21 F. Cas. 911 | D. Mass. | 1860
Two questions are raised in this case. First, was the ship Sea Lark ever subjected to a lien for the chain and anchor; and second, if she was, has the lien been lost. It is admitted, that as the law was understood, prior to the case of Pratt v. Reed, 19 How. [60 U. S.] 359, the sale of these articles, under the circumstances, would have created a lien upon the ship. By the law, as laid down in that case, it is incumbent on the libellants, in order to sustain their action, to prove, not only that the articles furnished were necessary for the ship, but also that they could not have been procured upon the credit of the owner. It appears that there are no mercantile houses established at the islands, whose business it is to furnish either supplies or money. One draft, drawn by the master of the Sea Lark, was sold to a master of a ship, temporarily at the islands, and another at Callao, but it does not appear that credit was given, or the drafts taken, without a lien upon the ship. If the credit of the owner was known at the islands or Callao, as it in fact existed in Boston, it seems clear the purchase could not have been made upon it. Two years before, he had failed to pay a large debt that became due from him, and it remained unpaid. until he went into insolvency. He testified that he got credit after these articles were furnished, but it appears that it was only for premiums of insurance.
The master of the Sea Lark stated, in his deposition, in the first instance, that he bought the articles on the credit of the owners. He does not say exclusively upon their credit; and if tlwt was what he meant, it must have been an inference only, for he subsequently says, there was nothing said, one way or the other, as to whether the ship would be liable for the payment. It is not necessary that the ship should be, in terms, made liable for the payment. There is nothing in the recent case, to disturb the old doctrine, that a tacit lien arises, when the circumstances necessary to create it exist.
It appearing that the credit of the owner, at the place of his residence, was not good, at the time the chain and anchor were purchased, and had not been for two years prior to that time, and that there were no mercantile houses, or persons resident at the Chincha Islands, whose business or practice it was to lend money, or furnish supplies to any owners. I think it is sufficiently proved, that these necessary supplies could not have been obtained upon
There is no good ground for holding the lien to be lost There has been no neglect in enforcing it against the ship. This process was commenced against her as soon as was reasonably practicable, after the articles were furnished. It is said there has been neglect to enforce the payment of the debt from the owner. It is not necessary to decide what "would be the effect of such neglect, as none has been proved. Every effort to enforce the payment, except commencing a suit, seems to have been made. And, moreover, the claimant does not stand in the position of a bona fide purchaser, without notice. Judgment for the libellants.