THE HAVANA. WOODALL et al. v. TIlE HAV:A.NA.
(DIstrict Court, E. D. Pennsylvania.
May 16, 1898.)
H.UtITIME LIENS-REPAIRS IN FOREIGN PORT-PRESUMPTIONS.
When repairs are made In a foreign port on the order of the ownen, the presumption Is against the existence of a maritime lien; and the burden is on the repairers to clearly show a contract or mutual understanding for a lien. 'Where the owners are solvellt. and do not understand that there Is to be a lien, the mere fact that the repairers understood tbe contrary, and that they charged the work on their books In the name of the vessel, is not
was a libel in rem by W. E. Woodall & Co. against the steamship Havana to recover a balance due for repairs. John F. Lewis, for libelants. Matthew Dittman and Henry R. Edmunds, for respondents. BU'fLER, District Judge... The suit is for $3,513, a balance due for repairs. 'l'he work was done at Baltimore, costing $16,000. The home port of the vessel was Philadelphia, the owners being Patrick Dempse'yand Henry Hess, who reside hereJ-the former having four· fifths and the latter one. Dempsey, as managing owner, ordered and superintended the repairs. Mr. Woodall sought the work for his company and came to Philadelphia to obtain it. At that time it was supposed $5,500 would cover the cost. The vessel was subsequently taken to the libelants' place at Baltimore, and the work commenced in pursuance of. the arrangement made here. It was afterwards found that much more must be done than had originally been contemplated, and a much larger bill be incurred." On the completion of the work notes were given for the $3,513 unpaid, and the vessel was delivered to the owners. About six months later-after she had passed into other hands-those of a stock company, of which Dempsey and Hess were members, (the notes then being due and unpaid) the vessel was attached under an alleged admiralty lien. The presents no legal question. The libelants cO:ncede that to entitle them to recover, the proofs must show a contractual lien-not an facts, as in the case of repairs on a implied lien, resting on master's brder, but one resting on contract, as in cases of bottomry. A contract must therefore be proved. It need not however, be proved by writing, or other direct evidence; but may be established by inference from facts which show its existence. As is pointed out in The Mary Morgan, 28 Fed. 196, this doctrine (the admissibility of such inferences to establish contractual liens) is modern; and as it tends to uncertainty (the inferences depending largely on the disposition of the particular mind that draws them) it may be doubted whether the modern doctrine is wiser than the old, whether it would not have been safer to a4here to the rule which required direct evi1 For a very tull discussion as to maritime llens tor supplies and serVices, presumption as to credit to vessel, see note to The George Dumols, 16 C. C. A.. 679. .
87 FEDERAL' REPORTER.
dence of such contracts where a lien is intended-especially in view of the fact that it is so easy for 'partieifto say they thus contract, is s() l,'easonable t9 expect they where they The modern. rule is however well established, and I have but to mquire whethir'>the facta ofithiscliseshow the existence of such a contract. Of course a @utualuIjdersta:t;lding that a lien shall exist is acontract,fora lien.. Do the facts prove such an understanding? Thequesti'o:# presented istpe only subject for consideration. The bur<1rlfpfpr09f is 011 (he libellllltS. They must show the con· tract clearly, or fail in the suJt.. The repaire having been made by order ofthe owners the legal presumption is against them; 1.'he Now Then, 5 C. C. A. 206 [55 Fed. 523]; The Wandrahm, 4 C. C. A. 414 [67 Fed., 358]; Tbe ,!l:u:yMprgan, Fe!!. 196. As such liens are secret ahd therefore not fayored, the libelants must, stated, prove the alleged contract clearly, to 'overcome the contrary presumption. Have they done it? There is no direct evidence of a mutual understanding on thEfsubjecf. Mr. Woodall who represented the business, tJ,J.at he understood they were to his have a wbile Mr. that he ha<l,nosucb under· stai:J.diIlg, '. This does not even tend to prove a mUTual understand· ing. If Mr.qJ)empsey is believed his testimony proves that none existed, IU). matter what MI'·.WoodaJI understood. What is there presumptionin the circumstanl;es of the calje to overcome the sUPl:lorted>as ,H,if! by the testimony, of Mr. Dempsey?' The libelants point to the owner's pecuniary condition, and argue that Dempsey could .nothave,supposed the repairs wquld, be made without the se· Dempsey, powever, 'at that time appeared to be curity .of a entirely solvent; and no Mubt was, He owned four-fifths of a valuable vessel; 'and also. ownE!d ;the' business he then conducted, which was prosperous and seemed valul\ble. . Hess owned the other fifth, andalso appeared to be solvent Why therefore should Dempsey have supposed the repairs cQuld n<;lt be obtained without charging the vessel with a lien (an unusua\pl,'flc,tice) especially when a lien was not. demanded;: or mentioned, as the evidence clearly shows. The libelaIlts, wanted sou,gb,t iUri Philadelphia where the own· lived;. ve their stand!ng, If they dId not know It. It seems, ,therefore, to belIeve that they relied upon a lien,and that. Dempsey understood them to do So, and ,especjidly in, vjew of fact they did npt for such security, or ;rp.ention the sJ;lbject. . Dempsey's statement on cross· examination,.J4at he owned po property, is misintel'preted by the libelants;' it ,must. be understood, simply as an ado.ihlsion that he owned no property than that before to-the vessel and his libelants also point. to the manner of charging the repairs in. their bookl'l; :but at most these charges are evi· d,ence only of theIr own ullderstanding. They do tiot, however, to because they .are made in the manner common to all cases where the owners are looked to for payment-the vessel being named simply to identify the w.grk. This is a platter of common nnderstanding. omission otthe, vesseUs of-course important where an alleged contract for lien is set up. The charges here are
THE OTHA J. SAMPLE.
THE OTHA J. SAMPLE. SCIPLE et at v. THE OTHA J. SAMPLE. (District Court, D. New Jersey.
SnIPPING-REGULATIONS AS TO STEAM BOH,ERS.
May 27, 1898.)
Under Rev. St. § 4431, which prOVides that "every plate of boiler Iron or steel made for use in the construction of steamboat bollers shall be so stamped in such places that the marks shall be left visible when such plates are worked into boilers," it is not necessary that the builder of a steamboat boiler furnish a name plate, shOWing the name of the manufacturer, place where manufactured, and the tensile strength of the boiler, in the absence of a special contract calling for same.
This was a libel in rem by H. M. Seiple and others against th& steamship Otha J. Sample. Judgment for libelants.