144
FEDERAL REPORTER,
vol. 63.
branch; if the la.tter was legally a different body, became themon· eys of the The libelants, in that event, could claim a lien by subrogation only, and in this case there was no lien to which they could be subrogated. The cases of supplies in a foreign port by material men, and others, who were not the agents of the owners, are here inapplicable. On these grounds, the libel must be dismissed, with costs.
THE ALVIRA. DE LANO et. a1. v. THE ALVIRA (BATCHELDER et aI., Interveners.) (District Court, N. D. California. August 7, 1894.) No. 10,849.
1.
MAnITIME LIENS-LIENS UNDER STATE STATUTES-RuLES ApPLICABLE.
Liens arising under local statutes for supplies, materials, and repairs furnished in the home port are assimilated to general admiralty liens, and the principles relating to maritime liens are in general applied to them. But the two are not always exactly alike in all their features an'd incidents. Thus, the principle that supplies furnished in a foreign port when the owner is with his ship are presumably furnished on his personal credit is inapplicable to liens in the home port, for, the owner being resident there, this would wholly defeat the lien.
2.
SAME.
Under the gelleralprinciples of admiralty law relating to maritime liens, applicable to the creation of liens un.der a local statute (Code Civ. Proc. Cal. § 813), to give efficacy to sU'.lh a lien there must be (1) a necessity for the supplies, materials, or repairs; (2) a necessity for credit; and (3) credit must be given to the vessel. But proof of necessity for the supplies, etc., carries with it a presumption ·of the second requisite,-the necessity for credit. The fact that a freight vessel is chartered to do passenger business, for which she is totally unfitted unless repairs are made, and tbat liberty to make repairs is given, together with an option to purchase at a fixed price on the expiration of the charter party, is sufficient proof of necessity for the repairs.
8.
SAME-NECESSITY FOR REPAIRS-WHEN SHOWN.
4.
SAME-RELIANCE ON VESSEL'S CREDIT-BOOK ENTRIES Afl EVIDENCE.
Great importance is not to be attached to the fact that material and repair nlen gave credit on their books to the vessel alone, or to both the vessel and the party ordering the materials and repairs, or to the latter alone; but the intent is rather to be gathered from all the facts and evidence in the case.
5.
SAME-REPAIRS ORDERED BY CHARTERER"-WHEN LIEN EXISTS.
'.rhe fact that materials and repairs are furnished upon the order of the charterer, who is personally liable, and that the owner is. not personally liable, does not prevent the vesting of a lien under a local statute (Code Civ. Proc. Cal. § 813) when the charterer is owner pro hac Vice, and ilie rna· terial and repair men believe him to be the general owner, and have no cause to suspect otherwise. 'l'he Samuel Marshall, 4 C. C. A. 385, 54 Fed. 396, distinguished. It seems that ilie rule stated In The Patapsco, 13 Wall. 329, In relation to foreign liens for supplies, namely, that where credit Is shown to have been given to the vessel there 1s a lien, and the burden of displacing It is
6.
SAME-BuRDEN OF PROOF.
THE ALVmA.
1415
upon the claimant, Is applicable to a lien claimed under a local statute (Code Civ. Proc. Cal. , 813) for materlals and supplles furnished in the home port. .
This was a libel by W. W. De Lano and others against the Bteamel' Alvira, J. R. Rideout and others, claimants, claiming a lien for materials furnished and services rendered to the steamer. In· terventions were filed by W. H. Batchelder and others to enforce liens alleged to have accrued for services rendered in navigating the vessel, and for materials furnished and work done in repairing the same. H. W. Hutton, for libelants and interveners. Andros & Frank, for claimants. MORROW, District Judge. The libel and interventions In this case were filed to enforce liens against the steamer Alvira for materials furnished and labor performed in repairing and refitting said vessel, and also for services rendered in navigating the same in the Bay of San Francisco. The libel was filed on November 20, 1893, by W. W. De Lano et al., and is brought to recover the sum of '219.14, alleged to be due for materials furnished and services rendered in plumbing and ship-furnishing work done to the vessel, it being claimed that the same constitutes a lien by virtue of section 813 of the Code of Civil Procedure of this state. On November 25, 1893, W. H. Batchelder and some other libelants filed a libel of intervention, each claiming specified amounts for personal services rendered, in various capacities, to the vessel on her trips as a passenger boat, aggregating $509.32. On the same day, lngler & Atkinsen and others filed a libel of intervention for materials furnished and labor performed on the vessel while she was undergoing reo pairs, liens being claimed therefor under state law. The claims contained in this intervention are aB follows: :{ngler & Atkinson, for materials furnished (lumber, moldings, sashes, doors, etc.) and joiner work done to the steamer Alvira, balance due, $718.56; E. G. Buswell Paint Company, paints and painting, $369.95; Humboldt Lumber Company, lumber furnished, $163.21; Puget Sound Lumber Company, lumber, $416.58. On November 27, 1893, Costello & Boucher and others also filed a libel of intervention for materials furnished and work dohe in repairing the steamer Alvira, and alleged to constitute liens upon the vessel by virtue of the state law. These claims are as follows: Costello & Boucher (Oakland Boiler Worb), materials furnished and work done, $340.83; J. M. Prairo, furnishing materials and doing work in blacksmithing and ironwork, $109.05. The claims set out in the original libel of De Lano ·et al. were not pressed at the hearing, the parties having ar· rived at some settlement or understanding concerning the same; "nd those of Batchelder etal. are also eliminated from considera· they having been satisfied in full, and a dismissal filed, March 27, 1894.
The total demands against the vessel aggregated $2,846.64, but the claims of De Lano et al., for materials furnished, etc., and those of Batchelder et al.,for personal services rendered, having been v.63F.no.l-l0
],46
withdrawn from consideration, the demands outstanding amount to $2,118.18, for which judgment in rem is sought. The· question to be determined by the court is whether these remaining claims, which are all for materials furnished and labor performed in repairing and refitting the steamer Alvira, constitute liens against the vessel bv virtue of the state law contained in secti6n 813 of the Code of Civil Proeedure, as follows: "All steamers, vessels, and boats are liable: · · · 3. For work done or materials furnished in this state for their construction, repair, or equipment. * * * Demands for these several causes constitnte liens upon all steamers, vessels, and boats, and have priority in their order herein enumerated, and have preference over all other demands; but such liens only continue in force for the period of one year from the time the cause of action accrued."
