24 F. 375 | U.S. Circuit Court for the Southern District of Georgia | 1884
The bark Thomas Fletcher having been sold by decree of the district court, and the proceeds of sale partitioned among the various libelants and intervenors, James Gibb Ross, a mortgage
The supplies furnished by Willett & Hamlin were at the request of the owner, Pendergast, on the credit of the ship, as sworn by libelants’ agents. The supplies furnished by MeCaldin .Bros, were furnished on the order of Pendergast, and whether the ship was credited does not appear. It does not appear that either firm knew of Pendergast’s residence. Nor does it appear that any of the libelants knew that Pendergast had a place of business in New York city. The libel of James Gibb Boss, assignee, is on a bottomry bond, executed in Fal-mouth, England, in favor of W. BE. Boss & Co., and the only point made against it is that the evidence does not show that prior to its execution the owner, Pendergast, was notified, as he might have been, to consent to the bond, or' to raise the necessary funds by other means. This being a contest among creditors for priority, and the owner, Pendergast, not appearing, it is claimed that, although Pen-dergast is bound, the contesting libelants are not bound by the bond. The only evidence bearing on the point of notice to Pendergast is that of libelant himself, who, in testifying of Pendergast’s attempting to borrow money from him, says:
“The repairs done at Falmouth on the Thomas Fletcher were not clone on the strength of my credit with W. H. Ross & Co. The repairs were made, and the money to pay for them raised on bottomry, by the master of the vessel, before W. II. Ross & Co. received notice from me that I was willing to advance the money. I was in communication witli Pendergast at the time the Thomas Fletcher was at Falmouth. At that time he was in New York city. Part of the time 1 was iii New York, and part of the time I was in Quebec. Pendergast wished to raise money for the Thomas Fletcher’s repairs, and asked me to advance the funds. I was not disposed to do so, as I considered that the vessel already owed me all she was worth. I advised W. H. Ross & Co. that Pendergast was not able to payor raise the money. Pender-gast afterwards asked me again to advance funds, and offered me as security the order for $3,000 of the Fairy Belle’s freight. It was then that I advised W. H. Ross & Co. that I was willing they should advance funds to pay for the Fletcher’s repairs, and charge same to my account; but, as I have already*377 stated, the money to pay for the repairs had been raised on bottomry before W. If. Ross & Co. received my letter.”
If it is deemed material to show that the owner was communicated with before the bottomry bond was given, (see The Julia Blake, 16 Blatchf. 472 et seq.,) then it appears from the above-quoted evidence that he had notice, and was unable to raise funds in time to meet the necessity. James Gibb Boss also intervenes in this case, to claim proceeds of sale of the Fletcher as the holder of a mortgage for the sum of $10,000, which mortgage purports to have been executed by Pendergast of Plainfield, New Jersey, sole owner of the .Fletcher, and was recorded in the office of the collector whore.the Fletcher was enrolled, November 30, 1880.
It seems clear, in ranking these claims, that the bottomry bond should be recognized and given priority. If the demands of the various libelants for supplies and repairs are maritime liens, they should rank next. If not maritime liens, they should be rejected entirely, for they are not shown nor claimed to be domestic liens. To constitute them maritime liens, the supplies must have been furnished on the credit of the ship, and in some oilier than the home port of the ship. See The Lottawanna, 21 Wall. 559; Stephenson v. The Francis, 21 Fed. Rep. 715, and the numerous cases there cited.
From the evidence submitted, it is apparent that, of these material-men, Poillon, Bell, and Willett & Hamlin gave credit to the ship. The evidence is not as strong as it might perhaps have been made; but, un-contradieted, it is sufficient. The supplies furnished by McCaldin Bros, seem to have been on the naked order of Pendergast, owner, then present. As to what port is the home port of an American ship, there arise many very difficult questions. When the residence of the owner is in the same state as the nearest port to such residence, and there is no other port in the state, there is no particular trouble in ascertaining the exclusive home port, provided the ship is enrolled at the proper port; but, if all these circumstances do not concur, the home port of a ship is a matter of uncertainty, under the authorities, the weight of authority being in favor of considering all the ports of the state in which the owner resides as home ports. See The Albany, 4 Dill. 439, and cases there cited. In the present case, the question is whether the port of New York was, at the time the supplies were furnished, a home port of the Fletcher.
It is conceded that the enrollment of the Fletcher in New York makes only a prima facie case as to that being her home port. That prima facie case seems to be overcome by the positive evidence that Pendergast lived in New Jersey, and that Perth Amboy was the proper place for his ship to be enrolled. But then it is contended (see The Albany, supra) that as Pendergast had a continuous business place in New York, where he was nearly always to bo found during business hours, that New York constituted his residence, in the sense of section 4141, Rev. St., relating to enrollment.
The conclusions on the whole case are that a decree should be entered recognizing the bottomry bond as being first entitled to be paid out of the proceeds of the sale of the bark Thomas Fletcher; that the demands of Bichard Poillon, of George Bell, and of Willett & Hamlin be recognized as maritime liens, and ordered to be next paid — pro rata, if necessary — out of said proceeds; and that thereafter the claims of James Gibb Boss, under his mortgage, be next allowed and paid; any balance of said proceeds to remain in the registry of the court. The demand of McCaldin Bros, to be adjudged no lien, and to be dismissed. The costs incurred on the libel of McCaldin Bros., in the district court, to be paid by said McCaldin Bros. All the other costs of the district court to be paid from the funds in the hands of the court. The costs of this court, including transcript, to be paid out of the fund, if any remain, after satisfying in full the demands of Poil-lon, Bell, and Willett & Hamlin; otherwise to be divided (if nothing remain after satisfying such demands) between James Gibb Boss, who shall pay three-fourths, and McCaldin Bros., who shall pay one-fourth. '