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.
5. Wharfage Compensation.—
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.
6. Lien.—
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.