(Di8trict Oourt, D. South-·Oarolina.
. A libel in perHonam, with attachment of the vessel, may be maIntained for breach of a contract made with the agents of her owners, who are all nonresidents, and who, by the law of their country, are each liable in 80lido under such c\ln tract, though but one of the owners is named in the action; the others being unknown to libelant. The object of the suit is not to obtain a personal judgment against any of the owners, hut to subject their common property to the satisfaction of their common liability.
SAME- ACTS OF CONGRESS.
The measure of liability is not affected by act Congo Jnne 26, 1884, entitled " An act to remove certain burdens on the American merchant marine, and to encourage the American foreign trade, and for other purposes," nor by act Congo June 19, 1886, amending the former act, and making it applicable to all sea·going vessels, and also to "all vessels used on lakes or rivers. or in inland navigation, including canal-boats." etc. These acts are not declaratory of the maritime law, but are special in their character.
<l. SHIPPING-,CHARTER- P ARTy-li}xCEPTIOJIIS.
The owners of tbe steam-ship West C: entered into a charter-party with libelant for the freight-room in the ship on a voyage from Charleston, S. C., to Liverpool or the continent, she to reach the port of Charleston by November 30, 1887. "Should the steamer not arrive at her loading-port. and be in all respects ready to load under the charter on or before that day," the charter might be canceled. She was to be "in every respect tight, staunch, and strong, classed 100 A 1, and in every way fitted for the voyage." The exceptions in the charter were the act of God and" all other dangers and accidents of the seas, rivers. and navigation." November 9th she grounded on the rocks in the river St. Lawrence. and, on reaching Montreal, was promptly inspected by Lloyd's agent. who fonnd a small leak in her witter-tank. A complete survey would have required her to go into dry-dock at Quebec, which would have caused a long delay. The agent gave his certificate that she was seaworthy, and fit to carry a perishable cargo, and her rating at Lloyd's remained onchanged.-100 A 1. She then sailed for Charleston. reaching there Nov. 28. The insurance companies at having heard of her accJdent in the St. Lawrence, refused to take riskd unless a survey was first had on her; but, there being no dry-dock at Charleston, the owners refused to put her on the hard, an operation attended with danger. The best rates the insurance companies would offer were at I! per cent., the ordinary rate being 9-16. Libelant refused to accept the ship. Held, that neither party was in fault; that the ship-owners were excused; and that lihelant had no cause of action, ex,cept for moneys advanced to the master.
In Admiralty. Libel for breach of charter-party. J. N. Nathrtn8, for libelant. J. P. K. Bryan, for respondent. SIMONTON, J. The British steam-ship West Cumberland, built of iron , with water-tight compartments, was on a voyage up the St. Lawrence river to Montreal, with cargo, on 5th June, 1887. On that day the agents of the owners in New York entered into a charter-party with libelant for the freight-room in the ship on a voyage from Charleston to Liverpool or the continent, at the lump sum of 37 shillings per ton, net register. She agreed to reach the port of Charleston on or before 30th November. "Should the steamer not arrive at her loading port and be
CARD tI. HINE.
in all respects ready to load under the charter on or before that day," charterer had the option of canceling the charter. The charter provides that she must be in every respect tight, staunch, and strong, classed 100 A 1, and in every way fitted for the voyage, when she shall load a cargo of cotton, etc. The exceptions throughout the whole of the charter-party are the act of God, and others, including "all other dangers and accidents of the seas, rivers, and navigation." On 9th November, in the river St. Lawrence, she grounded on the rocks, and, after remaining a few hours, got off under her own steam. Reaching Montreal, she was inspected by Lloyd's agent at that port, on 15th Novem ber. He found a small leak in the water-tank forward, from a loose rivet; but no plates could be discovered which were broken. The survey was such as could be had at Montreal. A more complete survey would have required her to go to Quebec, and into dry-dock there. He gave his certificate that she was seaworthy, and fit to carry a perishable She was rated at Lloyd's, and, the report of the survey having been received, her rating remained unchanged,-100 A 1. She then sailed for Charleston, reached that port on 28th November, and reported to her charterer. Before her arrival, Ravenel, Johnson & Co., insurance agents, had received instructions from the companies they represented not to take risks on the 'Vest Cumberland, unless a survey was first had on her to ascertain the result of her grounding on 9th November. This was communicated to the several shippers in the port, including libelant, and put him on the inquiry. He received the papers conllected with the Montreal survey from the master. After examining them, he suggested to the master to have his vessel examined again. The latter consulted his owners by cable. They said, "No." There is no dry-dock at Charleston. The ship drew 13 feet. The mean rise and fall of tide is 6 feet. Putting her on the hard-a heavy, iron ship-was attended with danger. The master tendered the ship as she was to the charterer. Thereupon Mr. Card refused to load her, and brought his action for breach of charter-party, and