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 $74.93, the price of the extra flues which were put in the Pioneer. No objection seems to be made to this part of the claim. Let the usual decree be entered. THE STROMA. McCALDIN et a1 v. TIm S'l'RO?tlA. (Circuit Court of Appeals, Second Circuit. December 7, 1892.) M.uuTIME LIENS-SUPPLIES IN FOREIGN PORT-SPECIAL AND GENERAL OWNER.
Where towage services are rendered and supplies furnished to a foreign vessel, on the order of her foreign special owner, by one knowing or havIng reason to know that as between the general and special owner the latter is solely liable, and nothing is said as to the credit given, no maritime lien will be implied, though on the furnisher's books the charge is entered against the vessel "and owners." 41 Fed. Rep. 599, affirmed. The City of New York, 3 Blatchf. 189 and The India, 16 Fed. Rep. 262, limited.
Appeal from the District Court of the United States for the South"'rn District of New York.
DDElU.LBBPORTBB,
vol 53.
AlfmtmJt1. 'UOOf'by,'''ames' MdCaldin "oUtt
to'fa!f1"'lBeM1t.es,
and for coal r!fUl'Ilis4edand relidered:' ,TM" di8trict court distniS$ed h,e ' libel" Uenexi$WCL: 41 Feid.' Rep. 599. LibelaIlt3 ,app....
recover
t"
, '
",Ti',:
"
:
for"itppellants. ; William D. Guthrie, for .. , " 'BefoiitfWA;LLACE. LACOMBE, and SHIPMAN, Ch'cuit Judges. +; ", r
is an appeal from a decree of 'district of New,;Yotk, which disfor, and 8ElrVioos renderedt&'her while' m the port oCNew York. 41 co\Uot British 'corporafori 'one ,year' by 'her :Owners to,,jfames:Brown, of Berrp,'U({lIi/' The'yearwas'toooIllI1'lenCe;on August 21, ,1888, when the " tU'be placed at' tM disposal of Brown, iIi New York. to pay 'for allprorrisions, wages, (loal,[uel, and all charges except' those repaitls which Could not reasonably be done by the crew; He was to }ia;vethe entirevuse and control "of, the vesseL The, to ))employed in carrying freight between points from to Rio de Janeiro. On August 28th, and after the Striima' was, delivered to the ehal'terer, the libelants towed from the 'El'ie'bltsmto the East river. On August 30th they ,sold and delivere4: oh'hoard of her, a cargo of ooal, and on September 2d they ,fIilm the the bay. The entire bill was $673.50. towed' The diStl'iet jUdge found that the first towage and the coal were not ,tit the master or by the agents of the general owners. It fol,low!!' that' they were" ordered by the charterer. 'J:twas further found,: ,theIibelants',out of doors agent, who was, first brought into communication with Brown, knew that he had come into control of was respOnsible fOl' it, or knew enough of Brown's relations to ,the ship to pat him on inquiry and ascertain the fact and the tCl"lllS\ of the charter. It was fotlnd that the master's testimony was the most credible and probable, from which it appeared that; Mr. Cruikshank (thea,ppellallts' agent) was informed and knew or supposed that Brown was the man who, as charterer, was to pay the billB.; ,The positive testimony ill ,principally that of ",hich denied by the libelants, the facts, as found by the district judge, cannot be successfully brought into dis· pute, and it appears that Cruikshank knew that the gen· "eral w¢re not.'runningthe yessel; thatBr()wn, as charterer, ,wasgivingdirection5, was for tllliipayment of the , goods which he orderedjand that the master was not directing on '.his own or: for the, ship, ili the ordinary course. The coal and the ,upon the books of the libelants to liS. S. Stroma and '·owners." Nothmg was said, by captain, char· terer, or: libelants; "in regard to the ,credit of the vessel ; and there was no act or circumstance known to both oharterer and libelants
283
from ,vhich a common inteIitin regal'd to the liability of the vessel could be infeITed.. The case, then, isasfoIlows: The foreign .01. a foreign vessel, who is by the terms of the charter to pay. for coal and towage, obtains coal and towage, upon his own order, in the port of New York,-not a port of distress,-but to enable the vessel to start upon her first voyage in his service. The libelants know that he is charterer, and have reason to believe that, as between him and the general owners, he is liable to pay the charges, and are put upon inquiry to ascertain the terms of the charter. There was no express pledge of the credit of the vessel, and nothing .was said by the libelants, or communicated to tho charterer, from which it appeared that they contemplated the credit of the vessel. It is perhaps unnecessary to say that the same presnmptions by virtue of which a lien is placed upon a vessel for the payment of· necessary supplies furnished to her in a foreign port upon the sole order of the master are not applicable to the case of supplies furnished in a foreign port to a vessel upon the express direction of the known geneml owner. In the latter case, there is not, prima facie, a presumption that there was a necessity for the credit of the I!lhip. The known general owner may, however,expressly pledge the credit