The Ship Virgin, and Graf and Delplat Her Owners, Appellants v. Adam Vyfhius, Junior Appellee Adam Vyfhius, Junior Appellant v. the Ship Virgin, and Graf and Delplat Her Owners, Appellees

• Decision Date: 01 January 1834
• Citation: 8 Pet. 538,33 U.S. 538,8 L.Ed. 1036
• Parties: THE SHIP VIRGIN, AND GRAF AND DELPLAT HER OWNERS, APPELLANTS v. ADAM VYFHIUS, JUNIOR, APPELLEE. ADAM VYFHIUS, JUNIOR, APPELLANT v. THE SHIP VIRGIN, AND GRAF AND DELPLAT HER OWNERS, APPELLEES
• Court: U.S. Supreme Court

33 U.S. 538

8 Pet. 538

8 L.Ed. 1036

THE SHIP VIRGIN, AND GRAF AND DELPLAT HER

OWNERS, APPELLANTS

v. ADAM VYFHIUS, JUNIOR, APPELLEE.

ADAM VYFHIUS, JUNIOR, APPELLANT

v. THE SHIP VIRGIN, AND GRAF AND DELPLAT HER

OWNERS, APPELLEES.

January Term, 1834

APPEALS from the circuit court of the United States for the district of Maryland.

The ship Virgin sailed in August 1822, from Baltimore to Amsterdam, where she arrived on the 12th of October of that year, under command of John Cunnyngham. By the plan of the voyage, she was to return from Amsterdam to Baltimore if she could procure a freight; otherwise, she was positively directed to proceed to New Orleans. She was owned, when she sailed, by John C. Delplat, who, during her passage to Amsterdam, became insolvent, and on the 4th of September sold one-third of her to Frederick C. Graf.

The vessel, on her way to Amsterdam, encountered severe weather, and arrived there in want of sails and a cable, and of various repairs. At her departure from Baltimore, her owner directed, that at Amsterdam, as the most economical place for the supply, she should be furnished with a mainsail and topsail and cable, of which it was foreseen she would then be in urgent need. The vessel had a cargo, of which, except twenty hogsheads of tobacco, all belonged to Delplat; and all of the cargo was consigned to N. and I. and R. Vanstaphorst, at Amsterdam, to whom Delplat also consigned the vessel. The twenty hogsheads of tobacco belonged to Frederick C. Graf. Agreeably to these consignments, the captain, on arrival at Amsterdam, delivered to the Vanstaphorsts the cargo, and committed to them all the concerns of the vessel; in consequence of which they collected and held in their hands all the freight that was actually payable upon any portion of the cargo, and all the proceeds of the tobacco belonging to Mr Graf.

The captain, desiring to refit the vessel and afford her all the necessaries for her return voyage, applied to the Vanstaphorsts for the requisite means, and ultimately even offered them a bottomry of the ship for the funds. After much delay, they refused all advances; intelligence of the failure of Delplat, asserted by them to be largely their debtor, having meanwhile reached them. To provide for the event of this refusal, the captain set on foot a negotiation through brokers, for raising the means by bottomry;—and the application to the Vanstaphorsts, and this provisional negotiation, were pending for about three weeks, the captain knowing no friends of the owner, except the Vanstaphorsts, to whom he could apply for the aid. During this period, the captain contracted, on his own responsibility, for various supplies, which he designates in his evidence, as all those that were furnished before the 1st of November. The payment for these and for the other necessaries of the ship, was made out of the moneys received from the appellee Vyfhius. On the 12th of November, after the Vanstaphorsts had finally declined making the advances, the captain contracted with Vyfhius for the loan upon bottomry of eight thousand guilders, at an interest of ten per cent; all which, he shows, was appropriated for the indispensable uses of the ship.

About the 3d of November, the captain received from Mr Graf, a letter dated in September 1822, announcing his purchase of one-third of the Virgin, and referring to a certificate of his purchase, as enclosed in the letter; which in fact appears not to have been enclosed. About the same time, by another letter from Mr Graf, and perhaps also from other quarters, information was given to the captain of Mr Delplat's failure; and, in consequence, the captain, on consultation, determined that it was his duty to proceed with the vessel home to Baltimore, and not to despatch her to New Orleans. After undergoing repairs, and receiving all her supplies paid for by the appellee Vyfhius, the Virgin sailed from Amsterdam to Baltimore, and arrived there in March 1823.

