that the claims Nos. 3,407 and 3,405 against The Dacotah should be allowed in full, as well as claim No. 3,404, against The Wyoming. The .money advancements embraced in these claims, are shown to have been expended in paying lien claims. These claims are accordingly allowed in full. Claim No. 3,407 embraces an item of$129, and claim No. 3,404 an item of $175, that are entitled to payment as wages claims, the money. having been advanced and used to pay wages. I am also of the opinion that the claim of the P. P. Manion Blacksmith & Wrecking Company should be allowed to the alllount of $1,308.62, and no more. The evidence renders it reasonably certain that $969.94 was advanced and used to payoff a lien for repairing the steamer's shaft, and that $350 was advanced and used to pay for moving and erecting the shaft. The item $213.06 is· not satisfactorily established as a lien, and is disallowed,. Tested by the rule above announced, claims Nos. 3,401 and 3,402 (preferred by John Jackson) are not established as liens, and can'not be allQwed as such. The money was advanced generally to "Hunter Ben Jenkins, manager of steamers Wyoming and Dacotah." It is not l;lhown w.ith any degree of certainty that the money was all used, or that any portion was used in paying lien claims. Moreover, it is not shown with any certainty how much was so used in behalf of each steamer. Jenkins is unable to state how much was used in the puyment of any particulpl' class of claims, or what claims were in fact paid with the money so advanced, and Mr. Jackson has no knowledge on that subject. What has been said respecting claims Nos. 3,401 and 3,402 applieE! with even greater force to claims Nos. 3,412 and 3,417, in favor of T. T. 'Lewis, and both of the latter claims are accordingly rejected on the same grounds. In the distrIbtition to be ordered, wages claims will rank first, daims for materials and supplies next, and claims under contracts of affreightment thereafter. If there should be any surplus after the lien claims are satisfied, a question may arise whether the mortgagees are entitled to it, or whether it should be awarded to Jackson and Lewis. That question is reserved for further consideration if there shall be any occasion to determine it.
GEORGE t1. THE AERONAUT.
(Diltrict (Jourt, S. D. New York.
October 11, 1888."
MARITIME LIEN-SUPPLIES-OWNER PRO HAC VICE-PERSONAL CREDIT-HOMB PORT-,-PRESUMPTION.
Material-men furnished supplies in New York to a vessel registered in Jersey but whose business home was in New York city, upon the erder, of charterers who were owners pro hac 'Vice, and did business in New York, and
who had no authority, as between themselves and the general owners, to pledge the vessel for supplies. No reference in the negotiations was made to the ship as a' basis of credit. Held, that the leg,al presumption was that the credit was furnished to the charterers personally. In the absence of anyevi· dence of a common intent to char'a the ship, and that no maritime lien arose for the supplies.
In Admiralty: The Aeronaut was owned by Mrs. White, who resided in Jersey City. Her business was transacted by her husband in New York, which was the headquarters of the vessel. The steamer was chartered to the Newcomb Rll.pid Transit Company, a New Jersey corporation, for $20 a day, payable in advance, to run between New York and South Norwalk, Conn. The office of the transportation company was in New York. The charterers were owners pro hac vice, and were to pay all the vessel's running expenses. Supplies to the amount of $180.94, principally for the engineer's department, were furnished the vessel by the libelants. in New York, between October 15 and November 4,1887. All the negotiations and orders for the supplies were made at the office of the charterers by and with the general manager of the company. The libelants had no dealings with the master, nor was he known to them. In the negotiations no reference was made to the ship as a source of Wilcox, Adams Macklin, fot libelant. Watson for claimant.
BROWN,J; The inquiries as to whether the charor had chartered the Aeronaut. A year or two previous terers they had furnished supplies to her on Mr. White's order, when she was . running uJ;lder his directioJ;l; but as iUs not clear that the libelants had any recollection of these prior transactions with the vessel at the time of their negotiatio:na with the rapid transit company, I shall not consider whether or, not "they were fairlyplit upon inquiry as to We relations of , , the transit qomRany to the Aeronaut. Independently of this considera'tio:n, ,imd treating as ignorant of the charter, the lien cannot be sustained, since the deillings were all 'directly with the charterers, the owners pro hac vice, in person, and in the same state where the supplies were furnished to the ship, and there is no evidence either of any intent on the charterers' part to pledge the ship for these supplies, even if they had power to do so, or of any act of theirs to lead the libelants to such a supposition. ,As the charterers had received possession of the vessel on the condition that they should pay for all supplies, they had no actual authority themselyes to c,reate a. lien upon the ship for such supplies, in the absence of exceptional circumstances, and when, as here, legal home port. and in, per ,actual business the ship home, had no need of the supplies for any interests of her own or of her , This point directly adjudicated in, circuit ,in general the case of The Secret, 15 Fed. Rep. 480. The same principle was adjUdged in the of The Turgot, 11 Prob. Div. 2L In the case of The IndUi, 262; 21 Blatchf. 268, the supplies 'were not ordered
·· ' .' · _,1 ,-. . . " .
