3 Blatchf. 187 | U.S. Circuit Court for the District of Southern New York | 1854
1. I am strongly inclined to think that Haight & Palmer, the charterers of the vessel in this case, are to be deemed owners of her for the voyage. If so, the purser of the vessel, who was their agent, was competent to bind her for the necessary supply of coal at *Porto Cabello; and this, although the person furnishing it knew of the charter, and knew that, according to its terms, the charterers were bound to furnish coal for the voyage. Upon any other rule, the master or agent of a vessel in distress, in a foreign port, would oftentimes find himself unable to procure the necessaries essential for his relief. The voyage might be broken up, for want of supplies, or the vessel might go to decay in port, for want of proper repairs. I have found no case where it has been held that this knowledge on the part of the person furnishing the supplies or making the repairs, under the circumstances stated, affects the right to charge the vessel as security for the payment. The right to charge the general owner personally, is a very different question.
2. But, admitting that the charterers were not owners for the voyage, and were but hir-ers of the use of the vessel to carry passengers and freight, and that the general owners and the possession and navigation of her, the charter party resting in covenant, and not in a letting of the vessel, the result must, in my judgment, be the same. The proof shows that the vessel was out of coal, and went to Porto Cabello, it may be properly said, in distress for supplies, without which she could not have performed her voyage. I cannot doubt that the coal, if procured by the master under such circumstances, is a charge upon the vessel, according to the settled maritime law. The claimants, it is true, seek to exonerate her upon the testimony of the purser, who was the agent of the charterers, that he, and not the master, contracted for the supply of the coal, and that the master, for himself and the vessel, repudiated the purchase. The master has not been examined, the defence in this respect being allowed to rest upon the evidence of the purser. He is contradicted by Captain Thompson, who made the sale. According to his evidence, all parties were given to understand, expressly, that the vessel would be looked to, in case the draft drawn on Haight & Palmer should not be paid. The purser contradicts himself in several parts of his evidence, and, in other respects, it is not calculated to inspire confidence. He testifies, in the first place, that Captain Thompson did not tell him, at the time he consented to take the draft, that he should look to the vessel if it was not paid; but afterwards he is obliged to admit that Captain Thompson did tell him so. He also testifies that he had sufficient funds on board to pay for the coal and for the other expenses of the voyage, but he afterwards shows that in this he was mistaken.
I think the evidence of Thompson entitled to the most credit; and, according to that, the master of the steamer participated, or should be regarded as participating, in the purchase. He was present when the contract was made for the coal, and when the draft for the balance of the purchase money was accepted; and Captain Thompson, according to his own evidence, agreed to accept
3. The proofs show, that the sale was made and the draft taken under the expectation, on the part of Captain Thompson, that the vessel would be liable for the unpaid balance, if the draft was not paid at maturity. This is not contradicted by the evidence of the purser. That evidence seeks to establish the fact, that the master gave notice, at the time, that the vessel would not be considered as liable. On this point, in the absence of the testimony of the master, I think that of Captain Thompson entitled to the most weight, for the reasons already stated; and, according to that, the credit was given to the vessel.
I must, therefore, reverse the decree below, and decree that the vessel is chargeable for the balance due for the coal, with a reference to the clerk, if necessary, to ascertain the amount.