'fhe materials were fnmished, and the labor performed, in repairing and refitting the steamer Alvira, under the following circumstances: The vessel was owned by J. R. Rideout, E. V. Rideout, find Alvira J. Rideout.J. R. Rideout was her managing owner. She was designed and employed as a freight boat, navigating the Bay of San Francisco and contiguous inland waters. On the 29th of July, 1893, she was chartered by the Davie Ferry & Transportation Company, a corporation formed and existing under the laws of the state of California. She was chartered for the period of one year, commencing August 1, 1893, at a monthly rental of $250, with the option to the charterer to purchase her, at the expiration of the charter, for $18,000, on certain specified terms. She was to navigate the Bay of San Francisco, and was chartered to be used a passenger boat The charter party provided, among other things, as follows: "The party of the second part [the Davie Ferry & 'l'ranspodation Company] 10 furnish, at its own expense and cost, all fuel, provisions, and necessary repairs, and at the end of this charter to return said steamer to the parties ,of the first part, free and clear of any and all obligations, of any name and nature, which may be incurred on said steamer during the term of this charter, and also to hold the said parties of the first part harmless fot· any and all damages or costs, of every name and nature, for injuries to persons or property, caused by said vessel, or persons managing the same, during the continuance of this charter, and, at the expiration of said period aforesaid, the party ,of the second part to return and deliver said steamer, her tackle, apparel, and .furniture, to said parties of the first part, or their agent, in as good condition, reasonable usage and wear excepted, as said steamer, her tackle, apparel, and fumiturewere in at the date hereof.... * * !tis mutuallyundarstood and agreed by the parties hereto that the party of the second part shall have the right and privilege to make such alterations in said steamer as they (it) may deem fit and proper, at its own cost and expense. And in case said steamer shall, during the life of this charter party, be surrendered and delivered by the party of the second part to the parties of the first part [the owners of the steamer .Alvira], all improvements made to said steamer shall accrue to, and become the property of, the parties of the first part, save and excepting such equipments as the said party of the second part shall have furnished."
The steamer Alvira was a freight boat. The Davie Ferry & Transportation Company chartered her to do passenger service. To be of any use to the company for that purpose it was necessary that she should be repaired and altered from a freight boat into one adapted to the transportation of passengers and such inci.dental freight service as is peculiar to boats engaged in the ferry
THE ALvmA.
147
business. That such was the mutual understanding of the parties is patent. It was in thus repairing and adapting the steamer Alvira for passenger duty that the expenses for materials and repairs were incurred. It appears that the Davie Ferry & Transportation Company became in,solvent some time after the materials had been furnished and the repairs had been completed, and the remaining intervening libelants seek to enforce their claims against the vessel itself, basing their right to do so upon the lien given by section 813 of the Code of Civil Procedure of this state. Therefore, the ultimate fact to be determined is, have the intervening libelants a lien, on the vessel proceeded against, for the materials furnished and the repllirs placed by them upon the steamer Alvira? 'I'he claimants of the vessel, as I understand their position, do not insist that the repairs were not necessary to fit the vessel for the business she was chartered to engage in, or that they were not reasonable. But, however that may be, the evidence shows that the materials and repairs were necessary for the purpose for whiCh the vessel was chartered, and were reasonable. The claimants eel" tainly have not shown that they were otherwise; but they insist that no lien accrued in favor of the interveners because the latter, as they claim, gave credit to the Davie Ferry & Transportation Company, and not to the vessel. As this is the home port of the Alvira, and as her owners reside here, and her owner pro hac vice, the Davie Ferry & Transportation Company, has its place of business here, the intervening libelants, if they recover at all, must do so by virtue of the lien created by the state statute, subject, however, to the principles of admiralty law which obtains in the vesting and enforcement of marititme liens. By the general maritime law, no implied lien accrues in favor of supply or material men upon vessels in their home ports. To secure themselves for such advances, an express hypothecation is necessary. The implied lien only vests where vessels are in foreign ports, and a necessity for supplies or materials exists, as well as a for credit, and such credit is actually given to the vessel. These',are well-settled rules of the general maritime law, and have been repeatedly enunciated by the supreme court of the United States. The General Smith, 4 Wheat. 442; The Lottawanna, 21 Wall. 558; The J. E. Rumbell, 148 U. S. 1, 13 Sup. Ct. 498. See, to the same effect, The Samuel Marshall, 49 Fed. 754; Id., 4 C. C. A. 385, 54 Fed. 396. This limitation in the general maritime law as to domestic liens gave rise to the state lien laws. Their object was to afford to supply and material men, in the home port of a vessel, the same protection which, by the general admiralty law, was secured to supply and material men upon foreign vessels. As was stated by Judge Hoffman in The Columbus, 5 Sawy. 488, Fed. Cas. No. 3,044: "It is well known that the state lien laws were passed after the decision in the case of The General Smith, which declared that the existence of Hens in favor of ,J;Ilaterial men in the home port of a vessel depended on the local law. 'The case was generally regarded, however (an'd, it would seem from the case 'of The Lottawanna, justly), as deciding that by the general maritime law. as received in the United States. demands of that kind were
148
not attended by any tien on the vessel. The statutes in question were PllSSedto Q.Dd to give to domestic material men the same prote<:tionwblch the tb.ariijme law a:trorded to foreign material men. . There is no'reason to suppose that they were intended to do more, or that It was sought to withdraw the demands of domestic material men from the operation of the general rules and prInciples by which maritime liens are governed."
The validity of these state statutes giving domestic liens was recognized by the supreme court In the case of The Lottawanna, supra, and has never since been questioned. In the. case of The J.' E. Rumbell, 148 U. S. 1, 13 Sup. Ot.· 498, the latest expression by the supreme court of the law on the subject of maritime ljens, the following propositions were regarded as settled. Mr. Justice Gray, speaking for the court, said: "(1) For necessary repa.lrs, or supplies furnished to a vessel in a foreign port, a lien is given by the general maritirn'Ei ·law, following the civil law, and may be enforced in admh,:alty.(2) For repairs or supplies in the home port of the vessel, no lien exists, Or can lJe enforced in admiralty, under the general law, independently of local statute. (3) Whenever the statute of a state gives a lien, to be enforced by process' in rem against the vessel, for repairs or supplies in her home port, this lien, being similar to the lien aris· ing in a foreign port under the general law, is in the nature of a maritime lien, and therefore may In admiralty inthe courts of the United States. (4) This lien, in the nature of a maritime lien,. and to be enforced by process in the nature of admiralty process, is within the exclusive jurisdiction· of the courts of the United States, sitting in admiralty. The fundam. reasons on which these proPosit1.ons Ijest may be summed up thus: The. admiralty and maritime jurisdiction is cj)nferred on the courts of the United States by the constitution, and cannot be enlarged or restricted by the legislation of a state. No state legislatioh, therefore, can bring within the admiralty jurisdiction of the national courts a subject not maritime in its nature. But when a right, maritime in its nature, and to be enforced by process in the nature of adIlliralty process, has been given by the stat'ute of a state, the admiralty courts of the United States have jurisdiction, and exclusive jurisdiction, to enforce that right according to their own procedure. · · · According to the great preponderance of American authority, therefore, as well as upon settled principles, the lien created by the statute of a state, for repair/il or supplies furnished to a vessel in her home port, has the like precedence over a prior mortgage that is accorded to a lien for repairs or supplies in a foreign port under the general maritime law, recognized and adopted in the United States. Each rests upon the furnishing of supplieS to the ship, on the credit of the ship herself. to preserve her existence and secure her usefulness, for the benefit of all having any title or Interest in her. Each creates a Jus in re,....,.a right of property in the vessel,existing independently of possession, and' arising as soon as the contract is made, and before the institution of judicial proceedings to' enforce It.. The contract in each case is matl.time, and the lien lll.w gives to secure it is maritime in its nature,l=lJld is enforced in admiralty by reason of its maritime nature only. .TheJ>l0rtgage, on the other not a maritime contract, and constitutes n9 maritime lien, and the mortgagee can only share in the proceeds in theiTfgistry after all maritime liens have been sat· illtI,ed., ,It seem to.folloW that any priority given by the statute of a statEl. 0).'. by decisions atcop;lmp,J;l law or in equity, Is immaterial, and that the admiralty courts of the United States, enforcing the lien because it is maritime in its nature, arising upon a maritime contract, must give it the rank to which It is entitied bY' the principles of the maritime and admiralty
law."
