876

. FEDERAL. REPORTER.

produced by a bulge oream upon the end of defendant's side-bars which abut against the end-bars of the link with which it is articulated by the hook, so as to produoe precisely the same'result which is shown by the abutting side-bars of the Locke patent. This bulge, or cam, upon the defendant's side and end bars performs the same function, and pJ;oduces the same result, as that produced by the Locke side-bars, and no otheri that is, it keeps the end-bar from backing out, or being released from the hook; and holds the link in place when in working position, and at the same time allows the links to be separated by turning them face to face. The only difference, then, between the defendant's that the defendant, after connecting his links link and that of together, slightly fastens them by bending the point of the hook down 80 as totiarrow the throat or openingofthe hook. It is still to allintents and purposes It removableliuk, and embodies aHthe characteristics and apparently useful features of thelin),:s shown iri t1:le Locke patent. A decree may be entered finding that the defendant infringes, and referring theimatter toa master todnquire as to damageS.
11"·,

. THE

SWEENY

IDIZZIE

E.

t>l

THE LIZZIE

E.

(dvreuit Oourt, E. D. Loui8iana. March 15, 1887.)
1.

WHARFAGE-IMPLIED CONTRACT,

.. NoJmplied contract to pay dues results from a. vessel's making fast ata place on the banks of the MIssissippi river where no prohibition to land exists, ·atid where no facilities whatever are furnished for securing ves.' . . sel or, landing goods.

2. SAME-MUNICIPAL CORPORATION. The city 'of New Orleans cannot bY ordinance exact w.Q.arfage duesfrpm vessels landing or making fast to the batture of the Mississippi river in front of the city, at places where no artificial facilities whatever are furnished.

In Admiralty..;· Libel for wharfage dues. : Appeal from d'istrict court. T. M. libelant and, appellee. Fergwt Kernan. for claimant and appellant.
,PARDEE, J.The libelant, alleges that he is the lessee of the levee, landings, and wharves in the Sixtha:nd Seventh district8 of the city of New Orleans j.that the levee and lMtding dues are fixed for each steamboat by the ordinances of the said city at one dollatper day i that the steam-boat Lizzie E. made fast in front of and to the levee and landings of which libelant is lessee, on Novembe,r 3,1885, and so remainedul> to December9th,making 37 days at one dollar per daYi .that the use of the said levee and landings was and is necessary for the protection and

THE LIZZIE B.

877

safety of the said vessel; that no part, has been paid, but the whole is due, etc. The claimant answers, denying that libelant has a valid contract of lease with the city of New Orleans; and, further, "that claimant's vessel was not made fast to any wharf orlanding leased or controlled by libelant, but was made fast to a log on the ,bank in the batture owned by a private .citizen, and was so made fast by the 'permission of said owner; that no part of said vessel, at the time of filing the libel herein, rested or touched upon the banks of the river, but was made fast by an anchor in the bed of the river, said anchor being connected with the .stem of the vessel, and by another anchor on shore attached to her bow wHh a chain' passing under the log, as alleged above." . The evidence shows that libelant is the recognized assignee of the lessee of the landings of the Sixth and Seventh districts of. the city of New Orlea:nsj that by ordinance of the said city (Jewell City Ord.· 609) it ispl'ovided that (where thet:e are neither wharves nor piers, but merely the levee with s'lllitahle conveniences for making charge shall be for steamboats oliedollar per day; that the libelllinthas provided, along the batture where the ·Lizzie .E. was located, mooring post!! at about every 300 ·feet, at which steam-boats can, make fast when the river is not too high nor too low:; that the E. was tied up at a point about halfway between twoof'saidmooring posts, where there were no conv.eniences formaking fast, and none nearer than 150 feet jthat where the Lizzie E.was made fast, 'n.or anywhere near. were there any facilities for landing goods j that from the nature of the batture, it being a, makiIlg qatture, and shoal, it is not practicable to make any useful wharves; and. that there was a along the levee, but that was built to protect the levee, and, with the levee, furnished no facilities for landipg either boats or goods. The libelantconte:hds that as.the banks and batture of the river within the limits of the city of New. Orleans are in the exclusive control of the city for the benefit of commerce, and as the city has provided a charge for landing at such pla-cesas have snitableconveniences for making fast, although there are neither wharves nor piers, and as the libelant is the lessee of the city, and has.mooring posts set along the· batture, and as the Lizzie E. made fast to the shore of the river near, although not at one ()f his posts, but might have made fast to one of his posts if her master had desired, therefore the libelant can recover at the rate fixed in the city ordinance. It may be conceded that where a town is situated on a river like the Mississippi, that such city or town may construct and own wharves and piers and landing places, for the use of which reasonable charges may be enforced. Packet Co. v. St. Louis, 100 U. S. 423; Vicksburg v. ld. 430jPacket Co. v. Keokuk, 95 U. S. 80. And a ated on such a river may prohibit the use for landing or mooring purposes of the banks of the river at any other place than where such wharves or landings are constructed. Packet Co.v.Catlettsburg, 105 U. S.559.

