began, tbatl11lt> 'situation was lesBcriticaltMu"theyha:d at first lIn; fact, she could' hdve'<reached the place to which she was towed'! Without assistance',: and 'would have done so if it had been necessary; The tugs 'acted':promptly and energetically, but the service was a short one, involving no danger to the persons or property of those engaged in· it, and, as it turned out,' could have been dispensed with by the: steamship. ' Upon this state of facts, we ought not to disturb the decree. We cannot say that the award was manifestly inadequate. "The allowance of salvage is, neces· sarily, largely a matter of discretion, which cannot be determined with precision,by the application of exact rules. 'Different minds, in the exercise of independent judgment upon the same evidence, seldom' coincide exactly in their view of the facts, or give the same prominence to the varied eleinents which make up the case. An approximate concurrence is all that can be expected." The Baker, 25 Fed. 771. For this reason,' appellate courts are not disposed to interfere in salvage case!:!, unlesstlieawardis manifestly excessive or inadequate, or has proceeded upon some erroneous principle. The EmUlous, 1 Sumn. 214, Fed. Cas; No. 4,480. The decree is affirmed, with costs.
, REAK!RT THE ELLA. " . (DIstrIct cotJrt;b.'])elawate.APTil 9, 1898.)
1. . ' A 'Sale camoo'as : imder : to ,w111chthe .coill Ill! delivered toa vessel to be 0(. to the p,urcha$er as the
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. 'tiOli '6t SliC'l1"'Mal, iller 'havIng biien delivered .to thecOns1gnee,ls. supplied by It to such vessel as necessary fuel, serve to create or support a maritime
, ,tr!lGt; nordQ.,thefacts. ijlat tjbf! co:Q.s!gnee ovvnssUGh ye.ssel Jlnd that a pOI'lien.
The question whether a mai'lt1mellen attached fot the price Of the coal must be determined on the facts and circumstances as they exIsted at the of .Its ,oo;iglna,l:deltvery ·by sequent application of the coal by the purchaser. (Syllabul!!. by tpEl: ,
i;:;i: " . '
Levi Bird and A. K Sanborn, ,for libelant I. C. Vandegrift, for claltnant. ' wis BRADFORD, District Judge. This is a libel in rem filed September30, 1896, by Margaret 1.. Reakirt, of the City of Philadelphia, trading as Reakirt Brother. & Company, against the steamboat· Ella, to recover the price of coaLfnrnished in that city by the libelant on the credit of that vessel, as'is alleged, from April 14, 1896, to August 22, 1896, inclusive; amounting, after deducting certain allowances, to. $707.22,. together with ,interest thereon from the last mentioned date. The Ella' was owned solely by .The Philadelphia and Smyrna 'rraris-
portation Company, a corporation of Delaware, from 1889 at least until August: 21, 1896, on which day that company executed a bill of sale to John H. Hoffecker, the claimant. The claimant asserts that from that time he was the sole owner of the vessel until she was sold, October 19, 1896, by order of this court for the enforcement of a wharfage lien. The proceeds of sale remaining in the registry of the court, after deducting all other demands, are sufficient to cover what· ever claim the libelant may have under this libel, together with the costs of suit. By agreement of the proctors for the libelant and claimant respectively, all the testimony in the case of Building Co. v. The Ella (recently decided by this court) 84 Fed. 471, is to be con.sidered, so far as material, in this case. The price charged for the coal furnished by the libelant is reasonable, and Philadelphia was a port foreign to the Ella in the sense of being a port in a state other than that in which she was owned during the furnishing of the coal. At the time of and for many years prior to the transaction in question the libelant carried on business in Philadelphia as a coal dealer, and F. Albert von Boyneburgk was the general manager ('if her business. The transportation company was incorporated under the laws of Delaware in 1883 for the purpose of transporting freight by vessel between the town oU3myrna, Del., and Philadelphia, Pa., and elsewhere. For the last six Or seven years the claimant has been and now is its president. Pursuant to its charter the transportation .company engaged in the carriage of freight by vessel to and from Smyrna and Philadelphia, regular trips being made over the route several times a week. Augustus E. Jardine has been the general manager of the transportation company for many years. That company has for the past eight or ten years dealt, although not exclusively, with the libelant in purchasing coal. The correspondence between the libelant and the transportation company shows beyond doubt that during all that time the furnishing of coal by the former to the latter was the result of direct dealings between them. In addition to the business of transportation, ,the transportation company was engaged in selling a considerable proportion of the coal bought by it from the libelant and others, to black· smiths and other persons in or near Smyrna. Von Boyneburgk testified, without qualification, that all coal delivered by the libelant to the Ella was furnished upon the credit of that vessel and was charged invariably to "Stmr. Ella and Owners." The fact that such a charge was made, standing alone, is entitled tobut little weight andis wholly inconclusive on the question whether credit was given to the vessel as well as to her owner. Nor could a mere belief on the part of the libelant or of von Boyneburgk that the furnishing of the coal would create a lien on the Ella avail the libelant unless the circumstances under which the coal was furnished were such as to justify such belief. The testimony for the libelant strongly tends to support a lien for· the whole amount demanded in the libel" but that testimony is inconsistent with the documentary evidence, which is of primary im· portance in the case. The coal furnished by the libelant to the transportation company, including the coal in question, was, while that company continued to own. the Ella, all delivered to that vessel; but .the documentary (lvidence I;lhowsthat while. a comparatively SIQall pro·
