ill of the cause was much in maJ4ng that decree. 19 FEYl.Rep.3 L1; Reayv. !k,y'M1" Jd. 308. On,application of the defendant, in consideration 'of special circumstances needless to be stated, a. reargument of the question of jurisdiction in equity was granted, and accounting, meanwbile, entered. The rearg,u;mcllt ba.s bee.p. ;had. The biU was pn an original patent; tbe defendant answered that it bad been surrendered and reissued; the patent expired; and after that tbe bill was amended to cover the reissue. This amendment appears to have been clearly within the power of the court. The ground for reliefwas the exclusive right of the owner of the patent to practice the invention. This was the same under each patent. The statement of tbe patent was merely a statement of the title to the exclusive right. The change of the statement from that oBbe original to the reissue was merely circumstantial. The case stated before the amendment, was one for equitable. cognizance. The amendment aeco,mplished a more correct stateDlent of the same case, within Hardinv. BfY!jd, 113;O.S. 756, 5 Sup. Ct.. Rep; 771, (now'llluch relied upon by, defendant,) The 'lhmwloPatent, 23 Wall. 518. The case made was not only one ,in which equitable relief might be granted, but Ol1.e in which it granted by issuing an injunction against the further use of machiI1.es:r;nade during the term of the patent,,' in violation of the relief is pot now under conrights secured by it. The propriety of sideration, qut ·only the jurisaiction in equity to' decide upon it, ,and it. Such jurisdiction appears to be well s,ustained by deny or (]lark 119 U. $.322,7 $up. Ct. Rep. 211· . Stay vacated.
'CLARKE arid others v. THE CtmBERLAND.
(Di$flrict Oourt, S. D. Florida.
MARITIME LIENs""':'REPAms AND SUPPLIES-HOME PORT-CHARTERER, MASTER -NOTICE OF OHARTER. '
charterer and owner pro hac 'Dice, also bills contracted by a master in' com. mand, not charterer, at a port of the same state as the reSIdence of the charterer, where it was not shown that the material-man had notice of the charter, , gave a lien; but where shown that the material-man had informed cha,rteraJl.1l its is presumed ,furnishee' subsequent , of supplws upon the credIt of the owner pro hac '1nce. '
(2) That in a port of another state, bills contracted by master, although
8.' SAME'-:'lttONEYBolfROWED TO' PA.T BIl,'LB.
, ,t,he1)ill paid.
borrowed to pay a bill'stands in the same relation to the vessel as If that was a lien,8o'is the new debt; but not otherwise. 011' HOME PORT,:BY <:l1uRTEB. Wlien. tll,e owner does nothing to inform the public of the charter, courts ;not ,p:r;esume knowledge of the change of home port, from the residence of'the owner to that of the owner pro /i;a,(; "i08, so as to relieve "vessel of an otherWise valid lien. ':
,"", & ,Sparkman and G:.B0lim6 Patterson, for libelants· . pugh Macfarlane and L. W. for QIaimants. by the Columbian Iron-works &; Dry.:dock 'Oompany of Baltini()re;was chartered by James McKay, of carry mails" passengers, and, freight between that city aD:d Key West for one at.' ,11 olOnthlyrate. The charterer was to pay all'running expenses,repa.irs,and alterations, except repairs for ordinary wear and tear, furnish officers and crew, and have full and cOrIlp]ete,oo'ntrol of her for the time being, and therefore became owner pro hac ,He was a resident of :Tampa, and had been engaged as ship,.there for years. 'He took command of the vessel the trip out"from' Baltimore, blit, at Tampa, another master was put in charge, and he hadcciinrriand at no time while running to Key West, but had, when taking the vessel to Mobile, where he went for repairs, and while running between that port and Pensacola for a time. Her enrollment continued at Baltimore, and she bore that name on her stern; nor was there any notice given or publication made of the charter. ,,' ;, There are now pending againE£ her some 15 demands, by libel or petition, on of amounts, que for the purchase of coal, supplies, provisions, stores, repairs of all kinds, and seamen's wages. A part of these bills were incurred in Mobile,.Alabama, part in Tampa, and a part in Key West, Florida. 'Tliequestions a:rising are, what effect the charter in determining home port of the vessel, and did bills incurred at the residence of the charterer create a maritime lien? In all for.eigp ports, ,i. e'., ports or any state other than that of the usual resideri,ce of the owner, expenses by the master for the benefit are necessary, ltnd create a maritime lien which ii'! reo The Yo'l'UTig Mechani?, 2 Curt. 404; The St. Jago de Ouba, 9 Wheat. 409; In.mrance Co. V. Banng, 20 Wall. 159· . The same11l1e holds good, notwithstanding the master is sole charterer or ".The William & Emmeline, BIatchf. & H. 66. In this case JudgeBET1ssays: ',
