THE
F. E.
SPINNER.
577
be allowed. ' While the duty of making entrance devolved upon the charterer's agent, the charterer was informed in advance that the entry had been made, and he should not therefore have incurred the expE'nse of making it a, second time. The service ot a tug for which $2 is r,harged was, as I understand, required only in making the entry, and should be disallowed. The $5 charge for advertising should not be allowed; and the same must be said of $10 fen' stationery ,etc. Nor do I see anything in the evidence to justify the charge of $50 ICfor attendance fee." The duties of this agent were confined to "custom-house business." He was not the general representative of the ship, and there is nothing in the evidence to show any connection between this business and the charges here referred to. Settlements for the freight, after making the deductions allowed, &hould have been made with the master or his agent. The payment howE'ver, to the owners to the extent made, should under the circumstances be credited to Mr. Spreckels. A decree may be prepared accordingly.
THE' F. E. SPINNER.
UNION DRy-DoCK Co.
11.
THE F. E. SPINNER. December:all, 1891.) ,,
(DistriCt Court, lif. D. New York. lLuuTIMB,
On a libel in rem against a vessel for the value" of a chain used in raising her , from the bottom of a river, it appeared that the libelant contraoted by telegraph with 'a tug compapy to sell it the chain, and that he delivered the chain to a tug sent for it. He had no communication with the owners or master of the vessel, and there was nothing to show that he knew for what purpose the chain was wanted, except his testimonythllot he "supposed" and "interred" that it was for raising the sunken vessel.' .Six weeks after delivering the chain he wrote to the tug company ring to "our agreement. "and proposing to draw for the price' of the chain.' therewalil no evi4ence tp support either a maritime lien for supplies turnishea or for salvage upon the vessel raised.
In Admiralty. Libel rem by the Union Dry-Dock Company against theF. E. Spinner.. . , 'The. libel alleges that on September 17,1885, the libelant furnished and delivered 1,480 feet M steel chain, worth $863, to the steam propellerF. E. Spinner, at the request of her master and owners. That the libelant relied upon the credit of the vessel as well as that of the owners and master, and would not have furnished the chain except upon the credit of the vessel. That by reason of these facts the libelant acquired a lien upon the vessel for the value of the chain. The answer of the owner of the Spinner denies every allegation of the libel which seeks,tocharge the vessel with liability. On the 10th of September, 1885, the libelant received the following te,legram; v.48F.no.7-37 I'
578
FEDERA.L ·REPORl'iER t
vol. 48. "PETltCfl1-T. ,S.ept. 10th, 18a5.
to buy eightQr nine pundred feet two,inch chain; u,nderstand you have it. What's your best price a,nd terms? Answer quick. , ' ", ."'l>ETROlT TuG Aln> TRANSIT Co."
"To Capt.H. M. Drake, Supt. UnjonDry.Dock, Bujfalo, N. Y.: Want
'"T,hi1!\ylls followed by :va.rious and letters, wpich culminated in between the "libelant and the. ,Detroit ,Tug & Transit, Company ,as evidenced by the telegrams:, "BUFFALO, Sept. 16, 1885. "Detrott Pug & Tramit 00., Detroit, Mich.: I will deliver to the tug you name on her arrival hel'ethechain you speak understanding is that you are,to have til!!!! chain with the option of purchasing it, decision to be made and communil1ated to me by Novembf'r first, at a price of forty dollars per ton, or you al'e to have it for fprty.tive days at a rental of Jive hundred dollars. Decision to be made 1\8, above, chain to be taken bete withont cost to us and returtted bere on same .ternis, If yon, choose to ,have it on rental, damage if; any to be made good by you. All the above conditioned Qn my receipt from you at once of a telegram accepting above terms. ' "W. BULLARD." On the same day the following answer was received: "DETROIT, MICH., Sept. 16, 1885· .. W. BuZZard, Buffalo: Y'our received; we accept terms and conditions stated therein about chains·. ' "DETROIT TUG & TRANSIT Co., "S.,A.;MURPHY."
Mr. Bullard was the general manager of the libelant at Buffalo. Prior to the first telegram of September 10, 1885, the Spinner was lying sunk in the Sault Stet Marie river. The chain was delivered on board a tug sent by the Tug &;Transit Company to Buffalo for ,that purpose; and was used ,in raising the Spinner by WreckingCpmpany, which companyblj.d a contract to raise her ,with the insurers, to whom the wreck, bad been abandQned. After the propeller bad ,been raised, and ,on the Bdnf November, 1885, the following letter was$ut by Mr. " "BUFFALO,l\T. Y." Nov. 8,188.5. "Mr. B. A. Murph1J, Prest. Det. Tug & Trans. 00., Detroit, Mich.-DEAR SIR: Byterllls o,f our Sept. 16th you to communicate to nil! by Nov. 1st' your decisiOn as to wbether would pay rental of .500 for 45 days' use of steel chain loaned you or whether you would purchase same at $40 per ton. I have heafd nothing from you in regard to the matter. Can I.draw on you atsigbt for the value of:tbechain at the agreed price: named, abovel' Yours, truly" W. BULLARD, Gen'l Mgr." ,This letter was never answered. for. Jowiah Oook. !for libelant. Sherman S. ROgf/r8, for The chain was not returned or paid ' .
COXE, J. i ,The libel cannot forsalvage. There is neither allegation nor proof of a salvage servioe.Theaction is in rem. to recover
) Tnk·. F.
