200 F. 865 | D. Mass. | 1912
Since the filing of the libel in this case, the sale of the Geisha, on October 21, 1911, as ordered by the court, and the order of November 21, 1911, that the marshal pay the proceeds of sale into the registry, the net proceeds, amounting to $1,681.31, have been paid in, and intervening petitions have been filed, alleging claims by 17 different parties to share in said proceeds. Hearings have been had upon all these petitions, and the amounts for which the libelant and the intervening petitioners have liens valid against the proceeds are now to be determined.
No objections are raised to the allowance of the following claims
Gloucester Coal Co.§235 57
Suffolk Coal Co. 66 87
Tj. E. Smith Co. 35 42
Master Mariners’ Co. 30 00
Geo. O. Tarr. 1 15
John A. Stoddart. 78 42
B. E. Andrews.. 11 73
Brown Bros. Co. 113 57
Bertelsen & Petersen. 835 2t
John E. Souza. 12 95
The claims objected to, in whole or in part, will be next considered. These are seven in number, as follows:
(1) The only one of these which is for wages is the claim of John Kell}'. This is not insisted upon, and is to be dismissed.
(2) The Lockwood Manufacturing Company, the original libelant, concedes that two of the items claimed in its libel are not allowable. These amount to $46.90. There remain a claim for repairs furnished in June and July, 1911, amounting to $257.71, and a claim for wharfage from June 28 to September 30, 1911, at $1 per day, $95 in all.
The Massachusetts statute, which would have governed this case, had the act of Congress just cited not superseded it, gave a lien to any person to whom money was due “for labor performed, materials used, or labor and materials furnished * * * in the repairs of”
The Michigan statute construed in The James H. Prentice (D. C.) 36 Fed. 777, gave a lien for all debts contracted by the owner “on account of * * * materials furnished * * * in and about the repairing” of a vessel; and under this statute proof that the materials were placed by the lien claimant on a dock at which the vessel lay, for her use, was held sufficient to establish the lien, without proof that the materials were also actually incorporated into the vessel. It was held, further, that the lien for materials so delivered was not defeated by proof that the owner afterward diverted part of them for use on other vessels without the lien claimant’s knowledge.
The state statutes dealt with in the two cases just referred to, like! many similar statutes of other states, made the lien depend upon proof that materials had been furnished in the repair of a vessel. The act of Congress now under consideration requires proof that the repairs have been furnished “to” the vessel; so that cases under state statutes like those referred to do not deal with the precise question now presented. Under section 2963 of the Virginia Code of 1904, which gives a lien to secure any claim against the master or owner, for materials furnished or provided “for” a vessel, it was held in Aitcheson v. Dredge (D. C.) 40 Fed. 253, that a lien was established by proof of a contract to furnish materials, partly performed by the materialman, and then broken on the vessel’s part; on the ground that the vessel had become bound by the contract. Proof of delivery to the vessel of the materials contracted for was held unnecessary. But I can hardly regard the act of 1910 as capable of this construction.
To maintain a lien under that act for materials to be used in repair, the materialman must show them to have been actually “furnished to” the vessel, and I think the intended meaning of that phrase as used in the act can only be the meaning generally given to it in the maritime law. It may not be necessary to prove that the materials have been actually, incorporated into the vessel; but I cannot doubt that they must appear to have been delivered to her, either on board her, or at least “within the immediate presence and control of her officers,” as was held regarding supplies in The Vigilancia (D. C.). 58 Fed. 698, 700. See, also, The Cimbria (D. C.) 156 Fed. 378, 382. As this vessel was not in commission during the repairs, but alongside the libelant’s wharf, and thus not in the actual custody of her officers,
The libelant is therefore to' be allowed $257.71 for repairs and $42 for wharfage — in all $299.71.
