McCaldin v. The Stroma

• Decision Date: 07 December 1892
• Parties: THE STROMA. v. THE STROMA. McCALDIN et al.
• Court: U.S. Court of Appeals — Second Circuit

53 F. 281

THE STROMA.

McCALDIN et al. v. THE STROMA.

United States Court of Appeals, Second Circuit.

December 7, 1892

James M. Gifford, for appellants.

William D. Guthrie, for appellee.

Before WALLACE, LACOMBE, and SHIPMAN, Circuit Judges.

SHIPMAN Circuit Judge.

This is an appeal from a decree of the district court for the southern district of New York, which dismissed a libel against a foreign steamship for coal furnished and towage services rendered to her while in the port of New York. 41 F 599.

The steamship Stroma, a British ship owned by a British corporation, was chartered for one year by her owners to James Brown, of Bermuda. The year was to commence on August 27, 1888, when the vessel was to be placed at the disposal of Brown, in New York. The charterer was to pay for all provisions, wages, coal, fuel, and all charges except those repairs which could not reasonably be done by the crew. He was to have the entire use and control of the vessel. The steamer was to be employed in carrying freight between points from Canada to Rio de Janeiro. On August 28th, and after the Stroma was delivered to the charterer, the libelants towed her from the Erie basin to the East river. On August 30th they sold and delivered on board of her a cargo of coal, and on September 2d they towed her from the dock to the bay. The entire bill was $673.50. The district judge found that the first towage and the coal were not ordered by the master or by the agents of the general owners. It follows that they were ordered by the charterer. It was further found that the libelants' out of doors agent, who was first brought into communication with Brown, knew that he had come into control of the steamship, and was responsible for it, or knew enough of Brown's relations to the ship to put him on inquiry and ascertain the fact and the terms of the charter. It was found that the master's testimony was the most credible and probable, from which it appeared that Mr. Cruikshank (the appellants' agent) was informed and knew or supposed that Brown was the man who, as charterer, was to pay the bills. The positive testimony is principally that of conversations which are denied by the libelants, but the facts, as found by the district judge, cannot be successfully brought into dispute, and it sufficiently appears that Cruikshank knew that the general owners were not running the vessel; that Brown, as charterer, was giving directions, and was responsible for the payment of the goods which he ordered and that the master was not directing on his own account, or for the ship in the ordinary course. The coal and the services were charged upon the books of the libelants to 'S.S. Stroma and owners.' Nothing was said, by captain, charterer, or libelants, in regard to the credit of the vessel; and there was no act or circumstance known to both charterer and libelants from which a common intent in regard to the liability of the vessel could be inferred.

The case, then, is as follows: The foreign charterer of a foreign vessel, who is by the terms of the charter to pay for coal and towage, obtains coal and towage, upon his own order, in the port of New York,-- not a port of distress,-- but to enable the vessel to start upon her first voyage in his service. The libelants know that he is charterer, and have reason to believe that, as between him and the general owners, he is liable to pay the charges, and are put upon inquiry to ascertain the terms of the charter. There was no express pledge of the credit of the vessel, and nothing was said by the libelants, or communicated to the charterer, from which it appeared that they contemplated the credit of the vessel. It is perhaps unnecessary to say that the same presumptions by virtue of which a lien is placed upon a vessel for the...