The E. A Barnard

• Decision Date: 04 June 1880
• Citation: 2 F. 712
• Parties: THE BRIG E. A. BARNARD. [1]
• Court: U.S. District Court — Eastern District of Pennsylvania

2 F. 712

THE BRIG E. A. BARNARD. ^[1]

United States Circuit Court, E.D. Pennsylvania.

June 4, 1880

Edward F. Pugh and James B. Roney, for Thurlow & Sons.

Henry G. Ward and Henry Flanders, for Merchant & Co.

Edward F. Pugh, for Robert M. Wilson.

John A Toomey, for Grace & Linderman.

Henry R. Edmunds, for Baring Bros. & Co.

In Admiralty.

Exceptions to report of commissioner appointed to report as to the distribution of the proceeds of the sale of a vessel under admiralty process. The brig E. A. Barnard was registered at St. Andrews, New Brunswick, and sailed under the British flag, but was owned by her master, S. P. Willeby, who resided at Philadelphia. In the spring of 1879, upon the return of the vessel from a voyage to the Mediterranean, she had extensive repairs made to her at Philadelphia. In May, 1879 while she was still at Philadelphia, and loading for Oporto a libel was filed against her by Thurlow & Sons, for supplies furnished in New York in July, 1878. Before any decree was obtained various libels of intervention were filed, as follows:

By Merchant & Co., and by various other parties, claiming liens for repairs furnished at Philadelphia, in the spring of 1879.

By Robert M. Wilson for wages as watchman and ship keeper at Philadelphia.

By Grace & Linderman for services as stevedores in loading the vessel, at Philadelphia.

By Baring Bros. & Co. for money advanced to the master under the following circumstances: Stetson & Co., the agents for the vessel at Philadelphia, had from time to time made disbursements on account of the vessel, many of which were for wages, and other objects that were maritime liens. Baring Bros. & Co. subsequently authorized the master to draw upon them for L430, for the vessel's disbursements at Philadelphia. The master drew for this sum in favor of Stetson & Co., who applied the money to their account for the previous advances. Accompanying the draft was the following instrument:

'Philadelphia, May 16, 1879.

'Messrs. Baring Brothers & Co.

'GENTLEMEN: The British brig E. A. Barnard, under my command, will sail May 24th for Oporto, having on board a cargo of corn in bags. Freight amounting to L650. To provide necessary funds to pay ship's disbursements here, for which ship and owners are liable, I have valued upon you this day for L430, at sixty days' sight, in favor of D. S. Stetson & Co., which please accept, for amount of which draft please insure the freight, loss payable to you, debiting premium, as well as amount of draft and your commissions, to account of said ship and owners; it being understood that for all such amounts you have, besides the responsibility of the owners, a lien on the ship and freight, and the same are hypothecated to you accordingly, with power to you to collect freight if you choose. I shall make you a remittance from Oporto of the whole amount of my freight, less expenses, to be placed to the credit of my ship-owners as soon as I realize from my freight. The recourse to owners, and lien on ship and freight, given as above to Baring Bros. & Co., after acceptance, are to operate in favor of the holder of the bill before acceptance.

'Respectfully, your obedient servant, S. P. WILLEBY.

'P.S. My vessel is owned as follows: S. P. Willeby.'

The vessel was sold under a decree of the court, and the distribution of the proceeds referred to a commissioner, (Morton P. Henry, Esq.,) who reported that as between the lien for supplies furnished in New York in 1878, and the liens for repairs in Philadelphia in 1879, the latter should have priority, under the principle established by the authorities that the last service advanced for the vessel's necessities takes precedence, and that liens of the same class should therefore be paid in the inverse order of the dates of their creation, except as to claims of material men, who concurrently gave credit to the vessel in fitting her for a voyage, and who were, therefore, entitled to distribution pro rata. As between the various lien claimants for repairs made at Philadelphia in 1879, he reported that in accordance with the above principle they would be entitled to share pro rata, but that he felt himself bound by the decision in The Pathfinder, 4 Weekly Notes, 528, to award them priority in the order of the dates at which their respective libels were filed. The

commissioner refused to allow the claims of Robert M. Wilson and Grace & Linderman, on the ground that their services gave them no maritime lien.

