67 F. 358 | 2d Cir. | 1895
The facts in this case are peculiar. In June, 1893, the steamship Wandrahm, owned by the Hamburg American Packet Company, a German corporation, was lying, in a damaged condition, in the port of Quebec, Canada. The owner thereupon made a written contract with the shipsmiths and machinists known as the Morse Iron Works Company, hereinafter called the Morse Company, a partnership in the city of Brooklyn, N. Y., to take the steamship from the St. Lawrence river, tow her to New York, and completely repair and restore her, within a specified time, for the sum of $63,000. The contract was thereafter completely executed, and the contract price was paid. On June 24, 1893, Edward P. Morse, one of said firm, wrote the following letter to the libelants: ■
“Shipsmiths, Machinists, and Boilermakers.
“Morse Iron Works Co.,
“New York, June 24, 1893.
“The Merritt Wrecking Co.—Gentlemen: Kindly send me approximate estimate for furnishing 3 wrecking pumps, with boilers and all gear; also*359 3 engineers and 2 firemen, 1 diver and tender and foreman. I want yonr charge tier day. We have a steamer in St. Lawrence river, which we propose to bring to New York. We will furnish all transportation and other charges. Steamer has been ashore, but we will make temporary repairs before leaving there, and will only need your men and pum'ps in case of emergency. Kindly send estimate by bearer, as we have very little time to spare. 1C. P. Morse.”
The libelants returned a memorandum upon the back of the letter giving the estimate asked for. Apparently the negotiations ended with this correspondence. On June 27th the libelants and the Morse Company entered into a written contract for the pay of the men and material to he sent to Quebec. The contract was silent in regard to any credit to be given to the vessel. The men and material went to Quebec, and some services were rendered for or upon the vessel. The libelants did not know, when they entered into the contract, who was the owner of the Wandralun, did not know the Morse Company, and neither made inquiries as to their credit nor about the ownership of the vessel. The bill was made out against the Morse Company. Edward P. Morse appeared as claimant, and answered the libel, which was dismissed by the district court upon the ground that the evidence showed that the libelants relied on the credit of the Morse Company alone. The district judge says in his opinion;
“In view of all 1,he circumstances, the situation of the vessel, and the fact that the libelants’ contract with the Morse Iron Works made no allusion to the credit of the vessel, I am of the opinion that the evidence does not justify holding that the libelants furnished the labor and material on the credit of the vessel, but, on the contrary, shows that the libelants relied on the credit of the Morse Iron Works alone. Upon this ground the libel is dismissed.”
It is apparent that the Morse Company were the contractors for the repairs of the steamship; that the owners had given them no power to make contracts which should bind the vessel, and that the libelants were, in fact, subcontractors, who had agreed with the contractors to perform some services upon the vessel at the port of Quebec. By the maritime law, apart from state statutes, when materials are furnished by a subcontractor, to be used upon a vessel, in pursuance of a contract made by him with the person who is known to be the contractor for the repairs of the vessel, and not to be the agent of the owners, the sale is obviously made on the account of the contractor, and upon-his credit. It is the ordinary case of a sale by one individual to another individual, who is the sole debtor. If the contractor for repairs upon a vessel is not authorized to employ men or buy materials upon the credit of the owners of the vessel, and the employés or the material men have knowledge of this state of facts, they can have no valid lien for services or materials furnished the contractor and used upon the vessel. In the absence of knowledge of the nonagency, the subcontractor may have been misled by the apparent power to bind the vessel which the acts or conduct of the owners permitted the contractor to have, and thus a valid lien will be placed upon the vessel. Smith v. Railroad, 1 Curt. 253, Fed. Cas. No. 13,039; The