by the charterers in person, but by the agents of the ship, in a foreign port, and in a port of a different 'state from that of the charterer's residence, and business; and the observations of the court in that case are to be taken in reference to the facts of the case. hi' foreign ports, supplies furnished by material-men upon the order of the master or of the ship's agents without knowledge of any charter virtually forbidding any use of the ship's credit for such purposes, and without means of knowing of any such charter, are presumptively furnished on the credit of the ship. The general owner, in chartering the ship, takes the risk of such liens; because,under the general marine law,material-men, in dealing with the master or ship's agent in a foreign port, and in the course of her v01age, if they have no notice that the ship has means, are authorized to trust the ship, and are not bound to make inquiry beyond the necessities of the ship. Both parties are presumed to be dealing on the basi,s of the credit of the ship. But upon personal dealings with the general owners, or with ch'1rterers who are owners pro hac vice, for supplies to be furnished within the same port or state where the contract is made, the legal presumption is that the dealings are not with the or upon her credit, but upon the ordinary personal responsibility oftlie owners, with whom the dealings are had, and no lien is, in such a ease, sustained, unless a credit of the ship is proved to be within the intention of both parties, as was specially found by the court in the eases of The Ja'TIU!8 Guy, 1 Ben. 112, 5 Blatchf. 496, and 9 Wall. 758, and The Kalorama, 10 Wall. 204. This subject, and the previous authorities bearing upon it. were fully considered by this court in the case of Stephenson v.The Francis, 21 Fed. Rep. 715, 719-723, and Neill v. The Francis, rd. 921. The same principles have been affirmed in numerous later eases in the courts· of other circuits and districts. The Norman, 28 Fed. Rep. 883; The Mary Morgan, rd. 11-36; Tlte Cumberland, 30 Fed. Rep. 449; ,The Pirate, 32 Fed. Rep. 486; The Glemnont, 34 Fed. Rep. 402, 404; 'l'he Kingston, '23 Fed. Rep. 200. The libelants' dealings in this ease were all directly with the charterers in person. There is no legal presumption that aids the libelants in making out a matitimelien. They roU8t upon the filets as they existed; and upon these facts. not. only !lild the charterers, under the circumstances of this case, no authority to the ship for these supplies, but there is no evidence that they had the slightest intention of doing so. in the negotiations or in the ordering of the supplies points to the ship as an intended source of credit within the! common intention; and the charterers could not have contracted on that bailis this case without fraud on the general owners. In its factf! the case is almost precisely similar to the cases of The ltfetro, polis, 8 Ben. 19, and The Mary Morgan, 28 Fed. Hep. 196; and, as in those cases, the libel must be dismissed; but, under the circumstances, without costs.
THE JAMES FARRELL. RICKARD
THE JAMES FARRELL.
(Di8t:rict Oourt. 8.
New York. November 1. 1888.)
MARITIME LIENS-REPAIRS-PERSONAL CREDIT OF OWNER.
A shipwright in Jersey City solicited work at the office of the ship-owner's representative in New York. The boat was afterwards sent to him, in Jersey City, to be repaired. in charge of the master. The libelant rendered his bill at the New York office, and received a note on account, and afterwards renewed the same. He made no claim against the boat until between 8 and 9 months afterwards, and the boat in the mean time had been mortgaged in good faith for a valuable consideration. Held that. though the negotiations in New York might not alone defeat the lien, under all the circumstances, the reo pairs must be held done on personal credit only.
In Admiralty. Lien for repairs. The canal-boat James Farrell was owned in New York by the wife of E. M. Parker. Her husband attended to the business of the boat, and had an office in this city. In March, 1887, the libelant, a .shipwright in Jersey City, called at Mr. Parker's office, and inquired if he h.ad any work to be done in his line. Mr. Parker .afterwards sent for him to look at the Fatrell, and give an estimate for repairs, which was done, and Mr. Parker said that the boat would be sent over soon. Not long after she was sent over in charge of the captain of the boat, and repairs were pqt upon her to the amount of $289.66; the captain remaining in charge of the boat,and keeping the time of the workmen. The work was completed on the 10th of May, 1887; for which, at Parker's request, his note was taken for the bill, which was once renewed, but not paid; and the hoat was libeled on the 29th of December. The return of the note. was tendered by the libelant on the trial. On September 29, 1887, the claimant took a chattel mortgage from Mrs. Parker covering a coal-yard and a half interest in the Farrell, with some other property, as security for coal previously furnished, and for coal afterwards supplied on the faith of the security. The evidence indicates that the description of a "half interest" in the vessel was a mistake, and that the whole was intended to be mortgaged, and by a subsequent oral agreement was understood to be covered by the mortgage. For default of payment the mortgage was subsequently foreclosed,and all the mortgaged property, including the vessel, bought in by the. claimant for much less than the debt secured. The answer set up a sale on personal credit, and a superior equity under the subsequent mortgage and foreclosure. Oscar Frisbie, for libelant. J!;dward H. KUsctm, for claimant.
BROWN, J., (after stating the facts as above.) Though no one circumstance in this case might be deemed sufficient to exclude a maritime lien, yet, taking all the fucts together, I think the work must be held done upon the personal credit of the owner, and not upon the credit of the