FEDERAL REPonTER, vol.
et al. v.
(OllrlmitOourt, E. D. Louumna. April, 18110.)
When a obarter-party provides that, for supplies furnished on the order of the master;·tbeobarterers shan have a draft or obligation of the master and a lien on tbe and. neoes8SttlOupplies are furnisbed ,by tbe obartererson tbe order of the Dlaster and the of the vessel, the have a lien on the vessel, botb.l111dertbe general maritime law and theeontract of charter.
a judiciaioonoession that the vessel is without·liability.
!rhe iJ;l,stitution of an actiqn in personl1.m "gainst tbe agents of the vessel is not
" AdIlliralty, rule 51 providelltbat, when the answer alleges new facts, shan be 'cor,sidere'a as demed, and no replioation, sllall be allowed. Where tlie obligation sued/liD was entered into by the master, and the answer alleges that it is governed of· payable, tbat thereunder it is void unless spiiellallyautborized by tbe owners, and that "no suoh autbority was obt.alned, or eVEin._Skled for," Olaima,ut.lIcannot object to the. introduction of the Ch,arter-party tq,PJlQvesuohautborizatl9.n; erenthough no suoh issue was raised by the libel.
from for libe1!¥1ts. Jarn48 Mc(lonn(JU, "foTQlaiD;l.ants., P.A;RD:QJll,J. The libellloDts,in theiJ;libeland amended libel, propound. as foUPiwll:: "l'pe UbeJl\nt. ,Is the, owner 1:t1 purchase of ,an obligation for eight hundred
apd pepee by tbe master of said b,e1llg m foreIgn pprt and destmed on a voyage to Liverpool, at Newport News, June 6, 1888, and payable to the order of Barber'&Co;; five days after the arrival ofsaid vessel at the port of Liver- " .pObl"and byliaid firm indQrsed in blank, 8S' by said obligation marked · Exhibit A,' dIed herewith as part';ofhislibel; that the said vessel, having. by: xua,anS.,9f,;tpe, in said o.bligation,s, been fi, for sea. proceeded tq tSle port of Liverpool, where she in safl'lty; that the afQresai4 Iwr;n ilas not heeD" paid. in oJ: in part, to the libelant,or to" any one alB'e em,power'ed to receive the same in his behalf,although payment has oftEmbeen'requested; the said steam.ship is lying within the port of New Orleamh La.'. and withhi the jllrisdiotion of this honorable court; that· the moneyadvariced on the obligation 'slled on was absolutely necessary for to,prosecllteAervoyllge. and, the master had Q.O other means of
to the libel, is as follows: (Form A.)
"S03-.2--8.June6.1888. "Five:days after arrival, or upon collection of, tbe freight, if sooner made. S. ullder my command. at the port of Liverpool. or any ,which her voyage may terr.ninate. 1 promise to pay to tb6 order of the sum of 80Spo\IllPS 2 8, in approved bankers' demand blllsp1l, London,for value received. for necessary disbursements owed byinYVllssi:l1 at tihisport, far the payment of which I hereby pledge my vessel and ber freight. and I hereb)' assign to the legal holder' of this obligation all
my lien and claim against freight, vessel, and .ownerlt. with power to take; in my name, any and all necessary steps to enforce the same; and my consignees at the port of discharge are hereby instructed to pay this obligation, and to deduct the amonnt thereof from the freight due said vessel. In case of nonpayment, the holder shall also be entitled to the benefit of all liens, in law, equity, or admiralty, which the. master or owners of the vesRel may be enticargo or its owners, for freight, compress, or tled to, against any part of other charges on cargo paid by the vessel or master at the port of loading; this claim to have priority of payment overall others that-may be presented against the said freight and vessel. My vessel is now lying at the. port of Newport News, loaded with gen'l cargo, and ready to sail for Liverpool . . "Signed in triplicate; one being accompliShed, the others to stand void. [Signed] FELUGA. Master of'the S. S.Robilant." On the reverse side of the said Exhibit A: "[Signed] BARBER & Co." The claimant excepts to the said libel: "(1) That the said libel upon its face presents no valid or legal cause action against the said steam-ship. (2) That upon theface of the libel-and exhibits thereWith filed, as part thereof. no sufficient legal showing is made tojustify or sustain the proceedings and seizure in rem made herein against the said steam-ship, and no authority therefor under the law and practice in this honorable court in admiralty."