Although the facts of that case are not to those in the case at bar, the question there being whether a prior recorded mort gage of the vessel had priority over liens created by the state
THE ALVIRA.
149
statute, yet the general remarks of the learned justice are in point, as showing that liens granted by state statutes are placed on the same footing with liens recognized by the general admiralty and maritime law. But, while the courts of admiralty are held to have exclusive jurisdiction to enforce these state liens upon vessels, yet, in enforcing them, they do not adopt and apply these statutes in all their terms; they do not necessarily enforce all their provisions; nor do they follow the construction placed upon them by the state tribunals. In applying and enforcing them they subject them to the general principles of the admiralty and maritime law, or rather to those principles of the admiralty law which obtain and apply to maritime liens. In other words, they adopt the local statutes in so far as they create a lien of a maritime character. The Guiding Star, 18 Fed. 268. While it was intended to place domestic liens on an equal footing with foreign liens, yet this, of itself, does not render foreign and domestic liens for supplies and repairs in all respects the same. The lien given to a vessel deemed to be foreign is not always, in all its features, exactly similar to, or a perfect counterpart of, the lien provided by state statutes to vessels in their home port. The two are sometimes qualified by differences which even the application of the broad and general principles of admiralty law do not, in all cases, harmonize. As was said by Judge Hoffman in The Columbus, supra: "In the case of The Young Mechanic, 2 Curt. 504, Fed. Cas. No. 18,180, Mr. J. Curtis considered very carefully the nature and effect of a similar lien created by the laws of Maine. He held that it was a maritime lien, conferring a jus in re, and constituting an incumbrance on the property, and existing independently of the process used to execute it. He further held that the statute conferred on mechanics and material men such a lien on domestic vessels as the general admiralty law had previously allowed to them on foreign vessels. Of course, it was not intended by this decision to hold that the liens were identical in every respect The state laws may prescribe the mode in which the lien they create may be acquired or perfected. They may also limit their continuance to a specified period. But, except where the state laws otherwise in terms provide, the lien is to be regarded as maritime. and to be subject, as to its origin and incidents, to the same rules by which liens on foreign vessels are governed."
The two liens not being always identical, the general principles of the maritime law which apply to maritime liens cannot always be unqualifiedly applied to the liens created by the state law. The court of admiralty must, therefore, often discriminate between the two. For instance, it is the law, by the weight of authority, that where a vessel is in a foreign port, and' her owner is with her, supplies or materials furnished, or repairs done, to her, are presumably furnished on the personal credit of the owner, and therefore no lien accrues in faVOr of the supply or material man. The Mary Morgan, 28 Fed. 196, and cases there cited; Stephenson v. The Francis, 21 Fed. 722; The Now Then, 5 C. C. A. 206, 55 Fed. 523; The St. Jago de Cuba, 9 Wheat. 416. however pertinent the reasons may be for the existence of such a rule respecting vessels in ports, they do not apply to the liens given in the home port by state statutes. Domestic. liens for supplies or· repairs furnished at the request of the owner or of his agent would never obtain in a
150
FEDERAL, R$PQRTER,
home port,,:weretlle SQie which is held to apply to vessels in fore\glJi portlil <enfQreed, for) :the very idea of a "home port" tjlere or transacts his business the ,difficulty that 'would ariBe if this principle there. ,We by wbich"J;I)animne liltM :are 'measured: lind governed. where the: is .in a"fQreignport, ,and her owner is with her, were attem,pted tn its full terms, to local liens. Manifestly,. the very object ()f the local lien-the lien itself-,-,wolild be defeated.is this attempt toapplyinall;cases that tends, the' subject of localllens. The peculiar facts and equiHes of each ca!3e must often go far in determining the inherent of claims for supplies, m.aterials,ol' repairs furnished in the hOlPe' port. The observations of Locke, J., in: The Cumberland, t51,rare direl:!tly:in point.- Resaid: -"Tpe l,loetrineQf the re,sidence of the chal;tel'ers being accepted as the home-port of thevel*\el :ilil a fictipn of for equitable purposes, which will, I 11th satisfied, be, set aside whenever, th,e peculiar circumstances of the case, dem.and. In every case tlie.. to be based upon the knowledge of,thechal'tel',andthedtftles of thecharterm'1:mder it, and the unwillingthe to aid' rtbe materialmen iia' obtainl.nlf from the owner comllensation for, that whiph he ha4,furnishe!lat the request: and for the of the charterer, knOWing at time that the charterer had promised to'pdy:;' ... ' . .· .. , ; ',' " :. . -
the obvious purpose of state laws t() give t4) dt)l:p.estic sUJlpIy and .material m.en which the maritimeilaw afforded to foreign material and snpplymen, andreD1embering that though foreign and liens al'e;in featUres, similar, yet they are proved ft1,cts in this case proper to lnqmre, what are the general prlDClples of admiralty and ,maritime law which properly obtain and apply to the lii:ln$;elaimedi# caeeat bar? ,··.. i.' .·', . '.1'.I;i¢ generlll'pr'inciples of which must exist to give. to amllritime lien for supplies, or repairs are the following: (1) There must be a necessity for the Supplies, materials, or repairs; (2) there must also 'be a to obtain credit; and (3}cr(ldit must ,have been given to the Proof that the supmaterials, or repairs were necessaryi'carrieswith it a presump-· tio1l.of the second requilJite,-that there was a necessity for credit; for credit being presumed tQexist where the supplies, eW."were necessary and are proved to ha,ve been such. The Grapeshot".. 9 Wall 129. In tlult case the supreme court say: ·'W!J.ere proof is made of necessity for repairs or supplies, or tor funds, raJ,sl¥1 to pay for. ,them by master,: lllldof credit given the ship, a prewill in pf evidence to the contrary, of'nece!lslty for cf.edlt." ,, .
