the lien, under the New York statute, was held not to extend to cases where the vessel was in another state aUhe time the supplies were furnished .. '. In three or four cases the court8seem to have gone the full length of holding that, even if the materials be ordered for and delivered to the vessel, nollen will attach if they be subsequently diverted, and sent elsewhere by the vendee. The principal one of these is Phillip8 v. Wright, 5 Sandf. 342. This was an action upon a bond for the release of the vessel. The case, was referred to Mr. Johnson, subsequently judge of the court of appeals and of the circuit court of the Uliited States; indeed,.it was he who delivered the opinion of the court in the case of The John Farron, above cited. He found that the timber, for the value of which the action was brought, was purchased by the owners of the vessel,and furnished by the plaintiff to them within the state as materials for or towards the building of the ship, and were delivered at the yard where the ship was building, but that some part of the timber was not in fact actually empluyed in the building of the ship, but was used for other purposes; that plaintiff did not in any manner assent to such use, nor was he aware thereof. He held as a matter of law that the plaintiff was entitled to recover his whole claim. Judge SANFORD, however, held that the whole theory of the lien rested upon the basis that the materials "entered into and contributed to the production or equipment of the thing upon which the lien is impressed. This imposes on the materialman the necessity of seeing to it that his materials are applied to the purposes for which they are procured, if he design to rely upon a lien given to him by reason of such purpose." This case is followed in Hiscox v. Harbeck, 2 Bosw. 500, in which a charge t0the jury that 'proof that materials were ordered for a vessel then building, and were furnished upon and pursuant to such order, and were sent to the yard where the vessel was being built, was prima facie evidence of the use of them for the purpose for which they were ordered to entitle the plaintiff' to recover, was held to be erroneous. "It is not enjJugh," says the court, "in order to establish a lien upon a vessel, that an owner 'should order them, and tha.t they be traced to the yard where the vessel is being built in common with other vessels." the same ruling was made by the supreme court of Maine, in Taggard v. Buckmore, 42 Me. 77, and, with reference to a mechanic's lien, in Hunter v. Blanchard, 18 Ill. 318, in (Jhapin v. Paper- Works, 30 Conn. 461 ,and in Houghton v. Blake, 5 Cal. 240. Notwithstanding this lormidablearray of authorities, I find myselfirreimpelled to a different conclusion. 'fhe statute authorizes a lien for "materials furnished in and about the building or repairing" of the craft. How those words can be tortured to mean that the materials so "furnished" must actuallybe incorporated into the craft, I am unable to see. When we speak of a bill of goods "furnished"to a person, we mean simplythli:t they have been ordered for and delivered to fluch person. It would be a novel' doctrine to hold that the vendor's rights could be affected by his subsequent disposal of the goods. So, by materials furnished in ancia-bout the building ofa house, we understand such as are
THE" JAMES H.
fllmished to a house in the process of construction, and for the purpose of being incorporated therein. Under the theory of the above cases the vendor could never be ,sure· of his lien, unless he kept a man to watch that the materials are actually built into the vessel, and are not diverted to another purpose. As well might it be claimed that the grocer is bound to trace his supplies to the oven in the cook's galley. This is a stringency of proof required in no other class of cases. Such a construction operates as a constant temptation to fraud, and would serve to entrap, rather than to protect, the rights of those dependent upon Unless he be given alien upon the ship for which the materials were ordered,' and to whiph th'ey ,are delivered, the libelant is practically remedilessj since, if they are put upon other vessels, he has no lien upon them previous contract that they shall be so applied. Roger8 v. Currier, 13 Gray, 129; Read v. HuU of New Brig, 1 Story, 250. We are by no means without authority in favor of the position we have taken. The earliest case is that of Wallace v. Mekhoir, 2 Brown, (Pa.) 104, in which, tlnder a statute of Pennsylvania providing for a lien upon buildings" by reason of any materials found and provided by any lum,'b«;lr merchll.llt for or ,in erecting and constructiI;lg such building," it ,was .held to besufficil;lnt that the debt was contracted for and on the ,credit of the building, that the lumber was delivered at or near the building, at the place pointed out by the defendant, with the understanding of the parties that it was to be used in the erection thereof, although the defe:ndantsubsequently,without the knowledge or consent of the · plaintiff, sold it to other persollt;. This case is .followed by that of The Olympic Theatre, rd. 275, by Hinchman v. Graham,2 Sergo & R.170, 'and by Odd FeUow8' HaU V. Ma88er, 24 Pat St. 507. The rule appears · to be same in Maryland. Greenway V. Turner, 4 Md. 296. The question was also carefully considered in Barstow V. Robinson;' 2 Allen, 605, in which a lien was sustained upon a ship for spars furnished and wrought for it, by virtue of an express contract to that effect with its owners and builders, and delivered to and accepted by them for that purpose, although the same were never attached to the ship, or removed from the premises of those by whom they were furnished and wrought. In delivering the opinion of the court, Mr. Justice MERRICK observed: "They[theplaintiffs] furnished the spars, and delivered them to the owner. who 'acceptedtbern for the purpose for which they Were made. They had therefore done everything which they could do to entitle themselves to a lien. It is difficult to see how the owners of the ship could defeat it by their subsequent conduct, for the lien arises by operation of law from the contract, and the complete performance of it by the party who thereby becomes a creditor. · It certainly is of conseqmmce that the owners permitted the spars. to remain, after delivery, and after acceptance by them for the use of the ship, in tbe yard of the vendors." ' This case was subsequently cited with approval in The Orpheu8, 119 Mass. 179. The substance of this collocation of authorities is that the cases in Pennsylvania,:M,:aryland,and Massachusetta are arrayed agains1·those in
New York, Maine, Connecticut, Illinois, and California, and that, for the reasons I have already given, I think the former enunciate the sounder results that libelants are entitled to a and more equitable doctrine. decree for the amount of their claim, which, however, will not be entered until the libel is amended.