These exceptions being overruled, or rather disposed of by an amendment to the libel, claimant answered the said libel and amended libel by reserving the exceptions herein filed, and not waiving the same.. He denies that libelants are the owners of the obligation sued on, orhave any legal title thereto. Denies that it was by means, of the disbursements mentioned in saidobligation that the said vessel was fitted for sell. Denies that the money advanced on the obligation was absolutely Bary for the vessel to prosecute her voyage, and that the master had no other means of raising funds for that purpose. Further nnswering, says: "That on the face of the pleadings there is no sufficient cause of action against said steam-ship to. authorize seizure in rem; that, the obligation sued on being payable in England, the rights and obligations thereto are governed by the laws of the kingdom of Great Britain, according to which a special authorization from the owners to the master of said sl.ip was necessary before such an obligation could be legally made or issued; that no such authorization was ever obtained, or even aSked for, although the respondent, owner of !laid steam-ship, resided then, as now, in Englaud. and could have been communicat with by cable or mail; that the obligation sued on is not negotiable, d and is sued on by libelants to enable Barber & Company to escape theoft'set of a counter-claim for damages; that a joint action was instituted in July. 1888, in Liverpool, England·. by libelant.'J and Barber & Company against Allen Bros. & Company and F. Feluga, declaring them to be the real debtors of said obligation, and thereby respondent, as owner of said steam-ship, was judicially conceded to be without liability for said obligation." The proof shows Allen Bros., agents for owners oftheRobilant, chartElred the EDbilant, May 2, 1888, then at New York, to Messrs. Barber & Co., of York, for a voyage from the port of Newport News, Va., to Liverpqot. for a general cargo ,of lawful merchandise. The charter provided, among things, as .follows: -
"Casb for ship's ordinary disbursements at the port of loading to be advanced to the master by charterers, if desired by the captain, subject to two and a half per cent. commission thereon, and cost of insurance; but the captain to give the usual draft, payable five days after arrival at the port of discharge, for amount of such disbursements, 'to the order of the charterers, or of any other parties advancing the said money: and the agents, with the consent of the owners, do hereby authorize the captain to sign such draft, and said disbursements and said draft shall be a lien against the vessel and freight, taking precedence against all other claims, except the. one for difference in freight... The. proof further that, while at Newport News, the cargo of the Robiiant was by fire, necesf:litating unloading and repairing to some extent; that, for the cosls and disbursements on account of this fire, Barber & Co. advanced the sum of $1,669.91, at the request of the captain of the Robilant; that, under the charter-party, Barber & Co. advanced, for the benefit of the ship, and to pay its ordinary expenses and repairs, consul fees, and pilotage, etc., in order to fit it for the voyage,' including commissions, the sum of $2,180.44, and that Barber & Co. presented these accounts to the master, including items of $4,090.45, claims for vacant spaces, detention of cattle, and other items; that thereupon settlement was had between Barber & Co. and the master, with the help of experts, resulting in the following agreement: "NEWPORT NEWS, 6th June, '1888. "With reference to settlement of account due Barber & Company, charterers of tbe,;:I. S·. Robilant, for disbursements and difference in freigtlt, as pel' charin which certain items mentioned below are claimed bv Barbel' & Company as due to the'm,atid are disputed by the captain of said ·S. S. Robilant, it'is hereby agreed, in order to avoid detention, that draft shall be signed for amount of account rendered, less said items: and that the said items shall be diseU8s.ed hereafter,and shall be subject to settlamentby arbitration, or otherw.ise, as may be arranged between Barber & Company and owners' agents. This agreement is without prejlldiceto the rights of either party. Items referred to:'rowages incident to efforts to correct steamer's list, two hundred dollars;:($200.00;) breaking out and restowing cargo, three hundred and sixty and forty-five hundredths dollars. ($360.45:) claim for vacant spaces not available in consequence of the list, eight hundred and fifty dollars, ($850.00l) detention of cattle and expense retaining part of same, estimated, twenty-'six hundred dolla.rs, ($2,600.00:) surveyors from New York, eighty dollars;: ($80.00.) "BARBER & Co. "F. FELUGA." [Signed] . AndJhereupon the draft herein sued upon, for the undisputed items of Barber & 00. 's account, was executed and delivered to Barber & Co. The proof further shows that, within three days thereafter, said draft was sold to libelants herein at nearly its face value, for cash, and that the disbursements made by Barber & Co., which were included in the above draft, were necessary and proper for the ship, and were furnished at the request of the master. It further appears in evidence that a suit was instituted in July, 1,888, in LiverpOOl, England, as claimed in the respondents' answer, but that said suit has been discontinued. On,this state of the pleadings and evidence, it is difficult to.see why are not entitled to a decree. The libel claims a lien for the
HOORE II. THE ROBILANT.