'in mind, in,glying the Ihm,
E\Qfar .as ls will determine· the .. ha'Ve a. lien or not. There is no difficulty in arrivingata conclusion :asto the first two requisites.. That the materials aug. repair's were necessary is abundantly established by theeyidl?n0e.Thev:essel';WM chartered to do pas-·· up and was being run,. senger service.: A"t tbattirpe ,she
nm
ALVIllA.
151
as a freight boat. Unle$ altered, she was totally useless to the Davie Ferry & Transportation Company. I find, therefore, that the materials and repairs furnished were neCfssary for the purpose for which the vessel was chartered, and that the charges for the same, so far as appears from the evidence, were reasonable. But the question of difficultv is. to whom did the intervening libelants give credit,-to the vessel or to the Davie Ferry & Transportation Company? The intervening libelants all testify that they were not informed, and did not know, who were the actual owners of the vessel, nor did they know that the relation which the Davie Ferry & Transportation Company bore to the vessel was simply that of charterer. It is true they did not inquire. The materials and repairs were furnished at the instance of John McGrath and Capt. Ebert. The latter was the general manager of the company, and ordered some of the materials, but it seems that McGrath did most of the ordering. When preparations were first being made to carryon the repairs and alterations, Capt. Ebert accompanied Mr. McGrath to several of the intervening libelants' places of business, and introduced the latter, telling them to comply with such orders as McGrath might give them for materials and repairs. McGrath was employed by the company, and acted a.s a sort of foreman joiner. As such he had charge and superintended the repairs and alterations which were made on the Alvira. He testifies that he was authorized to order such materials or work ashe desired. As to what he said when ordering these materials and work, he testified as follows on cross-examination: "Q. When you purchased these materials, did you tell them who you were purchasing for? A. Yes, sir. Q. Who,-the Davie Ferry Company? A. Of course; the steamer Alvira, or the steamer Rosalie, or the I!'rank Silvia. or for 'Wharf,' or 'general repalrs,'-whatever it was. I stated very 'distinctly what the materials was for. * * * Q. How was that? You told them that you wanted them for the Davie Ferry Company? A. I presume they understood that themselves. I ordered that stuff for the boats. The Court: Q. The question is, what did you tell them? A. They were keeping account with the Davie Ferry Company. Q. Did you tell them that it was for the Davie Ferry Company? A. I presume I mentioned the Davie I!'err;r Company, for steamer so and so. They lmew I was foreman for the Dav:e I!'erry Company. I did not need to mention it."
On redirect examination he testified: did you tell them any more than the steamer it was for? A. 'No. sir; I said it was for the steamer Alvira, 01' the steamer Rosalie, or the steamel" Frank Silvia, or the wharf, or whatever it was for. Q. Is that all you ever told them? A. That is all I ever told them. Q. Did you ever tell thpm at any time that the steamer Alvira would not be responsible for that? A. No, sir; I did not. Q. Did you ever tell them at any time that the Davie l!'erry & Transportation Company was going to pay for it? A. No. sir. Q. All you ever told them was the steamer for which this stuff was for? A. Exactly; distinctly the steamer it was for, or wharf, or shed, or waiting room, or whatever it was for." "Q. When you went and ordered that stuff from these different people.
Capt. Ebert was not produced as a witness by either side. The claimants do not produce a single witness to impeach the testimony of McGrath. On the other ha.nd, that witness is corroborated by
152
wI. 63.
,the ,interveners, :Who testified as to the ftct that. the materials and repairs were ordered for thervesselpj).rticularly,· and not for the .company generally, and that McGrath said nothing whatever to them about the ves$elnot being liabl13 for the expenses.. Nothing appears in'the evidence to the effect that McG:rath or anybody else ever ad· vised the interveners-certainly not until after the repairs had been fuBy completed....-that the vessel was under charter, and that the Davie Ferry & Transportation Company was the charterer, and not .the owner, of ;the vessel; and the evidence discloses no fact or facts which, either directly or indirectly, were calculated to put the inter· veners, 'as reasonable men, upon inquiry. They were told to send thebills to the Davie Ferry & Transportation Company, who would pay them, and· in each instance, according to' the testimony of McGrath and: of the interveners, they were told that the materials or repairs were for the vessel Alvira, particularly designating her. To the entries in the books or ledgers, and the bills, of the material men, I do not attach much importance one way or the other. As a rule, they seem to have contained the name of the company and the name of the vessel,-Alvira. But the latter was omitted in SQme instances, and in others the name of the company was left out. However, as just stated, I do not attach particular importance to. these entries. While the entries Are entitled to some weight, and, in connection with other facts, may serve to assist in the inquiry, yet they are not always deemed reliable evidence, and other judges, conscious of the opportunity afforded to unscrupulous sup· ply or material men of making evidence for themselves, have inclined to a rule which, under ordinary circumstances, or the peculiar facts of a particular case, would give but little weight to such evi· dence. In the language of Taft, Circuit Judge, in The Samuel Marshall Case, 4 C. C. A. 392,54 Fed. 403: "The fact that the supplies were charged against the vessel on the books of the libelants is evidence only of a self·serving practice, which has no particular weight in the determination of the question. A.s was suggested in the cases of Beine-eke v. The Secret, 3 Fed. 665, 667, The Francis, 21 Fed. The Suliote, 23 Fed. 919, IlJ).d The Maryl\{organ, 28 Fed. 196, 201, such practice is not infrequently followed in or(ler that the person who furnishes the supplies may not deprive himself of the lien, if he otherwise is entitled to It."
l'{or would the mere 1)act that the entries were made solely against the company, without mentioning the name of the vessel, of itself, under the circumstances of Rlpali:icularcase, have much weight to SllOW that creQ.itwas intended to be given to the company, and not to the vessel. The supply or material man may have made such an entry simply to indicate who was to pay the bills, intending'all alollg to give credit to the vessel. In other words, the intention of the parties mu.stlle gathered from all the facts of the case. In the case at bar the interveners all say that they intended to hold the vessel; that they thought the vessel was· good for the materials and repairs; that they simply sent their bills to the Davie Ferry & Transportation Company, upon the latter's request to do so, for payment. The mere fact that they looked to the company for the payment of their bills does not, of itself, show that they did not
153
intend to give credit to the vessel. Somebody must pay the bills. The ship itself-the inanimate thing-cannot do so. "Goods, as goods, cannot offend, forfeit, unlade, pay duties, or the like, but men whose goods they are." . Vaughan, O. J., in Sheppard v. Gosnold, Vaughan, 159, 172. Nor, I take it, would the fact that they gave personal credit prejudice their lien, provided it satisfactorily appeared that they gave credit to the vessel as well. And I think it may be safely said that in almost every case, in domestic ports, a personal credit incidentally accompanies the credit given to the vesseL As was said by Judge Benedict in The India, 14 Fed. 476: "A material man may, and generally does, rely upon a personal credIt as well as the credit of the vessel. The question here is whether the coals were furnished upon personal credit alone."