for moneys advanced to her. Her sailing register gav& Wilfred Hine as her owner, a resident of Great Britain. The action is in personam, with attachment. The only defendant named is Wilfred Hine, who, and others unknown to libelant, are alleged to be the owners of the West Cumberland. The first question in the case is, will this action lie? The moneys were advanced for the ship, at the special instance and request of the master, the agent of all of the owners of the ship. The charter-party was made with the agents of the owners, and binds all of them. These owners are all non-resident, At the time the libel was filed only OIle of them-Wilfred Hine-was known. The process by attachment, and the judgment thereon, can only bind the property attached. This ship is the common property, and it is attached for the common debt. Under the Code a judgment against common property for a common debt can be had, binding only the common property by serving one or some of the joint debtors. Code S. C. § 157. Mr. Benedict says that the same practice prevails in admiralty, if the joint debtors be-
each liable fOT the whole debt. Ben. Adm. § 387. The more rigid rule, requiring that all of the owners be named, would materially impair -in many instances would destroy-the remedy by attachment. In all cases it is very difficult, in very many impossible, to ascertain the names of all the co-owners of a foreign vessel. Even when the names of her owners when she left port can be learned, changes may ha ve occurred since her departure,-may occur at any moment, even during the preparation of the papers,-of which it is impossible to have any knowledge. Indeed, process by foreign attachment proceeds upon the ground that the defendanti:J themselves are without the reach of process, and that the only remedy which can be given is against their property within the jurisdiction. The owners are not served. They are not in court. They cannot be served. The attachment of the property is substituted for service upon them. It binds them to the extent of the value of this property, and no further. Thenceforward the proceeding is to all intents and purposes in rem. It is an excellent practice, and will be followed by me. It is said, however, that the acts of congress approved 26th June, 1884, and 19th June, 1886, limit the liability of ship-owners :01' the joint debt to the proportion of their respective shares in the vessel. That under these acts, which counsel contend are simply declaratory of maritime law, (The Scotland, 105 U. S. 24; The Belgenland, 114 U. S. 369, 5 Sup. Ct. Rep. 860,) Wilfred Hine can only be hEJd for 9-64 of the debt, his share being the half of 18-64. But this action is not to make Hine responsible individually, or to proceed against Hine's interest, seeking to make that responsible for the whole debt; the purpose is to make the whole common property responsible for the common debt; and Hine is taken as the representative of all the 0""1ers,-the only one of them known to libelant, -so that by process against him and his unknown co-owners all the joint property should be affected for the joint debt. The practice approved by Benedict is based upon the ground that each joint contractor is liable in solido for the debt. In li;ngland each co-owner is so liable for the debts of the ship. If these acts of .congress change this measure of liability, the attachment cannot be sustained. But upon examination of these acts it will be perceived that they are not declaratory of the maritime law, but are special in their character. The first act is entitled "An act to remove certain burdens on the American merchant marine, and to encourage the American foreign carrying trade, and for other purposes." This apparently, in its provisions, applies only to sea-going vessels. The second act, reciting its title, amends it, and makes it apply to all sea-going vessels, and also to "all vessels used on lakes or rivers, or in inland navigation, including canal-boats, barges, and lighters." There is another consideration. The here sued upon are the contracts of the owners made by the general agents of them all. By Eriglish law, as among themselves, ea0h owner is liable in sol'ido for the common debts. Story, Partn. § 455. When their agents contract for them within the scope of their authority, these agents have the same power as they have, and the same result follows as if they had contracted. Hence the acts of the agents bind each in solido. "The extent
at the authority of the master," and of course of any other agent of the owners, "to bind the ship, the freight, or the owners is limited by the law of the home port of the ship." LlmJd v. Guibert, L. R. 1 Q. B. 115 ; Pope v. Nickerson, 3 Story, 46.); The Karnak, L. R. 2 P. C. 505; Steam Co. v. Inst<rance Co., 129 U. S. 449, 9 Sup. Ct. Rep. 469. In The Bmniford City, 29 Fed. Rep. 384, a case quoted with strong approval in tbe case in 129 U. S. and 9 Sup. Ct. Rep., st<pm, Judge BROWN says: "The later Englisb decisions hold that tbe law of the ship's home port should govern as respects the future and unforeseen incidents of the voyage,-such as the ex('cution of bottomry in a port of distress, and the liability of the owners for damages beyond the value of the ship and frf'ight." On page 385,29 Fed. Rep., after quoting .1\11'. Justice BRADu:y in The Lottitwanna, 21 "Vall. 558, saying: "In matters affecting the stranger or the foreigner the commonly received law of the whole commercial world is more assiduously observed, and in justice it ought to be," Judge BROWN adds: "As respects any extension of the owner's personal liability beyond the rule of