059
THE AUGUSTINE KQBBE. REVERE COPPER CO.
et ai. v.
THE Al:GUSTINE KOBBE.
Wi'l'Cfit Court, S. D. Alabama; 1. MARITIME LrENS-PRIORITIES.
June 24, 1889.)
After return from a foreign voyage. a coasting trip for repairs and to earn freight on the way tathe port of loading for abroad again is to be considered a voyage, when the contemplated foreign voy·age is broken up by seizure of the vessel; and creditors on this domestic trip will be paid in full, although no funds will remain to satisfy those of the late foreign voyage. EVIDENCE-PAROL TO VARY WRiTING.
2.
In a suit in admiralty by prior creditors to enforce their claims against a vessel. evidence is admissible of an agreement between master and charterer, not incorporated in the charter-party, to payoff prior liens. MARITIME LIENS-PRIORITIES.
3.
Under the circumstances of this case, one chartering a vessel with knowledge of existing liens must, when the voyage is broken up, have his damage by breach of charter subordinated to the earlier claims; but he will be allowed moneys advanced for the necessities of the vessel, and will be paid pari paS8U with these liens. SAME-PAYMENTS FOR SUPPLIES.
4.
Payment at the request of the master, just before her seizure, of a ship's draft for necessary supplies, furnished on an earlier foreign voyage, imports a maritime lien that will be satisfied out of the proceeds of her sale. SAME.
5. 6.
Supplies delivered in New York to an agent of the ship in a ship-yard at Jersey City give a general maritime lien. SAME-REPAIRS.
When a ship purports to hail from a foreign port, and the carpenter is not informed to the contrary, repairs. exclusively on her credit, import a general maritime lien, and the owner is estopped from setting up that she is a domestic vessel.
In Admiralty. On appeal from district court. 37 Fed. Rep. 696, 702. The Kobbe, after a voyage from Portland, Me., to South America, and return to Providence, R. 1., was repaired at Jersey City for another South American voyage, and started for Pensacola to receive her outward cargo, calling at Mobile to deliver a Mobile cargo taken on at New York. While there, the master abandoned his proposed voyage to South America for one on more advantageous terms to Great Britain, for the firm of Martin, Taylor & Co., of Mobile, whereupon sundry creditors seized the vessel, had her sold under order of the district court, and established their claims by suit in that court. The opinion of TOULMIX, district j Ildge, in the court below, as well as a full statement of the facts, will be found reported in the two cases of The Kabbe, 37 Fed. Rep. 696, 702. The only new facts elicited in the circuit court were that the copper purchased for the vessel from the Revere Company was delivered to the .ship's agent in New York, and was there punched for her use before being sent over to Jersey City to be put on her; and that the New Jersey carp\Jnters, Gokey & Son, knew nothing of the ownership of the vessel except ,that a maritime register gave her as owned in New Eng-
660'
FEDEnAL' 'REPOltTER, vol. 39.
land; that the name painted on the stern. marJred her as of Searsport, Me.; and that Alfred Conover, the master, who contracted for the repairs, and whose wife now claims to own the vessel, and to reside in New Jersey, bad at one time lived in Philadelphia. The appeal was argued for two before Mr. Circuit Justice LAMAR and Mr. Circuit Judge PARDEE. The opinion here reported was filed by the court rather as an explanation of the decree rendered than as an exhaustive opinion. Under the facts, the court did not find it necessary to pass' on the relative rank of statutory and liens. Part of the money allowed Edwards and Martin, Taylor:& Co. was, in fact, advanced by them to payoff stevedores, who are given a lien by the Alabama statute, and the decree ranks these claims as equal to maritime claims, although the opinion is silent on the point. The decree rendered was in these words: "This cause came on to beheatd on the appeal of the Revere Copper Company, William Gokey &; Son, ,Tohn S. Adamson. and J. H. Edwards, libelants and petitioners in the case, and was argued, Whereupon, and it appearing that in the dilltrict court, the said bark Augustine KoJJbe was sold by the order of court, and the proceeds thereof, $6,350. paid into court, of which sum has been paid and distributed in the court below the costs of the sale, and the costs of the district court, the seamen's wages, and bills for pilotage and towage, amounting to some $1,746.40, which leaves iu the registry of this conrt, to be distributed, under the decree to be hel'ein rendered, among the sevel'allibelants having liens, the sum of$4,603.60,'it is ordered, actjudged, and decreed that the following named claims and liens, incurred in the port of Mobile. and on the last voyage of the said Aug\lstine KobOe. to-Wit, from the port of Providence, Ii. r., via New York, to the 'port of MobiIe, be paid pTO mta out of said fund, after all .the costs of, this ,court shall be taxed by the clerk, and paid, towit: to Martin. Taylor & Co., the sum.of $993; to Joseph R. Edwards, the sum of $560.74; to Charles A. Leanman, thesumof $61.90; to L. P. Waganer, the sum of $34,70; to John Boyce, the sum of $15.30; to Baker, Carver & Co., the sum of $505.25; to William Gokey & Son. the sum of $1,818.28; to Heyere Copper Co., the sum of $998.80. ,The remaining claims and liens. together with the claim of Wehard Doughty, mortgagee, it is not necessary to ran\{ and order paid, because they are postponed to the aforesaid claims, and there are no funds in court arising out of the sale of the said bark Augnstine Kobbe to pay any part of them. "June 21, 1889. [Signed] "L. Q. C. LAMAR, Circuit .Justice. [Signed] "DON A. PARDEE, Circuit Judge."
