Pittmans v. The Samuel Marshall

• Decision Date: 05 February 1892
• Citation: 49 F. 754
• Parties: THE SAMUEL MARSHALL. v. THE SAMUEL MARSHALL. PITTMANS et al.
• Court: U.S. District Court — Eastern District of Michigan

49 F. 754

THE SAMUEL MARSHALL.

PITTMANS et al. v. THE SAMUEL MARSHALL.

United States District Court, E.D. Michigan.

February 5, 1892

Bowen Douglass & Whiting, for libelants.

Show &amp Wright, for claimants.

Before SEVERENS, District Judge.

SEVERENS District Judge.

The libel was filed in this case for the purpose of enforcing a lien upon the steamer, the respondent in the case, for coal supplied by Pittmans & Dean for the steamer's use, in September and on the 1st day of October, 1890. The libelants were coal merchants at Detroit, having a dock by the river, at which vessels navigating the stream and the waters it connects called for fuel supplies as occasion required. Their principal office was not located near the dock, but further up, in a more central part of the business portion of the city. They employed a foreman, who had an office at the dock, whose duty it was to attend to the delivery of coal to steam-vessels when they would call for it, and to receive payment therefor, if the sale was for cash, or otherwise to keep a memorandum of the amount, and of the name of the vessel supplied; to take a certificate from the master of such amount received by him; and to also obtain from him the name and address of the party to whom the bills should be sent for payment,-- all of which he reported to the main office. When the coal was furnished on credit, it was the custom of the firm to render by letter addressed to the proper party, as indicated by the foreman's report, monthly statements, showing the amount delivered and charged to the vessel, together with the captain's certificates confirmatory thereof. In a few days thereafter it was customary to send a collector to receive payment of bills from parties having a place of business at Detroit. This method of doing business was habitual with the libelants. No inquiry was made at the time of furnishing coal as to owners' credit or place of residence, or whether the vessel was being run by owners or charterers, or on whose account, except as above stated. The coal was charged upon their books against the vessel, apparently upon the assumption that, if the parties to whom bills were sent did not pay, they could assert a lien on the vessel. At the time when the coal in question was supplied, and during the whole season of navigation that year, the Samuel Marshall was owned by several parties, one of whom resided at Detroit, and the others at Buffalo and other places in the state of New York. The vessel was enrolled at Buffalo, and that was duly indicated as the port to which it belonged, by the imprint on the stern of the vessel, pursuant to the requirements of the statute. But during that whole season the vessel was under charter-party to J. E. Potts, for the use of the J. E. Potts Salt & Lumber Company, a Detroit firm, doing a very extensive business, involving the transportation of lumber, ore, coal, grain, etc., from Chicago and Duluth to Buffalo and return. Among other vessels chartered for this purpose was the Marshall. The charter was of the bare ship, and by it the charterers undertook to pay the entire charges of the vessel, and the running thereof, including the wages of the captain and crew, who were also to be employed by the charterers, except that the owners reserved the right to participate in naming the captain, a stipulation usual in such contracts, and adopted for the better protection of the interests of the owners in the vessel; and there was an express stipulation against the creation of any liens against the vessel. Coal had been furnished to the Marshall throughout the entire season of 1890 by the libelants in accordance with the usual course of their business as above stated, and the monthly supplies were all paid for by the J. E. Potts Salt & Lumber Company, down to the month of September. In the early part of the season the master of the Marshall, on taking in some coal, informed the foreman of the libelants, at the dock, of the residence of the owners, and of her being under charter to the Potts Salt & Lumber Company, and gave the name and address of that concern as the party to whom bills should be presented for payment. The office of that company was, and had been for some years, within the distance of a block from that of the libelants. The statements were made out and sent to that company monthly, in the way already mentioned, and were paid by them to the collector. On calling for the amount of the July bills the company asked for time, and, after conferring with his principals, the collector took the company's acceptance for 60 days, and receipted the bills as so paid, and the acceptance was duly paid. Bills for the coal included in the present claim, amounting to $1,466, were sent in the same way to the Salt & Lumber Company, and on the . . . day of November the collector called for payment. The bills included also some coal supplied to another steamer employed by that company. Time being again asked by the company, the collector received their acceptance, due in 90 days, and receipted the bills as before. He did not, on this occasion, refer to his principals about it, but he took the acceptances to their place of business, and they were deposited in their cash-box. One of them was afterwards deposited in bank for collection. The Salt & Lumber Company failed on November 24, 1890. It had doubtless been insolvent for a time further back than the 1st of September, but this was not known to the libelants, who, so far as appears, had no reason to distrust their credit. The libel counts upon the general maritime law as the foundation of the lien asserted, no reference being made to the statute of the state, which gives a lien for supplies to such vessels, whether furnished to them in the foreign or home port.

It is necessary, therefore, to determine whether, in the circumstances stated, the libelants have, by the principles of the general maritime law, a lien upon the vessel for the coal thus furnished, and I am of opinion they have not. It is clearly proved that the vessel was at the time not in the employment of the owners, but was manned, controlled, and navigated by the Salt & Lumber Company, under a charter giving them entire possession of the boat, and imposing upon them the obligation to pay all charges incurred by the steamer while in their service. The charterers resided and were doing business at the port of supply. It cannot be denied that if the owners resided at Buffalo where the vessel was enrolled, or if the libelants had good reason to believe so, after due inquiry, and they delivered the coal upon the credit of the steamer, a lien would inure to them for the price; and it is equally true that if the owners resided at Detroit, and the libelants knew, or ought to have known, that this was so, no lien, under the general maritime law, would have arisen, the rule being that, in the absence of a specific agreement, no lien exists for supplies furnished at the ports of a state whereof the owner is resident,-- it being presumed that they were furnished upon the credit of the owner. The General Smith, 4 Wheat. 443; The Lottawanna, 21 Wall. 579. It has been held in some cases that where part of the owners reside in the state of the port where the supplies are furnished, and the others in a foreign state, and the facts are known by the party furnishing the vessel, the same rule would apply as last stated. The Rapid Transit, 11 Ref.Rep. 322, 328-330; Stephenson v. The Francis, 21 F. 715-717; and in The Indiana, Crabbe, 479. I do not decide what the rule is in such cases here, choosing to place my decision on other grounds.

For the purpose of applying the general rules just referred to, regard is had, not so much to the question as to who is the owner of the legal title, as to that of possession and use of the vessel at the time when the supplies are furnished. If the vessel is then in the use, possession, and control of others than the owner, a presumption arises that such others are liable to pay the charges incident to the employment; and if the party furnishing supplies knew, or should have known, the facts in regard to the use and control of the vessel, there is the same reason for the presumption against credit being given to the vessel, when the charterer or other person standing in a similar relation to the vessel resides at the port of supply, as in cases when the owner operating the vessel on his own account resides at such port, 'and when there is the same reason there should be the same law. ' And this doctrine is supported by decisions in well-considered cases. The Golden Gate, 1 Newb.Adm. 308, 5 Amer.Law Reg. 142; Beinecke v. The Secret, 3 F. Re.665; The Norman, 6 F. 406; The Secret, 15 F. 480; Stephenson v. The Francis, 21 F. 715.

In regard to the question of fact involved as to whether the libelants knew that the Salt & Lumber Company were using and controlling the Marshall under a charter-party or some similar agreement, my impressions from the proof are strong that they must have known it, or from mere carelessness and indifference neglected to inform themselves of facts which were patent to inquiry. It is claimed that the notice of the fact that the vessel was under charter, given by the master to the foreman on the dock, was actual notice....