Lindbar, Incorporated v. St. Louis Fuel & Supply Co.

• Decision Date: 09 April 1960
• Docket Number: No. 13842.,13842.
• Citation: 276 F.2d 882
• Parties: LINDBAR, INCORPORATED, Claimant-Appellant, v. ST. LOUIS FUEL & SUPPLY COMPANY, Inc., Libelant-Appellee.
• Court: U.S. Court of Appeals — Sixth Circuit

276 F.2d 882 (1960)

LINDBAR, INCORPORATED, Claimant-Appellant, v. ST. LOUIS FUEL & SUPPLY COMPANY, Inc., Libelant-Appellee.

No. 13842.

United States Court of Appeals Sixth Circuit.

April 9, 1960.

George W. Grider, Memphis, Tenn. (Burch, Porter, Johnson & Brown, Memphis, Tenn., on the brief), for appellant.

Apperson, Crump, Duzane & McRae, Memphis, Tenn. (W. Emmett Marston of Martin, Tate & Morrow, Memphis, Tenn., on the brief), for appellee.

Before SHACKELFORD MILLER, Jr., and CECIL, Circuit Judges, and WILLIAM E. MILLER, District Judge.

CECIL, Circuit Judge.

This is an appeal from an order and judgment in the District Court for the Western District of Tennessee, whereby a maritime lien against the vessel Lindbar, formerly Lannes J, was held valid. The trial judge entered judgment against the respondent, the M/V Lindbar, in the sum of $1,423.21, with interest and costs.

Lindbar, Incorporated, Claimant-Appellant, became the owner of the vessel in question through purchase by Fontaine M. Johnson from Gladys Johnson. Fontaine M. Johnson, president of the corporation, denied the validity of the lien.

Pertinent facts as found by the trial judge are as follows: On September 28, 1957, A. C. Johnson, of Helena, Arkansas, owner of the M/V Lannes J, leased the vessel under a bare-boat charter to Mid-Central Towing Company of Tulsa, Oklahoma. S. P. Johnson, son of the owner, was president of this company.

In October, November and December, of 1957, the Libelant, St. Louis Fuel & Supply Company, Inc., a corporation, at the request of S. P. Johnson furnished supplies to the M/V Lannes J at the Port of St. Louis, on the Mississippi. The reasonable value of these supplies was $1,423.21. The lien was asserted in order to obtain payment of this amount.

The home port was not shown on the vessel and the only identifying marks were the name "Lannes J" and the number "224455" which were painted on the sides. On October 7, 1957, S. P. Johnson called his father at Helena, Arkansas and discussed with him additional marine equipment required for the vessel. The calls were made from the office of the libelant and in the presence of Mr. R. J. Chouner, an officer of the company, who handled the transactions.

At the time the supplies were furnished the M/V Lannes J was not documented, licensed or enrolled at Memphis, Tennessee, its home port on the official customs registry and documentation books. It was officially documented and enrolled in the collector's office on December 6, 1957. In the meantime, it had permission from the Collector of Customs, by letter, dated September 18, 1957, to engage in temporary operations.

A Bill of Sale of the vessel from A. C. Johnson to his wife Gladys was recorded in the Memphis Customs' office, on December 16, 1957. This Bill of Sale was signed and acknowledged by A. C. Johnson, November 18, 1957. The Bill of Sale gave the date of sale as December 11, 1957, and Lorrene as the name of the vessel. The name was not officially changed to Lannes J until December 16, 1957. The records of the customs' office show that the same vessel was sold by Gladys Johnson to Fontaine M. Johnson, on January 23, 1958. Fontaine was another son of A. C. Johnson.

There are other "findings" to the effect that S. P. Johnson did not disclose to the libelant the existence of a charter or the nature of its terms and that by his conduct he caused it to believe that either he or his company was the owner or agent of the owner authorized to bind the vessel.

The facts as found, except No. IV and No. XIII, are not clearly erroneous. There are, however, other important facts disclosed by the evidence. The management and control of the vessel was entrusted by A. C. Johnson, the owner, under charter to Mid-Central Towing Company, not to S. P. Johnson as stated in "finding" No. IV. In "finding" No. XIII it is stated that Fontaine Johnson recognized the claim of the libelant. If this refers to the libelant's claim for money due from Mid-Central Towing Company, it is correct. It is clearly erroneous if it means that he recognized the claim as a valid lien against the vessel. The charter provided, "Neither the Charterer nor any of its servants, agents, or employees, nor the master of the vessel, shall have any right, power or authority to create or incur or suffer or permit to be placed upon the vessel any maritime or other lien or encumbrance or charge, or to incur any debt or obligation, or charge upon the credit of the vessel."

S. P. Johnson's associates put over $20,000 into the Mid-Central Towing Company while he himself put in only about $750. The company paid $10,000 in consideration of the charter agreement and agreed to pay $5,000 per month charter hire. The Mid-Central's venture failed and the vessel in a damaged condition was put on the ways in Greenville, Mississippi. It was then turned over to Mrs. Johnson, the owner, by the company's attorney, at the end of December, 1957.

Mr. A. C. Johnson made application in September, 1957, at the office of the Collector of Customs in Memphis, for documentation of the vessel in question under name of Lannes J. Due to the inability of the office to admeasure the vessel, a temporary permit to operate was granted by letter dated September 18, 1957. After this date, any inquirer at the collector's office would have received information that A. C. Johnson was the owner of the Lannes J.

The charter was a tightly drawn, strictly legal instrument, between owner and charterer, with no indication of any family favoritism or leniency. The capital investment of S. P. Johnson was very small as compared with that of his associates, none of whom was a member of the family.

Mrs. Johnson was the third wife of A. C. Johnson and the stepmother of his sons S. P. and Fontaine M. Johnson. The sale of the vessel from Mrs. Johnson to Fontaine was a strictly legal and business transaction. From all the evidence submitted at the trial, no inference adverse to the claimant is warranted from finding of fact No. XII that the transactions were within the family.

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