Findley v. Red Top Super Markets, 13355.

• Decision Date: 19 June 1951
• Docket Number: No. 13355.,13355.
• Citation: 188 F.2d 834
• Parties: FINDLEY v. RED TOP SUPER MARKETS, Inc., et al. THE QUEEN ANNE.
• Court: U.S. Court of Appeals — Fifth Circuit

188 F.2d 834 (1951)

FINDLEY v. RED TOP SUPER MARKETS, Inc., et al. THE QUEEN ANNE.

No. 13355.

United States Court of Appeals Fifth Circuit.

May 10, 1951.

Rehearing Denied June 19, 1951.

Frank J. O'Connor, John P. Booth, Miami, Fla., for appellant.

W. F. Parker, Miami, Fla., for appellees.

Before HOLMES, McCORD and RUSSELL, Circuit Judges.

McCORD, Circuit Judge.

The M/V Queen Anne was libelled on June 17, 1949, by Red Top Super Markets, Inc., and thereafter further libel proceedings were filed by one Ukko Ahnger, acting individually and as trustee for crews' wages, by S. Appel & Co. and Hopkins-Carter Hardware Co. for supplies, and by Kenneth C. Braidman, doing business as Bert's French Cleaners, for supplies and services. The libels were consolidated, and the owner of the vessel, H. W. Findley, filed his answer claiming ownership in each of the respective causes.

The questions here presented are (1) whether one Hans G. Milton had authority to bind the owner of the vessel for the value of the supplies and services; and (2) whether the crew of the vessel is entitled to wages for a stated period subsequent to its discharge.

The material facts were stipulated. Briefly stated, they reveal that on the 25th of April, 1949, the M/V "Queen Anne" was sold at a United States Marshal's sale held in Miami, Florida, to the Claimant, H. W. Findley, residing at 4 Glass Street, Carnegie, Pennsylvania; that a Bill of Sale was issued to Findley by the United States Marshal, after which Findley left the vessel at Merrill-Stevens Dry Dock Company in order to have certain repair work done; that while the vessel was in dry dock one Hans G. Milton contacted the attorneys for the Claimant, H. W. Findley, in Miami, Florida, and represented to them that he had been negotiating with the owners of the vessel, and inquired about the arrival of certain papers and instructions; that when the papers and instructions concerning Milton did not arrive, he requested permission to go aboard the vessel for the purpose of taking an inventory; that Milton was granted permission by one Frank J. O'Connor, as attorney for the owner, to go aboard the vessel, then in the custody of Merrill-Stevens Dry Dock Company, for the purpose of taking an inventory; and that while he was aboard the vessel he ordered certain supplies and services from the libellants, which supplies were delivered and services performed, and for which payment is sought in these libel proceedings.

It was shown that Hans G. Milton went aboard the vessel on May 16th, purporting to assume the duties as Captain thereof, and that he remained aboard until May 30th, 1949; that shortly after going aboard he hired a crew for the vessel and placed them on the ship; that on May 30, 1949, no articles having been signed, the members of the crew were advised that Milton had not been authorized to employ them and they were instructed to leave the vessel; that the crew refused to leave until they had been paid for their services, and they were finally paid for services rendered through May 30, 1949, after which they signed a release for all claims up to that date, agreeing that such payment would not constitute any admission of liability on the part of the owner of the vessel, and that it was without prejudice to any claim which they might have or later assert as to their right to collect wages from May 30, 1949, until June 14, 1949, the day they left the vessel. It is the above period for which the claim for crews' wages and subsistence is asserted in this proceeding.

We are of opinion these libellants have failed to carry their burden of proving that Milton had any authority, either actual or apparent, to bind the credit of the vessel or its owner for the value of the supplies and services furnished. The duty of suppliers of materials or services to a vessel to inquire as to the authority of the person ordering them has been clearly defined by our Court of Last Resort in the case of U.S. et al. v. Carver et al., 260 U.S. 482, at page 488, 43 S.Ct. 181, at page 182, 67 L.Ed. 361:

"* * * The Act of 1910 by which the transactions with the Clio were governed after enlarging the right to a maritime lien and providing who shall be presumed to have authority for the owner to procure supplies for the vessel, qualifies the whole in section 3 as follows: `but nothing in this Act shall be construed to confer a lien when the furnisher knew, or by the exercise of reasonable diligence could have ascertained, that because of the terms of a charter party, agreement for the sale of the vessel, or for any other reason, the person ordering the repairs, supplies, or other necessaries was without authority to bind the vessel therefor.' We regard these words as too plain for argument. They do not allow the materialman to rest upon presumptions until he is put upon inquiry, they call upon him to inquire. To ascertain is to find out by investigation. If by investigation with reasonable diligence the materialman could have found...