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.

1REGLENMONT,

403

manent enrollment was made at St. Paul. Minn.,w1l.en she reached that place, two days after she receliVed her outfit. 'Held. that the libelants were not enti· tIed to a lien for what they bad furnished, the purchase having been made by the own",r in the home port.

Dan. ,W.Lawler, for appellanta. Ola,rk, Eller How, for

In Admirnlty.

Appeal from distnct court.

BREWER, J. This is an appeal from the necree of the district court are these: The libelants were merchants dismissing a libel. The in Dubuque, and furnished all the goods and material· for which this libel was filed. The steam-boat Glenmont, to which all these a.rticles in the spring of 1885. The larger were delivered, was built at part of the goods were delivered on or before April 23d. On that or the day before the boat made its trial trip, and was temporarily enrolled at,Dubuq'lc·. Her permanent enrollment was ,at St,' Pavl,two thereafter, AprH 25. She was built by Harper and Gillespie, who resilled in Minnesota, and Romans who .lived in Iowa, each, owning one-third. The goods were ordered by Romans, who superintended the completion of't)leboat; and was to be and was its master. The district judge disthiss,edthe libel, on that the materials furnished were part of theo,iginal construction, and, necessary to complete the vessel and holding that because of this fact 110 maritime-lien existed, citing: Ferry Beers, 20 How. 393; ,Roach v. Ohapman,22 How. 129; Horewood v. Enequist, ,23 How. 494; Edwards Vo Elliot,21 Wall. 532;' The Pacific, 9 Fed. Rep. 120; The Oount de Lesseps, 17 Fed. Rep. 460; The Norway, 3 Ben. 163;Ofthe correctness of the 'gelleral proposition that no maritime lien exists on a contract for building a vessel, or for furnisping materials for such building, or the supply .of machinery for t.he original construction, or work done thereon, nb doubt .. The 'cases cited abundantly establish and there I think it clear from the testimony that a portion of th.e articles for which this libel was filed came within that rule. It may be doubt.ed whether that is true of all or whether some of the articles were not rather supplies furnished to thevesselaftedts completion, and while it was engaged in na\7igatingthci MhlsissippLStill, I think the decree of thedistrict court dismissing the libeJ in. toto was right, for one, if Dot more, reasoda. . As already stated. Romans was one of the owners. He was the master of the vessel, superintEmdedthe construction, and ordered these goods. He was a resident of Iowa, the state in which t.he ,boat was built,and in which theartideswere furnished','alldwbere the boat was first and ternl;luiollerl.It is truethatintl'1e.permallent enrollment, Gillespie. managing owner,but this Is only of MimlesQts."Was prima facie evidence, and from. the teiltimony in the; case it would rather seem that Romans was the manager. Be that as it.may, he was a joint owner,alld DUbuque' must lie considered as: a nOl'fl1lport. It had for .many

404

FED:EnAt REPORTER.

