151 F. 6 | 2d Cir. | 1907
The yacht was owned by Watt, who made a contract of sale with one Durlacher May 18, 1905. This contract provided that “Watt shall sell and Durlacher shall buy the said yacht Golden Rod, etc., for $32,000.” payable in nine monthly installments, beginning July 1, 1905, and that “concurrently with the execution of this agreement Watt shall execute a bill of sale, * * * which shall not be delivered to Durlacher until the entire purchase price shall have been paid, * * * and in the meantime said bill of sale shall remain in escrow in the hands of A. P. Bliven.” It was further provided that upon signing of the agreement and the effecting of insurance Watt should deliver possession to Durlacher. Durlacher covenanted to keep the yacht in as good condition as when delivered to him, and that he would make no alterations or changes in hull or machinery without the consent of Watt or his authorized representative, and at Durlacher’s own expense, and further engaged to furnish a bond to> protect against any liens for seaman’s wages, repairs, supplies, etc. It was further provided that until full payment Watt should keep Bliven on board the yacht as his designated representative. Durlacher took possession while the yacht was out of commission in the Erie Basin, and subsequently appointed one Eudlow captain. A similar contract was before the court in The H. C. Grady (D. C.) 87 Fed. 232, and it was held that, when a question as to maritime lien arises, the vessel should be- considered as if she were in the possession pro hac vice of a charterer to whom the owner had temporarily turned her over. In this view of the law governing the case we fully concur.
The coal was furnished in Hoboken, N. J. The owner resided in New York City. The supplies were therefore furnished, not in her home port, but in a foreign port. We so held in The Havana, 64 Fed. 496, 12 C. C. A. 361, and our'attention is called to no authority questioning the correctness of that decision."
The contention of the appellant is that it obtained a lien under the statute of New jersey, 2 Gen. St. N. J. p. 1966. The Supreme Court of the United States, while holding that it is competent for the states to create such liens for necessaries furnished to domestic vessels,said, “The right to extend these liens to foreign vessels in any case is open to grave doubt.” The Roanoke, 189 U. S. 194, 23 Sup. Ct.
In the court below it was insisted that, if Hoboken were held to be a foreign port, libelant nevertheless obtained- a lien for the supplies under the general maritime law; and such a claim is, we understand, still made on this appeal. To sustain such a claim it is necessary to ■show that the credit of the ship was properly relied upon by the person furnishing the supplies. In The Kate, 164 U. S. 458, 17 Sup. Ct. 135, 41 L. Ed. 512, it was held that, if the libelant knew that the vessel was being operated under a charter which provided that the charterer should furnish and pay for all needed coal, he could not maintain a lien under maritime law. And in The Valencia, 165 U. S. 264, 17 Sup. Ct. 323, 41 L. Ed. 710, the same court further held that if the circumstances attending the transaction put the libelants upon inquiry as to the terms and existence of such charter party, “but they chose to shut their eyes and make no inquiry touching these matters,” they acquired no lien, even though- they “delivered the coal in the belief that the vessel would be responsible for the value of such coal.” The application of the rule thus laid down disposes of all question as to general maritime lien in this cause. It is quite apparent from the evidence that the master did not order the coal, and that before it was actually furnished the representatives of the libelant were advised that the yacht was under charter, or had been “bought on the installment plan,” as the captain expressed it, but they made no effort to inform themselves as to the terms of the agreement under which she was in the possession of Durlacher instead of Watt. Under these circumstances no lien was'obtained.
The decree of the District Court is affirmed, with interest and costs.