amount of a draft or obligation, in terms granting a lien, given by the master of the Robilant for necessary supplies to the vessel furnished on his order in a foreign port. "Where a maritime lien attaches to a vessel, and her owner gives a draft for the debt, the draft in terms recognizing, confirming, and continuing the lien, the assignee of the draft and claim can enforce the lien against the vessel." The Pride of Amer·ica, 19 Fed. Rep. 607. This is fully' sustained by The IVoodland, 104 U. S. 180. See, also, The Sernpis, 37 Fed. Rep. 436. The proof shows that the supplies were necessary; were furnished in a foreign portion of the order of the master, and on the credit of the ship; further, that they furnished by the charterers under a charter-party specifically providing that, for supplies furnished on the order of the master, the charterers should have a draft or obligation of the master, with the lien on the vessel; so that, for the supplies in this case, there was a lien on the vessel both under the general maritime law and under the contract of charter. For the maritime lien, see The Grapeshot, 9 Wall. 129; The Lulu, 10 Wall. 192; The Patapsco, 13 Wltll. 329; The Souder, 17 Wall. 666. In argument, it is contended that no lien resulted for the supplies furnished, because the furnishers were the general agents of the ship, and are therefore presumed to have advanced on the credit of the owners, and not on the credit of the ship. The evidence negatives the fact claimed, and COID. pletely rebuts the presumption supposed to follow. The exceptions to the libel, as amended, are not well taken. The grounds of defense put forward in the answer are either not tenable or not sustained by the evidence. If it is concedell that the obligation sued on, being payable in England, the rights and obligations thereto are governed by the laws of the kingdom of Great Britain, according to which a special authorization from the owners to the master was necessary before such an obligation could be legally made and issued, still it can have. no effect in this case, because the authority of the owners to give the draft in question was specially granted by the charter-party, and the action of the master was ratified by the owner claiming part of supplies 'in general average. As a matter of law, the lien for necessary supplies furnished a foreign vessel in the ports of the United States is controlled in the courts of the United States by the general maritime law, and not by the laws of Great Britain. It is probable that the obligation sued on is not negotiable, although by the terms of the charter-party it was to be. In the case of The Serapis. supra, Judge BROWN decides: "Such an instrument is only quasi negotiable, and is subject to all equities as respects the ship." Asno equities are set up against it in this suit, whether the obligation sued on i.s negotiable or not is immaterial. The answer claims that the institution of the joint action against the agents of the ship in Liverpool in personam was a judicial concession that the vessel was without liability. This by no means follows. The district court treated the case made in thelibel as a suit upon a bottomry bond, and it is strongly contended in this court by the learned proctor for the claimant that it is only as such a suit that it can be now considered. The libel does not desigriate
or the sued on asa bqttomry bond, \lnd the evidence offered and considered ill in accordance with the allegations in the libel. As the libel makes a ca,se, it would seem that the libelants are .entitled to a .. although may. have fail\"d to establish the obligation ,sued on as a valid bottOmry bond.
ON APPLICATION Fon REHEARING. (May 12, 1890.)