the maritime law, or any acts of the master beyond the scope of his authority as generally recognized by that law, the law of the flag may justly be invoked." This action will lie. The case is on two distinct causes of action,-for breach of charterparty, and for certain moneys ad vanced for the necessities of the ship. 1. Breach Chw·ter-Party. The contract made on 5th November, 1887, warranted that the ship, after going to the port of Charleston on 01' before 30th November, "and being then in every respect tight, staunch, strong, classed 100 A 1, and in every respect fitted for the voyage across the Atlantic," shall load a cargo of cotton. \Vas she, when offered to the charterer, up to these representations? She was certainly so at the date of the charter-party. But four days afterwards she got aground on rocks. Lloyd's agent surveyed her, and, after survey, declared her seaworthy, and fit to carry a perishable cargo. The only leak -a small one-was into the water-tank forward. This tank was designed to hold water. The presence of water in it could not therefore injure any cargo she could have. The leak, being into the water-tank, water-tight on every side, was necessarily limited in the quantity of water the tank could hold. Her class with Lloyd's, 100 A 1, was, for this reason, in no respect changed; and Lloyd's is high mercantile authority, even if it be not conclusive. Insurance v. W1'ight,1 Wall. 473. Tbe master had taken proper precautions, and had reasonable ground for believing tbat his ship was still staunch, tight, and strong; and, if the case turned only on this, it would beso held from the evidence. See Dgpont de Nemours v. Vance, 19 How. 168. Was she in every way fitted for the voyage with a cargo of cotton across the Atlantic? The charter requires her to be classed 100 A 1. It does not say where this classification shall be made. The evidence is that she was classed at Lloyd's. "None of these registers have or can have any right to determine conclusively the rate of a vessel when that question comes to be determined in a court of justice." Insurance Cos. v. Wr'ight.1 Wall. 473. "Like any other question of value or quantity or quality, left open in a written contract, it should be de-
cided by a reference to all the sources of information which enable the jury to fix the rate correctly. What is meant by the rating of vessels in insurance policies? It means the determination of their relative state or condition in regard to their insurable qualities:" ld. The insurance companies had lost faith in her, notwithstanding Lloyd's rating. Even her owners could not obtain offers less than I! per cent., the ordinary rate being 9-16. This apprehp,nsion of the insurance companies did not arise from mere suspicion, or blind prejudice, or caprice. It had a substantial basis,-a reasonable ground of apprehension. It was not confined to the local companies. Now, the ship was chartered to be used in a mercantile ad venture. It was evident by the terms of the charter that the charterer intended to offer his freight-room to shipping merchants. His charter-party called for the highest classification, -100 A 1. "This is not a warranty that the charterer could get insurance. But it is a warranty that she was insurable; that is to say, a proper subject for insurance at the ordinary rates for such a cargo and such a voyage." Fremuda v. Goepel, 23 Fed. Rep. 411. When the charterer made his contract he expected, and had the right to expect, from the promised classification of the ship, that in his freight contracts he could compete on equal terms with all competitors. The accident of 9th November so changed "the relative state or condition" of the ship that her insurable quality was diminished, and he could only get H per cent. as against 9-16. Whatever may have·been her other qualities when she was offered to the charterer, she was not "in every way fitted" for the contemplated voyage. See Stanton v. Richar'dson, L. R. 9 C. P. 390. But this objection came from an accident arising after the date of the charter-party, and within an exception throughout the entire charter-party. Was the ship bound to remove it? Was she bound to make an inspection so thorough, and to make repairs thereon so complete, as to remove all fears of the insurance companies? Or could she stand on her contract and its exceptions? When a vessel contracts to carry a cargo, and actually receives it, and meets with an excepted accident in the inception of or during her voyage, no time being limited, she must repair, and continue and complete the voyage, if the repairs can be completed within a reasonable time. JackBon v. Co., L. R. 10 C. P. 125. So, also, a vessel under charter-party, in which no definite time is fixed, meeting a disabling accident within an excepted peril, must repair damages resulting therefrom, and perform her contract, if this can be done in a reasonable time. ld. But hE're we have a charter-party requiring her to be at the loading port by a fixed date, and in every way fitted for the voyage, with option of cancellation in the charterer on default,-two conditions precedent, both to be performed. The excepted accident made one or the other impossible. If she had waited to go into dock, be surveyed, and repaired, she could not have reached the port in time. As it was, she was within two days only of its extreme limits. She saved her time, and the other condition precedent could not be fulfilled. Besides this, it would be unjust to require the ship to delay her voyage, and so lose her right to enforce the charter-party, and to make a minute examination for
NIPPERT. tI. THE WILLIAMS.
