45 F. 511 | S.D.N.Y. | 1891
.Upon all the evidence I am of the opinion that the libel for towage should not in this case be sustained. The vessel was chartered, in effect, to the Ridgewood Ice Company, to bring ice from the Kennebec river to New York, towage to be paid by the charterers. When the schooner arrived at the Kennebec river, she was taken by the libelant’s tugs to the place of loading, without any express employment by the captain, or agreement to pay. Before her return, as must be inferred from the evidence, the libelant was informed that the Ridgewood Ice Company was to .pay the towage, which was equivalent to notice that the vessel was not to pay it The towage bills were sent accordingly by the libelant to the Ridgewood Company for various voyages, and a part was paid by that comjoany. No notice was ever given to the master or to the owners that the ship was held or expected to pay for the towage until after the failure of the Ridgewood Ice Company, and the appointment of a receiver in the latter part of October, some six months alter the first voyage. Had any demand of payment been made of the vessel at the time of her departure from Kennebec on the first voyage, or even after-wards, upon her return on the second voyage; or had any notice been given her that the prior towage was unpaid, there would have been perhaps sufficient grounds for inferring an implied contract to pay at least for the three subsequent towages. But the master had no knowledge of the alleged local custom. He had never agreed to pay any towage, and had no reason to suppose at the time the service was rendered, or afterwards, that these towages were not provided by the Ridgewood Company according to its agreement, until after its failure. The circumstances seem' to me to import the libelant’s acceptance of the Ridge-wood Company as its debtor from the first, and its only debtor; and that would simply be according to that company the same privilege that by usage belonged’ to the stockholders in the libelant’s company, which covered a considerable part of the libelant’s towage business. I find, therefore, that the service was not rendered upon the credit of the vessel, but on the credit of the Ridgewood Ice Company; and that, if the libelant might originally have claimed a lien for towage, its subsequent dealings with the Ridgewood Company, and failure to make any demand of the ship, or give notice of any claim on her during the six mouths while the towage was .collectiblefrom the Ridgewood Company, are such laches, and naturally were so misleading, as to constitute an equitable estoppel against the present demand. The libel should therefore be dismissed, with costs.
