Appeal from the Court of Claims. The case is stated by the court. Messrs. A. L. Merriman and E. Lauder, for put upon the vessel Etlah, built by Charles W appellants.

McCord, amount in value to $116,111 (certifi Mr. Edwin B. Smith, Asst. Atty-Gen., for cates having been previously given for $85,000), appellees. and they are according to directions which have been given from time to time. Robert Danby,

(Appropriation: 'Const'n and Repair.') For work done to the light-draft monitoring the Etlah; gives "them full power in and Etlah, which is extra to the contract, dated June 24th, 1863, being the full and final payment on all extras, and in full for all claims and demands for that work. 63] *Less amount paid E. W. Rarstow & Son, as per order Outfits and equipments called for by the contract, but not furnished..

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 $4,457.83 on the vessel, and thereby bind their principal to such acceptance.

$26,653.17 But if we could be mistaken in this, the

Term, 1877, as the same remains upon the files and
records of said Supreme Court.
In testimony whereof I hereunto sub-
scribe my name and affix the seal of said
[L. S.] Supreme Court, at the City of Washing-
ton, this 20th day of March, A. D. 1885.
James H. McKenney,
Clerk, Sup. Ct. of U. S.

Ex parte. In the Matter of JAMES T. EAS-
TON and JAMES MCMAHON, Petitioners.

(See S. C., Reporter's ed., 68-78.)

reasonable presumption is that Gilman, Son & Co. had nothing to do with obtaining this voucher from the Navy Department, but that it was 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 Prohibition, when issued-contract for wharfage. & 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, already mentioned, 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 that work was increased to the builder $118,283.20. 68] *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 hound 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 guaranty him against unfavorable changes in those prices.

1. Power is vested in this 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 which it has no jurisdiction.

2. The contract for wharfage is a maritime contract, for which, if the vessel or water-craft is a foreign one or is from another State, a maritime lien arises against the ship or vessel in favor of the proprietor of the wharf, which is cognizable in admiralty and may be enforced by a proceeding in rem against the vessel, or by a suit in personam against the owner.

[No. 3, Orig.]

Argued Apr. 23, 24, 1877. Decided Nov. 5, 1877.

Petition for writ of prohibition.

The case is stated by the court.
Messrs. Edward D. McCarthy and J. E.
Gowen, for petitioners.

Mr. F. A. Wilcox, in opposition.

Mr. Justice Clifford delivered the opinion of the court:

Judicial powers under the Federal Constitution extends to all cases of admiralty and maritime jurisdiction, and it was, doubtless, the intention of Congress, by the 9th 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 co-extensive 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

NOTE. What contracts will support maritime liens -see note, 70 L. R. A., 354. Wharves; right to construct; right to charge wharfage; lien for.

Nearly all the courts recognize a right in the riparian owner to build wharf from his own land,

The judgment of the Court of Claims is af- provided he does not obstruct navigation. Bell v. firmed.

Gough, 3 Zab., 624; Ensminger v. People, 47 Ill., 384: East Haven v. Hemingway, 7 Conn., 186; Sherlock v. Bainbridge, 41 Ind., 35, 13 Am. Rep., 302; Stevens v. Patterson, etc., R. R. Co., 34 N. J. Law, 532, 3 Am Rep., 269: Grant v. City of Davenport, 18 Iowa, 179; Geigor v. Filor, 8 Fla., 325; Simons v. French, 25 Conn., 346; Thornton v. Grant, 10 R. I., 477, 14 Am. Rep., 701: Chicago v. Laflin, 49 Ill., 172; Rice v. Ruddiman, 10 Mich., 125; Yates v. 373

24

law and the practice and usages of continental | court below forbidding the District Court to Europe. (3) That the nature and extent of the proceed further in the case. admiralty jurisdiction conferred by the Consti- Pursuant to said petition, this court entered tution, must be determined by the laws of Con- an order permitting argument upon the merits gress and the decisions of this court, and by of the petition, and directing that due notice be the usages prevailing in the courts of the States given to the libelants and the clerk of the Disat the time the Federal Constitution was adopt-trict Court. Hearing was had in conformity ed. No other rules are known which it is rea- to that order, and the case was held under adsonable to suppose could have been in the minds visement. 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. Authority is conferred upon the libelants, as the proprietors of the wharf and slip in question, by the law of the State, to charge and collect wharfage and dockage of vessels lying 71] *at said wharf, and within the slip adjoining the wharf of the libelants.

