KRETZMER 'V. THE .WILLIAM A. LEVERING.
that he could not, by a pledge of the cargo, indirectly shipowner'spel'sonal responsibility. "The justice and sound policy." says TANEY, C. J., "of the rule which restricts the power of the master, over the property and fortune of his owner to the value of the shiP intrusted to his command and the freight she may earn, is proved by its adoption by every commercial nation in Europe, and we· should be very unwilling to establish a contrary pl'inciple:in this country, unless very Clear and decisive authorities compelled us to the decision; for it would place the American ship-owner in a far Worse condition than his European rival, and compel him to hazard his whole fortune, however large, upon every distant voyage made by one of his ships." Since that decision was rendered the act of 1851, (Rev. St. § 4283,) applicable to at least all cases of loss and damage, and the recent act of June 26, 1884,(23 St. at Large,p. 57, c. 121,§ 18,) extending the same exemption to aU debts and liabilities generally. save for seamen's wages, have confirmed that adjl;ldication.Theseacts were designed to bring the law of this country harmony with the maritime law of most other countries in respect to the limitation oithe liabilities ofship-owners arising from the navigation of their vessels, and the acts of masters, whether growing out of contract Or tort. .Norwich OJ. v. Wright, 13 Wall. 104, 119, 121. It is irnulaterial which law be· looked to 8S the law·of the contract in this ease; whether the law of this country, as that of the ship's home;;!the law of Peru, where the contract was made; or that of Hamburg, wheredt was to be the law of all three on this point is now in substantial accord. 2 Desjardins. Droit Com. Mar.§§ 280, 282; Force v. Providence, supra. By neither is the ship-owner answerable after the utter loss of ship and freight,unless he is chargeable with some personal privity or fault, .and that is not here alleged. The exception to the libel on fhe merits is .therefore sustained.
KRETZMER '11· .THE WII,LIAM
Wh\lre a cook ,on a tug is paid a certain sum per month, and in addition weekly "grub money." under an agreement with the captain to board the crew, and is not directed by the captain as to where to make his purchases, nor to do so on the credit of the tug, one who sells him provisions· has nolien on the tug under the general maritime law. Qr under. Statute N. J. 1884.,(Supp. Rev. 427,) providing that a debt for supplies furnished within the state for use oftlie :ship, and contracted 'by the captain" owner, or consignee, shall be a lien on the.$hip. . 2. SAME-BWlDEI!lIOll' PROOF. . , .: Where th,e "tatute provides for a lien on certain. conditions, .the of proof is 'on the libelaut to sho", that those conditions have beellfulfillel;i. the presumptions being all the other way.1Jhe(Jhel'flUrf<Yl'd, 84 Fed, Rep. 399.
.FURNISHED COOK-STATE STATUTE.
SAME-EvIDENCE-ADMISSIONS OF COOK-BoOKS OF LIBELANT.
The admissions of the cook that he owes a balance for provisions furnished the crew, and the fact that they were charged on libelant's bDok to the tug, do not dispense with the necessity of proving that he had a right so to charge them.
