obstruction to navigable waters and the government may remove it at his expense or proceed against him criminally for such obstruction. Passing vessels may injure themselves against it or the riparian owner assert damages for the trespass.
The owner of the shore on which a wreck is cast is not under any legal obligation to save it for the owner but he may take possession and protect it on the owner's account. If he does so, he will have a lien on the property for his expense and labor, at least, and may stand in the position of a salvor. If he does nothing himself, he may not resist the reasonable efforts of others to save the property for it is a very old rule of the common law, that an entry upon land to save goods which are in jeopardy of being lost or destroyed by water, fire or any like danger, is not a trespass, and this rule is applied to the rescue of ships cast ashore by the sea. At the same time, the owner of the shore will have a sufficient title to goods cast thereon to maintain an action for their value against third parties and salvors should be prompt in seeking the protection of the admiralty if their efforts are successful.
The owner's title to his wrecked ship or cargo remains in him until divested by his own act or by operation of law and he has the right to enter upon lands of another, upon which it may be cast, for the purpose of removing it; if prevented from so doing he may have his action of trover for its conversion or a replevin for possession.[31] In case his property was insured and abandoned to his underwriters, they become the full owners thereof and entitled to all his rights on the premises. These rules apply alike to ship and to cargo and to all the parts thereof. In Murphy v. Dunham, 38 Fed. 503, may be found an interesting discussion in regard to a wrecked cargo of coal. Dunham owned the schooner Burt which was lost in Lake Michigan with about 1,375 tons of coal on board. Murphy bought this cargo from the underwriters who had paid a total loss thereon. About two years afterwards, Dunham located the wreck and raised a quantity of the coal which he sold for the best price obtainable. These proceedings were without any license or authority from Murphy, who had purchased the cargo, and he then sued Dunham for tortious conversion. The court held that Murphy had a valid title and that Dunham was a trespasser in interfering with it; nevertheless if Dunham had promptly libeled it for salvage, his conduct not being marred by bad faith, the admiralty would have awarded him a substantial reward; but as he had assumed to dispose of it at private sale, he must answer in damages, although not as a willful trespasser or one acting in bad faith; he was accordingly held to respond for the value of the coal in the port where he sold it, less the actual and necessary expenses of its recovery. The Albany, 44 Fed. 431, is another opinion in regard to the rights of the owners of ship and cargo; as a result of that disaster, the cargo was plundered by wreckers and sold to many persons in the vicinity; the underwriters recovered it by actions in replevin wherever it could be found.
The Act of March 3, 1899, (10 U. S. Comp. St. § 9920, etc.) contains provisions for the removal of wrecks in navigable waters by the Government. The obstruction may be broken up, removed, sold or otherwise disposed of by the Secretary of War at his discretion, without liability for any damage to the owners of the same. This authority may be delegated by the Secretary of War and permits the prompt removal of wrecks when they interfere with navigation. The rights and power of the Government to so dispose of wreckage can hardly be doubted and similar power probably exists in all foreign jurisdictions as well as in the several states.
Vessels abandoned and deserted at sea, with or without their cargoes, are termed derelicts and may be salved or destroyed by whomsoever can do so. They constitute very dangerous obstructions to navigation, especially when afloat on the ocean or the Great Lakes. The question whether or not a vessel is to be adjudged a derelict is decided by ascertaining, not what was actually the state of things when she was deserted by her master and crew, but what were their intentions and expectations when they quitted her. If they left in order to obtain assistance with the distinct purpose to return, there is no derelict. Prima facie, however, a deserted vessel at sea is a derelict and subject to salvage services, or, if not salvable, then to destruction by private parties or naval authorities. Salvage of derelicts is always liberally rewarded, sometimes to the amount of the whole recovery. If destroyed, the proceeding must be in entire good faith and, if so, there will be no liability to the owner. In the case of the River Mersey, 48 Fed. 686, that steamer had burned a scow found adrift at sea and was libeled for its destruction. It appears that the scow had broken adrift near one of the West Indies and become a dangerous factor in the navigation up and down the coast. The steamer took her in tow in order to drop her inside of the Gulf Stream but, finding this impossible on account of the weather, set her on fire in order to destroy her and so remove a dangerous obstruction to navigation. The owners of the scow alleged that they had not abandoned her and meant to send out a tug to bring her into port. The court dismissed the libel, saying that the destruction of such obstacles to the fairways of the sea, either when abandoned, or when proved not to be worth saving, is not tortious or actionable, but rather a praiseworthy and beneficent service, and, whether done by private or public ships, needs no statutory authority but is entirely justified under the law of necessity, for the protection of life and property, and for the manifest public good.
