Rickard v. The James Farrell

36 F. 500 | S.D.N.Y. | 1888

BrowN, J.,

(after stating the facts as above.') Though no one circumstance in this ease might be deemed sufficient to exclude a maritime lien, yet, taking all the facts together, I think the work must be held done upon the personal credit of the owner, and not upon the credit of the ship. Under the decisions, I should have upheld the lion, had there been no adverse circumstances save the previous negotiation for the repairs by the libelant with the owner’s representative in New York; for the repairs were in fact made in another state, while the master there was in charge of the boat, and hence they were received by the master for the use of the vessel. The Solis, 35 Fed. Rep. 545; The Hiram R. Dixon, 33 Fed. Rep. 297; The Chelmsford, 34 Fed. Rep. 399, and cases there cited; The Huron, 29 Fed. Rep. 183; The Aeronaut, ante, 497; The Christopher North, 6 Biss. 414. The mere fact that the original negotia.-tions were made with the owner in his own state may not afford a presumption that an exclusive personal credit was intended; or that the material-man in furnishing the repairs or supplies to the vessel, and to the master in another state, intended to waive the security of the maritime lien that the lex loci ordinarily affords for such benefits to the ship. See, however, the observations of Judge Butler in the case of The Chelmsford, supra. Here the further circumstances that, the work was sought by the libelant at the office of the owner’s representative in New York; that the bill was rendered there; that a note was there twice taken for payment; that the vessel was frequently present and subject to suit; and that, nevertheless, no libel was filed, nor any lien upon the ship claimed, until between eight and nine months after the -work was done, and after the vessel had virtually passed into bona fide hands, — seem to me to require that the work should be held intended tobe done on personal credit only, and not on the credit of the boat. The Camilla, Taney, 400; The Norman, 28 Fed. Rep. 383, The Transit, 4 Ben. 138; The Sea Flower, 1 Blatchf. 361; The Suliote, (affirmed on appeal,) 23 Fed. Rep. 919, 924—927; The Mary Morgan, 28 Fed. Rep. 196; The Glenmont, 34 Fed. Rep. 402. On this ground the libel is dismissed, but without costs.