THE PIONEER.
279
vance·wages are forbidden; and that vessels engaged in the coastwise trade,and in the trade between Atlantic ports and the dominion of Canada, and between Pacific ports and British Dolumbia, are subject to tlle statute. This detel'lXlination cannot be disregarded withQut the clearest reasons for a contrary view. ''In all cases of am· biguity, the contemporaneous construction, not only of the courts, but of the departments, and even of the officials whose duty it is to caruy the law into effect, is uIDversall;y held to be controlling." Schell's Ex'r v. Fauche, 138 U. S. 562-.572, 11 Sup. Ct. Rep. 376. See, also, Railway Co. v. Phelps, 137 U. S. 528--536, 11 Sup. Ct. Rep. 168; Merrittv. Oameron, 137 U. S. 542-.552, 11 Sup. Ot. Rep. 174. It follows that the payment of the advance notes or orders is no defense to this action; and a decree will accordingly be entered for the libelants, as follows: Thomas Martial, $15; Nils Hansen, $15; Ambrose Pab· lete, $20; Thomas Hosford, $15 iFrank WaUace, $29; George Peter· son, $15. The libelants Emil Menendez and William Morris having failed to prove their claims, the libel is dismissed as to them. THE PIONEER. McNEIL et aI. v. THE PIONEER. (District Court, D. New Jersey. December 12, 1892.) 1. MARITUl:E LIEN-WAIVER. An agreement to accept, in payment for certain.machinery furnished a steam tug under a written contl'act, a promissory note, payable four months after date, does not in itself constitute a waiver of the lien against the tug for the contract price, especially where it Is not claimed that any Such waiver was ever contemplated by the parties. 2. SAHE-ADMffiALTY PRAOTI()E-PREMATURE FILING OF
When such promissory note Is not delivered in pursuance of the a.greement, the filing of a .libel before the fulfillment of the contract on libelant's part (which, however, Is fully performed soon after) does not constitute Cause for dismIssing such libel, but, undCl' admiralty practice, affects the question of costs only.
LmEL.
In Admiralty. Libel by Robert McNeil and others against the steam tug Pioneer for the contract price of a boiler and tiues furnished to her. Decree for libelants. Alexander & Ash, for libelants. R. B. Seymour, for claimants. GREEN, District Judge. The libel in this case was filed to enforce the payment of a claim against the steam tug Pioneer, consisting practically of two iteIns; the first being the contract price agreed upon by the claimant.s, or those who represent them, for a boiler to be built and properly set in the Pioneer by the libelants, amounting to $1,250; and the other being the price of a new and extra set of flues, which, while not included in the original contrac,t for the boiler, seem to have for the proper repair of the Pioneer, and to have been been l'1cceptedas such by the claimants, and which amounts to $74.93. The .claimants resist ithe enforcement of this lien, although they do not dis-
280
I'EDERALREPORTER,
vol. 53,
putetheanl.ount of the two.items,'upon the w-ound that, by a sPeCial contract .entered into hetweehthose who represented '. th'eID and the libelants, the libelants were to accept, in payment of their claim, a pro:IIliS'sory note, of a certain specified character, payable four months after the completion of the work; and that the legal effect of this contraet waR to work It waiver of the lien which otherwise libelants may haye ha:d upon the Pioneer; As is usual in such cases, there is a contrariety rlf evidence;' but, after' carefully weighing all that has been I have reached' the following conclusions, and·think they aresustafned'by the weight of the. testimony: .I Itisndt <llilputed, appartlntly, that the libelants entered into a contract abofit:'.Tune 26, 1891', in writing, with "Townsend & Co.," to build'mid»roperly set in the tugboat Pioneer a steam· boiler of a certain specffied ilimension,for the sum'Of $1,250. Mr. Jarvis Underhill, one of of the'Steam tug Pioneer, and a Mr. Townsend, who seemsat'tharf time to ha:\,,'e,had no interest in thetllg, were brought to the bUsIDfflsplace 01 the libelantS by a, Mr. Jones, who knew them previously, a,nd who introduced Mr. Underhill and Mr. Townsend in such a manner that the libelants presumed they were the owners of the tug Pioneer. After reference to the furnishing of the boUer, the libel,ants agreed, in writing, to build and place in the tug the hoiler in' question. Nothilig was said in this written contract as to, the terms of·the payment, .but the libelants admit that they were to receive in payment of their claim a promissory note, to be made by.T9wnsend&.Co., and to be indorsed by indorser satisfactory to them."payable four months·after the completion of the. work, It turns out that there was a firm of Townsend & Co. mexistence