Injuries and perfect repair, if any perchance were found, and, when this is all done, to be entirely at the mercy of the charterer, who could reject her simply because she was too late. The master did all t.hat he could reasonably be required to do. Promptly after the accident he had his ship inspect.ed by the agent of Lloyd's, who gave him his rating. Being assured that the accident had not lost him hi:; rating, but left his ship still seaworthy, and able to carry perishable cargo, he went on, and fulfilled the time of his charter-party, tendering his ship to his charterer. He met a condition of things he could not have anticipated. With every assurance that his ship was staunch, strong, tight, classed 100 A 1, he found that she was not fitted for the voyage because the insurance companies feared her, and required a survey which could not be held. This he could not control. He had no means in the loading port of satisfying the insurance companies. It would have been unreasonable to compel the charterer to load the ship with cotton, if, after doing so, he mllst go without insurance, or submit to injurious rates. It would "have been equally unreasonable to make the responsible because she was not a proper subject for insurance at ordinary rates," when reasonable precaution had been taken to ascertain the extent of her injuries, and when her master had come to fulfill his contract, armed with certitlcates of very high authority. "The circumstances excuse the ship-owner, but give him no right. The charterer has no cause of action, but is released from the charter. When I say' he' is, I think both are. The condition precedent has not been performed, but by default of neither." Jackson v. Insurance Co., supra. 2. During the stay in this port of the West Cumberland, libelant advanced to her master for her purposes the sum of $142.85. The items are not disputed, nor is the advance or its necessity denied. The amount certainly should have been paid. Let libelant take his decree for the amount of $142.85, with interest from the 2d December, 1887, and costs.
et al. v.
(DisI1'icl COU'i't, D. Kentucky.
MARITIME LlENS-ADV ANCES OF MONEY.
'Vhere money necessary toa boat is borrowed by her master in a foreign port. where the credit of her owners alone is not sufficient to obtain such money, the lenders have a lien on the boat therefor, whether the claims against the boat paid by such money constitute liens or not.
But they have no lien for money advanced directly to the owners of the boat. when they did not understand that such money waS to be used in paying claims against the boat.
In Admiralty. On libel for advances. Goodloe & Ba.rr, for libelants. Knox & Reed and Brown, Hwrnphrey & Da.vie, for claimant.
FEDERAL REPORTER, vol. 39.
BARR, J.The evidence satisfied me that the sums which were borrowed of the libelants, M. Nippert & Co., by the captain of the WIlliams on the 11th of December, 1888, and February 12, 1889, were necessary for the boat. The wages due the crew, and the supplies which the boat had obtained on the voyages immediately preceding the 11 th of December, 1888, and the 12th of February, 1889, were more than the amounts advanced by the libelants, and I think the payment of these wages and supply bills was absolutely necessary for a continuance of the business of this hoat. The weight of the evidence is that, excluding the Williams herself, her owners were without suffieient credit to borrow here the· necessary sums to payoff these wages and supply bills, either on the 11th of December, 1888, or February 12, 1889, and that the sums advanced by the libelants at those dates were advanced for the purpose of paying off the wages due the crew of said boat and the supply bills, and such was the understanding of both the libelants and the captain of the boat, except as to the $2,000, which was sent in a draft to the Grand Lake Coal Company. The money which was advanced by the libel· ants, IV£. Nippert & Co., was raised by them through the Masonic Savings Bank, by discounting 90.day drafts of the boat, which were drawn on the Grand Lake Coal Company, and made payable to the order of M. Nippert & Co., and indorsed by them. Although the business of libelants is carried on in the name of M. Nippert & Co., M. Nippert is dead, and the only partners are Chris Bosche and Albert Bosche. These drafts, which were signed by J aIm Williams, captain of boat, and one of which was accepted by the Grand Lake Coal Company, by J. B. Williams, state on their face tha·t they were for "wages and supply account of steamer." The amount of the proceeds of these drafts discounted by the Masonic Savings Bank was $6,364.95 for draft dlLted December 11, 1888, and $8,824.25 for draft dated February 12, 1889. It appears from the evidence that Chris Bosche, one of the firm of M. Nippert & Co., and Capt. John \Villiams, captain of the boat, went together to the bank where these drafts were discounted, and where the checks for the proceeds of the discounts were given. Mr. Bosche explains his going with Capt. Williams by saying: "I always went with him to get a bill discounted, because Captain Williams was a man of very limited education, and could just barely write his name, and I did the figuring." Mr. Bosche gave checks for the amount of the discount of these dralrs to order "proceeds of St'r J. 13. Williams' draft or bearer" as to the February 12th draft, and to order "proceeds of draft or bearer" as to the December draft, and neither of them are indorsed. He states, however, that, as to the check of February 12, 1889, he gave to the teller of the bank a deposit ticket for the amount of their supply bill the boat, amounting to $1,022.50, and the balance was paid in money to the boat's officer, and taken over to the steamer across the l'ivel' trom this . As to the amount of money which was drawn out of the Masonic Bank, and taken to the boat on the check dated Decem bel' 11, 1888, there is some conflict in the testimony. Mr. Bosche states generally that the