,,' "The fact that the master is solely concerned in the voyage makes difference. Third parties dealing with him as master aJ,'e deemed to act upon the credit of the vessel, and are not chargeable with notice of his secret fl/l'
In Adt;n.iralty. '
ThEl rule applies as well when the master is charterer lations or lessee of the vessel as when 11e is in COn1mand onlyon behalf of the ers, unless the creditor has:ntitice: of his' relation to the vessel. "The New Champion, 17 Fed. Rep. 816. Even the charterer, as s:uch, ,when owner pro hac vice"and not master, can bind the vessel in a foreign port. ,TM India, 16 Fed. Rep. 262; The Oity oj New York, 3 Blatcb£. 189. ,., Where the relations of the charterer to the 'vesseJ,.,nd her, owners are shown to belmown to the material-man, or public notice has been given Qy a change of registry or enrollment, as in the case of N<rrman, 6 Fed. 406, or, by direct information given, as in The Pranci8,21 Fed. Rep. J15, the resideJ;lce of such cllarterer is accepted as ,the home port of the vessel, and it is presumed that credit is'given him personally. This has been frequently held, but in every ,case, following The Golden Gate, Newb. 308, the knowledge of tbe creditor seems to have been important ingredient in the consideration of the question. In truth, wherever the questjon of a lien on account ofthe vessels being in a foreign or domestic port has been under advisement, the presumed or apparent ,knowledge of the creditor islooked upon as the principal question, and the actual state facts, whenever justice, demands, yields to the reasonable belief of the party dealing with the vessel. In The St. Jago de Ouba, supra, the question was fully considered. In The Francis, 21 Fed. Rep. 717, the residence of Savage was not considered sufficient to dismiss the libel, until it was shown conclusively that, the libelant had been inform,ed of the provisions of the charter. The statute provides what shall be the home PO!;t of a vessel, (Rev. St. § 4141;) the unsatisfactory results arising therefrom, (Justice CLIFFORD in The Lottawanna, 21 Wall. 594,) the law is that every port in the state shall be considered a home port, and all other ports foreign. Yet an owner does not cease being the ow.ner by chartering his vessel for a time, nor does a charterer,although he may become owner pro hac become owner for all purposes. The term "owner" must be modifiedby the completion of the description. He can neither sell nor mort_gage the vessel, nor use her for a different purpose from that specified. He cannot, like the owner, complete an hypothecation by a mortgage at his residence, no matter how much he may need "wings and legs to the forfeited hull to get back, for.the benefit of all concerned." The presumption is against the tacit hypothecation in the home port, for it is always within the owner's power to make an express hypotbecation or mortgage, if deemed necessary; but this the charterer is unable to do, and the object for which maritime liens and priority of payment is recognized is defeated. The doctrine of the residence of the charterers being accepted as the home port of the vessel is a fiction of the, law for equitable purposes, which will, I am satisfied, be set aside whenever the peculiar circumstan,ces .of a case demand. In every case, the decision Beems to have been based upon the knowledge of the charter,and the duties of the charterer under it, and the unwillingneS8 of the courts to aid the mat(;)rial-man in obtaining from the owner compensation for that which he
had furnished at the request an<;l .the benefit of the charterer, knowing at the time that the charterer );ilid promised to pay. This knowledge has been presumed from the fact of dealing with the charterer, and not the master; from pqblic notice of the charter by the re-enrollment or. registry of the ol'from direbtinformation. The Norman, 6 Fed. Rep. '406; The Prancis, f!npra; The Secret. 15 Fed. Rep. 480; The William Cook, 12 Fed. 919. " , . .. . . . Admiralty law does not favor secret liens, contracts, or agreements; and, unless takessome'means of giving notice of a charter, the c?u:rfs will not aid him in resisting liens that have been given by the master when the party furnishing' supplies was ignorant of. it, because there may have been some arrangement whidh, when brought tq light, changes' the home' port of'a vessel, and consequently her relations with the commercial It does not intend to assist ownhaving their vessels fun attlie expense of merchants dealing with her under the mi::;taken impression,baused by her papers and the name of hethome port bn''her stern. The presumption of her home port is in accdt4ance with these, and the knowledge