; :gut[ the:questiorui presenfeddn:this case are: (1) Does a.nimplied contract to pay wharfage dues result from a vessel's making fast ata place: on the banks of the Mississippi; river where no prohibition to land existB,811d where no facilities wnatev.er are furnished for landing vessels or goods? (2) Can the city ofNewlOrlelms, by ordinanCe, exact wharfage aues from vessels landing or making fast to the baUure of the sippi river ill front of the city, at· places where no artificial facilities whatever are furnished? "The' use of the banks of navigable rivers or streams is public. A(}<o cordingly, everyone has a right freely to' bring his vessels to land there; to make fast the same to the trees which are there planted," etc. Rev. Civil Code La. art. 455. See enabling act providing for' admissionoi Louisiana, (2 St. at Large, 641.) ." From thiait is clear that no implied contract to pay wharfage dues resUlted fromthelanding'ormakingfast of the LizzieE; Without an express oHll1plied contract,: the maritime lien does not· arise in this case. A:. city 'ordinance exacting dues as'rwharfage dues for"landing vessels, where no facilities for landing either' vessels or ·goodsare furnished, is practically nothing but an ordinance lev.Ying a tax or charge for landing, and such tax' is probablY'atonnage tax, which cannot'belaid without the oonsent of co.ilgress. See ·(hnntm'\"; Orleans, 20 Wall. 577; Packet 00. v;: K'tdkU1c,L95 U. S. 89. A :chat.ge for Wharfage for that which is not a wharfj but' merely the· naturaJ'ilnd 'unimprovErl shore ofa gable river,: will not be'maintained. : Packet 00; v. Keokuk;8W/YI'a; Shreveport v.: Ooast'lAIY/:e, 37 LIfo Ann. 562.. Nor will a charge for Wharfage in favor of aeorporationbe niainfuined and enforced, unless it appears from the evidence that it restB on services rendered by the (J()rporation to vessels or boatBby means of wharves or'wharfage faoilitiesprovided and maintained at the expense of the corporation, and by means of which the loading' atid unloading of boats< otvessels is materially and specially benefited.'· Id; The Lizzie E. might have used l!iome of the mooring posts planted or owned: by libelant, but she was not bound to. ,A 'Will be entered dismissIng the libel, with costs of both courts.

New

Rehearing refused :May 11, 1887.

THE FURNESSIA. 1 SMITH 'V.

THE.

FURNESsa·

. (1Ji8trict

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-,

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.'

April

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,J' ';

MA.8TER lWBVANT- ,NEGr.IGENGE-:.' STEVEDOBE..,

'. . ' ' .. '.. ·. ,\.1. · ,',

. Libelani, 8, stevedore. was employed :bythe ship·owneritoassist in loading ".8 "esseliWhlle so. he WILS. jnjured, by ,the, falling "pon him of lum.per 0Rtpf It sling. ,Til"" boatswain of t.4\'l, YJlssel., was tnc::hlU"l'!l the steam.... _ ",' , '" ""',"';""'"

,

r}JoATsw4IN

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AND

I

Reported by Edward G. Benedict, Esq., of the New York bar.