The person who finds property lost at sea, or cast upon the shore, is protected against the interference of third parties although he has no title against the real owner unless that owner had abandoned completely. Eads v. Brazelton, 22 Ark. 499, is an excellent opinion on this phase of the subject. The steamboat America, laden with a cargo of lead, had sunk in the Mississippi River in 1827. In 1854 Brazelton had discovered the wreck over which an island had formed and a forest grown, and commenced preparations for its recovery. He marked its position and placed buoys around it but was prevented from commencing operations until the next year. In the meantime Eads commenced operations on his own account and Brazelton sought an injunction to restrain him. The original owners did not appear or make any claim. Brazelton was held to have a good title as against any others than the owner on the ground that he was the first finder of an abandoned wreck.
[31] These are common-law forms of action for the recovery of property or damage for its detention.
Wharves are structures made to facilitate and aid commerce and navigation and are essential to maritime affairs. They are classed as public and private and frequently regulated by local laws and ordinances. Wharfage means the use by the vessel of a wharf, pier or other landing place and also the compensation for such use; moorage is a practically similar term but may include the use of unimproved property by the ship while anchored or otherwise attached to the shore or lying in a slip. Private wharves are those which the owner has constructed and reserved for his own use but when they are legally thrown open to the use of the public, they become affected with a public interest; the keeping of such a wharf has been likened to inn-keeping or other quasi-public places and all seeking its use are entitled to accommodation at reasonable rates.
The construction of wharves or piers upon navigable waters is usually governed by federal, state or municipal regulations and, unless appropriate authority is obtained, the erection of such a structure, projecting into the stream, will be unlawful and the person responsible for the obstruction may be liable for any damage resulting from its existence, and may be criminally liable to the federal government and subject to injunctive process for the removal of the structure. This remark does not apply to structures confined wholly to the shores and not projecting. The paramount authority to legislate with regard to wharves in navigable streams resides in Congress, which has enacted that no such structures shall be erected outside of established harbor lines, or where no harbor lines have been established, except by specific authority of the Secretary of War. The Secretary of War is empowered to establish harbor lines where he considers it essential (30 St. at L. 425). It has been held, however, that the power of Congress to regulate the use of navigable waters entirely within the limits of a State is not complete without the concurrence of the state legislature. In most communities located on navigable waters, there exists a corporate power, conferred by the legislature, to regulate wharves, piers and landings, and in pursuance of such power wharves and harbor lines are frequently established, in the absence of federal action establishing the same.
The owner of a wharf is bound to keep it safe and free from all defects which might injure persons or property using the same. While not an insurer he must use due diligence to make and keep it safe for the uses for which it was constructed or is employed. The analogy is that of the keeper of any structure commonly used by others for compensation and the obligation extends to all who rightfully come upon the premises for business purposes. Thus friends attending upon the arrival or embarkation of passengers, consignees of cargo, hackmen, and customs officers have recovered damages against the owner of a wharf for injuries sustained through its defective condition. So he will also be liable for injuries to vessels caused by rocks or other obstacles beneath the surface of the water or pikes projecting from the wharf. There is an implied warranty that the premises are safe and free from hidden obstructions. Frequent inspections are required in order to ascertain and repair such defects as may be engendered by its use, and if dangers are found to exist, he should close the wharf or give ample notice of its condition.