V. THE WII,LIAMS.
money received from the checks actually passed into the hands of Capt. 'Williams, and that he did not know that any of the money was appropriated to the payment of any purpose oUer than the necessary running expenses of the boat, and that he only got information the morning he testified, that $2,000 of it had been sent to the Grand Lake Coal Company. Ike Williams, who was the clerk of the boat, whose deposition was taken by Mr. Risher, the mortgagee, says: "I got the $6,500 in Decernber, 1888, at the office of M. Nippert & Co., in cash, and took it down to the boat. The captain sent the $2,000 to Pittsburgh by draft. I gave him the money in cash on the same day I received it, or the next day." But, as against these statements, there is exhibited a draft by the Masonic SavjngH Bank on the Importers' & Traders' National Bank, New York, dated December 11, 1888, to the order of lVI. Nippert & Co., or $2,000, which is indorsed by M. Nippert & Co. to the order of Grand Lake Coal Company, and then by Grand Lake Coal Company, by J. B. Williams. This indorsement is in these words, viz.: "Pay to the order of the Grand Lake Coal Company. [Signed] M. NIPPERT & Co., "-and is proven to be in the handwriting of Mr. Chris Bosche. There is also prodnced another draft drawn by said bank on its correspondent in New York, (Importers' & Traders' National Bank,) of same date, December 11, 1888, to order of M. Nippert & Co., for $500, and by them indorsed to James Rafferty, and then by Rafferty. This indorsement is also proven to be in the handwriting of Mr. Bosche. Rafferty was a pilot on the Williams, and the books of the boat show that he was paid that sum on account of wages, December 11, 1888. The check of M. Nippert & Co. for the proceeds of the draJt dated December 11, 1888, and which was exhibited by the libelants, has on the back of it pencil figures, proven to be in the handwriting of the paying teller of the bank, as follows: $2500 200
This $6,364.95 was the amount of the check, and the inquiry is, what, if anything, is meant by these figures? Capt. Williams was not a witness lor either party, and was proven to have been at the time on a trip to Kew Orleans as captain of the boat Williams, and the paying teller of the bank was not called as a witness, but Mr. Bosche was present when these two drafts on New York were presented as evidence on behalf of the mortgagee, and was not recalled to give an explanation. In this state of the testimony I am embarrassed somewhat; but, considering all of the probabilities, I have concluded that the preponderance of the whole evidence is that this $2,000 draft m New York was bought with a part of the proceeds of the $6,500 draft, and that :Mr. Bosche received it from the bank in part payment of his check, and then and there indorsed it to the Grand Lake Coal Company. This seems, uncleI' the evidence, the
probabilities, and, in the absence of any explanation by the lihr]anls, was, I think, a loan directly to company j and rebuts any presumption which the other facts would raise that this $2,000 was intended to pay the wages of the crew and supply bills of the boat, or that lUI'. Bosche either understood or expected at the time that it would be so used. Thi" being the fact as to this $2,000, libelants have no Pen on the boat, her tackle, engine, etc., for the advance of this $2,000. It appears from the evidence of the clerk of the boat and the boat's books that a considerable part of the money advanced by libelants was actually used in the payment of wages of the crew and other elaims which were liens on the boat; but it also appears tbat part of these advances were paid to Thomas Patterson, who was a salaried pilot.on tbe Williams, and a part owner, and John Williams, who was the captain of the boat, and a part owner. The question arises, have the libelants a lien for these advances, which were used in the payment of claims against the boat, which were not lien claims? There may have been other claims than that of Capt. Williams paid, which were not lien claims, but the facts as to the payments to him raise the question. It appears that Capt. Williams drew $675 on February 12, 1889, and that he left Louisville on that day for Pittsburgh, where he resides, and where the Grand Lake Coal Company did business, and that on the next day, February 13th, he, with others of the Grand Lake Coal Company, who were owners of the Williams, executed a mortgage to J. D. Risher, which mortgage has been properly registered and recorded. He then returned to this city, after having exe(;uted some kind of assignment for the benefit of his creditors in Pittsburgh, and on the 15th or 16th of February, 1889, drew from the clerk of the boat all the money remaining, $3,655.82, making, presumably, $4,330.82 of tbe money advanced by the libelants on the 12th of February, 1889, that he received. This was on account of salary due him as captain of the boat, and was clearly not a lien claim against the boat, tackle, etc. The able and learned counsel for the excepting mortgagee insists that before money advanced the captain of a boat in a foreign port, such as another state from that which she is registered and owned, can be a tacit lien on the boat, etc., it must be loaned on an apparent necessity, both as to the credit of the owners of the boat and the needs of the vessel itself; and also that the money thus loaned must be used for wages, repairs, and such supplies as would, of themselves, be lien claims against the boat. In other words, being money advanced. and not such as is directly attached to the vessel, or used in its navigation, it can have only such lien by subrogation as the claimants have whose debts have been paid by the money advanced. He reters to The Wvoming, 36 Fed. Rep. 494; The Ctl,mberland, 30 Fed. Rep.453; The Tho11/rtsShlwlock,22 Fed. Rep. 255; The Still', 18 Fed. Rep. 2G4j The J. P. Spencer, 5 Ben. 152; The Sarah Harris, 7 Ben. 28; Davis v. Clnid, 2 Ware, 76; Thomas v. Gittings, 'I'aney,472; The William-Penn, 3 Wash. C. C. 484; The A. R. Dwt!ap, 1 Low. 350; and The Tangier, 2 Low. 7, 15,-as tending to or sustaining his contention.