86 FEDERAL REPo;tTER.
portion of the coal was· supplied for the use of· the· Ella, the balance of it was delivered and received on' board of thatvesselas cargo to be transported to the transportation company at Smyrna, there to be disposed of in accordance with the pleasure of that company. Upon the delivery of coal by the libelant in Philadelphia, bills of lading were signed by the pilot of the Ella, acting for and representing her master, for all coal intended to be delivered as cargo at Smyrna, and bunker receipts were signed by the pilot in the same capacity for such coal as was supplied for the use of the vessel. The bills of lading were substantially in the following form:
"Shipped by Reakirt, Bro. & Co., ill good order, on board the Stmr. called the Ella of - - whereof - - Is Master for this present voyage, and now lying in the Port of Philadelphia, and bound for Smyrna, Del., 28 tons of coal, which I promise to deliver at the aforesaid Port of Smyrna in like good order, (the dangers of the sens only excepted,) unto Phila. & Smyrna Trans. Co. or their assigns, he or they paying freight for the same at the rate o f - - Dollars per ton. "And 24 hours after the arrival at the above named port, and notice thereof to the consignee named, there shall be allowed for receiving said cargo at the rate of one day, Sundays and legal holidays excepted, for every hundred tons thereof, after which the cargo, consignee or assignee shall pay demurrage at the rate of eight cents per ton a day, Sundays and legal holidays not excepted, and every upon the full amount of cargo, as per this bill of Lading. For day's detention, and pro rata for parte and portions of a day btlyond the days above speciiied, until the cargo is fully discharged; which freight and demurrage shall constitute 8. lien upon said cargo. "In Witness Whereof, the Master or Purser of the said Vessel has affirmed to 3 BllIs of Ladiilg, all of this tenOI" and date; one of which being accomplished the others to stand void. "Dated at Philadelphia, this 14 day of April, 1896. "28 Tons in the Hold. " - - " on Deck. "Draws - - feet water, and was built at - - in 189 · "J. L. Jackson."
The bunker receipts were in the following form:
"No. 18619. Penna. R. R. Pier. Greenwich. 5/29 1800. "Shipped for account of Reakirt, Bro. & Co., Office 218% Walnut Street, on board Steamer Ella, 5 tons of Penn coal, for steamers' use. I certify that I have received on board, in good order, the quantity and kind of coal above specified. J. L. Jackson, Master."
The bills of lading and bunker receipts were signed in the office of the libelant on her pier at Greenwich. Both the libelant or her manager, von Boyneburgk, and the transportation company had knowledge of the execution of bills of lading and bunker receipts for a number of years preceding the furnishing of the coal in question. Not only bunker receipts but bills of hiding were executed in connection with the supply of coal included in the present demand. A sale by the libelant to the transportation company of a cargo of coal not to be used in aid of navigation was not a maritime contract, and could give rise to no lien nor serve as the basis of any lien cognizable by this court. It appears that the coalboug-ht by the transportation company from the libelant and others was placed on the wharf of that company at Smyrna, and that the bunkers of the Ella, while sometimes supplied with coal directly by the libelant, bunker receipts being taken therefor, were usually supplied from the accumulation of coal
on the wharf at Smyrna. It was urged on behalf of the libelant that the supplying at Smyrna by the transportation company of the bunkers with coal bad the same effect, under tbe circumstances disclosed in the case, as if tbey had been supplied with coal by the libelant in Philadelphia. I regard tbis position as untenable. No element of fraud on the part. of the transportation company is disclosed in tbis connection. The question whetber or not a maritime lien arose must be determined on the facts as they existed at the time the coal was delivered by the libelant to the Ella in Philadelphia. No subsequent application of the coal by tbe transportation company in Smyrna could create a lien in favor of tbe libelant. It is also to be noticed, in passing, that it does not appear tbat tbe coal belonging to the transporta· tion company and situate on its wharf was all obtained from the libelant. Oonsidered in any aspect warranted by the evidence, the fact that a portion of the coal sold by the libelant to the transportatiou company as cargoes of merchandise was subsequently applied by that company to aid the navigation of tbe Ella could not give rise to a maritime lien. I am satisfied that tbe libel cannot be sustained for the price of the coal for wbich bills of lading were signed. For tbe coal, however, which was furnished by the libelant in Pbiladelphia to tbe bunkers of the Ella