With regard to the claim of Baring Bros. & Co., he reported that the instrument given to them was not a bottomry bond; that their advances, under the circumstances, gave them no maritime lien, and that by the application of their money to the previous advances made by Stetson & Co. they acquired no lien by subrogation as against the other attaching creditors.

To this report exceptions were filed by Thurlow & Sons, Merchant & Co., Wilson, Grace & Linderman, and Baring Bros. & Co.

BUTLER, D.J.

The exception filed by Grace & Linderman, stevedores, must be dismissed. I agree with the learned commissioner that such services do not create a lien. This view is, I believe, consistent with the uniform practice in this district, and with all the American cases, except that of The George T. Kemp, 2 Lowell, 477, in which the vessel was held to be foreign, and the decision put on that ground. As is said in The A. R. Dunlap, 1 Lowell, 350, the reason given for holding that such contracts are not maritime is not satisfactory, because the contracts of material men are not more so. But liens are allowed in such cases because the materials and supplies enable the vessel to make her voyage. The other reason assigned-- that the cargo is a collateral matter, and not a part of the vessel's necessary equipment-- is more to the purpose, though not entirely satisfactory, either, because the vessel cannot be used to advantage without a cargo. But, says Judge Lowell in this case: 'It is important to adhere to the decisions, and I shall follow them in this respect, though I doubt their application to a foreign vessel. ' Subsequently, in The George T. Kemp, the same distinguished judge, as has been seen, held the vessel there involved to be foreign, and, therefore, allowed the stevendore's claim.

While the circumstances of that case are very similar to those of the one before us, I cannot accept the conclusion that the vessel should be treated as foreign. She, clearly, is not. Her owner resides here, and here, therefore, is her home. That she has a foreign registry, and sails under a foreign flag, does not seem to be important. As against one who has been misled by such representations, the owner would not be allowed to assert the contrary. But here there has been no misleading. The residence of the owner in Philadelphia was well understood, and that the home of the vessel was therefore here, all persons dealing with him were bound to know. For necessary services and supplies furnished in foreign ports liens are allowed, on the presumption that credit is given the vessel, inasmuch as the owner, personally, has none there. When at home the presumption is reversed, and the credit treated as given to the owner personally. What difference can it make, therefore, that the owner registers his vessel abroad and sails under foreign colors? These facts do not affect the presumption on which alone the question of lien depends. But, aside from the reasonableness of this view, the point has been so decided in this court after full consideration. In McCorker v. The Brig Thomas Walker, the owners, residing in Philadelphia, had their vessel registered abroad, and sailed under foreign colors, to avoid danger from rebel cruisers during the late war, and a lien was claimed for services rendered here on the ground that she was foreign. The claim was disallowed by the district court, and, on appeal, by the circuit court also; Judge Grier filing a written opinion, in which, while expressing sympathy with the plaintiffs, he held that the foreign registration, and the use of a foreign flag were unimportant, in view of the owner's residence here, and the claimant's knowledge of this fact.

The exceptions filed by Baring Bros. & Co. must also be dismissed. The instrument they hold is not a bottomry bond. The informality it exhibits would be unimportant if it contained the essential elements of such a contract. But it does not. The element of marine risk is wanting. The language, 'I shall make you a remittance from Oporto,' etc., (relied upon by the claimants, in this respect,) does not indicate that reimbursement is to depend upon the safe arrival of the vessel there. It bears no resemblance to the expression, 'The amount to be paid in one month after the ship's arrival at any port of discharge in Great Britain,' contained in the instrument involved in The Nelson, 1 Haggard,Ad.Rep. 169; as the court there said, 'If the port was never reached, the time appointed for payment would never arrive. ' While the language of a bottomry bond should not leave the question of marine risk open to doubt, that of the instrument before me seems to be plainly inconsistent with the assumption of such risk. The stipulation for the owner's personal obligation cannot be reconciled with the idea that the vessel alone...