, 'THE <:lHELMSFORD.

399

been wrongfu.,arid was recalled, and the goods were in the possession of the vessel when the libel was filed. But however this may be, as the law makes it the duty of the vessel to redeliver the goods to the seller on no';' tice by him ofa stoppage in transitu, it seems to me there can be noliaability on the vessel for ,the performance of this legal duty, and it should not be held liable in damages for a refusal to deliver the goods to the buyer. Besides, the libel shows that the libelants commenced an action of detinue for the goods before filing their libel. Are they not thereby concluded from' maintaining this action, which is inconsistent and in'Y compatible with the former remedy to which th resorted? lnawrance 00. v. CJochran; 27 Ala. 228. My opinion is that on principle and the weight of authority this libel cannot be maintained; and as the exceptions to it raise the point here decided, it is unnecessary for me to sider the case on its merits. The exceptions to the libel are therefore sustained, and the libel is dismissed at libelant's costs.

TIm

MAYO

CHELMSFORD.· THE CHEI,MSFORD.

et al. 'V.

c'Di8triCt' Court, 8.' D.Penn8ylvania. February 27, 1888.)
1.

2.

There is no implied maritime lien against a vessel for supplies ' , " , her at her home port.

MARITIME

LIENs-SuPPLms-,HoME, PORT.

,',

,,' ,; ,

. 'There'is an implied maritime lien against a vessel for supplies furnlshed'by one at the home port, at the owner's request, and shipped to the vessel el8ewhere., . 8. TAB-rna DRAFT. Takinga;draft for supplies furnished to a vessel In a foreign port 18 not a Ilurrenderof, the right to alien for the same., The right to the lien is asecurity, anll pa8Se$ with a qraft ,to the indorsee. The'home port of a vessel is where her owner has a bona fide residence. 'and this rule binds all who know where the owner resides, even though the,vesllel has a rep;ister, anl". ul)der a ;foreign flag. , " , The deCisions. of other district, courts in similar cases will be followed' in order td secUl'" uniformitY,althongh those decisions do not seem, to be ba8ed ",' upon SOUl1d principlas.

SAME.

.

to

'

, 4. S.utE..,.-BoME'PORT-WHAT'CONSTITUTES.

5. COURTS..,.-FEDERAL DISTRICT..,.-fRACTICE-FoLLOWINa SiMILAR DEcrSIONS.

In Admiralty.

,Driver

Henry R. Edmunds and lMn O. Dodge

and lfoOdrich

"

Sonti, for libelants. Goodrich, for respondent.

BUTLER, J.'/ In the .years 1882 and 1883, the ,libelants, lers in Boston, furnished the respondent at various tipleB, (the last being
. ' " , ' · , , 'J ,

I

RepOrted by 0, Berkely Tayiorj Esq., of the PhUadelphiil bar.'

FEDERAL ,REPORTER.

in December, 1883,) with necessary supplies, at the inRtance of her when in the ,port of Boston,. In the months of owner, October 1883, tpey furnished her supplies to the valueof$694.4:5,at the owner's instance, forwarding them to Portland, was. In .Tune ,of the same year, Quimby & Co., of Bangor,ME!;, fllrnished the ship (then at that port) with supplies of the value 01',$215.26, taking therefor a draft drawn by the master in their favor on the owner. This draft was transferred by indorsement to the libelants, who cashed it for Quimby & Co. After crediting several payments made, there remains a balance due on the ,accounts of $3,467.02, with: interest from December 6,1883, to recover which the attachment was issued. In November, 1884, the claimant purchased the ship for $10,000, and took possession. Prior to the date when the indebtedness to libelants, or any part of it, was contracted, the purchaser had made a;d van¢ements to the owner amo,unting to $9,700, or, ,thereabout, and had taken a mortgage on the ship to secure payment The consideration for the sale was this indebtedness, and an additional sum of $300. At the time libelant's claim arose, and for several years prior thereto, the home port of the vessel was Boston, and so continued until after her sale. The owner resided there, and still does. She was built at Quebec, was registered there, and started out with' the British flag, which she continued toearry. The owner went frop! Boston, ,where he ,!:lad been located for some time, to Quebec, to' build her, alldte"rilltined there until she was finished and started out, to sea, Since then he has resided in Boston for does not a period of'eight or more years. About this latter fact seem to be room for reasonable doubt. ,Mr. Atwood. of the libelant firm, 'testifies distiiictlf, on that he had known him there for 10 years; that he was living with his nieces, where he spent nine rll<jnth£lot" more ofeaohyear; "There is no evidence that he had any other home within this period. When not there he was with the vessel, or in pursuit of other business. His, oWPy ,testimony is singularly llnsat,iafaetory and unreliable. Restarts out with a statement that his memor)1ie! very defective, and that in consequence little dependence should be on its face, fully support.s placed upon what he says. His tthis;statement: I wo.uld infe:!: t'Pat he is wiuiting in intelligence, and' 'tha:fhEi"restifies 'under a strong bias in favor of the libelants. Much that he to understanp·. I conclude from his entire statement pawas. harnin England, and came to this country whim quite young, 'loootinginNew York, where he rE-sided with one MacKay. While there (how long he remaiMd is very uncertain) he married MacKay's sister-inlaw. He then went to Boston, where he lived for some time; how long, is also uncl;lt'tain·. ,From there he mQved to Qu.ebec, and engagedinshipbuilding with MayKay, (who) Unfer, had also moved there,) and continued in the business for some years. He withdrew from the partnership, apAfh\e,w\fehn,Vlng .England. Afte,r a time he returned to this country, and again JOQated in Boston. SubseqRently he went to Quebec to build the vessel in question, remaining only so long as was necessary to complete the, work and start hele' tp perio<.l of three

THE CHELMSFORD.