G. L. & H. T. Smith, for Revere Copper Company and Baker & Carver. Hamiltons & Gaillard, for Steelman et al., sailors, audfor sundry petitioners. . D. C. & W. S. AndeTson and Hamiltons & Gaillard, for Gokey & Son. Pillans, Torrey & Hanaw, for 'Martin, Taylor & Co. J. L. & T. H. Smith, for Edwards and Doughty. R.Inge Smith, for Adamson and Gladding & Braley. PER CURIAM'. For the infornuition of prl)ctors and parties we give the .following explanation of the decree handed down in this case: The funds in court are not sufficient to pay the conceded maritime liens in the case. For the purposes of determining priority, we have considered
THE AUGUSTINE KOBBE.
561
that the last voyage was from the port of Providence, R. 1., via New York, to the port of Mobile. Whether the trip'from Portland, Me., to South America, and thence back to Providence, R.. 1., should be considered one or two voyages is immaterial. \v e think that the liens upon this last voyage are entitled to be paid in preference to those incurred on Martin, Taylor & Co., in Mobile, had knowledge of the prior liens which existed to a large amount against the Kobbe. There is evidence, which' we think admissible, to show that Martin, Taylor & Co. agreed to advance the necessary sums to payoff or postpone those liens, so that the ship could make the voyage as contracted with Martin, Taylor & Co. 'Whether this contract was made or not we deem immaterial, because, with the knowledge Martin, Taylor & Co. had, they had no right to make a charter which, if the vessel should be seized, would further incumber her with large damages, growing out of the failure to comply with the charter-party. We think that Martin, Taylor & Co. should be allowed only the amounts advanced by them to the Kobbe for the necessities of the ship, and that any claim they may have for damages growing out of the breaking up of the voyage and the failure to comply with the charter-party should be postponed until valid liens are paid. As to the claim of Joseph R. Ed wards, we allow him the amounts advanced by him for the.necessities of the ship in the port of :Mobile. The ,debt to L. P. Wright & Co., which was paid by the said Edwards at the request of the master, imported a lien upon the ship, for which a, seizure could have been made, and was threatened. 'Ve think that for such advance Mr. Edwards is entitled to the regular maritime lien for supplies furnished a ship in foreign ports. The copper furnished by the Revere Copper Company for the Kobbe was furnished in the port of New York, and to a vessel registered in Searsport, Me., and h9lding out Searsport, Me., as her home port, although then lying in tHe 'w'aters of New Jersey, and belonging to a party then living in New J orsey. We consider the copper as furnished in the port of New York on the credit of the ship. The bill of William Gokey & Son is for supplies and repairs furnished in Jersey City to a vessel registered in Searsport, Me. ,having painted on her stern, as required by the act of congress, "Augustine Kobbe, Searsport, Maine." She was thus held out by her owner as of Searsport, Me. Gokey & Son were not apprised, as the evidence clearly shows, of the fact that the residence of the owner was in New Jersey. The owner, therefore, is estopped from claiming other than Searsport, Me., as the home port, and we think, and so decide, that Searsport, Me., was, in the particular circumstances of this case as to him and the other parties interested, the home port of the vessel; that the credit for these supplies and repairs was given exclusively to the ship, and without any reference to the credit of the owner, and, therefore, that the claim imports a maritime lien upon the ship. v .39F.no.ll
562 ,STEVENS ,
REPORTE:a"vol. 39. N4.V:IGAZIONE GENERAI,E ITALIAN,,\.. '
V.,
(Di8trict Court, 1,
E. D. New
York.
August 10,
1889::, '
SHIPPING':-DAMAGE TO FREIGHT.
A bin of lading exempting the vessel owners from liability for "damage done by vermin" does not exonerate them from responsibility for injuries by rats, from their negligence in omitting to fumigate theship before loading, and the burden of proving that the injuries were not the result of such negligence is on the owners. ' SAME.
N or will a further clause, the owners from liability for any fault of the officers or crew in the management of the ship, relieve them, as only mismanagement while the goods are on board is intended to be covered .thereby, and not negligence occurring before the freight is placed in the custody of the master and mariners. SAME-RESHIPMENT.
It is immaterial that the bilI of lading was executed before the neglect to fumigate the ship occurred, or that it was executed upon the delivery of the goods to a vessel other than the one in which the damage occurred; it being contemplated by the bill of lading that the goods should be transhipped in a different vessel from that in which the voyage began.
In Admiralty. Libel for damages. Julian B. Shope, (Chas. Stewart Davison, of counsel,) for libelant. Ullo, Ruebsamen &- Hubbe, (Lorenzo Ullo, of counsel,) for respondent. BENEDICT, J. This is an action brought against the owners of the Italian steam-ship Independente to recover for damage caused by rats to tain goods shipped in Shanghai, on board the steamer Gilslund, for transportation to New York. According to provisions in the bill of lading, the goods were transported in the Gilsland from Shanghai to Hong Kong. From Hong Kong they were transported to Palermo, in the kingdom of Italy; as is understood in some other steamer belonging to the respondents. At Palermo the goods were reshipped on the steamer Independente, owned by the respondents, and in her transported to New York. Upon delivery in New York, or shortly thereafter, the goods were found to be damaged by rats, and also by sea-water. It is the damage by rats alone which is involved in this case, the other damage having been paid by the underwriters. There is no direct proof in the case to show when the damage by rats occurred, but, inasmuch as the bill of lading given in Shanghai described the goods as "shipped in good order," the presumption is that the damage' on the Independente during the voyage fropl Palermo to New York., The question in the ca$eis whether, under the bill oflading sued, on,the pf the Independente are liable for :damage by rats occurring .011 her voyage from Palermo to New York. Several stipulations in'the bill of lading are relied upon by the respondents as exempting them from liability. One ofthese stipulations is "damage by vermin excepted." This exemption covers damage by rats. But such an exception, as was decided by Mr. Justice BLATCHFORD in the case of The