Aside from the testimony of McGrath and of the interveners, the following testimony of one of the 1..1aterial men is significant as tending to show that credit was intended to be given to the vessel. O. L. Ingler, a member of the firm of Ingler & Atkinson, who furnish.ed the Alvira with shipwork, doors, windows, sashes, moldings, and such like, to the "'alue of $1,307, of which, however, $588.49 has been· p'aid by the Davie Ferry & Transportation Oompany, leaving a balance due which is one of the items of this suit, testifies as follows: "Q. Who did you look to for your money? A. I looked to the boat. Q. You knew where it (the material) was going? A. I knew where it was going. on the principle as we do with a hoUse. We always lien. a house when it is not settled for within a certain period of time. Q. You knew, of your own knowledge, that this stuff 'actually went in her? A. Yes, sir.
On cross-examination he testified as follows: Who appeared on the behalf of the Davie Ferry Company to order this? A. Captain Ebert and Mr. McGrath. Q. What did they say when they first came there after they introduced the subject? How did tlley introduce the subject in regard to the purchase? A. Captain Ebert came along with Mr. McGrath, and stated that the Davie Ferry Company was about to overhaul this boat, and wanted me to furnish some material for it; and he says, 'Bill it to the Davie Ferry Company, and the bills will be paid from thirty to sixty days; in any event, the vessel is good for it. I told them I understood It was; and we arranged to furnish the material in that way and manner. Mr. McGrath ordered most all of the work and checked up all the bills. All the work went on this boat. Q. You say he said, 'In any event, the vessel is good for it'? A. Yes, sir. Q. Did he volunteer that statement himself? A. Yes, sir. Q. Did you make any inquiry of him in regard to his relations to that vessel? A. No, sir. Q. 'l'hen you sold it to him on the understanding that it was to be billed to the Davie Ferry Company on a credit of from thirty to sixty days? A. Yes, sir. Q. And that the Davie Ferry Company was to pay for it? A. That was my understanding of it at the time." "Q. You say this was ordered by the Davie Ferry Company.
On redirect examination he states that he furnished the materials on the promise that the boat would be good for it. He simply looked to the company for the payment of the bills; he did not look exclusively to it for the money. Another fact of some significance is that there were credits for the materials and supplies of 30 to 60 days' time. The company had 'been organized but a short time previously, and it does not appear
FEDERAL, REPORTER,VOl.
63.
liImly tliat, be furnished,and repairs" made, in amounts ranging all the way from $109.05 to $1,307, with nO other security than thebare::pl'omise of the company to settle in 30 to 60 dayw'titIle. The only security possessed bt the interveners was the·lien given by thestateilaw upon the vessel. Taking all the facts of! consideration, I cannot but conclude that they intended to give .credit to the vessel, and not to rely exclusively upon a personalcredit:ofthe company.In .case of' The Patapsco, 13 Wall. 329, a principle of admiraltyilaw was'declared which, while it related to supplies furnisheda ,ship in Rlforeign port, appears to be applicable to this case. It was held'that, where the credit is given to the vessel,' there is a lien, and the burden of displacing it is on the claimant f'J;J;e .sb;ow affil'1llatively the credit was gh:entothecOInpany, to: tile exclusion of a credit to the This. to do in the ,case at bar. The. l\bElJaIj,ts proved, wtllesatisfaction of the. c:ourt, that the repl,\irs,:were necessary the purpose for which: the ..Alvira was that reasonable; and,further, that they intendedjoghre to and not to the .;Davie Ferry & Tl'ansportl:J,tion Company . Accordiug to the rule laid down by the supreme court in the case cited, the burden then lay on the claimants to establish affil'1llatively that credit had not beenglven to the vesseL Falling in this, the lien attached. This view of the law' wotilddispose of the case, but counsel fol' Claimants advances another proposition.. It is contended that the lien given by the state law could not attach because the expenses for the materials and repairs were incurred, not by the claimants (the. owners), but by the Da;de Ferry & Transportation Company (the charterer); that the materials and repairs were primarily fol' the benefitQf the charterel';and tMt the latter, and not the vessel, is personally liable ..for the same.. The interveners maintain tlla.t they are, notwithstanding, .entitled to the domestic lien, because they furnished· the materials and completed the repairs in . .. not knowing or being informed that the vessel was under charter, orwho the owner or owners were. The rights and liabilities of charterers are succinctly stated by Mr. Justice Curtis in Webb v.Peirce, 1 Ourt., 108, Fed. Oas. No. 17,320, in the following . "When the possession, command, and navigation of the ship are let by the general,',owner,the 'hirer becomes owner pro hac Vice; the sion Is his; the employment Is his; the contracts respecting that employment are' hIs; the master, If he employs one, is his agent; if he commands thevessel himself, he acts on his own account. .In the language of Chancellor' Kent (3 Comm. 138). 'tllis. may be considered the sound alid settled law on this subject.'" . . . ,
But the fact alone that a vessel is operated by a charterer does not prevent, in proper cases, a marithne lien for supplies, materials, orrepairsfromattaehing. It is well settled that in foreign ports the charterer may create liens on the vessel,-may hypothecate her under :the same:conditions as the general owner could. 'fheir rights
TIlE hLVIRA.
