The Catherine Whiting

¶11. Maritime Liens — State Statute — Notice of Lien.

¶2Under the New York statute (Laws 1879, c. 834), giving a lien on a vessel for repairs made under a contract with the master, owner, charterer, builder, or consignee, or with an agent of either of them, but providing that the debt shall cease to be a lien unless the lienor shall, within 30 days, file a notice of lien containing, among other things, “the particulars of the debt, and a statement of the account claimed to he due from such vessel,” a notice does not contain a sufficient statement of the debt which merely states that a certain amount is due from a vessel “for work done upon the same, materials furnished, and labor and services performed,” under instructions from the owner.

¶32. Same — Labor and Materials for Repairing Ship.

¶4Such statute does not give a lien for repairs furnished to a vessel under instructions from one who was neither owner, master, charterer, consignee, nor agent, and who had no interest in her, except under a contract with the owner, by which he agreed, at his own expense, to make certain repairs necessary to fit her for a different service, after which he was to employ her for a specified time as charterer, repaying himself for his expenditure, and dividing her earnings with the owner, of which facts the lien claimants were fully advised by the owner, and notified that they could not look to the vessel for payment.

¶5Appeal from the District Court of the United States for the Southern District of Yew York.

¶6This was a suit in admiralty to establish a lien on the steamer Catherine Whiting for labor performed and materials furnished in making certain repairs thereon. In the district court the following opinion was rendered by Brown, district judge:

¶7“All the work, labor and materials for which the above suits are brought were procured upon contracts and employment by Metcalf alone. He was neither master of the vessel, nor owner, nor charterer, nor builder, nor consignee *446of the vessel, nor the agent of either of them; nor was he in the possession or control of the vessel, nor had he any right thereto. His sole actual relation to the vessel was that arising from his contract with Flaherty, £he sole owner, under which contract he would have a right to obtain possession and control for the purpose of making a voyage to the Pacific coast and Alaska and there trading with her on condition that he made certain improvements in the vessel necessary 'to fit her for that service. The expense of making these improvements was to be primarily at the sole charge of Metcalf, without any responsibility of Flaherty or the vessel therefor. Every person who dealt with the vessel found Flaherty in possession, and was notified that neither he nor the vessel would be liable, and as I have said all the work and materials were procured upon Metcalf’s contracts alone. Metcalf never had the least authority from Flaherty to act as his agent, and Flaherty certainly never did anything, so far as shown by the evidence, to lead any of the libel-ants to suppose that Metcalf was his agent or the agent of the vessel. For these reasons no statutory lien, or direct liability on the part of Flaherty as principal, can be maintained. In The John Farron, 14 Blatchf. 24, Fed. Oas. No. 7,341, the employers were in possession and control of the vessel with apparent authority to bind her. That was not the case here.

¶8“The claims of McGregor and others cannot be sustained on the ground that they were seamen, because I cannot find upon the evidence that they were employed as seamen or were understood to be so employed. The case of The Artisan, 9 Ben. 106, Fed. Oas. No. 568, is essentially different. There the owner had executed an actual charter of the vessel and the charterers had appointed a master who was in possession and command of the vessel, pursuant to the charter; the libelants were shipped as seamen for the voyage specified in the charter; and they were shipped by the master; they were held entitled to their wages as seamen, according to the terms of the shipment, because shipped for the voyage by the master, in pursuance of his actual authority. Here there was no charter from the owner, nor any master of the ship; nor was there any authority from the owner to ship a crew; the men were not hired as seamen, or shipped at all; they were mostly longshoremen and their claim of payment is mostly by the day at. stevedores’ rates.

¶9“Beid and Duff fully understood that their employment was by Metcalf alone and on his responsibility. They were so notified by Flaherty and were not allowed to go to work until Flaherty by personal inquiries of the sellers of the boilers had been assured by them that the boilers had been paid for by Metcalf. It was in consequence of the express notice from Flaherty that Beid and Duff required from Metcalf additional security. If their claim had been good in other respects, moreover, their lien upon the vessel would have been lost through failure to file a proper notice of claim. The notice filed in July was more than 30 days after the completion of the, work. The notice filed on June 15th, though in time, did not contain a statement of the ‘particulars’ of their claim as required by the state law of 1879. The'notice was only a general statement of a debt to the amount of $2,400, ‘due from said vessel for work done upon the same and for material furnished and labor and services performed under instructions from J. O. Metcalf, owner.’ A part of the work to the amount of $400, as the evidence shows, was done by contract; the rest was claimed to be extra work. The notice of lien contains no specification of either, nor distinguishes one from the other.

¶10“Baker, Carver & Morrell dealt with Metcalf alone, and made no inquiries whatever of Flaherty, and never saw him until after their work was done. They took an assignment of the advanced freights on a charter of the steamer which Metcalf negotiated «wholly without authority. As they made no inquiry of Flaherty, the true owner, their dealings were at the risk of Metcalf’s authority; and it is plain that he had no authority to represent or bind Flaherty or the vessel.

¶11“I have further considered the case carefully to see if there were any equitable grounds upon which the vessel or Flaherty could be held to respond for any increased value of the vessel through the libelants’ work, labor and material. The only ground of any equitable claim would be some inequitable conduct on the part of Flaherty in inducing the improvements by the libelants and tending to mislead them. Bepeated reading of the stenographer’s notes *447satisfies me that no such ground can he maintained upon the evidence. The pleadings were not framed in order to present such a claim, nor is adequate evidence presented to reach a proper conclusion. Flaherty testifies that the steamer before his arrangement with Metcalf was in good condition for his employment of her in connection with the lighthouse business. He agreed to let Metcalf have her for trade on the Western coast on condition that he would make her fit therefor at his own sole cost, and expense. I do not find that Flaherty ever did anything whatsoever inconsistent with this position. He relied upon Metcalf’s representations that he had means for this purpose, and was evidently deceived in that regard. Metcalf plainly had no available means adequate to enter into such a contract, and the enterprise broke down from that cause. The project was not broken up by Flalierly, but fell through because Metcalf had not the means to carry out his undertaking to fit up the vessel, winch was the condition of his acquiring any right to use her. The charter of the vessel, which Metcalf wrongfully made for the purpose of raising funds without Flaherty’s knowledge, fell through, not hy any act of Flaherty’s, but because necessary changes in the vessel were not completed within the necessary time; and Metcalf’s lack of funds, which by that time had become evident, made the further prosecution of the enterprise impracticable and it was therefore abandoned. Flaherty was evidently deceived by Metcalf’s visionary schemes and imaginary resources. He was reassured to some extent hy the supposed payment for the boilers by Metcalf, and on that understanding Flaherty signed the contract witli him. When some weeks afterwards Metcalf’s lack of money became painfully apparent, and it appeared probable that the men at work on the ship might not get their pay, ho was naturally restive and impatient, both for his own protection and to avoid further sacrifices'by the men themselves. He put no obstacles, however, in the way of Metcalf’s complying with his contract, had he been able to do so; nor can I find that he offered any false allurements in the least to any of the men who contributed labor, or materials.

¶12“I must, therefore, dismiss the libels, without costs.”

¶13John A. Quintará, for appellants.

¶14Leo Everett, for appellee.

¶15Before WALLACE, LACOMBE, aná SHIPMAN, Circuit Jnáges.