for her use, I am of opinion, in view of all the evidence, tbat tbe libelant is entitled to a lien. The correspondence between the libelant and the transportation company, fairly considered, shows that that portion of the coal was furnished on a common understanding that a lien should thereby be acquired. Although the dealings, as shown by that correspondence, were directly between the company, the common understanding libelant and the that the ooal was to be furnished on the credit of the vessel, as well as on that of her owner, was sufficient to rebut tbe presumption of the non existence of a maritime lien. The evidence negatives the allegation that the claimant became, by virtue of tbe bill of sale of August 21, 1896, or in any other manner, a bona fide purchaser for value of the Ella. It is unnecessary to recapitulate the facts beariug on this point. It is not stated in the libel that the coal was furnished to the Ella in a foreign port or port of a state other than that in which she was owned at the time. No exceptions to the libel were filed; and leave is granted to the libelant to amend the libel in this particular. It appears that the bills oflading, and bunker receipts, if any. for coal furnished by the libelant to the transportation company during a part of June and the months of July and August, 1896, are lost or mislaid; and no evidence has been adduced to prove the amount of coal furnished during that period for the use of the Ella. Upon filing the amendment to the libel above suggested on or before April 23, 1898. an order of reference will be made to a commissioner to report to this court the amount due and owing from the transportation company to the libelant for such portion of the coal included in the schedule annexed to the libel as was furnished by the libelant in Philadelphia to the Ella for her use.
86 FEDERAL REPORTER.
In re PIPER ADEN GOODALL CO.
(District Court, N. D. California.
April 6, 1898.)
,The owner of an American steamer may, while denying all liability for any damage by reason of a collision, and consequent loss of cargo, make the alternative prayer that, If ,the court find the petitioner or steamer liable, the petitioner may then have the benefit of Rev. St. §§ 4283-4285, and the acts amendatory thereof, limiting the liability to the Interest which the owner has In the vessel and cargo. Section 3 of the Harter act (27 Stat. 445), which refers to any vessel transporting goods "to or from any port in. the United States," applies to ves,sels engaged In commerce on the Bay of San Francisco, and between different ports on the bay.
011' OWNER'S tIABILITY-ALTERNA'1'rvE PRAYER.
This was a petition by the Piper Aden Goodall Company, owner of the steamer Sunol, for limitation of liability. Oharles A. Shurtleff, for petitioner; DE HAVEN, 'District Judge. On March 17, 1891 'the American Sunol, owned by the petitioner herein, and eng!ged in carrying freight and passengers between San Francisco and VaIlejo, in this state, came into, collision with the, bark Olympic in the Bay of San Francisco; an.d as a result the steamer was thrown upon her side, filled with' water, and her cargo became a total loss. Subsequently she was righted, and her injuries repaired. The petitioner then instituted this proceeding, in which,while denying all liability for any damage by reason of the collision, and consequent loss of the cargo 'of the steamer, and "claiming the right in this cou,rtto contest any liability therefor, either for itself or said steamer Sunol," the petitioner nevertheless claims the .benefits of the provisions of sections 4283-4285 of the Revised Statutes the United States, and the various acts amendatory thereof and supplementary thereto, providing for the limitation of the liability of shipowners, if the court should find the petitioner Or steamer liable on account of saidcoUision and loss of cargo. .The alternative prayer of the petition is proper; there being no reason why the petitioner should not, in this proceediug, have the benefit of the statutes limiting its liability, if its contention that it is not liable at all should not be sustained The evidence shows that the Sunol at the tiineof the collision was in all respects seaworthy, an.d properly niaJ?,n'ed, equipped, lind supplied, and the accident ,wlll;loccasjoned by fault or error in the management of the steamer: "Section 3 of the act of February ,13, 1893 (27 Stat. 445), known as tli,e "Harter Act," provides: .
, "ThltUCthe owner of the, vellsel transporting merchandise or property to or from any port In the United States of America shall exercise due diligence to make the said vessel in all respects seaworthy and properly manned, eqUipped, and supplied, neither the vessel, her owner or owners, agent, or charterers shall become or be held responsible for damage or loss resulting from faults or errors !n navigation or In the management of said vessel nor shall the vessel, her