I have read with care these cases, and, while there are expressions in some of them that seem to sustain this view, I think only one of them distinctly sustains the counsel's contention. In The Wyoming, 36 Fed. Rep. 493, Judge THAYER says: "It is well settled that money advanced to pay maritime claims that are a lien by virtue of the maritime law or a local stfltute rna} itself become a lien against the vessel whose debts have thus been discharged. But, in order to establish a lien for money advanced, it must be clearly sbown'that it was arlvanced on the credit of the vessel to pay lien claims, and t.bat it was so used." This case sustains the contention of the counsel. In the case of The Cumberland, 30 Fed. Rep. 453, the money advanced was actually used to pay lien claims, and the court say that the money thus advanced "is to be placed on the same footing as the lien to pay which it was borrowed and used;" but the question now under discussion was not in the case, nor was it discussed or considered. The Sherlock Case, 22 Fed. Rep. 255, does 110t sustain The Wyoming (hse, and is only important in considering the present question from the fact that Judge SAGE says that in 'l'he Guiding Star, 9 Fed. Rep. 521, the evidence showed that the parties making the advances which were rejected as lien claims knew that their advances were being applied to the payment of miscellaneous claims. In view of the fact that Judge SAGE was at the bar in Cincinnati, where The Guiding Star was decided, and is the successor of Judge SWING, who decided The Guiding Star in the district court, this is important in construing the decision in that case as reported in 9 and 18 Fed. Rep. In The Gniding Sta?',9 Fed. Rep. 523, the district judge, (SWING,) an able and accurate lawyer, states the doctrine thus: "It is well established that where money is advanced to meet sucn claims as in themselves have liens according to the rules of admiralty, a lien also exists for such money. But, before a lien exists for money advanced, it must be clearly shown that the purposes for which it is advanced are entitled to a lien. If advanced for the purpose of paying seaman's wages, necessary supplies and repairs, or anything else to which a lien in admiralty attaches in that case, a lien attaches to such money, but not otherwise." In that case there were claims presented for money advanced for the "general purposes of the boat," and, there being no evidence to show that it, or a part of it, was borrowed and used for the payment of lien claims, a lien was refused for these advances. But the court says: "In the case of Menge's loan, however, * * * I am inclined to think that the advance of $1,000 was made for the exprrss purpose of paying the running expenses of the boat, stricUy so called, and therefore decide that a lien a ttaches to that loan." Tha italics are mine in these quotations, and are intended to emphasize the fact that the court says the purpose for which the advances were made gave the nen, and that the lien attached to the loan. His ruling as to admitting and rejecting liens for money advanced was affirmed by Justice MATTHEWS in 18 :Fed. Rep. 265. . I need not review the other cases cited by the counsel, as we do not think they sustain, or tend to sustain, his view, unless it be the cases in 1 and 2 Low.