(3) and (4) The claims of Charles Parkhurst & Son and Charles A. Marr may be considered together. Both claims are for repair materials and labor furnished to the vessel at Gloucester, where these two petitioners carry on their business. Neither claim is disputed as to the items or the amounts. In October, 1910, Parkhurst & Son furnished materials and labor to the amount of $35.38. The remaining items of their claim were furnished in March and in May, 1911, amounting to $8.61. Marr furnished materials and labor in September, October, and November, 1910, amounting to $11.25. The remaining items of his claim were furnished in May and June, 1911, amounting to $4.85. There is no reason to doubt that each petitioner has a lien under the act for the full amount of his claim, or that he would be entitled to a decree for the full amount, if the proceeds were sufficient to pay all claims in full. But as to the 1910 items, since the petitioners have failed to assert their liens until after the season of 1910 had closed, those items must be postponed, in competition with those of later date by other lien claimants. Parkhurst & Son are to be allowed $8.61, and Marr is to be allowed $4.85. The remainder of their claims can only be allowed in case there are proceeds remaining after the satisfaction in full of all claims entitled to preference accrued during the season of 1911.
That this petitioner has a lien for the amount claimed is not denied. But is the lien upon the total proceeds of the sale, or upon the proceeds of the seine boat only? The latter view must be taken, unless the seine boat is to be regarded as an appurtenance of the steamer.
The Merrimac, 29 Fed. 157, a decision by Judge Nelson in this court in 1886, is the case mainly relied upon for the purpose of showing that this seine boat should be regarded as appurtenant to the steamer. The seine boat there in question was held not appurtenant to the fishing schooner which it accompanied, because it did not belong to, but had been hired by, the owner of the schooner from a person to whom he had sold it before the supplies were furnished. It is, however, said in the opinion:
“If the boat belongs to the owner, it is considered as attached to the vessel, and passes by usage in the sale of the vessel, though not mentioned in the bill of sale.”
The court found that, according to the usage of the business in which the schooner was employed, the seine boat always accompanied her, was indispensable in the prosecution of her business, and drew, when not owned by the owner of the schooner, a regular share in the catch.
There is no attempt to prove any usage in the present case, and it hardly seems probable that any usage can have become established, applying to a company employing, as did this company, several steamers in the vai'ious kinds of fishing carried on. Without resort to usage, there is much reason to doubt whether this seine boat is shown to have been so far indispensable to the steamer’s, employment, or so permanently associated with her in her employment, as to warrant the conclusion that the company had made her for all purposes appurtenant to the steamer. I should hesitate to hold that the seine boat 'would pass under a bill of sale by the company of the steamer “and appurtenances” (see Forrest v. Vanderbilt, 107 Fed. 734, 740, 46 C. C. A. 611, 52 L. R. A. 473), or, therefore, to hold that everything furnished to the one must be taken as furnished also to the other, within the meaning of the act. ■
The facts, however, that Gifford’s repairs presumably fitted the seine boat for use during the seining season of 1911, that the boat appears to have been in a common employment with the steamer dur
(6) J. Arthur Woodbury, of Gloucester, also alleges that he furnished materials, work, and labor to this steamer; but the facts are that what he did was done upon the seines carried by her seine boat. He carries on the business of repairing nets and seines. Nets or seines upon which repairs are desired are sent to his place of business on shore, and he returns them, after repairing them there, to the vessel from which they came. Whoever thus repairs on shore an appurtenance belonging to a vessel, and returns it to her repaired, may, in my opinion, be said to have furnished the repairs to her, within the meaning of the act. This steamer was in Gloucester in June, 1910, with an accompanying seine boat and seines; whether or not the same as those she had with her in the season of 1911 does not clearly appear. Woodbury furnished repairs as above on those seines to the amount of $58.75. At the end of April, 1911, she was again in Gloucester, and Woodbury furnished repairs as above to the amount of $6 upon the seines she was then using, presumably the same' as those later arrested and sold with this seine boat and steamer. His claim for $58.75 would in any case be postponed to the claims of later date. His claim is allowed to the amount of $6.
_ _ It is neither alleged nor claimed that Lantz intended to sell, or that the owner of the steamer intended to buy,, the seine purser in question. As between Lantz and the owner, therefore, the machine could not in any event be regarded as appurtenant to the steamer. It may well be that, as to a materialman not chargeable with knowledge of the arrangement between Lantz and the owner, the machine would have to be treated as appurtenant to the seine boat, and perhaps, therefore, to the steamer. The Hope (D. C.) 191 Fed. 243. But in order to charge the vessel, on any theory, with a lien for the value of the machine, there must have been some agreement, express or implied, on the owner’s part that at some time or other the title should pass, as in The Pearl (D. C.) 189 Fed. 540. Nothing of the kind is here