The owners refusing to pay the appellee his advances, the libel in this cause was filed, which prays citation against the owners by name as well as the captain, and condemnation of the vessel for paying the loan, and also further relief such as the court may deem adequate and just. The owners, Delplat and Graf, appeared and answered; their answers called into question the fact and the necessity of expenses at Amsterdam, insisting too, that the Vanstaphorsts had property enough of the owners, and which should have been applied for the wants of the ship, and charging that the bottomry was really taken by the Vanstaphorsts though colourably in Vyfhius's name, and maintaining, finally, that all requisite funds could have been raised on the credit of the owners, or of the captain.

A commission for evidence was sent to Holland, the chief object of which was to prove the Vanstaphorsts to be really the owners of the bottomy. The circuit court determined that the bottomry was invalid, but that the owners are personally liable for all the necessary supplies furnished by the means of Vyfhius for the vessel, and that, to that extent, he was entitled in this cause, to recover against them. The cause was then referred to the clerk of the court to ascertain, calling to his aid two merchants, the amount of the necessary supplies, referred to. The clerk and his assistants reported their ascertainment. Exceptions by Delplat and Graf were filed to it. The case was remanded to the clerk, who called two other merchants to co-operate with him, and they reported their statement of the necessary expenses, which the court confirmed. Thereupon, the court passed its final decree, awarding payment to Vyfhius by Delplat and Graf, of the sum of two thousand nine hundred dollars, with interest from the 26th of November 1830, the date of the decree; the principal of the ascertained expenses being two thousand nine hundred dollars.

Both parties appealed to this court.

The case was argued by Mr Steuart, for the owners of the ship Virgin; and by Mr Mayer, for Mr Vyfhius.

For the owners of the Virgin, in was contended that the decree of the circuit court which made them personally liable for the claim of the libellant Vyfhius, was erroneous:

1. Where it is attempted to pursue the owner of a ship personally, for advances for which he may be made personally liable, the proper remedy (in the admiralty court) is by libel in personam, or at all events, the personal liability must be distinctly averred and charged in the libel.

2. When the proceeding is altogether in rem (for example against a ship on a bottomry bond), it presents no question but the validity of the hypothecation. The court is restricted to that question, and cannot decree in personam.

3. The circuit court acting in its appellate character, could do no more than the district court, that is to say affirm or reverse the decree of the district court (which simply held the bottomry good, on a libel exclusively in rem); and having by its interlocutory order of 1828, pronounced the bottomry invalid and thereby reversed the decree of the inferior court, it had no right to go farther and decree in personam against the owners.

4. Although owners, when pursued personally in an admiralty court, may be held personally liable for advances for the necessary repairs and supplies of their ships expressly made on the personal credit of the owners, or where it is fairly inferred that the personal credit was looked to; yet when it appears the personal credit of the owners was not looked to, they cannot be held personally liable.

5. There is no evidence that the advances were made on the credit of Delplat and Graf or either of them, but the contrary is alleged by libellant himself, and appears in all the proofs.

6. Some of the supplies for which the advances are alleged to have been made, were not necessary, and have been improperly charged and allowed, as appears in the report and exceptions.

7. Part owners of a ship are not liable beyond the extent of their respective interests, and the decree is erroneous in subjecting Graf to more than one-third, and Delplat to more than two-thirds, in which proportions they held the ship.

8. Evidence appears sufficient to warrant the belief that Vanstaphorsts were the real lenders of the money advanced to the captain, and Vyfhius only an agent of theirs. If so, they (Vanstaphorsts) cannot recover against the owners personally; because they had sufficient funds in the freight, which they were bound to apply to the uses of the ship.

9. Admitting, (which is not proved) that the Vanstaphorsts had a right to withhold Delplat's two-thirds of the freight on the ground of his indebtedness to them,—they had no right to withhold from Graf, as they have done, his one-third of the freight, amounting to one thousand nine hundred dollars, and they cannot now recover from him, personally, without accounting for that sum.

10. The evidence raises a strong presumption that Vanstaphorsts knew, and also that Vyfhius knew (or might and ought to have known), that the voyage to Baltimore was in direct violation of the orders of the owners, without nay necessity for such violation by the captain; and if so, Vyfhius is not entitled to recover against the owners, whether he be considered the real lender, or only as the agent of Vanstaphorsts.

11. All the evidence in the case taken together, raises a strong presumption, that there were fraud and collusion between Vyfhius and Vanstaphorsts, not to apply the freight or other funds of Graf, in Vanstaphorsts' hands to the uses of the ship, but to subject her unnecessarily to a bottomry, and her owners to loss; wherefore neither Vyfhius nor Vanstaphorsts are entitled to recover against the owners.

Mr Steuart argued, that the original advances by Vyfhius were illegal, as there was no survey showing the necessity for the repairs, and the outfit of the Virgin. To show that this was necessary, he cited, Abbot on Shipping 124,...