These principles were invoked in the case of Onderdonk v. Smith, et al., 27 Fed. 874; where a scow and her cargo were sunk in consequence of being punctured by a spile which projected from the bottom of the slip directly under the place where the scow had taken her cargo. The respondent enjoyed the exclusive privilege from the owners of using the pier and the adjoining slip for shipping their coal and to that extent, although they were neither owners or lessees, had control and occupation of the premises. "They assumed the duty toward those whom they invited there for the transaction of business not to expose them to hazard from any defects in the condition of the premises known to themselves or which, by the use of reasonable diligence, should have been known." Their superintendent knew of the existence of the spile and they were, therefore, chargeable with notice, because about three weeks before the accident in suit another boat had been struck by the same spile. The Court said:
If the scow had been injured by this obstruction while being loaded at the pier, or while going to it or away from it in the prosecution of the business which called her there, the case of the libellant would be clear. But the evidence is that her loading was completed at half past 4 o'clock in the afternoon, when the water was a little below high tide, and the accident happened about half past 9 in the evening, when the tide was low ebb; and if the scow had been removed from the place where she was loaded within a reasonable time after the loading was completed, she would not have been injured. When the tide went out, the scow settled down upon the spile, which projected about a foot from the bottom of the slip, and sufficiently far to puncture the boat at that condition of the water.
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The only liability of the defendants grows out of their duty arising from their implied invitation to others to use the pier for the transaction of the business to which the pier was appropriated. Their invitation was spent when the boat's business at the pier was finished, and a reasonable time had elapsed to enable her to move away. After that she remained there at her own risk. It is not necessary to hold that she was there against the permission of the defendants, and therefore a willful trespasser; but, assuming that she was there without having obtained the permission of the defendant's superintendent, the defendants were not under any obligation to concern themselves for her protection. Under such circumstances, the law imposed no duty upon the defendants except the general duty which every man owes to others to do them no intentional wrong or injury.
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Owners of private property are not responsible for injuries caused by leaving a dangerous place unguarded, when the person injured was not on the premises by permission, or on business, or other lawful occasion, and had no right to be there. One who thus uses another's premises cannot complain if he encounters unexpected perils.
In Smith v. Burnett, 173 U. S. 430, a schooner while moored in berth at a wharf on the Potomac River for loading, was sunk by a submerged rock within the limits of the berth at the wharf, which the master was invited to take, the obstruction being unknown to the master and having been assured by the owners of the wharf, through their agent, that the depth of water in the berth in front of the wharf was sufficient and that the berth was safe for the loading of vessels. Chief Justice Fuller, discussing the English and American authorities said:
Although a wharfinger does not guarantee the safety of vessels coming to his wharves, he is bound to exercise reasonable diligence in ascertaining the condition of the berths thereat, and if there is any dangerous obstruction, to remove it, or to give due notice of its existence to vessels about to use the berths. At the same time the master is bound to use ordinary care, and cannot carelessly run into danger.
The owner of a private wharf is entitled to compensation for its use by others or to reserve it entirely for his own accommodation. Riparian owners may construct and maintain, for their own exclusive use and benefit, private wharves on their own property, and, so long as they do use them, and refrain from giving them a public character, may deal with them as other private property. If a vessel is wrongfully moored to such a private wharf, the owner may cast it adrift and will not incur any liability if, in consequence of his act, the vessel becomes stranded and lost. In the interesting case of Dutton v. Strong, 1 Black 23, a vessel in peril running into a harbor in the night made fast to a pier, which was the private property of the riparian proprietor, without securing his permission. The force of the sea causing the vessel to pound and parts of the pier beginning to give way, the proprietor of the pier warned the master to leave. The master, believing that such a course would imperil his vessel, did not do so and the pier owner cast her loose, as a result of which she was so seriously injured that her master was obliged to scuttle her. The owner of the vessel brought action for damages. The court (Clifford, J.) said:
Piers or landing places and even wharves, may be private, or they may be in their nature public, although the property may be in an individual owner; or, in other words, the owner may have the right to the exclusive enjoyment of the structure, and to exclude all other persons from its use; or he may be under obligation to concede to others the privilege of landing their goods, or of mooring their vessels there, upon the payment of a reasonable compensation as wharfage; and whether they are the one or the other may depend, in case of dispute, upon several considerations, involving the purpose for which they were built, the uses to which they have been applied, the place where located, and the nature and character of the structure. Undoubtedly, a riparian proprietor may construct any one of these improvements for his own exclusive use and benefit, and, if not located in a harbor, or other usual resting place for vessels, and if confined with the shore of the sea or the unnavigable waters of a lake, and it had not been used by others, or held out as intended for such use, no implication would arise, in a case like the present thus the owner had consented to the mooring of the vessel to the bridge pier.
