Co. ". TaB Now T:RD.
(DiBtrI.ct Oourt, D. DewwaT& Juue 2, 181la.)
IllRITtMlll LIIIlNs-I::lUPPLIIIlS-FoRBIGN PORT-ORDIIlB OJ' OWNIIlL
When supplies are furJiished to a vessel in a foreign by order of her maste! alien is implied, but for w.ork done by order of the owner uo lieu will be held to exist unless proved by the agreement of the parties.
Oil the evidence lU this'case, held, tl!at the supplies furnished by libelant at Bristol, R. I., to the yacht Now Then, whose home port was Wilmington, Del, by order of the owner of the yacht, were lurnished· ou the personal credit Of Buoh owner, aDd not on the qre.dit 01 the yacht, and no lien was oreated thereby.
In,Admirnlty. Libel to lien for supplies. IIen.ry Whitney Bate8, for libelant. Sa1d8bury, for
This is a proceeding in Mn to enforce the payment of an alleged lien against the steam yacht Now Then for pairs and ,materials made a.nd furnished to the vessel by the libelants at its Bristol, R; 1., the home port of the yacht being ton, Del. The owner of the yacht and the respondent in this case is Mrs. Rosalie B. AddicKs, who resides at Claymont, in this district. Although much other!matter has been introduced, the decisive question'ln "the case as on the pleadings and evidence is whether the repll.i'rsto the yacht were made on the credit of the vessel or on the persoDlUcredit of the owner's husballd, Mr. J. Eo Addicks. About the 26th of June, 1889, Mr. Addicks bought the yacht from the libelant for the cash price of $15,000, and by his direction the bill of sale was made to his wife,and the yacht was delivered to her at Nahant, Mass. After the delivery, and early in the following month of July, the boiler of the yacht gave out, anu the vessel was sent by Mr. Addicks to the libelant, at Bristol, with orders from him to have the necessary repairs made. When a bill for the repairs was sent to Mr. Addicks he refused to pay it, ou,the that Mr. JohnB. Herreshoff, the president of the libelant company; 'had warranted the boiler for 'one year, and that it was the duty of the company to keep it in good order for that period without additional charge. After this the libelant continued to do additional work on the 'yacht by the orders of Mr. Addicks, who punctually paid for it, with the exception of a small balance, which is included in the present claim; but he has uniformily refused to pay for the hoiler repairs. Much testimony was taken in relation to the nature of the warranty, which was claimed on one side and positively denied on the other; and also as to the condition of the yacht's boiler at the time of the sale, but, as already remarked, the controlling question here is whether the libelant has established its right to a lien. So far as concerns the present
,WALEs, District Judge.
THE NOW THEN.
case, the law which gives a lien to the shipbuilder or material man may be stated in the of the supreme court, in The Lulu, 10 Wall.
This is stating the rule most favorably for the libelant, since it has been held by admiralty judges whose opinions are entitled to the highest respect that credit is presumed to be given to the vessel only when the repairs are made in a foreign port on the orders of the master; but that, when the repairs are made on the orders of the owner, the presumption of credit to the vessel does not arise, and in that case a lien will not exist except by the express contract of the parties. In The /lJary Morgan, 28 Fed. Rep. 196, it was decided that, the repairs having been made and supplies furnished under a contract with the owner, the presumption was that the credit was given to him personally; and, in the absence of the proof of an express lien, none will be given. In The Francis, 21 Fed. Rep. 715, it was held that a known owner obtaining supplies on his personal order in a foreign port, not being master, deals presumptively on his personal credit only, and no lien will be implied unless the libelant'satisfies the court, from the negotiations or circumstances, that there was a common understanding or intention to bind the ship. The reasons assigned for the distinction, between the cases where the work is done on the order of the master and when it is done on the order of the owner, is that the master is supposed to be without funds or personal credit, and the repairs, if made at all, must be presumed to be made on the credit of the ship, unless there be evidence to the contrary; but