Per curiam,
Betts, D. J.The question raised in this case, on the merits, is whether the lessee of a wharf, for a fixed period of time has a lien upon the vessel for wharfage.
The act embraces wharfage under whatever title it is used, unless the vessel is placed there in wrong of the owner. She is in pawn or pledge to the owner of the wharf for the value of her accommodation, and the statute preserves the effect of the pledge for ten days after her removal, unless a lien is sooner filed, in which case the period of the lien is extended for an additional period.
The charge can only be allowed for the time the vessel actually occupies the wharf, and must be pursued in the same manner as if the case was without bargain as to terms and duration.
Accordingly, a recovery cannot be had for the entire contract price when the vessel was not at the dock the whole period—the lien being given by statute can be availed of only pursuant to the appointment of the statute, although the rate of wharfage may be matter of agreement between the parties. The vessel, being a domestic one, can be subject to no lien not given by the local law.
The case does not stand on the footing of a petition for payment of wharfage claim out of proceeds in court. It is an original proceeding in rem against the vessel itself, and must be governed by the rules applicable to suits of that character.
It is not necessary, in order to avoid its effect, that the claimant should plead in bar of the lien. It belgngs to the libellant to prove, in the first instance, that his case takes the privilege of the statute.
Ordered, decree for libellant, a reference to a commissioner to ascertain and report the amount of lien on these principles.