Norfolk Sand & Cement Co. v. Owen

• Decision Date: 08 May 1902
• Docket Number: 428.
• Citation: 115 F. 778
• Court: U.S. Court of Appeals — Fourth Circuit
• Parties: NORFOLK SAND & CEMENT CO. v. OWEN.

115 F. 778

NORFOLK SAND & CEMENT CO. v. OWEN.

No. 428.

United States Court of Appeals, Fourth Circuit.

May 8, 1902

H. H Little (Hughes & Little, on the briefs), for appellant.

R. H Riddleberger, for appellee.

Before GOFF and SIMONTON, Circuit Judges, and BRAWLEY, District Judge.

BRAWLEY District Judge.

The libelant, Owen, claims a lien for repairs upon the schooner Tull, whereof Gundy was owner and master, up to November 1899, when she was sold to the claimant. The first repairs were made in August and September, 1898, at Sharp's wharf, in Essex county, Va., at the request of Gundy, who lived in the same county, about 20 miles distant. The lien is claimed under the statute of the state of Virginia, which provides:

'If any person has any claim against the master or owner of any steamboat or other vessel * * * for materials or supplies furnished or provided or for work done for, in or upon the same, * * * such person shall have a lien upon such steamboat or other vessel, raft or river craft for such supplies or materials furnished, work done,' etc. Code, Sec. 2963.

The first contention of the claimant is that under the general maritime law, where supplies are furnished on the order of the owner, there is a presumption that the same are furnished on his credit, and that the circumstances attending the transaction and the taking of a note negative the claim of an intention to look to the vessel for payment. It seems from the testimony that when the schooner was taken to Owen for repair there was some conversation between the parties as to the securing payment therefor, both believing that there was a lien for such repairs; but Owen, being unwilling to rely upon such lien, as boats of that kind were frequently sunk, wished some other security. Inquiry was made by him as to Gundy's pecuniary condition, which disclosed the fact that he had some other property, and a note for the amount of the bill was taken payable in six months, which has not been paid, and has been surrendered. It is clear that a taking of a note under these circumstances would not relinquish the lien, and it is not to be lightly presumed that the libelant relied exclusively upon the personal responsibility of the owner; but the conclusion reached by us makes it unnecessary to determine whether the lien existed, for we are of opinion that under the circumstances, if it did exist, it could not be enforced against a bona fide purchaser.

There is urgent need of federal legislation on this subject; for inasmuch as under general maritime law there is no lien for supplies or repairs to vessels in home ports, the states have generally undertaken to provide by statute that persons making repairs and furnishing supplies shall have a lien therefor, and the conditions requisite to the establishing of such liens are diverse. In some of the states they are required to be recorded; in others there is no such requirement. In some there are conditions and forms and forms of proceeding not in harmony with the principals and rules of the maritime code, but all such liens in the nature of maritime liens are now by the well-settled decisions of the supreme court required to be enforced in the courts of the United States in admiralty, which thus are compelled to examine and expound the varying and sometimes conflicting lien laws of the different states. It would, therefore, be of great advantage if some uniform law should prescribe that such liens should be recorded in the custom houses, and the existence of secret liens, so abhorrent to the spirit of...