Accordingly it was held that:
When it became obvious that the necessary effect of the trespass, if suffered to be continued, would be to endanger and injure or perhaps destroy the pier, the peril of the vessel imposed no obligation upon the defendants to allow her to remain and take the hazard that their own property would be sacrificed in the effort to save the property of the wrongdoers. On the contrary, they had a clear right to interpose and disengage the vessel from the pier to which she had been wrongfully attached, as the only means in their power to relieve their property from the impending danger. They had never consented to incur that danger, and were not in fault on account of the insufficiency of the pier to hold the vessel, because it had not been erected or designed as a mooring place for vessels in rough weather, and it was the fault of the plaintiffs or their agent that the vessel was placed in that situation.
The proprietor of a private wharf may fix any rate he pleases for the use of such a wharf and those employing it, after due notice of the charge, will make themselves liable to pay it. This rule of private property, however, applies only to the purely private wharf and slight circumstances may be sufficient to give it a public character. It has, indeed, been held that where the wharf constitutes the only means by which the people of a community can reach the water and have the benefit of the means of commerce and navigation thereon, the structure is necessarily impressed with a public interest and may not be monopolized to the exclusion of others.
The compensation for the use of a private wharf depends on the bargain of the parties concerned. When there is an express contract, that will control; if the rate is published, the vessel impliedly promises to pay it when she uses the wharf; such publication may be by a sign or placard on the wharf or by any other method of conveying actual notice of the rate. Where there is no express agreement, or published rate, there is an implied promise to pay a reasonable compensation or customary charge for the use of the property. The same rule applies to cases of overlapping, where a vessel moored at one wharf projects over another to a greater or less extent. In the case of the Hercules, 28 Fed. 475, a tug 80 feet long habitually used a wharf of only 59 feet and so overlapped the adjoining wharf although she did not actually use it for loading or unloading. The proprietor gave a general notice that he would claim compensation and later filed his libel therefor. The court sustained his position, but, as no rate had been named, referred the matter to a commissioner to report on what a reasonable amount would be. In other than matters of private wharfage, the compensation is frequently regulated by local law.
There is a maritime lien upon a vessel for wharfage in all cases where the ship is foreign, and, by the weight of authority, this lien also arises in the case of domestic vessels. In all cases of domestic vessels, however, the States may provide liens for wharfage, by local statutes, and these will be enforced in the admiralty if the conditions of such statutes have been observed. It has, however, been rather generally held that this lien only attaches when the ship is actively engaged in commerce and navigation and can not be created when she is out of commission and laid up for storage purposes. So, in localities where navigation is closed during the winter months, it is said that there is no lien for winter wharfage and intimated that the proprietor should secure himself under his common-law lien by declining to surrender possession of the vessel until his charges are paid. The lien has also been given a high rank, under some decisions, and placed next after sailors' wages, although the propriety of this may seem open to question. It is inferior to a "preferred mortgage" given on an American ship pursuant to the Merchant Marine Act of 1920 (see Appendix). It is essential, of course, since the lien depends on contract, express or implied, that it should be treated by some one having due authority to pledge the credit of the ship.