of their falsity must be shown before ttl can be presumed of the material-man. It is within the power of the owners who charter to pmtect themselves by either providing for new enrollment or registry, or taking a bond from the charterers, as was stipulated for, but never given, in this case. I have found no case where regularly with the master, without notice that the terms of a 'charter protected the vessel fi'b:m hypothecation, has had his lien denied because the debt waHncutredin a port of Ii state in which a chartererresided, nor do I thinW such has ever been declared as law. principles to,the several libels before us, there is but little difficulty in arriving' at· a conclusion. As to the libel of Fine and be no question. It is not denied that the'services were ren'deredas is alleged, nor is. there any dispute aboutamo\1nts. It is true was part of the tilm:} master, but he has receivedopaccourit of wages more than would cover the time of such service, add he had' a right to apply such payments to a portion of the debt .for' which he had no lien. To the seaman there is no foreign or domestic ship, nor does he know owner or charterer. It is his right to look to tlie'v,esse! for his wages, regardless of any business relations existing bet:'teen otners: J udgDlent will follow for full amount prayed, ' with costs.' ',' During tlie time the vessel was at Mobile, Capt. McKay was master as well ascharterer,and there is no question but what it was a foreign port, nor iS'it shown or claimed that any of the libelants had notice of the charter with one exception, and he not until after the supplies had been furnished. 1. R. Edwards furnished supplies and stores, and paid coal biUs; He also loaned McKay, as master, money to be paid on certain accounts which weretheh liens upon the vessel, and a note the amount. Judgment will be allowed for the full taken /l.mO'l.mt, ",iih' interest from date of note. , Kling'was :the proprietor of the machine"shop, and put extensive re-
pairs upon the vessel, at the request of McKay, which he states were necessary. There can be no question of the validity of the lien, nor is there any as to the amount. Judgment in full. The same may be said of the accounts of John Callaghan for grocerand oils; William Cottrill, meats and ies; Chandron & Luscher, ;vegetables; P. J. Gibney, repairs on machinery and machinery sup'Stoutz & Co., dockage, layage in dock, and materials and labor for carpenters' repaird; and the Gulf City Coal & Wood Company" who , loaned by its president $250 to pay seamen's ' ThUs far there has been no difficulty in determining the rights of the parties. There has been no question but what the articles, supplies, or labor-were furnished, and were proper and necessary. Some of them have been based upon money loaned, it is true, but this is to be placed on the same footing as the lien to pay which it was borrowed and used. The Gen. Tompkins, 9 Fed. Rep. 620; The Guiding Star, 18 Fed. Rep. 263; TIili Thomas Sherlock, 22 Fed. Rep. 253; The Grape Shot, 9 Wall. 130jPhe Emily Souder, 17 Wall. 666. But the libel of the Mobile Coal Company presents a more difficult question. Albert G. Danner, president of that company, says that on the fifteenth of August he furnished the Cumberland with 102 tons of coal, and, on December 30th, 40 tons more, and took notes for the same; and that there is still due $509. Capt. McKay, on the other hand, says that in November he bought a cargo of coal from the company, and had it shipped to Tampa by schooner; that he gave his note at 90 days for this cargo; and when it became due he borrowed from Thomas M. Le Barron $300, which he paid on account, and gave his note for the balance, $259, the amount of the note presented. On the fifteenth August the evidence shows the Cumberland to have taken a load of wood at Tampa, and she could not have been in Mobile, and I am satisfied that Capt. McKay is correct in the date of the transaction, as 90 days would bring the time up to the time at which the note that is presented was given. The Cumberland was not at that time at Mobile, but running. between Tampa and Key West, and taking coal from Philbrick at the latter port. She was not in need of supplies more than she was obtainingfrom parties in the ports where she was. Capt. McKay was not master, but was several hundred miles from where she was running. The original note given when he bought the coal is not presented, but he says that he did not state at that time what vessel it was for, anfi that· it was not until he was about to renew it that Danner asked hih'l what'vessel had used it, and suggested that he sign the new note as master of the Cumberland, as he was at that time,. which he did. At the date of the original transaction the credit could not have been given to the vessel. They were dealing with the charterer, and in a matter for his benefit only. The giving a new note, signed as master of the Cumberland, to secure a debt which was not at the time a lien upon the vessel, cannot bind her, and so much of the claim as relates to the first purchase of coal must be disallowed. But in December. while the vessel was ,at Mobile, and McKay master, and she in need of coal to re-
