her In good order and well conditioned, prlvlleged to carry 650 tons of cotton ,seed for MIssissippi river and its tributaries, or 1,500 bales of cotton tor MissIssippi river only, and not on tributaries, does hereby certify that cotton or other produce or merchandise shipped on board of her w11l be Insured at the usual. rates of premium by the Insurance companies composing the board of underwriters of this city, for one year from the above date, subject, however, to relnspectlon at any time. The above boat shall not tow any fiatboat. barge, or other craft, except in case of distress. "[Signed] P. C. Montgomery, "Inspector of Hulls, Board of Underwriters."
As no fraud' or concealment is alleged or suggested, there is strong reason for holding that the respondent insurance company is estopped by the said certificate of the board of underwriters, as against a shipper who relied thereon in making shipments and in taking insurance. It is true that Mr. Landry, president of the corporation which owned the barge, was also president of the corporation shipping the cargo; but, as it is not pretended that Mr. Landry, the common agent of the two corporations, knew or had any reason to know that the barge was even suspected of unseaworthiness, this common agency cannot affect the estoppel which ought to exist in the case. The decree appealed from is affirmed.
THE GEORGE DUMOI8. GULF CITY COAL & WOOD CO. v. BRU. (Circuit Court of Appeals, Fifth Circuit. May 21, 1895., No. 361.
MARlTon: LIEN-SUPPLIES-BuRDEN OF PROOF.
Where necessary supplies are furnished to a ship In a foreign port, and . are received by the master and used In the service of the ship, a maritime lIen results, unless It Is shown that the furnisher of the supplies relied on the credit of the owner, not of the ship; anC!- the burden of showing such fact, to defeat the lien, rests on the ship and her claimants. Coal was furnished by libelant, at Mobile, Ala., to the ship G., lipon tIle personal order of one D., the president of the C. Co., the charterer of the ship. The C. Co. was a Louisiana corporation, and D. a resident of New Orleans, neither appearing to have had any property at Mobile. The ship was not In a port of distress, but was running regularly between Moblle and foreign ports. No reference was made to the vessel as a source of credit when the coal was ordered, but It was received by the master, and used in prosecuting a voyage, which cculd not have been made without It, and it was charged on libelant's books to the ship. Held, that libelant had a lien on the ship for the price of the coal.
Appeal from the District Court of the United States for the Southern District of Alabama. This was a libel by the Gulf City Coal & Wood Company against the steamship George Dumois, Johan Bru, claimant, for supplieSL The district court dismissed the libel. 66 Fed. 353. Libelant appeals. Reversed. L. H. Faith, for appellant. Gregory L. Smith and H. T. Smith, for appellee.
· THE GEORGE DUMOm.
Before PARDEE and McCORMICK, Circuit Judges, and BRUCE,. District Judge. PARDEE, Circuit Judge. The Gulf City Coal & Wood Company, an Alabama corporation, filed a libel in the district court against the George Dumois, a Norwegian steamship, then in the port of Mobile, to recover the sum of $276 for 115 tons of coal supplied to and used by said steamship to prosecute a voyage to Bocas del Toro, Central America, and return to the port of Mobile. On the hearing in the district court, the judge found facts as follows:
"I find the facts in this case to be that the coal was furnished to the ship in MohlIe, Alabama, on the personal order of one Dick, the president of the Columbian International Colonization & Improvement Company of New Urleans, La., who were the charterers of the ship for the term of one year; that the ship was a foreign vessel; that libelant knew that the C. 1. C. & 1. Co. were the charterers; that the ship was not in a port of distress; that she was running in a regular line between the port of Mobile and foreign ports; that in the negotiation for the coal no reference was made to the vessel as a source of credit, and there· was no inquiry made of or dealing with the master or any agent of the ship. I further find that the charterers had, by the terms of the charter party, agreed to pay for such supplies, but that the libelant bad no actual knowledge of this provision of the charter party. In short, the C. 1. C. & 1. Co. were the known owners of the ship, and Charles 1. Dick was the president and representative of the company. The coal was obtained on the personal order of Dick in a foreign port, where he was at the time of giving the order. · · ."