SEVEN HUNDRED AND TWENTy-FIVE TONS DERLAND &. RUCKER, Claimants.)
(District Court, E. D. Wiaconsin. December 4, 1888.)
A vessel agreed to carry coal to·M. during the season of navigation, if possible, and sailed with a barge, carrying part of the cargo, in tow. The crew then lacked three men, to supply whom the vessel stopped at several ports, losing about a day. Afterwards, on the ground that the windlass of the barge was broken, the vessel put back about 65 miles to a port of refuge, instead of going forward to Ii similar port on her course. On resuming the voyage a gale was encountered, and the vessel put into port for the wh'1ter. The master telegraphed the con signees that the vessel was frozen up, and in answer to their reply said, .. Weather too cold for open boat." Navigation was still open and the voyage could have been completed. The master knew then, while wait· ing for instructions from the owners. that a vessel bound for the same port had passed on her way. Jield, that the master acted in bad faith, and was not entitled to the extra freight agreed on, but only to the highest rate paid when the delivery was made the next spring.
Notice to the ship-brokers, given long before the shipment, that claimants wanted the. coal to deliver under a contract with a third person, will not render the vessel liable for the expense of procuring other coal in fulfillment of the contract.
InAdmiralty. Libelfor subtraction of freight. George D·. Van Dyke, for libelant. George C. Markham. for claimants. JENKINS, J. This is a libel for subtraction of freight-money for the carriage of a cargo of coals. The steam-barge Westcott, a single-deck vessel, at Cleveland, on Tuesday, the 16th day of Novem· owned by the ber, 1886, contracted with the consignors of the claimants to carry a cargo of coal from Sandusky to waukee, for the freightage of $1. 35 per ton. · A similar agreement was on the same day made with the barge Middlesex, also a single-decker, which vessel was to be towed by the Westcott, the latter to receive from the .former for such service one-third of the grdss freight-money earned. The vessels were to have "quick dispatch" in loading, contingent upon their arrival at Sandusky by Thursday, the , 18th November. A like agreement was made by the consignors at Cleveland, on the same day, with the Wall, a single-deck barge, except that · ,he should arrive at Sandusky on the 20th November. This vessel was to· be ·towed by the Cormorant, a double-deck steam-parge. But two ves-
HOLLAND V. SEVEN HUNDRED AND TWENTY-FIVE TONS OF C<M.L.
sels could be loaded at a time at the docks at Sandusky. On [,hursday, the 18th, the shippers had some 1,900 tons of coal at the docks, a suffiand Middlesex, and expected to give such cient supply for the dispatch in loading that they would be able to receive cargo and giv& place to the Wall upon her arrival on Saturday. At the time of the contract the Westcott was on the dry-dock at i Cleveland for repairs. She, with her consort, did not arrive at the docks at Sandusky until Sunday, the 21st November. The Wall arrived at Sandusky on Saturday, the20th, and commenced to load. Her bill of lading bears date the 23d November.. She had completed her loading on or before that date. The Westcott lind Middlesex commenced to load at 1: 30 of the 23d: and continued until 9:30 A. M. of the 24th, then suspending for lack of coal until the morning of the 25th, when work was resumed, and three or four car-loads put an board. Then work was again suspended for lack of coal untilS P. M. of that day, when, with an abundant supply, the loading was resumed, and completed at noon of the 26th, and bills of lading bearing that date, and in the usual form, were executed and delivered. The cargo oithe Westcott was 725 tons, of the Middlesex 1,097 tons. and of the Wall 1,035 tons. The detention upon the 24th and 25th was incident to the inability of the shippers to get proper dispatch from the mines by reason of some blockade upon the railways. The Westcott, with her consort, the Middlesex, sailed from Sandusky at 2 P. M., November 26th. The Wall, from the 23d, was at anchor, waiting for the Cormorant, and did not leave Sandusky until after the Westcott, but when thereafter is not disclosed by the evidence. Upon starting, the Westcott was short three men of her usual complement of crew. She proceeded with due dispatch to Detroit, where she arrived at 12 P. M., NO\'ember 26th. She there remained until 7 A. M. of the 27th, for the purpose of completing her crew, but, failing therein, proceeded, and for a like purpose put into Marine City, at 2 :30 P. M. of that day. She there obtained two men. A snow-storm prevailed during the night. At what hour the men were obtained, and when the storm commenced, is not disclosed. She departed from Marine:: City at 4 A. M. of the 28th; arrived at Port Huron at noon, delaying there one hour to obtain and obtaining a seaman, thus completing her crew. Proceeding into Lake Huron, she passed Sand Beach at 8.15 P. M., and at midnight ofthe 28th, in the midstof a thick snow-storm, with a south, moderate wind, was averaging a speed of eight miles an hour. In the early morning of the 29th the wind veered to the N. W., and at 4:30 A. M. was 1?lowing a gale. At 6 A. M ·· when off Sturgeon Point, the Westcott turned on her course, cIDd made for Tawas, 35 miles to the south, for shelter, arriving there at 11 A. M. Here, the master affirms, the Middlesex discovered her windlass to have broken, and it was deemed unsafe for her to proceed further on the voyage; that there were no means of repair at Tawas; that the Middlesex could not get in behind the docks there, and it· was unsafe jor her to lay outside because of insufficient depth of water; and, being unable to obtain a tug, it was determined to return to Sand Beach, a harbor of refuge, 65 miles to the south. The Westcott, with the Midv.36F.no.12-50