that may have once attached to the vessel and freight as already dis· charged. The petitions will be dismissed. The decree for the owners of the Ibis will be for divided damages, and for the insurance companies. as representing the cargo-owners, for full damages. Ordered accordingly.
THE HOWARD. l
GANNONV. THE HOWARD.
(Di8trict Oourt, .D. New Jer8ey. January 5, 1887.)
The lien.given the material-man by stl\te statutes will be enforced by proceedings in rem in admiralty. provided the transaction be based on the credit of the vessel. No lien exists for materials furnished to the charterer in the home port of the vessel, under an agreement to accept in part payment the note of the chll<rterer, if from the evidence it appears tha.t the material-man was aware of the terms of the charter-party, and did not suppose or believe. at the time the work and materials were contracted for, that they were to be supplied. on the credit of the boat or its owners. State statutes confer no lien in the home port, if from the evidence it appears that the vessel's credit was not an element of the contract.
In Admiralty. Edwin a.Davi8, for libelant. John Deady, for respondent. WALES, J. This is a libel in rem to enforce a lien, given by a statute of New Jersey, for the recovery of the balance of the price agreed on for putting into the propeller Howard a "Multiple Effect Surface Condenser." The home port of the vessel is at Newark, in this district, and the libelant and the owners also reside in New Jersey. The materials and work were furnished at Jersey City. Since thedecision oithe supreme court of the United States in The Lottawanna, 21 Wall. 581, the law has been settIed,that a material-man may proceed in rem, in admiralty, for supplies furnished to l!- domestic vessel, when the state statute affords a lien for snch supplies, provided they were furnished on the credit of the vessel. The question here is one of fact. To whom, or in what manner, was credit given by the libelant? Before the condenser was ordered the Howard had been chartered to H. H. Penny, of New York, by the managing owners, and the following clause was inserted in the charter-party: "It is also that the charterers may place an approved condenser in the vessel before leaving New York, and that one-half of the actual cost thereof Shall be allowed to them, by the owners, payable in equal amounts, to be deducted from the third and fourth payments on account of this charter.."
Theodore M. Etting', Esq., of the Philadelphia bar.
The condenser was not necessary for the use of the vessel in its general and ordinary business; but the· charterer deemed one to be indispensable to the spechtl use for which he chartered her. .The libelant is his own principal witness, and says that he furnished the condenser on the credit of the vessel, as well as on that of the charterer; .but his recollection is at fault on several material points, and he is directly contradicted, in more than one instance, by the witnesses for the claimants. Capt. Rose, the master of the Howard, testifying for tre owners, states that he distinctly informed the libelant that the charterer was to pay for the condenser, and that the libelant must not look to the owners or to the vessel for payment. The contract for the condenser was, in fact, made with Penny, who agreed to pa.y the libelant $1,000 in cash, and to give hi lIl his note at three months for the balance, with the interest included. The cost of the condenser was $2,000. Penny paid the cash, and gave his note at the time agreed on. The note was protested for non-payment at its maturity, July 18, 1885, and this libel was filed February 26, 1886. The libelant admits that he knew of the terms of the charter-party, and it is proved that he made inquiries about the pecuniary responsibility of Penny. He knew that the owners were to allow Penny a deduction of $1,000 from the charter-party money, in consideration of his putting in the condenser for his own use; and made no objection, and he admitted-if Capt. Rose is correct in his recollection-that he made a mistake in not having that money paid to himself instead of to Penny. The owners did allow to Penny the deduction stipulated for in the charter-party, and it does not appear that they at any time gave any word or sign that they held themselves liable to the libelant for any part of the cost of the condenser, in any event, nor is it pretended that anyone but Penny ordered or contracted for the condenser. The only interference on the part of the owners was that they expressed, through Capt. Rose, a preference for the libelant's condenser, and prevailed On the charterer to have one of that kind placed in the vessel, if he should have flny. Cf\pt. Rose had several interviews with the libelant, both before and after the contract with Penny, and, if his testimony be untrue, his statement of the whole transaction, and of his conversations with the libelant, is a most ingenious fabrication; but, while he is contradicted only by the libelant, he is substantially corroborated by the other witnesses. The libelant testifies that he never inquired about the financial standing of Penny, but Penny and Edwards say that he did. He further says that he never asked Penny for a reference, but the latter says that he did, and that the required reference was given. It is true that Penny refused to give an indorser or security for the note, telling. the libelant that the boat was security enough. This, however, cannot avail the libelant, since it was not in the power of Penny, as a charterer, to combine with a material-man to impose a lien on the chartered vessel at her home port, which was also the residence of the owners,and against the known instructions of the .latter. As a conclusion pf fact, from the evidence, the libelant did not sup-
pose or believe, at the time the condenser was contracted for, that it was to be supplied on the credit oltha boat or its owners. This appears to have been an after-thought. Having in the beginning, with a knowledge ottheterms olthe charter-party, contracted with and given credit to the charterer, it is now too late for· the libelant to charge the vessel for work and materials which were not ordered by the owners, and for which the decided weight of the evidence shows he was notified in advance they would not be responsible. It was insisted on behalf of the libelant that as the boat had received the full benefit of the work and materials, and only half the bill had been paid, the owners are now equitably liable for the balance. But it does not follow that because owners were willing and agreed to pay $1,000 to the charterer for putting in the condenser, that, therefore, they must also pay the libelant an equal sum for the same work. The owners paid as much as they thought ihecondenser was worth to them, and the amounts and terms of payment were known to the libelant before he entered into the contract with Penny. The law does not recognize the existence of a lien on such facts as have been disclosed by the testimony in this case. The Secret, 3 Fed. Rep. 665; The Norman, 6 Fed. Rep. 406; The WiUiarn Cook, 12 Fed. Rep. 919. Let a decree be entered dismissing the libel, with costs.
THE GENERAL SEDGWICX.1
FLEMING fl. THE GENERAL SEDGWICK
(District (Jourt, D.1f'etD Jer8ey. January 12, 1887.)
.ADMIRALTY-AMENDMENT OF LIBEL-SUBSTITUTION OJ' PROOEEDINGS IN SONAM FOR PROOEEDINGS IN REM,
While it may be the practice, upon final hearin/r, to sometimes allow the substitution of proceedmgs in personam for proceedIngs in rem, where the record shows a clear right of recovery against those who have appeared and contested the claim on its merits, no such practice exists where the claimants have apJileared solel1. for the purpose of excepting to the libel, and when the applicatIOn to substItute proceedings in personam for proceedings in rem is founded upon the allowance of the exceptions. Such amendments cannot, under the rules, be permitted, unless it be that both remedies could originally have been joined in the same libel.
The substitution of proceedings in personam for proceedings in rem will not be permitted, unless both remedies could originally have been joined in the same libel.
Exceptions tolibel, and motion to amend.
by Theodore M. Etting, Esq., of the Philadelphia b.....