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 libelants, where she remained for eleven days. For the use of the berth occupied by the barge the libelants charged $34.20, as wharfage and dockage. Due demand was made; and payment being refused, the libelants 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

Milwaukee, 10 Wall., 497, 19 L. ed., 984; Whetmore v. Atl. White Lead Co., 37 Barb., 70, 96; Wis. Riv. Imp. Co. v. Lyons, 30 Wis., 61.

Though the riparian owner may erect private wharf, and allow the public to use it for a compensation, yet the right to erect public wharf and to demand tolls and fixed rates of wharfage, is a franchise requiring legislative grant. People v. Wharf Co., 31 Cal., 34; Thompson v. Mayor, etc., 11 N. Y., 115; The Wharf Case, 3 Bland Ch., 383; Wiswall v. Hall, 3 Paige, 313.

The right to build wharves, even on private lands, may be regulated by the Legislature, for the public good, and the power to establish and regulate them may, being a police power, be delegated to a municipality. Com. v. Alger, 7 Cush., 53; State v. Jersey City, 34 N. J. Law, 390; Baltimore v. White, 2 Gill, 444; R. R. Co., v. Ironton, 19 Ohio St., 299; City of Dubuque v. Stout, 32 Iowa, 80, 7 Am. Rep.,

171.

The right to collect wharfage belongs only to those who have built a wharf, or prepared the shore for the landing of goods. Columbus v. Gray, 2 Bush., 476. A private owner of a wharf may charge and collect wharfage of those using wharf with his consent. The Kate Tremaine, 5 Ben., 60; Ensminger

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 which the District Court has no jurisdiction. 1 Stat. at L., 81; U. S. v. Peters, 3 Dall., 121.

*Where the District Court is proceed- [72 ing 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; U. S. v. Hoffman, 4 Wall., 158, 18 L. ed., 354.

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 that 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., sec. 1660.

Public navigable waters, where interstate 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

v. People, 47 Ill., 384; Chicago v. Laflin, 49 Ill., 172. A municipal corporation may also collect wharfage for use of wharf erected by it, as a riparian owner, or by virtue of authority conferred on it by statute. Prescott v. Duquesne, 48 Pa. St., 118; Murphy v. Montgomery City, 11 Ala., 586; City of Dubuque v. Stout, 32 Iowa, .80, 7 Am. Rep., 171.

Lessee of a public wharf is entitled to the wharfage. Comrs. of Pilots v. Clarke, 33 N. Y., 251. Action will lie for wharfage as for a money demand. Kelsey v. Murray, 28 How. Pr., 243, 18 Abb. Pr., 294.

Wharfinger has lien on goods deposited on his wharf, for wharfage, and also on vessel from which he receives them. 2 Kent, Com., 642; Johnson v. McDonough, Gilp., 101; Naylor v. Mangles, 1 Esp., 109; Spears v. Hartley, 3 Esp., 81.

Lien prevails over subsequent legal process. Rex v. Humphrey, McClel. & Y., 173.

It has priority over bottomry bond upon a foreign vessel. Ex parte Lewis, 2 Gall., 483; Johnson V. The McDonough, Gilp., 101.

Lien on vessel is lost if she leaves the moorings, but her return revives lien. Authorities last cited and Russell v. The Switt, Newb., 553.

nature of the service or engagement, and is lim- | houses; but the great and usual object of such ited to such subjects as are purely maritime, erections is to advance commerce and navigaand have respect to commerce and navigation tion, by furnishing resting places for ships, veswithin the meaning of the Constitution. sels and all kinds of water-craft, and to faciliWide differences of opinion have existed as tate their operation in loading and unloading to the extent of the admiralty jurisdiction; but cargo and in receiving and landing pasengers. it may now be said, without fear of contradic- Nor is the nature of the service or the charaction, that it extends to all contracts, claims and ter of the contract changed by the circumstance services essentially maritime, among which are that the water-craft which derived the benefit bottomry bonds, contracts of affreightment and in the case before the court was without masts contracts for the conveyance of passengers, pi- or sails or other motive power of her own. Saillotage on the high seas, wharfage, agreements ships, and even steamships and vessels, are freof consortship, surveys of vessels damaged by quently propelled by tugs; and yet, if they se73] the perils of the seas, the claims of ma- cure a berth at a wharf, or in a slip at the place terial men and others for the repair and outfit of landing or at the port of destination, and acof ships belonging to foreign nations or to other tually occupy the berth as a resting place or for States, and the wages of mariners; and also to the purpose of loading or unloading, no one, it civil marine torts and injuries, among which is supposed, will deny that the ship or vessel is are assaults or other personal injuries, colli- just as much liable to the wharfinger as if she sion, spoliation and damage, illegal seizures or had been propelled by her own motive power. other depredations on property, illegal disposses- Neither canal-boats nor barges ordinarily have sion or withholding of possession from the own- sails or steam power, but they usually have towers of ships, controversies between the part own-lines; and it clearly cannot make any difference, ers as to the employment of ships, municipal as to their liability for wharfage, whether they seizures of ships, and cases of salvage and ma- are propelled by steam or sails of their own, or rine insurance. Conkl. Tr., 5th ed., 254. 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 for receiving or landing passengers.