In the case of The A. R. Dunlap, 1 Low. 350, the court was discussing the meaning of the then recent case of Pratt v. Reed, 19 How. 359, and dissented from the doctrine that a material-man must bring himself with:n the rule applied to a lender on bottomry; that is, the materialman was bound to show not only that the supplies were necessary for the ship, or appeared to be so, but that the master had not, or appeared not to have, funds of the owner in hand to pay for them, and also that the owners had no personal credit on which they could be procured at the place where they were furnished. The learned Judge LOWELL, after indicating an opinion that the question of the credit of the owners of the vessel should not be material as to material-men who furnished supplies, or made repairs, in a foreigll port, says: "The general rule in this country is that the person who advances money to pay the debts which are liens on the ship has himself a lien fat' his reimbursement, (Thomas v. Osborn, 19 How. 22; The fhtstavia, Blakhf. & H. 189;) and this is now the law of England, with some relinements and distinctions not necessa"y to be here examined. Perhaps the rule has grown out of the doctrine of subrogation; but, whether so or not, the lender of money has not usually any more a.nple remedy than the material-men themselves would have had. See Davis v. Child, Daveis, 71." This case of Davis v. Child is reported in 2 Ware, 78, and the question there was whether or not one who furnishes money to be expended in repairing a vessel, or in furnishing her with provisions, or fitting her for sea, has the same privileges against the vessel which is allowed the material man, or the mechanics who perform the labor. The court (Judge \VARE) says: "1'he authorities are entirely conclusi ve. The lender is considf'red as trusting to the ship as well as the owr,ers. and by the loan itself he acquires a privhypothecation, which is as sacred in every respect as that which is created by an instrument of bottomry, except that he in not entitled to maritime interest. " There certainly is nothing in this quotation, or in other langunge used in this opinion, which intimates that, unless the money loaned is actually used in paying the lien claims, no lien exists or is created; on the contrary, the court distinctly says that by the loan itself he acquired a privilege of hypothecatio'l as sacred in every respect as that created by a bottomry bond, except as to maritime interest. The rights of a lender on a bottomry bond are very ably and clearly determined by .Judge STORY in The ]i'oi'titude, 3 Sum. 229. The Tangier, 2 Low. 7, was a contest between the lenders of money to a captain who, the owners insisted, hnd been discharged by them as master before the loan was made to him. The court (J udge LOWEU) discusses the question whether there should be any difference between the rights of a lender of money to buy supplies or make repairs, and of one who loans money to pay for the supplies or repairs after they are furnished or made. He concludes there should be no difference in their rights. He then says the libelants claim a lien upon another and distinct ground, that of subrogation. He discusses at some length the doctrine of subrogation, as it appeared that tho
lS'IPPF,RT 'V. THE WILLIAMS.
money which was loaned the master of the vessel was used by him in paying off the crew. The opinion closes thus: "It is impossible upon the evidence to say that the master was actually deprived of command so early as the answer represents it; but if he were, and the owners intrnsted him with the duty of entering the vessel and paying off the crew, it will hardly do to say that he was not their agent for those purposes as fully as if they had never removed him at all. If his agency had ceased, the equitable doctrine of subrogation might be invoked. Either way the libelants must succeed."
It is thus seen that the equitable doctrine of subrogation is not invoked to sustain the libelant's lien for the money which he had advanced to the master of the vessel as master, hut only to sustain the lien in the event he had ceased to be the master of the vessel when the loan was made to him by the libelants. These two cases of Judge LOWELL are the only American cases which seem to intimate that the right of subrogation is the basis of a maritime lien of a lender of money either to buy or pay for supplies or materials necessary for the navigation of a vessel. W' e have seen that when that distinguished jurist has applied the equitable doctrine of subrogation it has not been as the basis of the general powers of the master of a vessel as the agent of the owners, but to sustain a lien for money advanced to a vessel and paid to the crew, in the event the agency of the master, as master, had at the time ceased. The counsel suggests that there is no reported case in which a maritime lien on a vessel for money advanced to purchase necessary supplies, or to pay for them after they were purchased, has been sustained, unless the money was actually used for the purpose for which it was borrowed. I do not remember such a case; but it is equally true that no case can be cited except The Wyoming in which there has been a claim for a maritime lien for money advanced to the captain of a vessel to purchase necessary supplies, etc., or pay for those already purchased, and the lien defeated because, and only because, the money had not been actually used by the captain or other officers of the vessel to buy or pay for the necessary supplies, etc., for which it was borrowed by him and loaned by the claimant of a lien. The absence of such cases only proves the rarity of the ll1iscunduct of captains of vessels in the distribution oJ money thus borrowed. The fact that, when the circumstances are such as to authorize a captain of a vessel to create a tacit hypothecation of his vessel for advances of money, he also becomes bound personally to the lender for the advances prevents any of the money should he be inclined to do so. The right of the master of a vessel to tacitly hypothecate his vessel for money advanced, under certain circumstances and surroundings, has been expressly rfK·ognized. Thomas v. Osborn, 19 How. 28; Davis v. Child, 2 Ware, 78; The William & Emmel'ine, BJatchf. & H. 66. If, however, a lender of money to the master of a vessel in a foreign port is only to have such mal'itime liens as his money in the hands of the captain buys, either by the purchase of necessary supplies, etc., for the vessel, or the payment of supply and other hills which already have a maritime lien, then the circumstances under which
