Pensacola Shipping Co. v. United States Shipping Board Emergency Fleet Corp.

• Decision Date: 25 January 1922
• Docket Number: 3772.
• Parties: PENSACOLA SHIPPING CO. v. UNITED STATES SHIPPING BOARD EMERGENCY FLEET CORPORATION.
• Court: U.S. Court of Appeals — Fifth Circuit

277 F. 889

PENSACOLA SHIPPING CO. v. UNITED STATES SHIPPING BOARD EMERGENCY FLEET CORPORATION.

No. 3772.

United States Court of Appeals, Fifth Circuit.

January 25, 1922

W. H Watson and S. Pasco, Jr., both of Pensacola, Fla., for appellant.

John L Neeley, U.S. Atty., of Pensacola, Fla., for appellee.

Before WALKER, BRYAN, and KING, Circuit Judges.

WALKER Circuit Judge.

This was a libel by the appellant, Pensacola Shipping Company against the appellee, United States Shipping Board Emergency Fleet Corporation, to recover the amount of payments made by the appellant for coal and other necessaries furnished to the steamship Belair, a vessel belonging to the appellee, between the date of its arrival at the port of Pensacola on January 10, 1920, and its departure therefrom on January 28, 1920. The evidence adduced showed that the amounts claimed were paid by the appellant under the following circumstances:

On December 22, 1919, a New York firm of ship agents sent to the appellant at Pensacola a telegram, of which, omitting the address and signature, the following is a copy:

'Dale Universal have Belair due Pensacola first Jany. to load lumber for Plate can arrange agency for you fifty dollars want quotation five hundred bunkers wire whether agency acceptable you stop they intimate possibly have several sailings monthly.'

On the next day the appellant replied to that telegram by one stating, 'Dale Universal agency acceptable at fifty dollars,' and quoting price of bunker coal. By a letter dated December 24, 1919, the Dale Universal Line, through its agents, Dale Forwarding Corporation, appointed the appellant as its agent for the Belair while at Pensacola. A letter of instructions to the appellant, dated December 27th, advised it that its principal was a time charterer of the vessel, and contained the following:

'Regarding disbursements, you will kindly send us your full accounts immediately upon completion of vessel and we will then reimburse you.'

The appellant handled the agency according to the charterer's instructions. The disbursements, except a small amount for telegrams, were made by paying bills for the supplies, etc., rendered against the vessel itself and approved by its master. Soon after the vessel sailed from Pensacola the appellant sent a statement of the disbursements it had made to the charterer's New York agent, and requested payment thereof. The account was returned with a letter directing that it be sent to the appellee for payment. In response to a letter from the appellant on the subject, the appellee declined to pay, denying liability for disbursements for which the ship was not responsible under the terms of the charter party. What was alleged to be a copy of that instrument was made an exhibit to the appellee's answer.

In argument attention was called to the fact that the record does not show that the exhibit to the appellee's answer was proved to be a copy of the charter party under which the Belair was being operated at the time the supplies in question were furnished. Language used in the memorandum opinion rendered by the trial judge plainly indicates that the court treated that instrument as before it for consideration as evidence in the case, reference being made to the provision of the charter party requiring the charterers to pay for coal, etc., furnished to the ship. There being nothing in the record to indicate that the appellant raised any objection to this action of the court, it is to be inferred that the court's treatment of that instrument as evidence in the case was acquiesced in by the appellant.

The charter party contained a provision requiring the charterer to provide and pay for coal and other things which were paid for by the appellant. That provision, under the proviso contained in section 3 of the Act of June 23, 1910 (36 Stat. 605; Comp. Stat. Sec. 7785), prevented the furnishing of the coal and other necessaries from having the effect of giving rise to a lien on the ship, or a claim against its owner, therefor, if the furnisher knew, or by the exercise of reasonable diligence could have ascertained, the terms of the charter party. The evidence showed that, when the coal and other necessaries were furnished and paid for, the appellant did not know of the terms of the charter party. It affirmatively showed that the appellant acted under the agency it accepted, and made the payments in question without making any effort to get information as to the terms of the charter party, of the existence of which it was apprized as above stated; it being disclosed that, though the appellant was in communication with the charterer several weeks before the vessel's arrival at Pensacola, it did not ask for a copy of the charter party, or for information as to its terms, until, in a letter written to the appellee after the latter had denied responsibility and refused payment, it requested to be furnished a copy of the charter party, or of the form used in making the contract between the appellee and the charterer. It is apparent that the appellant exercised no diligence at all to ascertain the terms of the charter party before making payments in pursuance of the charterer's directions.

The evidence as to the circumstances under which the appellant was put on inquiry as to the terms of the time charter party referred to in a letter to it from its principal, the charterer, persuasively calls for the conclusion that, if the appellant had exercised reasonable diligence, it would have ascertained, before it made the payments in question, that both its principal, the charterer, and the master, were without authority to bind the vessel or its owner therefor. As above stated,...