155
i:o the payment of some personal. claim. While this Is true of claims arising -out of contracts, the maritime law in cases of torts treats a 'Vessel as an actor or sentient being having a personality capable of doing Wi'ong, and the lienran be enforced against the vessel asa delinquent, without regard to the question of ownership or agency; and in cases of contract, where the general· owner intrusts the special owner, either as master ot' hirer, with the ·entire control and management of the ship, he assents to the creation of lien$ binding on his interest in. the vessel a$ security for the performance of contracts for affreightments and for supplies furnished in the course of the laWfUl employment of the vessel. anll to liens' fOr injuries to cargo and for ·-eolllsion, for which he may not become personally l1able."
in thafregard are identical. In such case lIthe whole object of giving admiralty process and priority to privileged creditors is to iurnish Wings and legs to the vessel to get back for the benefit of ·all concerned; that is, to complete her voyage." Section 42, Hen. Adm. Ji.ir. & Proc., contains the following: "It iss:iId that, except in bottomry and $alvage, 'the lien exi$ts as ancillary
This would seem to dispose of the contention of counsel for claim-ants that, 'lUI the general owner was not originally or personally bound for these materials and ,r,epairs, therefore the vessel could not be. ' In the case of The India, 14 Fed. 478, 16 Fed. 263, previously referred to, which was a case of coals furnished to a vessel in a ·foreign port upon the order of the agent of the charterer, the latter resided in New York, and the coal was furnished in Philadelphia. It being' the port of a different state, it was, for that reason, by virtue as. foreign for ·of The General Smith Cal'Je, supra, the purposes of applying the principles of the adniiralty law. Judge Benedict held that the lien attached to the vessel, although the general owner could not be held personally liable. He said: "It is not essential to the creation of a lien for supplies furnished a for.' eign ship that the supplies be ordered by the general owner or his agent. When the general owner of a ship intrusts her entire possession and control 'to another as her special owner, he thereby assents to the creation of liens upon the ship . for necessaries supplied by order of the' special owner, alid, is when such necessaries are so supplied upon the credit of the ship, the bound, although no personal liability is incurred by the general owner."
In that case the court treated of a lien accruing in a foreign port; but there does not appear to be any good reason why the same principle of admiralty law, that one who intrusts another with the full possession, control, and management of a vessel is deemed to consent that liens for necessary supplies, materials, or repairs may be created on such, should not app.ly, in proper cases, in determining whether domestic liens have or have not attached, and with entire justice. An owner who charters his vessel must be deemed to consent that such liens may accrue. He is charged with notice that they may accrue. This, it seems to me, is nothing . but fair and -equitable to the domestic supply or material man, who may know nothing of the real relation existing between the general and special owner, and be deceived by taking the ostensible owner for the real owner. In other words, as to innocent supply men, the -general owner is subject, in proper cases, to the principle of an equi-table estoppel. But, by giving notice to the supply or material man
156
FEDERAL
of the fact that the vessel is in. the. hands of a charterer, the genfrom maritime liens. Thereeral owner·m.ay, protect his fore, the genenalprinciple tha.tt:heowneris deemed to consent to the' accruing of liens whel1e,·,jhe entire possession, control, and management of a vessel is intrusted toa.nother is qualified by this co;tldition: If. the supply man know of the charter or the relation in which the ostensible owner holds, or if he be advised of the real status of such relation by the general owner or by the ch8J'terer, or iEFplaced in of such facts as would put, 01' o,qght to put, a reasonably prudent man on, inquiry, the presumption arises, that the supplies, materials, or repairs were furnished "upon .' the 'credit of the charterer himself,. and there is no lien., ';.And the.onus lies on the supply or mate.rial man to remove thia .presumption. The reason, fQr this is plain l Courts of admiralty do not favor secret liens; otherwise,. owners would often fall. an easy prey to liens created by injudicious or unscrupulous charterers. Moreover, the supplies, materials, or repairs are generallyfurnished exclq.sively, for the benefit of the charterer; at least it may be said that he is the party primarlly benefited thereby, ,the owner, as a general rule, being only incidentally benefited, . if at alI. B1J'tin the case at bar the liens cannot be considered as secret, for tlie. reason that the owners knew all the time the exact situationM affairs. They knew that repairs and alterations would have to b,e made, and that they were being made. In fact, it is in e.i· dence that Capt. Rideout himself, the managing owner, visited the vessel while the repairs were in progress, and even went so far as to suggelrtsome iJ;nprovements. or 'modifications of the work. The owners, .therefore, knew as well as the charterers that the repairs an!l altemtions were l>eing made, and yet not one of them ever gave notice. to anY of the interveners that they would not be liable for any liens that might accrue from such repairs and alterations. They did not, so far as the evidence discloses, even apprise any of the interveneI'$ Of the character in which the company operated the vessel. It is testified by Capt. Rideout that he did make some effort to given6tice to several of the material men, but this attempt proved ineffectual. It was, confessedly, not given to any of the interveners who now press their claims, and certainly not until after the mate.rials had all been furnished and. the repairs entirely completed. Had the owners not known that these materials and repairs were being furnished, a di!ierent phase of the matter would be presented; but it appears affirmatively that they were fully aware of what ,was being done. Can they now be heard to complain, when, . with full knowledge of all these facts, they tacitly assented to these material men placing. over $2,000 worth of repairs on the steamer? · Are they not estopped, as against these material men, by their. own laches, when, having had ample opportunity to protect their,p,roperty from the vesting of maritime liens, they either omitted or to take the necessary steps to secure such protection? To refuse to enforce these liens, in the face of the conduct of the owners, would not be equitable, it seems to me, under the
157
