The Portland

CourtUnited States Courts of Appeals. United States Court of Appeals (9th Circuit)
Citation273 F. 401
Docket Number3608.
PartiesTHE PORTLAND. v. UNION OIL CO. OF CALIFORNIA. NATIONAL SURETY CO. et al.
Decision Date02 May 1921

Andros & Hengstler and Louis T. Hengstler, all of San Francisco Cal., for appellants.

Farnham P. Griffiths and McCutchen, Willard, Mannon & Greene, all of San Francisco, Cal., for appellee.

Before GILBERT and HUNT, Circuit Judges, and WOLVERTON, District judge.

HUNT Circuit Judge (after stating the facts as above).

The purpose of the act of 1910 was to give certainty where uncertainty and conflict of decision had arisen upon the question of the liability of a ship for materials and service. In The Yankee, 233 F. 919, 147 C.C.A. 593, the Court of Appeals for the Third Circuit summarizes the contrariety of views and refers to the learned opinion of Judge Lowell in The Underwriter (D.C.) 119 F. 713, as demonstrating the confusion which through centuries has obscured the subject. This court, too, considered the state of the law in The South Coast, 247 F. 84, 159 C.C.A. 302.

The cases cited show how the courts differed in their construction, depending upon whether supplies were furnished in a foreign or domestic port, or were furnished upon the credit of the representative of the ship, or upon the credit of the ship, and whether they were furnished upon the order of the owner or the master. We shall not take up the discussion further than to say that Congress, presumably knowing of the confusion, endeavored by the act of 1910 to make the law more certain by providing in effect that proof that credit was given the ship is dispensed with in the first instance, in that a presumption shall obtain that certain persons have authority to procure supplies and that the ship's husband or master is one of the persons. No lien accrues if such persons did not have authority to bind the ship, and such lack of authority was known, or ought to have been known, to the furnisher of supplies. To apply the law to the circumstances of the present case is quite simple. The supplies were furnished at San Francisco, Oleum, and Balboa upon the order of the master of the Portland. This being the case, the libelant established a prima facie right to a lien to be upheld, unless the claimant showed facts which withdrew the case from the general provisions by proving that the furnisher knew or by the exercise of reasonable diligence could have ascertained that because of the terms of the charter party, or for any other reason, the master was without authority to bind the ship.

Appellant puts special stress upon the fact that there was a general contract between libelant and the charterer to buy fuel oil used by the charterer in operating its ships, and that the charterer therein agreed to provide and pay for the fuel oil used by the ship, and says that the oil was in fact 'procured' by the charterer under a personal contract obligating libelant to furnish the same. It is to be noted that section 1 of the act uses the words 'upon the order' of the owner, while section 2 declares what persons shall be presumed to have authority from the owner 'to procure' supplies, and in section 3 we find the words 'person ordering the repairs,' etc. We cannot perceive, however, that the words 'order' and 'procure' were used with different significance. Fuel furnished by a person upon the order of the master is equivalent to fuel which the master has authority to procure. The first section confers the right of lien where the furnishing is done on order; the second defines those who are presumed to have authority to obtain the fuel.

It is said that the charter party gave the charterer no right to impose a lien on the vessel for fuel to be furnished for two reasons: One, because the charter obligation to provide fuel was on the charterer; another, because the only lien upon the ship given to the charterer by the charter party was a lien for moneys advanced and not earned. But an examination of the charter party fails to disclose that the master or charterer had not authority to bind the vessel for supplies of fuel at...

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14 cases
  • Dampskibsselskabet Dannebrog v. Signal Oil Gas Co of California the Stjerneborg
    • United States
    • U.S. Supreme Court
    • May 20, 1940
    ... ... 693, and Pensacola Shipping Company v. United States Shipping Board, 277 F. 889, certiorari was granted. 309 U.S. 644, 60 S.Ct. 592, 84 L.Ed. —-, February 26, 1940 ...           The Circuit Court of Appeals in the instant case followed its decisions in The Portland, 9 Cir., 273 F. 401, and The ... Golden Gate, 9 Cir., 52 F.2d 397. The Golden Gate was a case of a time charter which required the charterer to provide and pay for fuel oil but contained no provision denying the right of the charterer to bind the ship for necessary supplies. The court said that in ... ...
  • THE GOLDEN GATE
    • United States
    • U.S. Court of Appeals — Ninth Circuit
    • September 14, 1931
    ... ... Ed. 386, deals with a charter in which the charterer agreed to pay for fuel and supplies furnished the vessel, but did not prohibit the incurring of liens therefor, and held that under such a charter the master could create a lien therefor. This decision is controlling here. The Portland (C. C. A.) 273 F. 401. Appellants contend that this case is distinguishable from The South Coast, because there the charterer was not only required to pay for fuel, but also to discharge liens, thus impliedly recognizing the right to create liens. In answer to a similar contention in The Portland, ... ...
  • THE ASTORIAN
    • United States
    • U.S. Court of Appeals — Ninth Circuit
    • March 14, 1932
    ... ... In re The South Coast, 251 U. S. 519, 40 S. Ct. 233, 64 L. Ed. 386, The Portland (C. C. A.) 273 F. 401, 404. With reference to necessary supplies furnished to the vessel, the real question is whether or not the right to a maritime lien has been waived. 46 USCA § 974. In case of Marshall & Co. v. S. S. "President Arthur," 279 U. S. 564, 49 S. Ct. 420, 73 L. Ed. 846, the Supreme ... ...
  • THE JW HENNESSY, 139
    • United States
    • U.S. Court of Appeals — Second Circuit
    • March 21, 1932
    ... ...         In conformity with the decision in The South Coast, 251 U. S. 519, 40 S. Ct. 233, 64 L. Ed. 386, are The Augusta W. Snow, 46 F. 57 F.2d 80 (2d) 992 (C. C. A. 1), The Portland, 273 F. 401 (C. C. A. 9), and The Golden Gate, 52 F.(2d) 397 (C. C. A. 9) ...         In Curacao Trading Co. v. Bjorge, 263 F. 693, and Pensacola S. Co. v. U. S. Shipping Board E. F. Corp., 277 F. 889, the Circuit Court of Appeals of the Fifth Circuit appears to have reached a contrary ... ...
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