he told that they would have to wait for their pay until he had made some' money with the boat. It also appears that they regarded all of the owners of the boat as good, and that after the boat was sold in August, 1885, they made no to collect the bill from the boat until some time Harper and Gillespie had failed, and assigned for the benefit of their creditors, on November 25, 1885. Now. upon these facts, I remark that it seems to be settled that where goods are ordered by an owner in the home port, no maritime lien is created, and while, upon the authorities, it may not be so clear; yetI think that Dubuque must also be declared to have been a home port. See cases of Prattv. Reed, 19 How. 359; The Rapid Transit, 11 Fed. Rep. 322; and Stephenson v. The Francis, 21 :Fed. Rep. 715. The first case, while not directly in point, for there the supplies were not purchased at the home port, yet in its line of remark it is' very pertinent. I quote these tions of the court: ' " Now; the supplies having been furnished at a :fixed place, according to the accountcu'rrent,ll.nd apparently under some general and ·arrangement. the presumption is that there could be no necessity for the implied bypotQecation lof the could be no unexpected or unforeseen exigency to require it. Foraugh1i.that appears. the could have been procured on the personal olthe master. and in this case especially. as he was the owner. We do not say that the mere fact' of 'the master being owner. of itself. excludes the pOssibility of a case of necessity that would justifyan implied hypol hecation; but it is 'undoubtedly a circumstance that should be attended to in ascertaining any such necessity existed in the particular case. The Sophie. 1 W. Rob. 369. These maritime liens. in the coasting business, and in the business upon the lakes and rivers" are greatly iqcreasing. ,and. as they are tacit and secret. are not to be encouraged. but should be strictly limited to the necessities of commerce which theni. Any relaxation of the la w in this respect will tend to perplex and embarrass business. rather than furnish facilities to carry it forward. " The)ast case is very clearly in point, and the opinion, which ia full and elaoQrate, is very satisfactory. I q'lote, some observations made by the learned judge in that case: ., "Maritime liens for repairs and supplies. being secret incumbrances, are not favored. They are allowed upon grounds of commercial convenience andll,ecessity. In the state of the owner's residence. where he is presumptively present. or within easy commnnication. no mere maritime lien for repairs antl supplies there furnished is 'by our law in any case allowed. In that case the presumption of law is conclusive that the owner or his representative is within .reach; that he is able to supply his ship upon his ordinary responsibility; and that he intends to do so. withoutburdening her with secret liens. Ina foreign port. wl,Jen the owner is present. and pl'ocuresthe in being master.-in the absence of any expressreference to the shIp as a source of credit, tll,e same presumption as to the oWDElr'smeans. and as to hisintelltion, exists prima facie; but this presumption is not conclusive. as in the home port. and may be repelled by pl'Oof drawn either from the express Ianguage,of the parties, or frolll any other circumstances satisfaotorilyshowing that a credit of the, ship was within the common intention;. and when this intention appears ineHen will be sustained. This is allowed because even aa owner 'in a foreign port may be without means. reputation, or credit. and hence may be under the same necessity as the master for making use of the

TliE C. G.CRANMER.

405

credit of the ship., But. as I have said. this necessity lnthe case of an owner is not presumed. It must appear in proof. either from the circumstances, or from the terms of the negotiation, whic,h may afford conclusive evidence both of the intent and of the necessity. It is only when the ,deals with tile master, or the ship's agent, or some officer of the ship by the master's sanction or acquiescence, that he deals presumptively with the ship 'herself, and sells to the ship upon her credit. In other cases the common intent to charge the ship must be shown:"

Beyond the fact of this being in the home port, the' transactions between the libelants and Romans leave it certainly a matter of doubt whether f.!1e sales were made' really upon the credit of the boat, and not in pursuance of the generalbredit which Romans had acquired by virtue of his past dealings. Hdwever, I place my decision rather upon th,e ground just noticed, ofthe purchase by the owner in the home port. It is unnecessary to add more, and the ruling of the district court was right, and a decree will be entered dismissing the libel at libelants' costl).

THE FELLS

C.

G.CRANMER. 1

et

at. ft. THE

C.

G. CRANMER.

(Di8t'l'ict OOU7't, E. D. Pennsylvania. February 29, 1888.)
SALVAGE-WHO ARE SALVORS.

The schooner C.· while on a vovagefrom Norfolk to Philadelphia. with a cargo of cedar logs, part of which were above and part below deck, encountered heavy weather, during which part of the deck-load was lost. This caused the vessel to list, and in consequence ship considerable water. 'fhis was pumped out, enough of the deck-load was thrown off to right the vessel, and tbe colors were run up for a tug. The libelants' were shipwrecked sail6rs, who had been drifting about for 30 hours, without food or water. They were .taken on board and fed" and were then asked to assist in working the vessel, ·This they agreed to do. Soon after as the crew had been worked very they were taken aboard a passing brig tendered assistance, which was declined. On arriving in port they claimed salvage. Held, that they were not entitled to salvage, but that under the circumstances they ought to receive more than ordinary compensation for the services rendered.

In Admiralty. well and sufficiently manned and The schoOner C·. G. Cranmer, eqnipped, while on a voyage from Norfolk to Philadelphili with a cargo of cedar logs, partly helow and partly on deck, on the 17th day of December, A. D. 1887, met with tempestuous weather, the wind rising almost to a hurricane, during which she lost part of her deck-load, being part of the gunwale tier on the starboard side. About half past 6 the same evening, the wind shifted to the north-west, and the vessel went on to the starboard tack, and the vessel (being lighter on the starboard side, by' reason of the loss of a.portion of the as aforesaid) took a
. 1Reported bye: Berkeley Taylor, Esq., of the Philadelphia bar.