J. The main contention of the proctor for claimants on this applil1lition for a rehearing is that the charter-party which authorized in making of,:the particularob,ligation on, and provided ,that, ',the same should b.e a lien on ship, was not admissible in evithe pleadings. It is difficult to see how this can be claimed, ,denpe when the claimant himself distinctly put at issue the want of authority. The answer alleges "t4at" the obligation sued on being payable in Engrights and obligations thereto were governed by the laws of land, the. ,kingdom of Great according to which a special authorization by the owners to the master of said. ship was necessary before such an obligll-tion could be legally made or issued; that no such authorization obtained, or even asked for. ': The fifty-first admiralty rule was, providE¥!, among other things, "that,when the defendant in his answer alleges new facts, these shall be considered as denied 1;>y the libelant, and nQreplication, general or special, shall be allowed." The ruling in the case of The Deronda, (not reported,) decided by this court several terms ago, is relied upon as the authority for excluding the charter-party. examination of The Deronda record will show that the evidence excludedin that case was in relation to matters not put at issue by either libel or 1\nswer, and not referred to in either. In the opinion in this case, I did not find it necessary to determine whether the obligation sued on was or was not a valid bottomry bond. The examination that I have made on this rehearing, however, leads me to the opinion that, if necessary in order to .justify the decree already rendered, I could find and sustain the same by authority that the obligation sued on was a valid bottomry bond. "If it manifestly appear that the wants of the ship were supplied in implicit reliance upon a lien for the debt which the law of the country would give in the absence of express contract for the purpose, a subsequent bond, being but a perfonnauce of the original intention, will be sustnined by the English court of admiralty." Macl. Shipp. 54, citing The Alexander, 1 Dod. 278j The Vibilia, 1 W. Rob. 1; The Karnak, L. R. 2 Adm. & Ecc. 289. The evidence in this case shows that the wants of the ship were supplied in reliance upon a lien authorized by the owner, and under such circumstances that, if furnished by a stranger, the .law of the country wQere'they were furnished, would give, in the absence of an express contractfqr the purpose, lien for the amount furnished. Again:
"The owners' prior consent to the master's hypothecation of the ship is, in ·view of Ule law, the strongest evidence of the necessity for it; the jealousy of the law for their protection is thus allayed; and its ordinary rule, first to com-
municate with the owners, or with the owners of the cargo, according as he means to hypothecate ship, freight, or cargo, or some or all of them, whenever the possibility of communicating corresponds with the existing necessity." Macl. Shipp. 56, citing a long line of adjudged cases. The evidence in this case shows the owners' prior consent to the master's hypothecation; shows the necessity for the supplies, and the maritime risk undertaken. The application for a rehearing is denied.
THE STARLIGHT. MENEFEE et al.
(Circuit Coon, N. D. Florida. March 28,18110.)
BmPPING-OJuRTER-PARTY-AOTION FOR BREACH.
Under a charter-party providing that the ship should carry "a full cargo of timber, · · * not exceeding What she can reasonably stow and carryover and above .her cabin, crew, and fuel spaces, * * · the entire carrying capacitl · * · to be at the disposal of the charterers; · · * charterers to have priVilege of shipping a deck-load of timber, provided surveyor permits l .. the charterers are entitled to for refusal to carry a deck-load, those actmg aa surveyors agreeing that the ShIp was able. when the master uses the deck to carry coal for the voyage, and there is no evidence of any custom allowinK it.
In Admiralty. On appeal fromdistriot court. John O. Avery, for libelants. BLOUnt & Blount, for claimants. PARDEE,J. In July, 1888, the owners of the steam-ship Starlight, then at New Orleans, through their duly-authorized agents, entered into a charter-party with the libelants for a voyage from Pensacola, Fla., to Liverpool, England, to carry for charterers a full and complete cargo of timber for the lump sum of £1,750. The charter-party provided that the ship should carry "a full and complete cargo, to consist of sawn timberand 1 or deals, and I or boards, at merchants' option, . * not exceeding. what she can reasonably stow and carryover and above her cabin, crew, and fueLspaces, tackle, apparel, provisions, and furniturej * * * .that the entire carrying capacity of the steamer, including all spaces in which steamer may previously have carried cargo, to be at the disposal of the charterers. * * * Charterers to have privilege of shipping a deck-load of timber, provided surveyor permits." Further, the charter provided that, if the vessel should take 1,500 loads cargo or more, the charterers "Wpuldpay a further sum of £50, or in all a lnmp sum of £1,8ooj and authorizing the ship to call at any port or ports for coal and other supplies. When the ship reported at Pensacola her decks were covered with coal said to be required for the voyage to Liverpool. The master, however, stated at the quarantine station,. when asked why he had his coal on deck, that it was because he did· not intend to take any deck-load. The oharterers requested him to remove the coal, so as