273 F. 401 | 9th Cir. | 1921
(after stating the facts as above). [1] The
purpose of the act of 1910 was to. give certainty where uncertainty and conflict of decision had arisen upon the question of the liability of a ship for materials and service. In The Yankee, 233 Fed. 919, 147 C. C. A. 593, the Court of Appeals for the Third Circuit summarizes the contrariety of views and refers to the learned opinion of Judge Lowell in The Underwriter (D. C.) 119 Fed. 713, as demonstrating the confusion which through centuries has obscured the subject. This court, too, considered the,state of the law in The South Coast, 247 Fed. 84, 159 C. C. A. 302.
The cases cited show how the courts differed in their construction, depending upon whether supplies were furnished in a foreign or domestic port, or were furnished upon the credit of the representative of the ship, or upon the credit of the ship, and whether they were furnished upon the order of the owner or the master. We shall not take up the discussion further than to say that Congress, presumably knowing of the confusion, endeavored by the act of 1910 to make the law more certain by providing in effect that proof that credit was given the ship is dispensed with in the first instance, in that a presumption shall obtain that certain persons have authority to procure supplies and that the ship’s husband or master is one of the persons. No lien accrues if such persons did not have authority to bind the ship, and such lack of authority was known, or ought to have been known, to the furnisher of supplies. To apply the law to the circumstances of the present case is quite simple. The supplies were furnished at San Francisco, Oleum, and Balboa, upon the order of the master of the Portland. This being the case, the libelant established a prima facie right to a lien to be upheld, unless the claimant showed facts which withdrew the case from the general provisions by proving that the furnisher knew or by the exercise of reasonable diligence could have ascertained that because of the terms of the charter party, or for any other reason, the master was without authority to bind the ship.
The real ground for the ruling in The South Coast was that the supplies were furnished on orders from the master, and the master had the power to impose a lien unless the charter party excluded the possession of such power. Some of the cases cited by the appellant are to the effect that one knowing that he is dealing.with a charterer is put on inquiry as to the terms of the charter party. The Oceana (D. C.) 233 Fed. 139; Id., 244 Fed. 80, 156 C. C. A. 508; The Castor, 267 Fed. 608. That rule can be accepted without disturbance of the authority of The
The decree is affirmed.