turn to Tarnpa, the libelantfurnished it, and took a note for $182. This amount, with interest from A.pril 2d'l will be allowed, with costs. The libel of Thomas..M. La Barron is for money loaned McKay to pay on account, of the original note for the purchase of coal from the Mobile Coal Company, and McKny says he told him the purpose for which he wanted and used it. This can take no better standing as a lien than the debt it paid, andtlle libel must be dismissed, with costs.
TM Guiding Star, swpra.
This brings us to the debts contracted in what, under certain constructions, may be held to ports,-Tampa and Key West. It appears that, after arriving at Tampa with the vessel, McKay,the charterer, turned the command of her over to anew master, the change being made June 12th. On the same day parties were seen, and arrangements made, about supplies, and two bills of articles furnished, whether before or after the change of masters it does not appear i nor does it appear that at that time the parties furnishing these supplies had or had not notice of the chl1rter i and I am dispoiied to give them the benefit of tbe doubt, and permit them to recover for articles furnished that day. After that McKay ceased to be master, .and pltrties dealing with him could but have taken notice that his only interest was that of charterer, and they were dealing :with him as such, and not with the vessel through its officers. Clarke, of the firm of J. D. Clarke & Co., who furnished general llupplies, provisions, groceries, paints, and oils, and equipments in tbe steward's department, during the time the vessel was running from Tampa, says: "I did not know how he [McKay] was running her, but I heard from hearsay that he had the Cumberland chartered." "There was no agreement between bim and me that the Cumberland should be held for these supplies." McKay says: "I made arrangements with J. D. Clarke &; Co. to furnish her with supplies." "I had charge of securing them. No one got anything except by my direction." "The agreement was that I should settle every quarter. That . was when I received my pay from the government." After the twelfth of June, Clarke must have been aware that McKay was no longer master, and that he was dealing with him as charterer only. He delivered on that day $42 worth, and for this he may have judgment, but for the rest of his bill he will have to look to the charterer. It is only when the material-man deals with the master that a lien can be presumed. In other case it has to be established. The same principle applies to the libel of James A. Moody, who supplied meat during the whole time. He may have judgment for the amount furnished June t2th, but for the rest of the time his business must be presumed to be with McKay, on his personal credit. In the case of Hayden, there can be no presumption in his favor. He says McKay told him he. bad chartered the steamer, and made ar· rangement for him to furnish her with wood. He was not at this time master, arid Hayden knew it. His libel must be dismissed. The same in the case of Davis for ligbtering wood, and of Dillingham and Davis for repairs to machinery at request of McKay when not master, and
when, by the circumstances, they should have been put on their guard to inquire as to his relations with the vessel. Dillingham admits that he was told that McKay had chartered the vessel, and that he did the work at his and his son's request. All the parties admit that there was no express agreement that the vessel should be held for these bills. The
The bill of S. T. Allen was for ice furnished by order of the masters of the vessel by the steward, without any intervention of McKay, or presumption of the.relation he bore to the boat. Allen declares positively he would not have furnished it upon McKay's credit. Judgment in full for his bill will be allowed. In the eases of Clar;ke, Moody, Hayden, Davis, and Dillingham & Davis, owing to the peculiar circumstances of each case, there will be taxed as costs only the clerk's and marshal's costs, leaving the proctor's fees in each case to be settled by their clients. In the case of Fogarty & Johnson, who furnished supplies at Key West, upon the orders of the masters in charge, there is nothing to show thai they had either. knowledge of McKay's