THE- RALEIGH.! MUDGETT "'. THE RALEIGH. WARD V. SAM11l. WILDER V. SAME.
(Diatrict qourt, S. D. New York. October 26,1887.)
MARITIME LIEN-SALE OJ!' VlllSSEL BY MASTER-TRANSFER OF LIEN TO PROCEEDS-DISCHARGE OF VESSEL. .
It is well settled that, if a sale by the master is warranted by the existing circumstances of the ship, and is made bona fide, any prio.r lien. upon her is transferred to the proceeds only, and the vessel cannot be held liable in the hands of a purchaser.
SAME - SALE OF WRECKED VESSEL-ALLEGATIONS OF FRAUD-OPINION OF EXPERTS AS TO ADVISABILITY OF SALE.
SAME-AGENT OF VESSEL-ADVANCEs-PRESUMPTION AS TO LIEN.
4. SAME-EVIDENCE OF AGREEMENT FOR. M. & Co. were general agents of the steam-ship R., though they had not ex-
clusive control of her. An action was brought by them against the vessel to recover advances made j,o her. There was no proof of any agreement that .they should have a lien on the vessel, or any circumstances indicating an hypothecation of the ship in their favor. Held, on the evidence, that they had no lien, and could not recover.
Hffiry D. Hotchkiss, for libelants Mudgett and Wilder. A. H. Alker, for libelant Ward. Owen Gray, for claimants.
BROWN, J. The libelants claim a lien upon the Raleigh for advances and supplies furnished by them rellpectively on account of the steamship during the year 1885 January, 1886. On the twentieth of January, 1886, while the steamer was on a voyage from Baltimore to New York, she was driven ashore by ice in the Chesapeake bay, and afterwards abandoned and sold under the master's authority. One Petze, the claimant, became the purchaser. He subsequently raised and repaired her at an expense of about $11,000, about a year before the above libels were filed. It is well settled that, if a sale by the master is warranted by the existing circumstances of the ship, and was made bona fide, any prior lien upon her would be transferred to the proceeds only; and that the vessel could not be held liable in the hands of the purchaser. The libelants contend that the circumstances of this case did not justify a sale; and, secondly, that the sale itself was fraudulent, and made in bad faith, and for the benefit of the master, who, it is 'claimed, became interested in
lReported by Edward G. Benedict, Esq., of the New York bar.
the p·urchase. The claimant denies the latter charges, and further contends that the demand of Mudgett & Co. was never a lien upon the vessel, because their advances were made by them as the ship's agents in the city ·of New York. . The vessel was owned by a corporation in Boston, and was its only property. Captain Littlefield had been for several years the general manager of the company, and also master of the vessel. . Mudgett & Co. had been the general agents of the ship in New York for several years in obtaining charters, collecting the freights, paying .bills, procuring insurance; making entry, etc. jaIl, however,subject to the direction and control of Captain Littlefield, who was the general superiiltendent of the corporation and the master of the ship, who signed all charters, and occasionally collected some of the freights due. It is well settled that.a ship's husband or her general agent is not presumptively entitled to any lien upon a vessel foradyances made to discharge her obligations. His business and the object of his employment by the,o)'Vner, are tofucilitate the ship in the transaction of her business, and to free her. fromchargesj not to preserve incumbranceson her. Pre,sumptively, he deals upon the credit of the ownerSj and he has no lien for his advances unless there is some agreement to that .effect, or the circ.umstances show that such must bedeemed to have been the reasonable intent of the parties. When such an agent pays the ship's obligations on·theapplication of the master or the owners, the presumption is that he does so, not as a stranger, but. as the agent of the ship and herowners,and upon the personal credit of the latter, or of the future business and earning of the ship. The J. WiUiam,8, 15 Fed. Rep. 558, and casesthere.cited; White v. Americus, 19 Fed. Rep. 848; The Esteban de Antunano, 31 Fed. Rep. 920. \ This presumption, I think, applies equally to the facts of the present case, although Mudgett & Co. had not the exclusive control of the ship, as general agents often have where no owner, or general superintendent of. the owners, is present. There is no proof of any agreement for a lien in favor of Mudgett and Co., nor do I find any circumstances indicating any hypothecation of the ship in their favor. They were in the habit of remitting to the owners the balances of freight due them; and the fair inference of fact from ,the testimony and the circumstances is that they looked for reimbursement to the future earnings of the vessel, and not to any lien upon the ship. Upon the foregoing grounds, I feel constrained to decide that the libelants first named had no lien. In the last two Gases the demands were undouMedly liens upon the vessel at the time the supplie,s were furnished, and the claims in those cases are sufficient to raise. the question secondly . above referred t o . . The very clear weight oftestimony seems to me to show beyond dOQbt. that,when the steamer was driven ltshoreand filled· with water and ning'.ice, she was regarded as a.substantial· wreck, notpnly by the master, but by the agents and surveyors of the underwriters and by others interest to report who examined her at the time, and who had no
otherwise than in a.ccordance with their honest judgment upon the examination of the condition of the vessel. The insurers, though reinsured, paid the loss after a few days upon their surveyor'sr-eportofa total 108s. There are doubtless circumst5.nces in evidence calculated to hold raise some suspiciollj but,taking the evidence altogether, I these circumstances wholly insufficient to establish any fraud in the salej or; to show that the master, prior to the sale, had any knowledge or belief that the vessel was not asuhstantial wreck. The fact thfl,t it subsequentlyappeared that the ship was not injured so much as was supposed, ,does not prove fraud, or bad faith, nor tend to invalidate the sale,., The Amelie, 6 Wall. 18j The Sarah Ann, 13 Pet. 387. The sum required to raise the ship was large. In her apparent condition as a wreck, it was the master's duty to do with her the best he could, and to act upon the best judgment that could be formed at the time. Nearly all thecontemporaneous evidence sustains the master's judgment in ordering the sale, as the only thing practicable. There is no proof of the market value of the vessel as she lay sunkj nor that, when repaired, she was worth more than the cost ofraising and repairing her. The evidence, therefore, does not even showthat the master's erroneOUSj much less that the sale was fraudulent. The libels ll1ust, therefore, all be dismissed, with costs.
THE GRECIAN MONARCH. McMoRRAN
THE GRECIAN MONARCH.
(District, Oourt, D. Nf/IJ) Jl'JI'sey. October 22, 1887.)
AD:MmALTY-PERSONAL INJURIEs-ExCESSIVE DAMAGES.
In a libel against a ship it appeared that libelant fell through an open hatchway, receiving severe wounds, and was seriously jarred, and thereafter was unconscious ,at intervals for two or three days, ana after three months in the hospital was discharged with his wounds healed, although he complained of a lame back. Four years later he swore he still felt the effect, but was uncorroborated as to this by his own medical experts, while the defendant's witnesses testified that he showed no signs of existing or permanent injury. Held, that the amount of damages given should be reduced from $3,638 to $1,200.
In Admiralty. ' Exceptions to commissioner's report.
JosephF. Randolph, . for libelant. Butler, Stillman &; Hubbard, for respondents.
WALES, J. The only exception entitled to serious consideration is the - third one, which is taken to the. amount of damages ($3,638) as excessive, and not warranted by the evidence. The question, argued by claimant's proctor,of the liability of the owners for any permanent injury which .may have been received by the libelant in consequence of the defl3Ctive or negligent equipment of the ship, has been so far as this court