The Catherine Whiting

99 F. 445 | 2d Cir. | 1900

PER CURIAM.

Inasmuch as a material man furnishing repairs to a vessel in her home port áoes not thereby acquire any maritime lien upon the vessel, this action can only be sustaineá upon the theory that the lien sought to be enforceá was createá pursuant to the state law, which gives a lien for such repairs, “if such áebt is contracteá by the master, owner, charterer, builáer, or consignee of such ship or vessel, or by the agent of either of them, within this state,” aná proviáes that the áebt shall cease to be a lien unless the lienor shall within 30 áays after it was con trac teá file a notice of lien containing, among other things, “the particulars of the áebt, ahá a statement of the account claimeá to be áue from such vessel,” áuly verifieá in the office of the clerk of the county in which such áebt shall have been contracteá. Laws 1879, c. 334. The repairs in controversy were begun on April 20 or 21, 1898, aná were completeá July 15th. The only notice of lien fileá within 30 áays after the áebt was contracteá is one stating a claim of lien for $2,400, “the saiá amount ($2,400) being áue from saiá vessel for work áone upon the same, materials furnisheá, aná labor aná services performed under instructions from J. O. Metcalf.” We agree with the court below that this notice did not contain a statement of the “particulars of the debt,” as required by the statute.

Aside from'the technical defense, the facts of the case'present a good defense upon the merits. The repairs were furnished to the vessel under instructions from one Metcalf. At the time one Flaherty was the sole owner of the vessel, and Metcalf was neither master, charterer, consignee, nor agent. Metcalf had entered upon a contract with Flaherty, by the terms of which he had agreed, at his own expense, to put boilers into the vessel, and make repairs to her machinery and hull necessary to fit her for a voyage to the Pacific coast, and by which Flaherty agreed that, upon the completion of the repairs, Metcalf could take possession of the vessel, and employ her as a charterer for a specified period, repaying himself the cost of the repairs, and dividing the earnings with Flaherty. When the repairs were begun, Flaherty, by his ship keeper, was in possession of the vessel; and while they were being made, although Flaherty was frequently present, the appellant was aware of the contract between Flaherty and Metcalf, and that Flaherty did not propose to permit Metcalf to' have them made upon the credit of the vessel. The appellant was distinctly notified by Flaherty that he must not look to the vessel for his indemnity, but must rely exclusively upon Metcalf, and appellant took security from Metcalf by a mortgage on real estate and otherwise. ¡Notwithstanding this, the appellant seems to have supposed that he could subject the vessel to a lien in invitum. Undoubtedly, if Flaherty had held out Metcalf as a part owner, or charterer, or agent, the vessel would have been liable, although he was not such in fact. But the appellant knew that Met-calf’s only relation to the vessel was that of a prospective charterer. The decree of the court below dismissing the libel was correct, and is affirmed, with costs.