E. 'SPINNliB.
579
of the Spinner $863, the value of a 911ain furnished, as the libelant alleges, for the use and on the credit of the vessel and at the request of her master and owners. In order to recover the libelant must prove these allegations.' It haswhollY.faileu to do so. The contract was negotiated by telegram and letter. The and owners of the vessel notconne<lted with it in any way. The only parties were the ant on the one side and the Detroit Tug & TransitOompany on the other. The latter companybired the chain for 45 days, agreeing to pay $500 rental with an option of purchase at $40 per ton if accepted prior to November 1st. There is not the slighteet allusion to the sunken propeller from one end of the correspondence to the other. There is nothing therein to indicate that the libelant knew for what purpose the chain was intended. The two persons who represented the libelant in the negotiations, Oapt. Drake and Mr. Bullard, testify that they "supposed II and "inferred" that the chain was to be used in raising the propeller, but neither of them says that it was furnished to the propeller "at requp,st of her master and owners and upon the credit of said vessel;" neither of them says that there was an intent on the part of the libelant, at any time, to hold the vessel responsible. Indeed, it appears six.weeks after the delivery of the chain, the libelant still looked for payment to the tug arid transit company, and to no one else. On the 3d of November, the libelant, addressing the tug and transit company, refers to "the terms of our agreement" and proposes to draw at sight for the value of the chain. . The contract is too plain to require a resort to inferences drawn from extraneous considerations; but were presumptions necessary or sible it might be pertinent to inquire whether it is likely that the libelant intended to part with valuable property upon the credit of a foreign bottom, lying as an abandoned wreck, under 138 feet of Oanadian water, 000 miles from Buffalo. The fact that individuals interested in the vessel were also connected with the tug compuny and the wrecking company does not avail the libelant. The evidence shows an agreement between the libelant and the tug company as clear and unmistakable in terms as can well be imagined. A finding that the libelant parted with its chain on the credit of the propeller or with intent to look to ber in any tingency for payment, would be wholly unsupported by the proof. It is to be regretted that the libelant has lost its chain, but this is a result which usually follows where an irresponsible party has been trusted. Thlflibelis dismissed, with costs.
580
FEDERAL REFORTER,
voL 48.
D · .B.
(District Court, E. D. Virginw. November 8, 1880.)
1.
YARITIl\{E LIENS-VESSEL OWNED, BY WIFE-FURNISHINGS BY HUSBAND.
Wben a balf Interest In a vessel Is owned by a married woman residing In the District of Columbia, where' she Is permitted by law to hold property In her separate right, free from the control and obligations of her husband, the husband Is entitled to a lien on the vessel for funds' and supplies furniShed,' and e,xpenses incurred upon her" when, his claim is proved in the usual way.
,
I.
SAMJ;;.-.-PARTIAL PAYMENTS-APPLICATION.
When advances are made and lambet', etc.· furnished to a vessel at various times durll1g a penod of about two moll'ths, but all during one stay in port, and as part of one transaction, and tbe 6CC\Ount embrace!! some items which have the force of maritime liens,' and others whicb do not, a callb payment will be applied in disoharge of the latter, and the lien of the former will be preserved.
8.
SAME-WAIVER OF LIEN-TAKING NOTES.
The taking of notes payable' in two, three, and four months, for advances made and materials furnished 'to a vessel, does not of itself operate as a waiver of tbe maritime lien. ' '
,: SAME-TAKIKG MORTGAGE.
Nor is the maritime lien waived by taking a sach notes. The ..inn C. 1 Curt. 340. and' The tinguished.' . II. SUm..:...LIENS UNDER STATUTE.
on the vessel tc secure 1 Bond, 189, dis-
Revised Cone Md. art. 67, 44-48, giving a lien on vessels used on Chesapeake bay,on filing in the county court a verified statemeIjt of the claim. and providing that the act shall not entitle the' claimant to preference ovel' creditors seoured by prior mortgage, abrogates the mal'itime lien fOl· materials furnished in Maryland; a lien secured under its provisions is subordinate to a claim secured by a prior mortgage on the vessel;
In Admiralty. Libel in rem for wages. for libelants and claimants. Walke« Old, for mortgagee· .ShaTJ?&- Hughes, &,Tllorn, and White&- Garnett, for petitionerS!. ,
.
The schooIlflr D. B. Steelman, of Baltimore, Md., has been ItQeledinthis courthyof herseamenj sundry materialmen petitions setting out claims the i generlj.l cOllsent the vessel has been sold, and the pro. ceeds. pli,id .in.to.the reg.is.tr.y ii.or dis.tribution. These are insufficient to ll?eet all the claims. Of course the first chll;rge against the fund is the of this Next in order of priority are thEl claims of the seaw:ere hired by .the month in. Baltimore; and, as the vessel laid up hi this port without finishing voyage, theY must be paid their wages for the time claimed, and $1.50 each for their passage back to Baltimore. The vessel waR owned by J. Rexter and his sister, Mrs. Silverberg. Under the laws of the District of Columbia, where Mrs. Silverberg lives, married women may acquire and hold personal and real property in separate right, free from the control or obligations of their husbands. Her half of this vessel is thus held and owned by Mrs. Silverberg, as is shown by the schooner's custom-house papers, issued by the collector of Baltimore. One of the claimants by petition in this case is Silverberg, HU<iHES,
J.