the money is loaned to the captain is of no moment, and his authority to hypothecate the vessel for ,money advanced the vessel, except on a bottomry bond, is practically denied. If subrogation to the maritime liens of others is the only privilege which the leuder of money to a vessel in a foreign port has, it cannot be said that he gets a maritime lien for the money at all. The money loaned dues not create the lien upon this theory, but only gives the captain of the vessel, who is the agent of the owners of the vessel, the money with which to buy lien claims against the vessel for the benefit of the lender of the money. This theory is, we think, directly in opposition to the language of the supreme court in Thomas v. Osborn, 19 How, 28, in which the court, by Justice CURTIS; say: "We understand it to be definitely settled · · · that by the law of England the master of a ship has not power to create a lien on the vessel as security for the payment for repairs and supplies ol)tained in a foreign port save by a bottomry bond; that· he can only pledge his own credit and that of his owners, but cannot, by any act of his, give to the creditor security on the vessel, while at the same time the personal liability of the 'owners continues. * * * These decisions rest merely upon the want of authority in the mas· ter, according to the law of England, to create by his own act an absol ute hypothecation of the vessel as security for a loan. But the maritil1le la waf the United States is settled otherwise in harmony with the ancient and general maritime law of the commercial world. 'fhe master of a vessel of the United States, being in a foreign port, has power, in a case of necessity, to hypothecate the vessel, and also to bind himself and owners personally for repairs and supplies; and he does so withont any express hypothecation, when, in case of necessity, he obtains them on the credit of the vessel without a bottomry bond. * * * It is not material whether hypothecation is made directly to the furnishers of repairs and supplies, or to one who lends money on the credit of the vessel, in a case of necessity, to pay such furnishers." The court distinctly recognizes the right of the captain of a vessel to hypothecate his vessel in that case either to furnishers of supplies 'and repairers or to one who lends money to pay such furnishers, and there is no intimation that the lender of money only gets a hypothecation of the vessel if the money thus borrowed is used to pay for supplies and repairs, and then to the extent only of the lien which the furnishers and repairers would have had if their debts had not been paid. This theory of subrogation must lead to the denial of the captain's right to create tacit maritime liens on his vessel for money advanced to him under any circumstances, or to declare that the money, when advanced to a captain, only creates a maritime lien where and to the extent it is actually used by the captain for necessary repairs and supplies of the vessel. In this latter proposition, the captain, who is selected by the owners of the vessel as their agent, becomes the. agent of the lender of the money to buy for him maritime liens as against his vessel and the owners, whose agent he is, and whose interest he was selected to represent. This, we think, cannot be; and it must be maintained either that a captain has no authority under any circumstances to hypothecate his vessel for money borrowed, except on a bottomry bond, or that, if the facts and circumstances surrounding a captain and his vessel authorize
THE JACOB BRAliDOW.
the borrowing of money on the credit of his vessel, what he afterwards does with the money is not material to the creation of a maritime lien. Subrogation is not the bnsis of the maritime liens given a lender of money to the captain of a vessel, and such a cloctrineis not sustained either by reason or authority. The libelants, M. Nippert & Co., have a maritime lien on the tow-boat Williams, her tackle, etc., for their entire advances, except the $2,000 sent to the Grand Coal Com pany, and may have an order withdrawing from the registry the amount of their said advances, with interests and costs.
THE JACOB BRANDOW. SCHIAYI<'INO v. THE JACOB BRANDOW.
(District Court, D. South Carolina.
TOWAGE-DuTIES AND LIABILITIES OF
July 3, 1889.)
TUGs. A tug. with a bark in tow, the master of the latter having been expressly instructed to follow the course of the tug. proceeded obliquely across a stream to within a short distance of the bank. then changed its course, and. without further direction to the bark, proceeded parallel with the bank. The bark. though in full sight of the tug's change of course. continued on the oblique course, and ran ashore. Held, that the tug was not liable for the damages.
In Admiralty. Libel fer damages caused by negligence of tug. J. P. K. Bryan, for libelant. J. N. Nathans, for respondent. SIMONTON, J. The Cassabona came to this port with a cargo of sulphur for the Etiwan Phosphate Company. The company engaged the tug Brandow to tow the bark up Cooper river, to its works on Ship-Yard creek. This creek-about 150 feet wide-runs into Cooper river between mud-banks, which are covered with salt marsh to the water's edge. It has several bends in it. Just before the Etiwan landing is reached, there is a considerable bend. In order to pass it, vessels go nearly to the opposite bank, coming into full view of the landing. There they change their course obliquely across the creek, and, approaching the bank at a point about 700 feet from the landing, proceed on a course parallel to, the bank of the creek, straight to the landing. When the tug took hold of the bark her master instructed the interpreter who had been engaged to translate his orders that the bark must follow the course of the tug. He then, with a tow-line 180 feet proceeded up Cooper river with the bark, and turned into and up Ship-Yard creek. During the towing, the master of the bark, with his interpreter, stood on the forward part of the bark, in easy hearing distance. The tug-master gave such orders ashe deemed necessary, which were at once interpreted to the master. The latter extended them to the men at the wheel,-the mate and a seaman. No orders were given but such as came from the tug. Nothing of importance happened until the last bend was reached. This bend was on their left. The tug, in advance, drawing some nine feet