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 regulated 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 property 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 the proprietor is entitled to recover what is just and reasonable for the use of his property and the benefit conferred.

Such erections are indispensably necessary for the safety and convenience of commerce and 74] navigation, and those who take berth alongside them to secure those objects derive great benefit from their use. All experience supports that proposition, and shows to a demonstration that the contract of the wharfinger appertains to the pursuit of commerce and navigation.

Instances may, doubtless, be referred to where wharves are erected as sites for stores and store

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, 19 L. ed., 748.

Access to the ship or vessel rightfully occupying a berth at a wharf, for the purpose of lading and unlading, is the undoubted right of the owner or charterer of such ship or vessel for which such right has been secured. Wendell v. Baxter, 12 Gray, 494.

*Privileges of the kind are essential to the [75 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 the shoalness of the 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 liabilty. He may deliver them on the wharf; but, to constitute a valid delivery there, the master should give due and reasonable no

tice to the consignee, so as to afford him a fair | ed against in admiralty to enforce the payment opportunity to remove the goods, or to put them of wharfage, when the vessel lies alongside the under proper care and custody. Delivery on the wharf, or at a distance, and only uses the wharf wharf, under such circumstances, is valid. if temporarily for boats or cargo. Ben. Adm., 2d the different consignments be properly separat- ed., sec. 283. ed, so as to be open to inspection, and conveniently accessible to their respective owners. The Eddy, 5 Wall., 481, 18 L. ed., 486.

Application for the writ of prohibition is properly made in such a case, upon the ground that the District Court has transcended its juThese remarks are sufficient to show that risdiction in entertaining the described proceedwharves, piers or landing-places are well nighing; and whether it has or not must depend not as essential to commerce as ships and vessels, upon facts stated dehors the record, but upon and are abundantly sufficient to demonstrate those stated in the record upon which the Disthat the contract for wharfage is a maritime contract, for which, if the vessel or water-craft is a foreign one, or belongs to a port of a State other than the one where the wharf is situated, a maritime lien arises against the ship or vessel in favor of the proprietor of the wharf. Standard authorities, as well as reason, principle, and the necessities of commerce, support 76] the theory that the contract *for wharfage is a maritime contract, which, in the case supposed, gives to the proprietor of the wharf a maritime lien on the ship or vessel for his security.

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., 61.

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, 19 L. ed., 772; DeLovio v. Boit, 2 Gall., 398.

trict Court is called to act, and by which alone it can regulate its judgment. Mere matters of defense, whether going to oust the jurisdiction of the court or to establish the want of merits in the libelants' 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 defense 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. Tr., 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.

Viewed 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 or vessel, is a maritime contract and, as such, that it is cogCharges for wharfage were adjudged to be nizable in the admiralty; that such a contract, lien claims in the District Court of the Third being one made exclusively for the benefit of the Circuit more than seventy years ago, and, in ship or vessel, a maritime lien in the case supspeaking of that case, Judge Story says, that it posed arises in favor of the proprietor of the seems to him that the decision was fully sup- wharf against the vessel for payment of reasonported in principle by the doctrines as well of able and customary charges in that behalf for the common law as of the civil law, and by the the use of the wharf, and that the same may be analogous cases of materials furnished and re-enforced by a proceeding in rem against the pairs made upon the ship. Gardner v. The 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. The 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, 1 Ware, 265; 2 Conkl. Adm., 2d ed., 515; The Alaska, 3 Ben., 391; Hobart v. Drogan, 10 Pet., 108; The Mercer, 1 Sprague, 284; The Ann Ryan, 7 Ben., 20; Dunlap, Adm., 75; Abb., Ship., 5th ed., 423.

Water-craft of all kinds necessarily lie at a wharf when loading and unloading; and Mr. Benedict says that the pecuniary charge for the use of the dock or wharf is called wharfage or dockage, and that it is the subject of admiralty 77] jurisdiction; that the master and owner of the ship and the ship herself may be proceed

vessel, or by a suit in personam against the owner.

*Many other questions were discussed at [78 the bar which will not be decided at the present time, as they are not properly involved in the application before the court.

Petition for prohibition denied.