of his vessel in a foreign port for supplies, and there often are circumstances and facts which show that the credit of the vessel was pledged in facti, though not in words, and that such security was within the common intent of both parties. The Kalorama, 10 Wall.. 204; The James Guy, 1 Ben. 112, 9 Wall. 758. So, also, the special owner, who is intrusted by the general. owner with the possession, control, and ownership,pro hac vice, of the vessel, is intrusted also with the power, when necessity arises in a foreign port, to pledge the credit of the vessel for supplies for her relief; and a lien will be maintained when circumstances exist which show that the fact that the supplies were furnished or the work was done upon the security of the vessel was recognized by both parties. The Brig Nestor, 1 Sum. 78; The Monsoon, 1Spr. 37; The Oity of New York, 3 Blatchf. 189; Thomas v. Osborn, 19 How. 22. Such a lien may attach although the vessel is not in peril or in disi-ress, but the fact that she is in peril, and must have supplies in or.der to continue her voyage, make a much strongel" probability that the goods were furnished upon the credit of the vessel than when they are furnished to enable the charterer to com· mence his voyage, and no necessity presses fA> relieve vessel or crew from danger or from enforced idleness. In this case it is claimed that the facts that necessary supplies were furnished and services were rendered to a foreign vessel, at the order of the foreign charterer, and owner pro hac vice, and that the libelants did in fact, as e"idenced by the manner in which they kept their books, rely also upon the credit of the vessel, are sufficient to place a maritime lien upon her. We cannot assent to the breadth of this proposition. When the known foreign special owner, not being the master, orders the supplies in a foreign port, and the libelant has reason to know that, as between the special and the general qwner, .the former is not the agent of the latter, but is personally,
284
FEDERAL REPORTER,
vol. 53.
liable for the debt, and .he furnishes the goods in silence, there being no acts or circumstances from which it can be inferred that the credit of the ship was either within the contemplation of both parties, or was recognized:by both, a maritime lien will not be implied. There is an obvious distinction between the liability of the'ship for supplies furnished upon the order of the special owner, whiehheis solely personally liltble to pay for, and the liability for contract.i of afl'reightmentwhich,he has entered into. In the latter case the' maritime law binds the vessel to the cargo. "The general owner lUltst 'be taken to know' that the purpose for which the vesf*'l is hired, when not employed to carry cargo belonging to the hirer, is to carry cargo of third persons, 'and that bills of lading or charter pame$'must, in the invariable, regular course of that business, be made, ·for the performance of which the law confers a lien on the vessel.'l. Freeman v. Buckingham, 18 How. 182. In the ease of a foreign :ownerpro hac vice, who has agreed with the general owner that he will pay· for the supplies, and whose relations 'to the vessel and to the general owners are known to the person who furnishes supplies, the presumption is that credit is given to hini':Pel'sonally, unless some facts or circumstances repel and overpresumption. In almOst all-cases where a stranger and come foreigner .seeks for credit, something will be said or done in the course of the negotiations to show that personal: credit alone'is not offered,or is not esteemed sufficient., m both parties indicate, in their dealings with each other,th3lt personal creditis not questioned, the meredlargEliupcm 'the books to the vessel is not adequate to create In this case the ·supplies were ordered by the owner prohac':v-icewhom the libelants' ,agent knew to be the charterer; the vessel was not in distress; tl:).e :eOakwas wanted to enable her to for seemw,h-ave been no extrinsic' !cdTcumstanceS) other thitll' the charge upon' the books, presUIl1ption that the supplies and work were nished 'upoll 'the credit'of the special owner. The appellant relies upon tb.eM$JEl Of The India, 16 Fed. Rep. 262, which was decided by thecircuitcoll'rtupon the strength of what was believed to be.tht! law ofthis''Circuit,llSdeclared-in The City of New York, 3 Blatchf. 189. Upon;'f11rther consideration, we are of opinion that these two cases should not' be followed to the extent which the breadth of the language in' the 'decisions would justify. The decree of the distric1i court is cosb;; in both courts. THE D. L. & W. NO. 6C. 'fHE ,OCEAN WAVE. ROGERSv. TWO BARGES AND A CARGO OF COAL. (District Court, S.D. New York. November 23, 1892.) 1. SALvAGE-BuRNmG BUILDINGS-TOWAGE FROM PIER.
Where two :barges, one worth $250, Rnd the other. with her cargo, $650. weretoweci away from a wharf near which buildings had caught fire. and the resnIts showed that their removal was reasonably necessary, but they would