262 F. 250 | 5th Cir. | 1920
“Q. Did Mr. Betancourt tell you to order coal for the steamship Yarmouth? A. Mr. Betancourt was out of town. Mr. Warden left it entirely with me to order the coal for the ship.
“Q. When you ordered this coal from W. G. Ooyle & Co., were any questions asked you as to whether or not the ship was under charter? A. I believe it was asked who was operating the steamship. It was a new steamer here in town, and they asked me some information about the boat, which I told them; that is what information I gave them.
“Q. What Information did you give them? A. I told them that the boat was chartered under tile charter to T\ R. Betancourt.
“Q. They asked no further questions? A. Well, they just merely asked— they asked me if these people had an office. 1 remember they asked me those particulars.
“Q. You say that the steamship Yarmouth was under charter for two months. Do yon know what months? A. I think it was under charter for two months; that is my understanding. I had nothing to do with the charter of the ship, nor did I see any records of the ship; hut I do know that Ihey told me the ship was under charter, and the managing owner of the ship admitted that the boat was under charter.
“Q. But what I am trying to get you to answer is whether or not this particular coal which you claim, to have ordered was ordered during the time you know the ship to have been chartered to Betancourt and Warden? A. To the best of my knowledge and belief, the boat was under charter at that time.
“Q. You testify that this coal was used for fuel of the steamship Yarmouth. How do you know that? A. From a statement—
“Q. You do not know that of your own knowledge; you hare no actual knowledge of it? A. No; I was not on the ship.
“Q. When you ordered this coal, did you order any particular kind of cool? A. No; the usual custom: is to order sufficient coal, according to the requisition of the chief engineer of the boat.
“Q. And you were the one that agreed as to the price of the coal? A. Yes, sir.
“Q. Do you know how much was delivered under your first order? A. I kept no records of the delivery.
*252 “Q. Do you know how much was delivered under the second order? A.' It was 265 tons.
“Q. Did you keep a record of that delivery? A. No, sir.
“Q. Then how do you know it? A. I know it by the report from the captain and invoices.
“Q. But not of your own knowledge? A. Not of my own knowledge.
“Q. When was your first order given for the coal? Was it during the existence of this same charter? A. Yes, sir.
“Q. Do you remember how much was delivered then? A. I do not remember. I might say that, as far as the deliveries were concerned, I do not believe that, in the operation of any boat, the man that, purchases the coal knows how much goes on the ship actually, because we never see the coal go in the ship, and we only go by the records received from the chief engineers.
“Q. The first coal was bought or ordered from W. G. Ooyle & Oo. under the same conditions and circumstances as the second coal, was it not? A. The same; yes, sir.
“Q. Did you have anything else to do with Betancourt, or Warden, or IT. R. Betancourt, in ordering these supplies? I mean by that, did you have anything to do with other officers, the payment of bills, or anything like that? A. Not a thing.”
Following the delivery of the coal and the rendition of towage services, the libelant made out a bill therefor against “S. S. Yarmouth and Owners,” which it sent to Mr. Hiller. Mr. Hiller referred the collector to Betancourt & Co., who had an office in New Orleans, as he had done in the case of a similar bill for the coal delivered to the Yarmouth about a month before. Betancourt & Co. paid the first bill, but did not pay the second one. Evidence adduced showed that at the time of the transactions in question the Yarmouth was being operated under a charter party made in New York on the 4th day of June, 1917, by the owner, the appellee, to Fiacro R. Betancourt. By that instrument the owner hired the ship for the period of two months from the 5th day of” June, 1917, “with full complement of officers, seamen, engineers, and firemen for a vessel of her tonnage.” It contained the following provisions :
“That the owner sb.aU provide and pay for all provisions, wages of captain, officers,, marine insurance, firemen and crew; shall pay for the bull insurance of tbe vessel; also for all cabin, deck, engine room(, and other necessary stores, and keep the steamer in a thoroughly efficient state in hull, machinery, and equipment for and during the service.
“(2) That the charterer shall provide and pay for all the coal, port charges, pilotages, agencies, commissions, consular charges (except those pertaining to the captain, officers, or crew), and all other usual expenses, except those afore-stated ; but when the vessel puts into a port for causes for which the steamer is responsible, then all such charges shall be paid by the owner.”
So far as was disclosed, at the time of the transactions in question, the libelant was without information as to the Yarmouth.and how it was being operated, except as shown by the above set out part of the testimony of the witness Hiller.
There are material differences between the facts of each of the two cases just referred to and those of the instant case. Each of those decisions was rendered in responding to questions certified to the Supreme Court by a Circuit Court of Appeals. In the first-cited case the following facts were disclosed:
“On tho order of a steamship company, which had an agent and office in ■Now York City, tho libelant, which had a place of business in the same city, furnished and delivered coal to vessels at that place, which were operated by the steamship company, under charters requiring the charterer to pay for coal furnished to the vessels.
“The owners of each chartered vessel, as the libelant knew, had an agent for the business of the vessel at Now York City. The libelant knew or could easily have known, what vessels belonged to the steamship company and what vessels were operated by the latter under time charters. It is true that its agents did not examine the charter parties, nor make any inquiry as to their provisions; but from what they had always heard about such instruments they believed and assumed, or took it for granted, that they contained conditions requiring tho charterers, at their own expense, to provide and pay for all coals needed by the vessel. It was under these circumstances that tlie libelant furnished each vessel, operated by the steamship company, with coal as ordered by that company, charging tlie company and the vessel therefor, without making any distinction in the mode of keeping its accounts between the vessels owned by the steamship company and those operated by it under time charter parties. Specifications of lien were filed in the proper office against each vessel to which coal was delivered.
