49 F. 383 | D.N.J. | 1892
This is- an action in rem brought by the libel-ant corporation, to recover the sum of $2,148.91 for materials furnished, labor performed, and moneys laid out and expended during July and August, 1891, in repairing and equipping the steam-lighter Lime Rock. It appears frdm the testimony taken in the cause that the lighter was owned by Louise E. Bates; that on or about the 16th of July, 1891, Henry W. Bates, who described himself as “bailee'for hire” of the lighter, and who was in fact the husband of the owner, came to the shipyard of the libelant corporation at Elizabethport, in this state, to make arrangements for the repairing and equipping of the vessel, so that she might “earn her living.” Mr. Bates was accompanied by his wife, but he did not disclose to the officers of the libelant corporation that she was ■the real owmer. In her presence, and with her tacit consent, he began and carried on a conversation with the officers of the libelant corporation, who were there present, which finally resulted in'an agreement for the repairing and equipping of the vessel. This agreement, unfortunately, was not reduced to writing, and the. contradictory recollection of it, and the diverse constructions put upon the conversation, give rise to the real, and practically the only serious, dispute in this controversy. As has been stated, Mr. Bates describes himself as “bailee for hire” of the vessel. He admitted upon cross-examination that he hired and paid the crew, took charge of the running of the boat, making her contracts for carrying cargoes, and paying all the bills, including those for repairs, which might be incurred upon a voyage.
It is well settled that when a general owner allows the charterer to have the control, management, and possession of the vessel, and thus become the owner for the voyage, pro hac vice, he must be assumed to consent that the vessel shall be answerable for all necessary repairs and supplies to enable her to pursue her voyage, and that the special owner may lawfully bind the interest of the general owner in the vessel in this behalf.
Mr. Bates, bearing, then, this character of “owner for the voyage,” caused the lighter to be brought to the libelant’s yard to be repaired, in pursuance of and under the terms agreed upon in the conversation heretofore referred to. But he insists, and in fact testifies, that there was made, at the time alluded to, a special contract, entered into with the
It seems quite clear from the testimony that, at the first interview between the officers of the libelant corporation and Mr. Bates, it was the opinion of the latter that the proposed repairs, of which he had made a memorandum in writing, would not exceed the sum of §700 or §800 in his judgment; but .1 am equally clear that the weight of testimony shows that no such, or indeed any, limit, in cost of proposod repairs, was insisted upon- by Mr. Bates as a part of the contract, or was assented to by the libelant corporation. All the witnesses for the libelant unequivocally testify that no such limit was fixed, and that no contract to repair the vessel either for $700 or $800, or any other definite sum, was entered into. The officers who so testify are the officers with whom the conversation was had in which Mr. Bates declares that such contract was made. They do not deny that Mr. Bates, who, by tbe way-, is a counselor at law, and not a practical ship-master, did say that he thought such repairs as were necessary would cost no more than $700 or §800, but they themselves declined to give any judgment as to cost until they inspected the vessel. While, on the other hand, nowhere do the witnesses for the claimant, other than Mr. Bates himself, testify to any definite contract with the libelant corporation for the sum named. It is true that there is some testimony — -chiefly that given by Mr. Bates himself — which inferentially tends to substantiate the contention of the claimant; but I think, when it is carefully scanned, it must be regarded
Again, when the bill for the whole amount of repairs was presented to Mr. Bates for payment, he, indeed, criticised it severely, as much larger than it ought to have been; but at no time did he repudiate it, but again and again promised to pay it as speedily as he could obtain the money, declaring at the time the bill was presented that he had no means whatever to pay it, and he could only obtain the necessary funds from the earnings of the lighter. Had the claim so presented been unrighteously and unlawfully increased by the libelant corporation from $700 to $2,100, would it be likely that Mr. Bates would have considered the question of its payment for a single moment? Would he not instantly have repudiated the account, tendered to the libelants, according to his alleged contract, one-half of $700, or $800, as covering the whole of his liability at that time, and as all the moneys which he was then bound to pay, and set his boat to earning the other half of the
The claimant further insists that the special contract entered into by the libelant corporation and Bates makes it clear that credit for the repairs was given to Bates personally, and that such repairs were not to constitute a lien upon the lighter, and, further, that, if the37 were to constitute such lien, that lien was lost by the delivery of the vessel into the possession of the claimant before it was enforced. If this were a common-law lien for repairs or for the furnishing of supplies to the vessel, the delivery of the vessel upon which they were put, to the owner, would undoubtedly destroy it. But this is not a common-law, but a maritime, lien. The Lime Rock was a foreign vessel. Her owner was not a resident of the state of New Jersey. The repairs done by the libelant corporation, admittedly, were absolutely necessary to enable her to proceed upon her contemplated voyage. It was stated by the owner pro hac vice that he was entirely without funds, or practically so, to pay for the repairs ordered to be made. Thus it seems that ever3r element which goes to constitute the maritime lien was here present. Such lien is not destroyed In7 the loss of possession of the res. A lien of this character is in the nature of a proprietary right in the res itself, and will follow it into the hands even of an innocent purchaser without notice. The mere delivery of the lighter, therefore, to the claimant, when the repairs w7ere completed, does not interfere in any degree with the libel-ant’s rights, unless it can be shown that the lien was expressly waived.
As to the other matter of defense, — that the credit was given to Bates personally,-^-! think it may be taken as a fair deduction from the testimony that the credit was originally given partially to Mr. Bates, but 1 cannot conclude that the libelant corporation intended, under the circumstances, to divest itself of the right to enforce its claim by lien if the owner pro hac vice failed to keep his contract. It is quite true that the vessel was to be put back, by the agreement, into the possession of its owner, 30 days before any payment on account of the repairs w7as to be made, and after that payment the vessel was still to be left in the posses
As to the items which go to form .the amount of the Starin claim, I cannot agree with the contention of the counsel for the claimant, that they do not afford ground for a maritime lien. These repairs, as it appears from the testimony, were put upon this vessel under the supervision of Mr. Bates, and they were paid tor, at his request, by the libelant corporation. They constituted a lien upon the boat before payment, and it is settled that all advances of money made to payoff claims of such a nature, upon the credit of the vessel, as these claims were, and which constitute liens .in admiralty, have the benefit of the lien, with the same rank as the original claim. The item of 334 meals furnished to a portion of the crew at a hotel near Elizabethport, while the vessel was being repaired, cannot be included in this claim. Under the circumstances, they afford no basis for a lien, and must be stridm-i out. Let the usual decree be entered.