THE STJERNEBORG, 9182.

• Decision Date: 26 October 1939
• Docket Number: No. 9182.,9182.
• Citation: 106 F.2d 896
• Parties: THE STJERNEBORG. THE BRAND. DAMPSKIBSSELSKABET DANNEBROG v. SIGNAL OIL & GAS CO. OF CALIFORNIA. AKTIESELSKABET BORGESTAD v. SAME.
• Court: U.S. Court of Appeals — Ninth Circuit

106 F.2d 896 (1939)

THE STJERNEBORG.

THE BRAND.

DAMPSKIBSSELSKABET DANNEBROG v. SIGNAL OIL & GAS CO. OF CALIFORNIA. AKTIESELSKABET BORGESTAD v. SAME.

No. 9182.

Circuit Court of Appeals, Ninth Circuit.

October 26, 1939.

Lane Summers, of Seattle, Wash. (Hayden, Merritt, Summers & Bucey, of Seattle, Wash., of counsel), for appellants.

Glenn J. Fairbrook, of Seattle, Wash. (Fairbrook & Williams, of Seattle, Wash., of counsel), for appellee.

Before WILBUR, HANEY, and HEALY, Circuit Judges.

HANEY, Circuit Judge.

Appeal is taken from decrees in admiralty enforcing liens on two motorships for oil furnished such vessels by appellee.

In September, 1932, appellee entered into a contract with Anglo Canadian Shipping Co., Ltd., by which appellee agreed to sell fuel oil to any vessel which Anglo might "own, charter, operate or be agents for". On May 19, 1933, such contract was modified "to include the fuel oil requirements of any and all vessels owned, chartered and/or operated" by W. L. Comyn & Sons, hereinafter called Comyn. Subsequently, and before the ships in question were chartered by Comyn, the contract was further modified and required appellee to bill Comyn direct for oil used by the latter.

Comyn chartered for a specified time the motorships Brand and Stjerneborg, the charter parties requiring Comyn to provide and pay for all oil. Comyn chartered the "Stjerneborg" on January 27, 1934, and the "Brand" on March 8, 1934. On April 26, 1934, appellee delivered fuel oil to the "Brand" at Point Wells, Washington, and on May 11, 1934, made a further delivery to the "Brand" at San Pedro, California. All deliveries were made on the orders of Comyn. Appellee issued invoices for these deliveries, totalling $4,631.71 to the "Brand and Owners" in care of Comyn. On May 15, 1934, appellee delivered fuel oil to the "Stjerneborg" at Astoria, Oregon, and issued its invoice for $3,824.65 to the "Stjerneborg and Owners" in care of Comyn.

In July, 1934, Comyn by a pledge, created a lien on certain securities in favor of appellee, which lien was second to one held by a Seattle bank. Thereafter appellee waived its lien on the securities by permitting the Seattle bank to obtain a paramount lien on the securities as security for a subsequent loan of $900. Upon sale of the securities, appellee released its claim to $1,474.96 of the proceeds to which it was entitled, and signed a Creditors' Agreement granting Comyn a year's extension of time to meet its obligations. In April, 1935, Comyn released appellee from such Creditors' Agreement.

The pledge agreement contained a provision that it would not preclude appellee from collecting any obligation without resorting to the securities pledged, and that such pledge agreement should not constitute "any release or waiver of any lien" appellee might have against the vessels. The Creditors' Agreement contained a provision that the execution thereof by appellee should not constitute "any release or waiver of any lien or the right to a lien" which appellee might have.

After delivery of fuel oil to it, the "Brand" left for Europe. Upon its return, it was docked at Los Angeles for one day, and then left for Vancouver, B. C., and thence to the Orient. Upon its return, it docked at certain points in California and Washington from March 28, 1935, to April 13, 1935. It then left for the Orient and upon its return was libelled in this cause on June 5, 1935.

After delivery of the fuel oil to it, the "Stjerneborg" left for Australia and other foreign countries, and upon its return, was docked at various points in California, Washington and Oregon from December 30, 1934, to January 14, 1935. It then left for the Orient, and upon its return was libelled in the instant cause on May 11, 1935.

The answers filed by the owners of the vessels alleged that (1) the owner and the vessels were not liable because the oil was not furnished upon the order of the owner or anyone authorized by it; (2) the oil was furnished upon the credit of Comyn and not that of the vessels; (3) the liens, if any, were waived by appellee's release of its claims upon the securities and proceeds thereof, under the pledge, and by execution of the Creditors' Agreement. The causes were consolidated for trial.

The facts above mentioned being stipulated, the Court adopted such stipulation as its findings and concluded that the fuel oil delivered was necessary for the voyages contemplated, was furnished upon the credit of the vessels, that liens were created and not waived. A decree in favor of appellee was entered in each cause, with interest, from which this appeal was taken.

46 U.S.C.A. § 971 provides: "Any person furnishing * * * supplies * * * to any vessel, whether foreign or domestic, upon the order * * * of a person authorized by the owner, shall have a maritime lien on the vessel, which may be enforced by suit in rem, and it shall not be necessary to allege or prove that credit was given to the...