“None of the coal furnished to the chartered vessels was ordered by the jnast;'r of tho vessel, nor were any of the hills therefor submitted to him for approval. They were submit led only to tlie steamship company. Nor did tho agents of the chartered vessels know that coal was supplied by the libelant on the credit of the vessel, or that any specifications of lien were filed under the local statute.”
It was on the above-indicated state of facts that the court decided that the furnisher of the coal was chargeable with knowledge of the charterer’s lack of authority to bind the vessel for the price of the coal furnished. The opinion in that case contained the following:
“If tlie libelant in this case had furnished the coal upon the order of the master, and without knowledge or notice that the vessel was operated under a charter party, or if coal had been furnished upon the order of the charterer as well as upon the credit of the vessel, under circumstances which did not charge libelant with knowledge of the terms of the charter party, but charged It only with knowledge of the fact that the vessel was being operated under a charter party, a different question would be presented.”
The just-quoted statement makes it plain that that decision furnishes no support for the proposition that, without regard to other attending circumstances, the single fact that the furnisher of supplies to a vessel
The Valencia, supra, also was a case of furnishing coal to a vessel at New York, not by the order or procurement of the master but on the order of a steamship company which had an office in that city, at which the furnisher did business with the steamship company, and the former could easily have ascertained the ownership of the vessel and the relation of the steamship company to the owners. Upon the facts certified, the court concluded that the libelant by reasonable diligence could have ascertained that the steamship company did not own the vessel, but used it under a charter party providing that the charterer should pay for all coal needed. In each of the cases cited there was a finding supported by facts disclosed, that the libelant, who had notice of the fact that the party giving the order was the charterer, would have learned of the terms of the charter party, if he had made use of sources of information shown to be accessible to him. The propriety of a decision that one is chargeable with notice of a fact actually unknown to him is dependent upon the circumstances under which he was put on inquiry.
The libelant in the instant case, on an order given by a well and favorably known official of a ship-operating company with which the libelant had business relations, furnished coal to a foreign vessel at New Orleans, that vessel being “a new steamer” there, about which no information was imparted to the libelant, other than that it was under charter to P. R. Betancourt, who, so far as appears, was a total stranger to the libelant, and was not in New Orleans when the coal was ordered and furnished. It was not disclosed that a charter party or a copy of it was in New Orleans, or that any one then at or near that place then knew what the terms of that instrument were. Rvidently Mr. Hiller did not know what were the terms of the charter party. It was'not shown that the libelant by reasonable diligence could'have ascertained that the charter party to Betancourt provided that he should pay for all coal needed. One who is put on inquiry by a fact or circumstance coming to his .notice is not properly chargeable with knowledge of another fact actually unknown to him, in the absence of a showing that the existence of such unknown fact would have been disclosed if the suggested inquiry had been made with due diligence. In the absence of a showing that one, before acting in a situation presented^, had reasonably available means of learning of the existence of a fact actually unknown to him, he is not to be held to have been bound to know that fact, though he was put on inquiry.
The necessity, existing under the law as it formerly was, of alleging and proving that necessary supplies furnished on such an order as the one shown in the instant base were furnished on the credit of the vessel, is dispensed with by the provision of the above referred to act of June 23, 1910, that designated persons, including a ship’s master, "shall be presumed to have authority from the owner or owners to procure repairs, supplies, and other necessaries for the vessel.” This provision is qualified by the following one contained in section 3 of the act:
"But nothing in this act shall be construed to confer a lien when the fur-nisher knew, or by the exercise of reasonable diligence could have ascertained, that because of the terms of the charter party, agreement for the sale of the vessel, or for any other reason, the person ordering the repairs, supplies, or other necessaries was without authority to bind the vessel therefor.”
Language used in the last-quoted provision, "nothing in this act shall be construed to confer a lien,” etc., is some indication of the absence of an intention to deprive a furnisher of a lien on a ship for necessary supplies furnished to it under such circumstances that he would have had a lien under the previously existing law, unaffected by any lien statute. It is questionable whether the same meaning properly can be attributed to the proviso that it would have had if, instead of the last-quoted language, it had used some such language as the following:
“But the furnisher shall not have a lien if he knew, or by the exercise of reasonable diligence,” etc.
If the transaction now in question had occurred before the enactment of the act mentioned, as it was a furnishing on the order of the
But, assuming that the statute has the effect of preventing the furnishing of necessary supplies to a vessel in a foreign port giving a lien on it, if a lien would not have resulted if the transaction had been in the vessel’s home port, it is plain that an effect of the statute is to either create or recognize a presumption of the validity of such an order as the one on which the libelant furnished the coal, and that proof of the giving of that order and of compliance with it by delivering the coal to the ship with its master’s acquiescence was prima facie sufficient to entitle the libelant to the lien claimed, and put upon the claimant the burden of proving that the master was without authority to bind the vessel, and that the libelant knew, or by the exercise of reasonable diligence could have known, of such lack. of authority. The Yankee, 233 Fed. 919, 147 C. C. A. 593.
The evidence showed that the towage services in question were required in getting the coal ordered loaded on the vessel, and in effecting a needed movement of the vessel, and that they were rendered at the request or with the acquiescence of the master. The rendition of those services well may be regarded as necessary to enable the vessel to proceed on her voyage, or, at any rate, that they were such as facilitated its use as an instrument of navigation. We think such services were “necessaries,” within the meaning of that word as used in the above-mentioned act of June 30, 1910, and that they were rendered under such circumstances as to give rise to a lien on the vessel for the price or reasonable value thereof.
The decree appealed from is reversed, and the cause is remanded, with instructions to enter a decree for the libelant for the amount claimed in the libel and costs.
Reversed.