In Admiralty. Libel for supplies. Meinhard Kretzmerfiled a libel' against the tug William A. Levering ,for supplies furnished. Muirhead & McGee, for libelant. JohnG'fijfin, for respondent. WALES,J. This is a suit to recover a small bill for provisions alleged to have been furnished to and on the'credit of the tug William A. Levering, at Jersey City, where the libelant carried,on his business, and which was also the home port of the tug. The statutes of New Jersey of /1884, (Supp. Rev. 427,) which is a supplement to the act of 1857, pro.vides"that whenever a debt shall be contracted by the l'naster, owner, agent"or consignee of any ship or vessel ** * for such supplies, , provisions. and Fltores, furnished within this state for the use of such . ship or vessel at the, time when the Silme were furnished, * . 'such debt shall bea lien upon such ship." etc. A lien of this description is elif0rceable in adlIJirulty, although without the statute it would 'hot· be' recognized under the general maritime law of the United States. The General Smith, 4 Wheat. 443; The LotfJ.!wanna, 21 Wall. 558. But such a lien will be enforced in' this court onlywhen it comes strictly Within the termsofthe statute.' The Red Wing, 14 Fed. Rep. 869; The Mar('elip, Ann, 34 Fed. Rep. 142. The first and only question then,is, has tb:edibelan;t brought his case fairly within the terms of the statute? A careful examination of the record, which is inexcusably bulky, and full of irrelevant testimony, has not brought to light any proof that the master, owner, agent, or consignee of the tug contracted at any time, directly or indirectly, with the libelant to fumish the supplies sued for. The master employed a cook by the month, and, in addition to his wages, paid him $17.50 every week, in aqv!1nce, for "grub money." The cook had an agreement with the niaster to boardth'e' crew for that sum, and he dealt with the libelant, from the beginning of April to the 3d or 4th of August, 1886, pajing, for the most part, in cash for what he bought, and there is not the slightest evidence that he was directed bythe master, or by any other person, to buy provisions at any particular place, or on 'the'credit orthe boat. In this matter he acted independently of themastElr, and was at liberty to buy where and of whom he pleased. The master was ignorant of the dealings of the cook with the libelant until late in thesup1mer,'when the Grew complain,ed of bad meat. For the libelant tha.t the p.resumptionthat t.he supplies furnished to a . vessel in a foreign port are furnished on the credit of the vessel 'applies to the present easEl, and that his lien is not waived unless there is satis.thE) provisions were sold on the .personal credit of the cook. :aut thl;lre is nothing in the statute which warrants this construc-
THE DANIEL KAINE.
tion of its meaning, nor is there any rule of law, or any known authority, which sustains it. The statute requires proof of a contract by one of the persons named in it, and does not establish a lien on mere proof that the supplies were taken on board of and used by the boat. The Chelmsford, 34 Fed. Rep. 399. Prior to the passage of the statute, no lien existed in New Jersey for supplies to a domestic vessel. The statute confers a lien on certain conditions, and it is only when these conditions have been performed that the lien attaches. The statute does not create a maritime lien, and there can be no presumptions in favor of the specific lien which is conditionally given to the material-man. The presumptions are all the other way, and the burden is on the libelant to prove that a contract was made with him by one of the persons described in the statute. Contracts made by such persons, and by no others, for supplies, provisions and stores, will bind the vessel. The admission of the ,eook that he personally owes the libelant a small balance for meat and groceries with which he fed the crew does not affect the question; nor does the fact that libelant headed his account with the words "Charged .to the W. A. Levering," dispense with the necessity of proving that he was legally authorized to make such a charge. Besides this, the libelant's "books" are open to serious objections from the manner in which they appear to have been kept and made up. There is reason to believe-at least to suspect....,...that the entries in each book were all made atone time. with the same pen and ink, and by the same writer. The books are neat and unsoiled, bear no marks of having been in rlaily use, and contain no other accounts than those against the tug. Let a decree be entered dismissing the libel, with costs.
THE DANIEL KAiNE. JAMES DALZELL'S SON
& Co., Limited, et ale
(Dutrict Court, W. D. Pennsylvania.
May 29. 1888.)
BHIPpma-,..-OWNERsHIP IN VESSEL-PARTNERSHIP.
The running of a steam-boat on sharee does not make the owners partners in respect to the vessel itself.
MARITIME LIENS,,"""ADVANCES-Bv PART OWNER.
Where a steam-boat is not partnership property. but her part owners are tenants in common simply, one of them has no lien upon the share of another for advances. Nor does it make any difference that the partner making suchladvances was also the master of the vessel.
4. BAME-E,mcUTION-FROM STATE COUR'l'-LEVV AND LIEN. After seizure of a steam-boat bythe marshal upon process in admiralty and a decree of condemnation, but before sale. a writ of fl. fa. issued out of the state court UpOl) a judgment against one of the part owners of the vessel, and was put'in the hands of the sheriff. In the diatribution of the proceeds of theinarshai1s ssle, held,that.as against the defendant in the execution, tLll