where the work is don'3 on the order of the owner, who is supposed to have credit, the presumption is reversed, and a lien will not be recognized except it has been made under an express contract. In other words, when the work is done by the order of the master a lien is implied, but for work done by order of the owner no lien will exist unless proved by the agreement of the parties. It is not necessary, however, to enter upon a discussion of these rules, because upon the application of either one of them to the facts of this case I am satisfied that the libelant is not entitled to a lien against the Now Then. Mr. Addicks had paid for the yacht, and given it to his wife, and when it needed repairs he sent it to the libelant with his personal orders to have them made, and specifying what should be done. He was reputed to be a rich man, able to pay his debts, and there was no thought on the part of the libelant that,it would require a lien on the vessel to secure payment for its work. Mr. J. B. Herreshoff testifies that he knew nothing about the question of credit,-whether it was given to Mr. Addicks, personally, or to the yacht. ,Mr. Young, the secretary of the libelant company. ;when quessubject, speaks very vaguely,as appears from the followtioned ing portions of his testimony: v.50F.no.1l-60
''rellma whether the repairs weremad'e upoa:tlltnl11lldit:of,the ,vessel Wuptia ihe credit of Mr. Addlc\!;:s. Ahswer. '1'hey"wel'eimaiie upQn the credit of Mr. Addicks. Q. And not on the .credit of the vessel? A. The was rendered to Mr. Addicks. Q. To whom do you look for the payment of the bill,L...::;Mr. A:ddicks or the veflsel? A. We look to' the'vessel for the paymentofJthe 'bHl\ through Mr. Addicks, as agent for the vessel."
, On cros&.examinlition this witness says:
"Question. These repairs and charges were made against Mr. Addicks, asL undeI;stand.were not? They were. Q. And it was on directiollE!You made the repairs? A. 1"68, sir. Q. Ami you t() hhn, 1 J'ou, the paymeht these bills which were contracted for as you h'Rve stated? Is that correct? A. We looked to the vessel tllrollgb him'as ali agent of the' vessel. We cannot do otherwise."
The'lnference to drawn frotn such testlmonY,supplemented as it is by ,$videtl6eofthedealings and transactions between the libelant and Mr., A.,ddicks, removes the presuhiptioh of a lien" and convinces me that had no idea or intention of looking to any other quarter for the the Now Then than'to Mr. Addicks; that it .q.ever theyilcht as security for payment, but depended solely respotislbiIity of Addicks as the husband and agent of the' 9wnerj that it is now too late for it to attempt to set up a lien, and it. must thereforcflleek to recover its claim bva libel in personam, or by: an' action at 'A decree will be entered dismissing the libel. with costs.<" "
et at. ".
Tllll T., bound ,from Galveston to Liverpool, went aground on. the Florida cclaBt'Ql)Out 25 miles north Of Cape Florida, December f>th, and was without assistmorning of ,the 8th, when two small vessels reached her. They at lI:ll.,anchor I\ndlleavy chain water] but befp.re could make fast tng-ht, came on, with a heavy stonn, durmg whicn the T. W\lS driven fast upon the rooky, bottom. Other vessels arrived until tbe 10th, when there were 15 vesof 489. tons,' and lI!en;. also wrecking. schooner Cor!lt., fr(l1I! Key West, with stear;n' PUII!PS and c:\tller appliances., The whole force was enga.i.ed 25 days in ,taki\1g o11ltthe (largo of 'cotton and carrying it to Key West, 158 Buies, a revenue the.re\n by toWing sOlI!e of the trips.' They thus saved 8,105 the largest part dry.' Tb:erewasno anchorage nearer'. 'than 25 miles, and BEl:Veral times the sal17lng vessels' were driven there' by bad weather. Two of them were pamaged While. taking of( the lleavy seas. Fina.1ly a wrecking vessel a,rtl"ed from New York, and,though her services ware not absolutely necesBalW, were accepted, and the T.: was 'got oft and taken to Key West. She was appraise, 11;1:.190,000, "lItt. her Held, that 25 per cent. would be proper 0, Wllensation' for the Whole, service, but in view or the 'aid rende.red by the revenue du1Jter and by 'the New York'V6ssel, for which the latter was compensated by tp.e tllere shOUld. be a.llOW'ld but 223i' per oantio
In Adlbiralty. steamship for libelants.
Libel by A. Russell and others agtiiristth.e British and cargo' to recover for Decree :'.' ,