Cases of collision between ships and wharves are very frequent and the damages caused thereby are a well recognized subject of marine insurance for which the underwriters agree to indemnify the vessel when it has been compelled to pay them. Damage to the wharf can not be recovered in the admiralty because the tort is not maritime; it is not consummated upon the water but on the land of which the wharf is a part. The wharf owner must, therefore, sue at common law or under local statutes; he has no maritime lien for the injury. On the other hand, the injuries received by the ship are consummated on the water and fall within the jurisdiction of the admiralty; the ship, however, can not libel the wharf because that is a fixed structure and not subject to maritime liens; its remedy is by a libel in personam against the wharf owner. If the wharf is a lawful structure and the ship negligently runs into it, full damages may be recovered at law. Where the structure is unlawful, the ship may recover its damages, in whole or in part, as the fault may lie, in an admiralty proceeding. Atlee v. Union Packet Co., 21 Wall. 389, was a case where a barge was sunk by a collision with a stone pier in the Mississippi river which had been placed there without authority of law. The pilot of the barge was also at fault in assuming to take her through the channel without posting himself about the location of the pier. The proceeding was a suit in admiralty by the owner of the barge against the owner of the pier, and, both being considered in fault, the damages were divided. In connection with the subject of admiralty jurisdiction it should be noted that while it declines to take cognizance of the damages sustained by the owners of fixed structures from collisions with vessels, the shipowners, by filing a petition under the Limited Liability Act, may draw their claims into the admiralty and enjoin their actions at common law (Richardson v. Harmon, 222, U. S. 96.).
Injuries are often sustained by docks and wharves when vessels make fast thereto in stress of weather and can not leave without exposing themselves to destruction. The rule is that the shipowner may not save his own property at the expense of the wharf-owner but must compensate him for the damage done by his ship, although the master had no alternative but to remain as he did. Vincent v. Company, 109 Minn. 456, is a decision in point, and Dutton v. Strong, 1 Black 23, should be read in the same connection.
The rights of navigation are usually paramount in all navigable waters and the right of anchorage is essential for a full enjoyment of such rights. These waters are, in many respects, like highways on the land, and there is a like privilege of stopping upon them, from time to time, as an incident to the right of travel thereon, subject to the reasonable requirements of traffic and the rights of abutting property. The right of passage extends to every part of the water, but the right of anchorage is confined to such places as are usual or reasonable, in view of local conditions. It does not imply the power to remain for long periods of time or to create a nuisance. Charges for anchorage may be made by the owner of the property used if it is an artificial one so that his work in improving or rendering it accessible forms a consideration for the amounts required. Generally, where only a natural roadstead is utilized in the course of navigation, it is no more subject to expense to the vessel than the temporary stopping of a vehicle upon a street.
The vessel, being at anchor in a proper place and otherwise complying with law, is not liable for damages sustained by collision with it, but, obviously, will have a strong case against the ship which runs her down. She ought not to anchor in an exposed situation, except in cases of necessity, and then only as long as the necessity prevails.
Anchored vessels, like wharves, piers and the like, may constitute serious obstructions to navigation but this does not give others the right to run them down. Approaching vessels are still bound to use ordinary care and skill to avoid them. It is the duty of a ship under way, whether the vessel at anchor be properly or improperly anchored, to avoid, if it be possible with safety to herself, any collision whatever, and the courts have frequently held that even if a ship is brought up in the fairway of a river, if the other could with ordinary care have avoided her, the latter will be held solely to blame. In the case of the Future City, 184 U. S. 247, a tug and tow descending the Mississippi River at New Orleans, upon rounding a point came in collision with several battleships of the United States Navy, anchored in line on swinging chains. It appeared that they had taken up these berths in the fairway for descending vessels contrary to the usage of the port and against the advice of the Board of Harbor Masters, who, however, had no authority over naval vessels. There was abundance of good anchorage elsewhere in the harbor. The Supreme Court held the Government liable for the negligent anchoring of the naval vessels and that the tug was not guilty of contributory negligence in being unable, after rounding the point, to check the headway which the current of the river imparted to the tow.
The Court quoted with approval the language of Spencer on Marine Collisions: