Briggs v. A Light Boat

89 Mass. 287

• Court: Massachusetts Supreme Judicial Court
• Decided: October 15, 1863
• Status: Published

Opinion

Bigelow, C. J.

Upon established principles of law, we think it clear that no property in the vessel, which is the subject of controversy in this action, vested in the United States until the vessel was completed and delivered, in pursuance of the contract with the builder. The general rule of law is well settled and familiar, that, under a contract for building a ship or making any other chattel, not subsisting in specie at the time of the contract, no property vests in the purchaser during the progress of the work, nor until the vessel or other chattel is finished and ready for delivery. To this rule there are exceptions, founded for the most part on express stipulations in contracts, by which the property is held to vest in the purchaser from time to time as the work goes on. It is doubtless true that a particular agreement in a contract concerning the mode or time of making • payment of the purchase money, or providing for the appointment of a superintendent of the work, may have an important bearing in determining the question whether the property passes. to the purchaser before the completion of the chattel. It is, however, erroneous to say, as is sometimes stated by text writers, that an agreement to pay the purchase money in instalments, as certain stages of the work are completed, or a stipulation for the employment of a superintendent by the purchaser to overlook the work, and see that it is done according to the tenor of the contract, will of itself operate to vest the title in the person for whom the chattel is intended. Such stipulations may be very significant, as indicating the intention of the parties, but they are not in all cases decisive. Both of them may co-exist in a particular case, and yet the property may remain in the builder or manufacturer. Even in England, where the cases go the farthest in holding that property in a chattel in the course of construction under a contract passes to and vests in the purchaser, these stipulations are not always deemed to be conclusive, of title in him. It is a question of intent, arising on the interpretation of the entire contract in each case. If, taking all the stipulations together, it is clear that the parties intended that the property should vest in the purchaser during the progress of the work and before its completion, effect will be given to such intention, and the property will be held to pass accordingly; but, on the other hand, it will not be deemed to have passed out of the builder, unless such intent is clearly manifested, but the general rule of law will prevail. Wood v. Bell, 5 El. & Bl. 772, 792, and cases cited; S. C. 6 Ib. 355. Andrews v. Durant, 1 Kernan, 35. Williams v. Jackman, 16 Gray . By the terms of the contract with the United States under which the vessel in controversy was constructed, no intention is indicated which takes this case out of the general rule. On the contrary, there are several stipulations which clearly show a different intention. In the first place, the purchase money was not payable by instalments, in proportion to the labor and materials supplied from time to time during the progress of the work, but the builder was to receive the whole sum agreed to be paid for the construction of the vessel upon its completion and acceptance by the United States. The contract was an entire one. The fulfilment of it by the vendor was a condition precedent to his right to receive any portion of the stipulated price. In the next place, there was no absolute agreement by the United States to appoint a superintendent or supervisor of the work to regulate and control it during its progress. It was left at the option of the government to provide for such superintendence or supervision, if they saw fit to do so. If they did make such provision, the builder agreed to be bound by such directions as might be given to him by the agent so employed. This was the extent of the obligation upon this point assumed by the United States. Another and decisive indication of the intention of the parties that no property was to pass until the completion and acceptance of the vessel is found in that clause of the contract by which it is stipulated that if the agent of the United States at any time during the construction of the vessel should be of opinion that the contract was not duly complied with, or that due progress was not made in its execution, or if the builder was negligent or careless, he might declare the contract to be forfeited, and thereupon the same should become null and void. Such a reservation is inconsistent with the acquisition of any title by the United States in the unfinished vessel. It is unreasonable to suppose that the parties intended to insert a stipulation the effect of which would be that the government would acquire a right of property in the vessel under a contract which they might at any time rescind. The only reasonable interpretation of this stipulation, taken in connection with other parts of the agreement already referred to, is, that the title to the vessel was not to pass out of the builder until it was finished and accepted by the United States, and thereupon the right to the purchase money would become fixed and absolute. The builder was not to part with his property till he received compensation ; the government was not bound to accept the vessel unless it conformed in all respects to the contract.

As a necessary consequence of this view of the rights of the respective parties under the contract for the construction of the vessel, it would seem to follow, unless some peculiar privilege or prerogative of the government can be interposed to prevent it, that under the statutes of this commonwealth, Gen. Sts. c. 151, § 12, creating a lien for materials furnished for the construction of ships and vessels, the plaintiffs have a right to maintain this process to enforce their claim for timber furnished to the builder. The enactment is explicit, that when money is due to a person for materials furnished in the construction of a ship or vessel by virtue of a contract either expressed or implied with the owner thereof, “ such person shall have a lien upon the ship or vessel, her tackle, apparel and furniture, to secure the payment of such debt.” On the uncontradicted evidence in the case, it appears that the timber was furnished under a contract with the builder and owner, which embraced that which was intended for the specific vessel on which the lien is now claimed, and which was actually used in her construction. It is true that by the contract no specific part or portion of the timber was designated or appropriated for each of the three vessels for which the petitioner agreed to furnish materials. But this is quite immaterial.

The legal effect of the contract was to allow the builder to elect on which of the three vessels he would use the timber supplied under the contract or any part thereof. When thus appropriated by him, it was within the terms of the statute furnished in the construction of the vessel on which it was used, and so entitled the petitioner to a lien thereon for the price. The Kiersarge, 2 Curtis C. C. 421, 425. Rogers v. Currier, 13 Gray, 129. Barstow v. Robinson, 2 Allen, 605, and cases cited.

Nor can there be any doubt of the nature or extent of the right or interest which this statute lien is intended to create for the benefit of material men in the ship or vessel for which timber or other articles are furnished. The word “ lien,” as applied to ships or vessels, has a well settled and fixed meaning in maritime and commercial law. In this sense, according to the rule of interpretation prescribed in Gen. Sts. c. 3, § 7, cl. 1, it is to be understood and construed as used in the statute conferring the right of lien on ships and vessels. A maritime lien is not a mere right or remedy by which persons entitled to it can enforce a claim or debt due from the owners against their vessels. It is something more than a jus ad rem. It is a jus in re — a right in the nature of a title, which when enforced and perfected takes effect and transfers the property in the vessel from the time when the lien first attached. The doctrine on this subject is so fully and elaborately discussed, and illustrated with such affluence of learning, in the case of The Young Mechanic, 2 Curtis C. C. 404, as to render any further elucidation of it superfluous. The rule of law is there stated to be that a maritime lien “ is an appropriation made by the law of a particular thing, as security for a debt or claim; the law creating an incumbrance thereon, and vesting in the creditor what we term a special property in the thing, which subsists from the moment when the debt or claim arises, and accompanies the thing even into the hands of a purchaser.” Under this rule, upon the facts stated in the report, it is clear that the plaintiffs by virtue of the statute lien acquired a right in the vessel for which they furnished timber under the contract, which on due proceedings had will pass a title to the vessel in controversy paramount to any subsequently acquired by purchase or otherwise, unless there is some principle of law or public policy which will prevent them from asserting their lien and enforcing their right under it to sell the vessel as against the United States, who now appear as claimants. Upon careful consideration of this ground of defence to the petitioners’ claim, we have been unable to discover any valid reason for the immunity which is set up in favor of the government. No authority has been cited which gives any countenance to the doctrine that the rules of law applicable to maritime and other liens are suspended or inoperative in cases where a ship or vessel against which they are sought to be enforced is in process of construction under a contract with the government, by the terms of which no title in the,ship or vessel has passed out of the builder at the time when the articles for which a lien is claimed were furnished. And such a doctrine seems to be inconsistent with elementary principles. If the property in the ship or vessel is not changed, if it still remains in the builder, it is difficult to see how the use or purpose for which a ship or vessel is destined when completed can in any way interfere with or control the right of the owner to dispose of it while the title and possession are both vested in him. The jus disponendi is inseparable from the jus proprietatis. It would be an anomaly in the law if a mere executory agreement for the construction of a chattel should be allowed to operate so as to take away the usual incidents which the law attaches to the ownership of personal property. If such a doctrine is applicable at all to contracts entered into with the government, it certainly cannot be limited in its operation so as to deprive the owner only of a right to create a lien on his ship or vessel. By parity of reasoning it must go to the extent of denying his right to do any act or thing in relation to the property, which is the subject of the contract, inconsistent with its terms and the rights of the government under it. If he cannot create a lien, he cannot make a valid mortgage or pledge of the property; a result which is manifestly as irreconcilable with sound principles as it is inconsistent with all the analogies of the law. The truth is, that when the government becomes the purchaser of property, it takes the title subject to the same roles as those which regulate the transfer of it to private persons. If it is subject to liens or incumbrances, it passes cum onere. So it is held in cases of ordinary maritime liens. If the government becomes the owner of a vessel by purchase, forfeiture or otherwise, it takes a title subject to the same liens for salvage, wages, bottomry and other claims as would attach to it if sold to private persons. United States v. Wilder, 3 Sumner, 314. The St. Jago de Cuba, 9 Wheat. 416. The Copenhagen, 1 C. Rob. Adm. 289.

If this were a suit brought by the builders to enforce a lien for materials furnished for the construction of a ship under a contract directly with the government, or for repairs on a public vessel, the title of which was vested in the United States at the time the work was done or the supplies were furnished, the argument founded on public policy, and the suggestions arising from the inconvenience of causing delay and embarrassment to the public service would be entitled to very great weight. It might in such case be open to grave doubt whether a lien on the property of the United States could be given by virtue of an enactment of the legislature of a state, or whether services rendered and materials supplied directly to the government must not be presumed to have been furnished exclusively on the faith and credit of the United States, to the exclusion of any intent to rely on a lien upon the public property. But considerations of this nature have no application to a case like the present. It would have been competent for the United States, if they wished to avoid the inconvenience or danger of delay arising from liens in favor of private persons, to make their contract in such form as to divest the builder of any title to the property in the vessel during the process of construction, or to stipulate for the application of the purchase money to the extinguishment of all claims for materials furnished to the builder. But under the contract into which they entered, for the reasons already given, we can see no valid ground for refusing the claim of the petitioners to enforce their lien on the vessel in controversy. See The Revenue Cutter No. 1, 21 Law Reporter, 281.

It was suggested, but not strenuously urged, that the structure for which the petitioners furnished timber was not a ship or vessel within the meaning or reason of the statute. It is called a vessel in the contract under which it is claimed by the United States, and in all essential particulars it corresponds with the usual definition of the word as applied to structures designed for use on the water. In a nautical sense, the word is “ a general name given to the different sorts of crafts which are navigated.” Worcester’s Diet. “ Vessel.” We can see no reason for giving it a restricted meaning as used in the statute.

The sale of the timber was not contrary to the provisions of the ordinance of the city of New Bedford. That by-law is intended to apply only to timber brought into the city for sale, and has no application to a case like the present, where the petitioners furnished the timber under a special contract for its sale and delivery, to be used in a specific vessel.

Verdict set aside ; judgment for the petitioners.