189 F. 540 | E.D.N.C. | 1911
The report of the commissioner discloses the following casé: The Page Engineering Company, libelant, is a corporation, created under and conducting business in the state of Maryland. Claimant, the Oriental Manufacturing Company, is a corporation conducting business at Oriental, Pamlico county, in the Eastern district of the state of North Carolina, and is the owner of the gas boat Pearl. Claimant purchased the said boat during the month of February, 1910, and subsequent thereto, to wit, on the 26th day of said month, purchased from the libelant, Page Engineering Company, one 25 horse power Oriole engine, with complete engine equipment, for which it agreed to pay the sum of $750 — one-fifth thereof cash, and the balance, in equal installments of $300 each, in three and six months
“Every building, built, rebuilt, repaired or improved, * * * and every farm or vessel, or any kind of property, real or personal, not herein enumerated. shall he subject to a lien for the payment of all debts contracted for work done on the same, or material furnished.” Rev. 1905, § 2016.
Provision is further made by the statute for filing notice of the lien, which it is conceded has been complied with by libelant. It is settled that, when the state statute of the home port of a vessel gives a lien for material furnished, such lien, when perfected under the state statute, may be enforced against the boat by a proceeding in admiralty in the District Court of the United States. Admiralty Pule 12. Judge Gray, in the Vigilant, 151 Fed. 747, 81 C. C. A. 371, discusses the question at length and with abundant learning. He says:
“The general maritime law of the United states creates no Hen for supplies to a domestic vessel, and there can, therefore, be no proceeding in rem for the debt so incurred. The. lien created, however, by the local statute, being maritime in its nature, furnishes the foundation for such proceedings in rem in the admiralty court, the jurisdiction of which found itself upon the existence of a maritime lieu, though created by a state statute in the fashioning, creation, and limitation of which the general maritime law lias no part.” The Glide, 167 U. S. 60G, 17 Sup. Ct. 930, 42 L. Ed. 296.
“Well, the first was due to- the $150 cash, and the balance was two ■notes; and, of course, knowing that the boat was responsible for any repairs, machinery, and accessories, we should install and put there after the engine was sold.”
The last sentence'of this answer, it is insisted by claimant, sustains its position. While ambiguous, I think the entire answer should be considered, and evidently means that witness looked to the boat. This is certainly some evidence that the libelant sold and delivered the machinery, etc., upon the credit of the boat. There is'no evidence as to claimant’s understanding, and it is suggested that, in order to create the lien, both parties must have understood that the material was bought and sold upon the credit of the boat. This question was discussed by Circuit Judge Putnam in The Iris, 100 Fed. 104, 40 C. C. A. 301, in which case he was construing the Massachusetts statute, giving a lien for material furnished. He says:
“There is no necessity, under the local statute, of either alleging or proving that credit was given the vessel by mutual agreement.” The J. E. Rumbell, 148 U. S. 1, 13 Sup. Ct. 498, 37 L. Ed. 345.
It is settled that the retention of title to the engine until the debt was paid does not prevent the statutory lien from attaching. In C. & A. Railroad Co. v. Union Rolling Mills, 109 U. S. 702, 721, 3 Sup. Ct. 594, 27 L. Ed. 1081, this contention was made. The court quotes with approval this language from the Supreme Court of Illinois in Clark v. Moore, 64 Ill. 279:
“The lien [statutory lien] attaches to and incumbers the property to improve which the material is furnished, and the effort to acquire a more specific and exclusive lien thereon in no wise manifests an intention to release the property from all liens and look to other security for payment; but it shows the very opposite intention, an intention to hold, if possible, the property liable for the payment of their claim.” 20 A. & E. Enc. 500; 27 Cyc. 276; The Thomas Morgan (D. C.) 123 Fed. 781.
I concur with the commissioner that claimant has not sustained its. counterclaim. Claimant is insolvent and its property in the hands of a Receiver. While the case is not free from difficulty, upon a consideration of the entire record, I am of the opinion that the report of the commissioner should be confirmed.
Fet judgment be drawn accordingly.