lif that timl;l, composed 9f .solomon S. Townsend, Maurice E. Townsend. tmd Edward,M:. TQWJ}Send;' but this firni had no iliterest whatever in the sa.id contra<;t, or in the said tug, nor: was such firm known to the libelants. The relationship between Underhill and T6wllselldseems to have been one of friendship only. The boiler built, and S properly hi place on the, tug, and com!t pletely finished, about the 19th day of December, 1891. Some time previously, about the 8th of October, 1891, the libelants heard rumors that the by the marshal of this district, at . the instance of other creditors; and, becoming alarmed at the prospect of not their money for their work and labor, filed their libel on that day in this court to enforce payment of their claim. It is quite cleal' that the filing of the libel at that tiine was premature. The libelants had no claim against Townsend & Co., or .against the tug itself, until they had completely fulfilled the contract into which they had entered; andif,atany time since the filing of the libel, the c1aimantg or Townsend & 00. had, in fulfillml'nt of their part of the contract, tend !red to the libelants a promissory note, with a responsible indorser, for $1,250, payable four months after date, according to the terms of the bargain, I should have no hesitation whatever in dismissing this lib But 1 think it is elear from the evidence that nei!l.. tMr the nor Townsend & nor anyone on behalf of either Oftheni, havE! eVer 'tendered to the libelants, in fulfillment of their part oHhe cotl:liiact, the note their contract called. for; and that
THE STROMA.
281
right to libel has since the 19th day of 1891, been vested in the libelants. Had it been filed not. until then, it would have been properly filed, as far as tim,e is concerned. But the premature filing of a libel, if the right to libel accrues afterw.ards, and before the determination of the issue, affects the question of costs It is not necessary, nor is it the practice in admiralty, to dismiss such libel if, when the matter is presented to the court for final determination, it appears that the right to libel exists. Nor does the mere fact that the libelants agreed to accept a note payable four months after date for the amount of their claim necessarily constitute a waiver of their lien. It is well settled that such waiver must be proved by positive and direct evidence. In this case there seems to be no that any such was ever spoken of or considered. The facts, on the other hand, would lead to a differ. ent conclusion. Mr. Underhill and Mr. Townsend,· who were, until they were introduced by Mr. Jones, entire strangers to the libelantB, could hardly expect that the libelants would accept from them a promissory note in payment of their claim as an entire waiver of the libelants' right to look to the boat itself for the amount due. Even if the note had been tendered in pursuance of the contract, and had been accepted by the libelants, if it had not been paid when due, the libelants coold undoubtedly resort to their lien in admiralty. It is not necessary to cite cases sustaining this principle. I think it is clear from the testimony, and from all the circumstances, that in this case there was no waiver of lien. No objection has been urged or made as to the workmanlike manner in which the boiler was built and placed; nor any criticism or complaint that the libelants have not fairly and honestly fulfilled their contract. The default exists only upon the side of the claimants. They have paid nothing upon the contract price except the sum of $200. The balance is due and owing. Under the circumstances in this case, I think the libel should be sustained, but, as I have previously stated, it was filed prematurely; hence the libelants must be denied costs. The libel is also sustained for the claim of $74.93, the price of the extra flues which were put in the Pioneer. No objection seems to be made to this part of the claim. Let the usual decree be entered. THE STROMA. McCALDIN et a1 v. TIm S'l'RO?tlA. (Circuit Court of Appeals, Second Circuit. December 7, 1892.) M.uuTIME LIENS-SUPPLIES IN FOREIGN PORT-SPECIAL AND GENERAL OWNER.
Where towage services are rendered and supplies furnished to a foreign vessel, on the order of her foreign special owner, by one knowing or havIng reason to know that as between the general and special owner the latter is solely liable, and nothing is said as to the credit given, no maritime lien will be implied, though on the furnisher's books the charge is entered against the vessel "and owners." 41 Fed. Rep. 599, affirmed. The City of New York, 3 Blatchf. 189 and The India, 16 Fed. Rep. 262, limited.
Appeal from the District Court of the United States for the South"'rn District of New York.