401

or four months. He left Quebec with her, (or directly after,) visited England, France, and other places. and finally returned to Boston with the ship,' where he has continued to reside ever since, being absent occasionally on business, probably as much as three months of the year. After his return to Boston, which occurred eight to ten years ago, he became part owner of several Boston vessels. and entered into numerous shipping enterprises. In some of these vessels, and in one or more of the enterprises, the libelants were interested with him; and, in addition thereto, he and they had considerable business intercourse. In the registration, Jl1ortgage, and bill of sale of the ship, the owner stated his residence as Boston. There cannot, therefore, I repeat, be reasonable doubt that .the owner's home was Boston, at the time in question. This fact determines the home port of the vessel. See The E. A. Barnard, 2 Fed. Rep. 712; The Mary Morgan, 28 Fed. Rep. 333. Were the libelants respeCting the owner's residence? This questio!l has received careful attention. I have, however, not found anything to jUEitify anaffirmlltive answer. It must be borne in mind that the misleading, to be material, must have been.in respect to this fact"":"the residence. The testimony of Mr. Atwood, of the libelant firm, misled. They knew that he had lived in shows,that they were !lot Boston for many years, and were bound to know that this constituted Bqston his place of residence. If they had not known this, and his reshad been difficult of ascertainment and doubtful; the foreign regflag might be appealed to as evidence on that point. istration and As, the residence, however, was known. they ilre unimportant. To one ignorant of the law they might mislead respecting the homa port of the vessel, but the libel imts cannot plead ignorance. Knowing that Warner resided in Boston, (or having the means within reach of ascertaining this fact even,) they were bound to know that the home port of th,e vessel was there. It follows that no implied lien can exist for the supplies furnished in Boston. It is urged, however, that the evidence shows an express lien. Aside from the question (raised and discussed) whether such a lien could be created by parol, it is sufficient to say that I find no evidence of an express contract for a lien. Without such contract no express lien can exist. It is plain that there was no such contract. The libelant's evidence shows that the subject was never alluded to by the,parties. Mr. Atwood says the libelants charged the ship, intending to look to her; and that he believed that Warner so understood; though nothing was ever said between them on the subject. This is the ordinary foundation for an implied lilin, where one UJu,y exist, nothing more. It has no tendencYt to support the allegation olan express lien, , For the debt represented by the draft given Quimby & Co" there was lien·. Thesuf>plies were necessary, and were furnished in a foreign port, at the master's instance. Taking the draft did not affect The transfer of the indebtedness. transferred the lien. The latter was security simply for the debt, and as in all other instances it follows the (lebt to the transferee. v.34J.... no.5-26

sq

402

FEDERALREPORrER.

, the fbr furnished in Boston, at the owner's instance,-$6,94.45,-and to the vessel at Portland, I should have tio hesitation iIi disallowirigit, in the absence of authority on the subject: '".lam unable to un,derstand how an implied lien can be suswith the principles governing such liens, under the circumsumces; Supplies'furniehed at the home port are presumed to be furIlished 911 tIle credit of the owneri and the presumption is sive,jtdbe absen,ce of a coIltra,ct for an express lien. How and why it should maJre any difference supplies so furnished are forwarded by the o",ner'sdirection, I am unable to com,. to the prehend... Why does not owner's credit is relied upon, irithe latter cltse,ame as clearly and as strongly as in the not the merchant be regarded as the former? Furthermore, why owper's in forwarding thel!upplies purchased., I find; however, that t4e question has ,beeu decided. thy.other way, in The Sarah J. Low',555; The Agnea Barton, 26 Fed. Rep. 542; and The Huron, 29 It seems probable that the same question was in,and in The Union Brown. Adm' 537, and 17le R.pixon, 33 Fed. Rep. 297, also, of thelatter two cases not sufficiently Perfect to re'nder this certain. In' ther of the is the subjectdiscussed at, any length, or auy adequate rea,son in my for the So however,; is to ofdecision, by qourts of 1. feel consframed to ndopt the rule, thus estflblisped lin 'the several distrIcts in which these cases arose. It Booms thanthat it ,shqulq" wIth. prlllC}1ple. . ThIs claImls therefore A ,will be entered. in the Jibelants' fa vor for the two sums indicated, tpgetoer,whh inwrest, to $1,163.96, with costS. . .. ... ,. , " ,
,';

. ;

,,;'

'.'

:\'

I

THE:' GLENMONT., ,HANSE1't·

ii;

ct ttl.V.THE

GLENMONT

et lIZ.

(Oircuit· OOUlIt, ,D. Minn6IJota.. March 13, 1886.)
M.uuTIME LIEN8....,SU!'PUEs-..-HoME PORT.,.

,

was built and the propelling power put in. libelants flll'nishedheJ: With stores. flleL' tiller·line, check'line. copper w'il'e, packing for machlnerY,palls for roof. beds and etc. supplied the before the vessel made her trial trip, and These at, the req.\lest of one Ro. who wall a resident of Iowa, where she was built. and who, With G. and R., residents of Minnesota. owned her. R. also sup'er. i,ntenda-d the construction of:the boat, and was to be and was her master. The tem,porarily enrolll\d where she was built, but her per·

A mouth after the hull of

.,. ,

'Aftirming 112 Fed. Rep. 703.