On examination of the evidence, we concur with the district judge in these findings, but we also find fl'om the evidence the additional facts that the coal was l'eceived by the master and officers of the steamship, and was used by the ship in prosecuting the voyage, and was a necessary supply to the ship, without which the voyage could not have been prosecuted; and that, while the agent of the charterers was in Mobile, and ordered the coal, both the agent and the chal'tel'ers were nonresidents, not shown to have either credit or visible property in Mobile or elsewhere. The coal furnished by libelant was charged at the time on the books as follows:
S. S. Geo. Dumois (for C. I. C. & Imp. Co.) Fleming & Gelpi, (Agents.) 115 Tons $2.40 $276.00
The entry on the ledger reads as foIlows:
S. S. Geo. Dumois. Fleming & Gelpi, Agts. for Columbian I. C. & Imp. Co. N. O. La. 1894. Oct. 27. 115 Tons Coal, $2.40 (165) Nov. 6. Sight draft unpaid (507) Nov··6. Protest fees
189-1. Nov. 1.
By sight draft (lo5) $276
270.00 2.50 $278.50
The district judge dismissed the libel, because, from the facts as above recited by him, he inferred that the coal was not furnished on the credit of the ship, but on the personal credit of the charterer only. The judge cited in support of his conclusion: The Stroma, 41 Fed. 599 (s. c., 3 C. C. A. 530, 53 Fed. 281); Stephenson v. The Francis,
21 Fed. 715; Neillv. The Francis, Id. 921; Herreshoff Manuf'g Co. v. The Now Then, 50 944 (13. c., 5 O. O. A. 206, 55 Fed. 523); and The Kong Frode, 13 U. S. App. 459, 6 O. O. A. 313, 57 Fed. 224, -:and said:
"The substance of these decisions is that in dealing with a known charterer, even in a foreign port, for mere ordinary supplies, the dealings are prima facie upon his personal credit only; and no lien will be implied, unless the li· belant satisfies the court, from the negotiations or the circumstances, that there was a common understanding or intention to bind the ship."
The Stroma, supra, decided in the circuit court of appeals, Second circuit, and The Francis, decided in the district court for the Southern district of the same circuit, are cases in which it was found that the furnisher of supplies was charged with notice that the charterer ordering the supplies was obligated by the charter to pay for the same, and hence this rule:
"When the known foreign special owner, not being the master, orders the supplies in a foreign port. and the libelant has reason to know that, as between the special and the general owner, the former is not the agent of the latter, but is personally, solely liable for the debt, and he furnished the goods in silence, there being no acts or circumstances from which it can be inferred that the credit of the ship was either within the contemplation of both. parties, or was recognized by both, a maritime lien will not be implied."
In Herreshoff Manuf'g Co. v. The Now Then, supra, decided in the circuit court of appeals, Third circuit, which was a case in which the repairs were made upon the ship on the order and credit of the owner's husband, known to be wealthy, the court, while recognizing the general rule to be:
"If necessary repairs and materials be made and furnished to a vessel in a port other than her home port, the prima facie presumption is that they were made and furnished on the credit of the vessel, unless the contrary ap· pears from the evidence in the case."
-Held that this general rule was subject to qualification, as follows:
"When the work is done by 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 agree· ment of parties."
Without questioning the correctness of the decisions in these cases on the facts as therein found, we are of opinion that the true rule to be applied in cases like the one under consideration is broader than as given above. In The Kong Frode, supra, decided by this court, the following principles were declared:
"Where a necessary maritime service, or a necessary service which gives a maritime lien, is rendered to a foreign vessel upon the application of the mas· tel', or in his behalf, the presumption is that it is rendered upon the credit of the vessel, and the burden of proof is upon him who contends otherwise. The fact that a merchant purchases supplies for, or procures services to be reno dered to, a vessel, raises no presumption that he therefore sustains relations with the owners that make him responsible, and relieve the vessel from a lien. It is not enough to show that an agent who employs labor fo·r a vessel is a charterer, and is, under the charter, liable for the bills incurred, but it is necessary that the creditor also be aware of the relation and furnish the supplies or services with such an understanding. Ordinarily, where a mao terial man or stevedore contracts With, and takes his bill for payment to, the agent of the ship, whether he represents tbe owners or charterers, without the Intervention of the master, he does not abandon his right to look to the vessel in the event of nonpayment."
And further, Judge Locke, speaking for the court; said, as: applicable to that case:
"The duties of consignees or agents of ships, or of the agents of charterers or owners, are so similar and indistinguishable that, some positive knowledge of their relations, contracts, and agreements, it is impossible to determine to which class an agency may belong; and the fact that a merchant purchases supplies or procures services to be rendered a vessel raises no presumption that he therefore sustains relations with the owners that make him responsible, and relieve the vessel from a lien. In the. great majority of instances in ordinary practice the material man or stevedore contracts with and takes his bill for payment to the agent of the ship, whether he represents the owners or charterers, without the intervention of the master;' but by so doing he does not abandon his right to look to the vessel in the event of nonpayment. It cannot be presumed or expected that he can be informed as to the exact provisions of· the charter, or the responsibilities of the parties in each particular case." 13 U. S. App. 463, 6 C. C. A. 313, 57 Fed. 224.