circumstances, nor would it be consistent with the object of the stat· ute in providing the domestic lien. But counsel for the claimants contend that the duty devolved upon the material men to finq. out who the owner of the vessel was, and the relation the vessel bore to the Davie Ferry & Transportation Company. But what was there which, from all the facts in the case, it may be said, placed the material men on inquiry? The vessel had been chartered by the Davie Ferry & Transportation Company for the term of one year. One of the stipulations of the charter party gave the charterer the option of purchasing the vessel for $18,000 at the expiration of the charter party. It also provided that tepairs and alterations might be made by the charterer, and that no lien should accrue therefor. The material men knew nothing of these arrangements or stipulations in the charter .party, nor, so far os the evidence shows, did they know that the vessel was chartered at all, or that the company was anything more or less· than the general owner of the Yessel. Certainly, if complete possession, management, and control are indicative of ownership, the Davie Ferry & Transportation Company was the ostensible owner. To be sure, the interveners did not make inquiry for the purpose of being informed as to the actual fa.ct. But, in view of the circum· stances of this case, they were hardly called upon to do so. There was nothing calling for an inquiry. To all appeamnces the company was the owner. It ran the vessel; hired the captain, officers, and crew. In fact, the captain employed was a son of the managing owner. The company paid the running expenses; engaged to make the necessary repairs and alterations. Everything seemed regular. There was nothing, so far as the evidence discloses, which would tend to arouse the suspicions of a reasonably prudent person; nothing which might be calculated to place one on inquiry. Certain it is that nothing that the owners ever said or did can be regarded as any notice to the material men, or as being sufficient to put them on inquiry. In view of all the facts of this case, I do not think that the interveners' failure to institute inquiries, when not in possession of such facts as would tend to alarm a reasonably prudent person, and impose the duty of ascertaining the condition of affairs, can be said to justify a court, governed by equitable principles, in refusing to enforce the liens claimed, particularly when the owners, who did know the exact situation of affairs, failed to protect their property by giving timely notice to the material men. In the absence of notice, or of facts sufficient to put them upon inquiry, the inter· veners had a right to rely upon the apparent authority and owner· ship of the Davie Ferry & Transportation Company. In The Cumberland, supra, Judge Locke used the following language: "In truth, wherever the question of a lien on account of the vessels being in a foreign or domestic port has been under advisement, the presumed or apparent knowledge of the creditor is looked upon as the principal question, and the actual state of facts, whenever justice demands, yields to the reasonable belief of the party dealing with the vessel. * * · Admiralty law does not favor secret liens, contracts, or agreements; and, unless the owner takes some means of giving notice of a charter, the courts wil not aid him in resisting liens that have been given by the master when the party furnishing supplies was ignorant of it, because there may have been some
JEDERAL REPORTER,
'1l11'kn&.tb" arrangemedtlfv!liich, to llllbt, port of a vessel, and consequently the cOIllUlercial comtn.·.· ilt.d0e. . ,In.d .. ·,()wners . ,.in h.av. run. at e, of dealing Willi' her under tM impressIOn by her papers'anli the nattle'Of'il.1eri'home :pOrt bl1dhal',lltern. The ,preW.blptlon other h,omefport i$ the knowle4'tl p;a:e!lumM,of the. material Is.. withinthll, o,f .the themeither new or registry,!!>r :taking a bond J t1iecbarterers, as'iWBsstipulateil' lot;: but neverjfiven\in this case. 'ft6m 'r"bUYE1.:found no casewbere any oneidejl.Ungreg1;l1arlY :w,iththe master, ... Ilotice that. th.e ter.m. iii of a ... . F. p..rm!te.cted. th.e ve.,ssel fi'om h.YPOthe. .... Im1, a.s had, hIs J.p.. beClL'l!l.,e., . t h debt was.,.lncurr ed in, a port ".tiI. . of ll-}!l te in Which a cbartererresided,' n91-' do I thlnk'such has ever been declaas law." .., :1' , j ,·r,<;
of consiin,es'or agents of or the agents of so simllar iLPrdundistinguisl1able that without some pOSitIve ot their relations, ,contracts,anilagrMments it is impossible to determiuEl'fu 'Which classa!ll1gency may belong; and the fact that a merchant purcha,es, services. to be rendered a :vessel, raises no that he withthe owners make vessel hen. In the great maJority of him respq1'll"iple, and instanc§g, In ordinary p ¢tlc!e;the material'man or stevedore contracts witn, andtaltes hitl'b1l1 for payment to, tM agentofthesliip, whether he represents the owners"or the charterer!!; without of the master; but by . . .&J;ldQ.,o ,4.iS.· right to.! ... . '.to the vessel in event of a nonso .doi pe. does not ab it.,cannot bepreliluriled or expectEid that he call. be informed as to oftha 'charter, or tlaeres-poilsibilities of the parties, in each: particUlar case. Examlritng this caselri the light of these general prinfall to fiud· apy, atlirmative pl'(Ioftllat the liJ.)elant was ioformed or conditions of thecllarters, or either of them, or the raspoOl3,ibilltlesotthe veSllel. or charterers. or in any, way gave the agent per1 sonal' Credit, to the excItisiqn of the vessel. or that the ch'cuinstances are shown 'to be stich that he'S'hd1lld be held to'llave done so. The fiUal charter.,the one:n;oder which hew;flll:loadlng at thil!! time-specified distinctly that the ,vessel ,'ll9uld pay for he k1:\own of this, it was in no upon g9 back cif that, and. fi!14 to whom the term 'vessel,' there used, referredi--whether owners or preVIOUS charterers; and, were be ignorant of the 'proviSions of either charter, it cannot be presumed he knew of,' or eontemplate4,i any paymaster· but the vessel. ... ... ... It is not enough tO$hqw that an ,who employs labOr o"procuressupplies for a , vessell!! that charter liable for the bills incurred, but iUs necess8.l'1 tliat the creditor also be aware of the relation, and furnish the ,supplies or'services with such an understanding," . owners, ··
judge, ,Cit'<:liit cour-tof appeals circuit, u).,the case of NQfwegia,n 8.S. Co. v. Washington, 57 . .' .·,' ."
.t
"'" .'
",
.,1:
The case 0'( '{'he J QJ»1 ]'at'ron, '14 Blatch!. 24, Fed, Cas.. No. 7,341, the circuit,court for the second circuit, decided. pyJ;OllJlson, isquite:sil:qilar in pt1pc1ple to the cas.eat bar. It was held that a thefo.llowing circumstances, somedomestic what to tMpr.e,sent case. 'l."he of New York of April (Laws J$62", p. 956, § ,gave a Hell on a vessel for a debt contracted by her "master, owner, charterer, builder, or con1!ignee,"',,?I; tb;e agent of either of them,7' within the state, on account oflabofot',quiterialsfurnished in 'thesti1-te for repairing such vessel. H., the owper of a vessel, contracted in writing to sell her to 8., and deliveredrpossession and control of her to 8., who, as her -a,pparent owner"contractM in New York, upon her credit, a debt for repairs
XHE ALVIRA.
159'
to her. In the contract ofsale it was agreed that S. should have possession,and might make repairs, but that such repairs should not be a lien on the vessel or a claim against H.; but the creditor had. no notice of such agreement. The case had been appealed from the district court, where it was held that the lien could not attach. Subsequent to that decision, and before the case W1asdetermined in the circuit court, the supreme court decided The Lottawanna Oase, upholding the validity of domestic liens. In 'iew of this fact, and of the further fact that the owner had intrusted the possej3sion of the vessel, under the contract of sale, to the prospective vendees, by which they were enabled to appe::tr as owners to third persons, Judge Johnson held that the lien should be enforced against the vessel, although the owner incurred no personal liability. The learned judge said: "It was not the intention of the parties. that the title of the vessel should pass from Hamill to Stevens and Gardner by the delivery of her into their possession; ... but it was their purpose to put her under their entire control, leaving the unfulfilled portion of the contract to be carried out in the future, by the completion of the bill of sale and the execution of the mortgage. Stevens and Gardner, being thus in possession, by the consent of the owner, were enabled to Mlpear lUl owners to third persons, and thus to obtain credit. for the vessel as ;her owners, or through Stevens as her master. * * * 1.'he agreement between Hamill and Stevens and Gardnel', that they should SUbject the vessel to no lien by repairs, cannot prevent a lien occurring as to persons having no knowledge or notice of that agreement; and this appears to· have been the fact in respect to the libelant."
