174 F.2d 67 | 6th Cir. | 1949
This controversy grows out of a libel filed by a seaman of the Towboat Kongo and an assignee of other seamen to recover unpaid wages. Other claimants intervened asserting that they had delivered necessary supplies and made necessary repairs for the Kongo at the request of its captain. Claims of a number of interven-ors were heretofore heard and disallowed by the district court, and its decision was affirmed by this court. The Kongo, 6 Cir., 155 F.2d 492, certiorari denied Standard Oil Co. of Louisiana v. “Kongo”, 329 U.S. 735, 67 S.Ct. 99, 91 L.Bd. 635.
Appellant Fisher’s claim is based upon one loan to the Master of the Kongo for the purpose of enabling the ship to make a voyage, made on the agreement that Fisher was to be repaid' from the proceeds of the freight earned and to become due from the Standard Oil Company at the conclusion of the voyage; and a subsequent loan for the purpose of enabling the ship to continue a voyage, which was agreed to be repaid from the proceeds of the freight earned and to become due from the Standard Oil Company. The funds to which appellants had looked for repayment of their loans, as evidenced by -the written understandings, were subsequent to the making of the loans, paid into the United States District Court for the Southern District of New York, and there, in several admiralty and interpleader suits, lawfully distributed by orders of the court to other creditors. Appellants did not share in this distribution. Standard Oil Co. v. Defense Plant Corp. et al., D.C., 57 F.Supp. 13; Defense Plant Corp. v. United States Barge Lines, Inc., D.C., 57 F.Supp. 14, affirmed in 2 Cir., 145 F.2d 766.
With one exception, appellants did not make the loans in question, or enter into agreements for extension of their payment, on the obligation of the vessel; they relied solely on its earnings. Such reliance on the earnings as security for the loans amounts to a waiver of lien on the vessel. '
Nor can liability be enforced on the claims of appellants on the theory that the written obligations evidencing the debts are Respondentia Bonds. The agreement for repayment of the loans lacks most of the essentials of those archaic instruments, the use of which has passed, with other appurtenances and trappings of romance of days now remote, when masted ships rode the waters of strange harbors, while their masters, far from their home ports, and unable to send a message to the owners, tried to raise cash on bonds of Respondentia to enable their ships to clear for the continuing voyage.
The case is remanded to the district court for further proceedings in accordance with this opinion.
“Marine hypothecations had their origin in the necessities of commerce, and are said to be creatures of necessity and distress. When properly authorized and duly executed they are of a high and privileged character and are held in great sanctity by maritime courts.” Delaware Mut. Safety Insurance Co. v. Gossler, 1877, 96 U.S. 645, 24 L.Ed. 863. The master has authority to pledge the ship and freight to raise the necessary funds for the voyage. The pledge of the ship is effected by a contract of bottomry, the bottom or keel of the ship being figuratively used to express the whole body of the ship. Where the cargo alone is hy-pothecated, the contract is called Re-spondentia. 2 Blackstone Comm. 458. See Conard v. Atlantic Ins. Co., 1828, 26 U.S. 386, 1 Pet. 386, 7 L.Ed. 189. Be
On August 26, 1942, the Defense Plant Corporation had leased the Steam Sternwheel Towboat Kongo to the United States Barge Lines; but on May 17, 1943, a termination agreement was signed by the Barge company and a charter was executed between the two parties providing that “Neither charterer nor any of its employees or agents shall have any right, power or authority to create, incur, suffer, or permit to he placed or imposed upon said vessel any maritime lien, or other lien, or incumbrance or charge, or to incur debt, obligation or charge upon the credit of said vessel. * * * Charterer shall exhibit or cause to be exhibited copy of this charter party to any person having business- with said vessel which might give rise to any maritime lien or to any other lien, encumbrance or charge whatsoever.”