50 F. 128 | D. Mass. | 1892
This case is a libel in personam by a material-man to recover $165.35 for repairs furnished to the fishing schooner William Emerson,, owned in equal shares by the three respondents, Emerson, Whalen, and Rhoderick. The repairs were furnished in the months of January and February, 1890, at Provincetown, on the credit of the vessel, to fit her for shore fishing during the coming season, and were necessary. After being fitted out, the vessel cruised during the entire season, making numerous trips, and selling her fares in the Boston market. The proceeds were divided between the owners and shares-men according to what is known as the “Provincetown lay,” by which the costs of repairs is included in the great generals, and deducted from the entire catch in the first instance, before division. At the close of the seasoa the vessel was sent to Provincetown, to be laid up for the winter, her value then being $5,000. Instead of laying her up, as directed by Emerson, who was the managing owner, the respondent Rhoderick took her out on a fishing trip, and while out she was wrecked on Cape Cod. The wreck was sold for $303.50. Other debts to a considerable amount are also outstanding against the vessel.
The act of June 26, 1884, (23 St. p. 57,) provides “that the individual liabilities of a ship-owner shall be limited to the proportion of any and all debts and liabilities that his individual share of the vessel bears
It appears that the repairs were furnished upon the order of Rhoderick alone, who was also the master, without the privity or knowledge of the other owners, and not under any contract with them, except so far as the master had implied authority to bind them as part owners for necessaries. As the liability of Emerson and Whalen for the repairs arises solely from their ownership of two-thirds interest in the vessel, and not on account of their personal intervention, the liability of each is limited to one-third of the debt, by section 18 of the act of 1884. The Amos D. Carver, 35 Fed. Rep. 665; McPhail v. Williams, 41 Fed. Rep. 61.
The libelant is entitled to a decree for the whole debt against Rhoder-ick, and for one-third of the debt against Emerson and Whalen, respectively, with costs; and it is so ordered.