The counsel for claimants object toot, in the above case, the statute of New York mentioned the classes of persons who could contract a debt which would become a lien on the vessel, viz. "master, owner, charterer, builder, or consignee," "or the agent of either of them i" and as the debt in that case was contracted by the charterers, and the statute of this state makes no such specification of persons competent to incur debts for which liens would attach, that therefore the case is different in principle from the case at bar, and is not of authority. But I do not think the distinction is well taken, for by the law of this state, previously referred to, a lien attaches to vessels "for work done or mateoos furnished in this state for their construction, repair, or equipment." The preceding subdivision of the same section, relating to "supplies" and "services," gives a lien when such are furnished and rendered "at the request of their respective owners, masters, agents, or consignees," thus specifying the persons at whose instance debts for "supplies" or "services" may become Uens. The subdhision relating to liens "for work done or materials furnished in this state f()ll' their construction, repair, or equipment," it will be noticed, makes no such specification. This very fact disposes of counsel's objection, for the effect of the subdivision is to make all persons, who possess the authority, competent to contract for work or materialS, including, of course, charterers. Therefore, whatever question there may be whether, under the peculiar phraseology of the local lien law, ::t "charterer" would be competent to contract for "supplies" or "services" for which a lien· would attach in this state, there would seem to be no doubt that such a person ma;y contract for "repairs" or "materials,"
160
FEDERAL· REPORTgkjVol. 63.
And that aUenwould,vesttherefor, provided, of course, that, tested by those general principles' of ,admiralty law .which are held to apply to domestic'liens, it pro-ves· otherwise· valid. Oounsel for claimants! rely greatly upon The Samuel Marshall Oase, 49 Fed. 754; Id., 4 'CZ C. A. 385, 54 Fed. 396. The opinions in that case contain a very satisfactory statement of the l,aw of domestic liens, both in the decisions of the district and of the appellate tribunal (circUit court of appeals, sixth circuit); but upon a careful reading oftbe case Idtl not find anything inconsistent in the' law, as there expoonded, with that of the case at bar. The "flacts are,of a differentebaracter, and this, of course, must be taken into cODsidemtion. Inith'at case' both the lower' court and the appellate tribunal held that actual notice had been given to the supply man. In the case at bar no actual notice was given to the material men, nor am I 'able to find, from the evidence produced, that they were in suchfucts as ought·to have put them uponinquh'y, or that theiffatlure to be informed was due to carelessness or indifference. In the case of The Samuel Marshall the owner had n6 actual notice ofthefui'nishingof the coal, and had, therefore, no opportunity of prdtecting hhnselt 'by notifying the supply man. In the case at bar the o:w:ners were fUlly apprised of the 'fact that repairs were. being made,.and that. materials were being furnished therefor. There, the coal for which a lien was claimed was something which the charterer was bound to furnish, and for which the Owner received no directibenefit; hete the owner derives ,some benefit in getting back an improved vessel. ,I do not allude to this last feature as constituting" a distinguishing! mark which would require the application.of different principles of· admiralty law, but simply to show that the facts of the Samuel Marshall Case are not analogous, in their main features, to the case at bar. Gapt. Rideout cLaims that the vessel, as a freight boat, has not been increased in value, although over $2,000 worth of repairs and alterations have been made. But· this statement is flatly contradicted by other witnesses,entirely disinterested, so far as it appears, who say that the Alvira is a much better boat than she was before. Of course, it is. to .be remembered that the vessel is now fitted up as a passenger boat. Oertainly, Capt. Rideout cannot be heard to object against this, for he hhnself consented to it, and, it seems, very willingly, as it is in evidence that the vessel had been unemployed for some months. A witness testified that she could be turned into a freight boat again, if desired, at an expense of about $100, and that she would be in a much better condition than she was prior to the repairs. Oapt. Hideout says that it would require some $500, but, when asked to detail the items, he was unable to do so. Taking into congideration all the facts and equities of this case, and the law applicable thereto, it is my opinion that the interveners are entitled to the process of this court to enforce the lien provided by section 813 of the Oode of Oivil Procedure of this state, and a decree for their sevel'la1 daims will be entered in their favor, with costs.
"THE "
.161
THE ILLINOIS. HEFFERIN v. THE ILLINOIS. (District Court, E. D. Pennsylvania. August 7, 1894.) No. 12 of 1894.
SHIPPING-INJURIES TO STEVEDORE-UNSAFE DECKS.
A laboring stevedore. being ordered into the forward hold of /I. steamship to stow cargo, in passing down the forward batch got off on the orlop deck, immediately above the hold, and, going forward about twelve feet in the dark to strip, and leave his clothes, stepped into an unguarded hole four to six feet long and four to Six inches Wide, and was injured. It is the custom of such workmen to leave their clothes on the deck above which they work. Hela that, in view of the custom, it was the duty of the steamship to keep the deck in a safe condition, and, the hole being an unusual one in such ships, she was liable for the injury. The stevedore was not guilty of contributory negligence, for he had a right to assume that the deck was safe, and was not bound to get a light, or to wait until his eyes became accustomed to the darkness.
SAME-CONTRIBUTORY NEGLIGENCE.
This was a libel by Michael Hefferin against the steamship Illinois to recover damages for personal injuries. Samuel E. Maires and Curtis Tilton, for libelant. N. Dubois Miller and Biddle & Ward, for respondent. BUTLER, District Judge. I find the facts to be as follows: The libelant, a laboring stevedore, who was employed to assist in stowing cargo on the steamship Illinois, was ordered into the forward hold to work. In passing down the hatch he got off on the "orlop" deck, immediately above the hold, and going forward about twelve feet to strip and leave his clothes, stepped into an open and unguarded hole, four to six feet long, and four to six inches wide; and was seriously hurt. This deck is dark, and around the hatch for a considerable distance was covered with dunnage, which consisted of blocks of wood, soiled with oil and dust. It is the custom of such workmen to strip off and leave their outer clothing on the deck next above where they work. The water for their use is also kept there. Two unguarded holes, as described, at least, existed in the deck at the point where the accident occurred. Whether more existed, as the libelant asserts, need not be determined. If the two admitted by thE respondent to be there were in a part where the libelant had a right,and therefore might be expected, to go, they should have been guarded; and the respondent's negligence is as great as if more existed. They were unusual holes, such as are not found in vessels of this character, devoted to the service in which it was engaged. The deck was dark, and the holes could not be seen by one entering as the libelant did. On these facts the case cannot be distinguished from The Protos, 48 Fed. 919. The libelant had a right to go where he did to strip and leave his clothes. He was not restricted to any particular part of the deck, convenient to the hatch, in the absence of notice to that effect. He could use his own discretion in selecting a place. He v.63F.no.l-11