charter, or that they were aware that there was an owner or owner pro hac vice in the state. There was no circumstance which should be held as putting them upon notice to inquire as to her being a foreign or domestic vessel. She seemed by registry or enrollment, and name of home port on her stem, as foreign, and there has been nothing shown to inform them of the falsity of these evidences. Judgment for the full amount of this bill, with costs, is allowed. The Nmo Champion, BUpra. The same conclusion would follow in the case of Philbrick, who fur'nished coal to the amount of $900 during November, December, and January, upon the applications of the masters, were it not tor one circumstance. He says he had no knowledge of how the boat was being run; that the coal was furnished upon the credit of the boat, and he would not have furnished it upon the credit of the owners or McKay; but he admits that on the twentieth December he met a party who claimed to be her owner, and informed him of the charter and its terms. This I consider sufficient to put him upon his guard, and cause him to make inquiries as to the truth or falsity of the statement, and, 'if he did not, he cannot claim to have been acting in good faith, and without notice. Judgment will be alIo'wed for the amount of coal furnished before the date when he received this information, and' the rest dis-allowed.
OF NEW YORK.
CDiatrict Oourt. S. D. NM York. April 7, 1887.)
WHARF AND WUARFINGER......CONCEALED DANGERS-W ARNI'NG.
Owners of wharves and slips knowing them to be dangerous for public use are bound to them, or to give and maintain someqonspicuous notice warning the pUblic of the danger. This applies equally to anew landing built to' replace ,an old one, until the new landing is fit for use.
SAME-CASE STATED-UNEQUAL BOTTOM......IMPLrED OPENING TO 'l'HE PUBLIC
. . · The defendant built a new landing, 25 feet shorter than the old one, at the foot of One Hundred and Sixth street, Harlem river. The, old bottom of the landingwRs isafe. The newdoqk,· when completely finished, was unfit for use because the dredging of the bottom along·side was incomplete. The libelant, knowing of the repairs, ,and that the work on the dock itself was done, but having no knowledg-e or notice of any imperfection about the bottom along·side, sent a cargo of coal to the dock seven days after the completion of the pier itself. III taking the ground, the boat was broken in two through the unequal dredging of the bottom: There was no inclosure of the pier after its completion, and no notice orwlirning that it was not ready for use. Held, that the ci,cumstances constitu,ted an implied invitation to the public to use t4e wharf, in the absence of any notice or caution to the contrary; that the respondent was bound to keep it closed or to give conspicuous notice warning the,public away, and was liable for the damage for not doing so.
In Admiralty. On the fifth ,of July, 1883, the libelant's boat, with a cargo of268 tons of coal, was taken from Port Johnston to the landing in the Harlem river at the foot of One Hundred and Sixth street, where she was moored. Not 10Qg after, iq, the rise and fall of the tides, she was broken in the middle, through the inequality of the bottom along-side the landing, in consequence ofits having been dug out immediately in front of the landing some four or five feet deeper than immediately above or below, ao as to render it unfit, for the time being, for the accoinmodation of vessels. . This suit is to recover the damages. The landing was an old one, to which the publichad been accustomed to resort. It was formed by a short pier projecting into the river, and was owned by the corporation"torthe use of which itcoUected whai'fage. The old pier having become dilapidated it was torn down, and a new one had just beenbuilt. To accord with the newly-adopted exterior line of the Harlem ri\'er, it was not built so far into the stream as the former dock, by about 25 feet. The new dock itself was built by contract; it was finished oli the twenty-ninth of June, about seven days preceding the accident. The bottom in front of the old pier was even and safe. For the purpose of making the new pier 25 feet shorter, the city had <hedged the space towards the shore occupied by the old dock, but at the time of the accident had not yet extended the dredging, as it designed to do, and as it afterwards did, both above and below the line of the pier, so as to m'ake it fit for vessels to land there. No notice warning persons from the dock was at any time posted upon the premises. The respon,dent contended that it was not liable; because, though the pier itself was finished, the dredging was not completed, and because the new dock had not been