In The Patapsco, 13 Wall. 329, which was a case in which it was sought to relieve a ship from the maritime lien resulting from coal supplied in a foreign port, Mr. Justice Davis, for the court, said:
"Whether the coal was furnished on the credit of the vessel or of the owners is the only point of inquiry in this case. * * * It is undisputed that the Patapsco was in a foreign port, and that the coal was ordered for her specifically by name, and delivered to the officers in charge of her. It is equally free from dispute that the supply of coal was necessary-indeed, indispensable-to enable her to make her voyage at all. In such a case the inference is that the credit was given to the vessel, unless it can be inferred that the master had funds, or the owners had credit, and that the material man, knew of this, or knew such facts as should have put him on inquiry. * * * If the credit was to the vessel, there is a lien, and the burden of displacing it is, on the claimant. He must show affirmatively that the credit was given to the company to the exclusion of a credit to the vessel."
From the principles declared in The Kong Frode and in The Patapsco and cases there cited by Mr. Justice Davis, we understand the rule to be that, where necessary supplies are furnished to a ship in a foreign port, and they are received by the master, and used by him in the service of the ship, a maritime lien results, unless it shall appear that the furnisher of supplies did not rely upon the ship, but trusted solely to the personal credit of the owner; and the burden of proof in such a case to defeat the lien lies upon the ship and her claimants. Applying this rule to the case in hand, we are compelled to differ with the learned judge of the court below as to the proper decision of this case. Taking the facts to be as we find them in the record, we cannot infer from them that the libelant in the court below (appellant here) furnished the coal on the personal credit of the charterers, and did not rely upon the credit of the ship. While it is true the coal was supplied to the ship on the order of the agent of the charterers with knowledge on the part of the libelant that the ship was under charter, yet he did not know, nor was he bound to know, the terms of the charter party. It does not appear that the charterer had credit in the port of Mobile, or was so represented. The libelant sold the coal for cash, and at the lowest market price. While the bill was sent to charterers for payment, it was so done by request, and the bill and libelant's book entries were against the ship. In our view, the burden of showing that the coal was furnished on the credit of owners was on the claimant, and he v.68F.no.8-59
has contention with sufficient evidence. Further than this, we notice that by the law of Alabama (Code Ala. § 3054) a lien is given ouany ship supplied or victualed within the state, irreshe is in her port or a foreign port, and irrespective the 'supplies are furnished and the victualing done on the order of the master, or of any other agents of charter.ers or owners.' ' With this in mind, it would be a very violent presumption upon the undisputed facts of this case, where the goods were sold for cash, and 'at the lowest market price, to infer that the libelant intended to;waive both the domestic and the regular maritime lien to rely upon the credit of a foreign company with no established credit. The decree appealed from is reversed, and the cause is remanded, with instructions to enter a for the libelant for the amount claimed in the libel and costs.
THE YUMURI. BEEBEv. THE YUMURI. (DIstrict Court, S. D. New York. March 6, 1895.)
PILOTAGE-TENDER AT SEA-SIIIP LIABLE·
.The display of the customary pilot signals on the usual cruising grounll of pilot boats at sea, and the visible' approach of the boat towards an incoming vessel, are a sufficient tender of off-shore pilotage, with the customary waiver of extra charge; and if the vessel does not heed the tender, but comes in without a pilot, she is liable under the statute for the usual pilotage fees.
This was a libel by George W. Beebe against the steamship Yumuri to recover pilotage. Carpenter & Park, for libelant. Carter & Ledyard, for claimant. BROWN, District Judge. 1. I find that the pilot boat approached the Yumuri within the customary cruising ground for incoming vessels, and displayed her blue flag as a signal, which was recognized, or ought to have been recognized, by the master and mate of the Yumuri, when the pilot boat was within a reasonable distance; and that this was, in legal effect, a tender' and offer of her services as pilot to the Yumuri. 2. That nnder the fixed and well-known practice and custom not to make any claim to off-shore pilotage for pilots taken on board in that region, the above tender was also virtually an offer of pilotage with a waiver of any claim to such extra pilotage charge. 3. That the failure of the Yumuri to slow down or tura towards the pilot boat and accept the offered services, was a refusal of such service; and having taken no pilot subsequently, she became an· swerable to the libelant, under the statute, for the amount of ordinary pilotage, viz. $47.32, for which, with interest, a decree may be entered, with costs.