THE EVEROSA, 3247.
| Decision Date | 08 December 1937 |
| Docket Number | No. 3247.,3247. |
| Parties | THE EVEROSA. SOUTHERN COAL & COKE CO. v. F. GRAUDS KUGNIECIBAS. |
| Court | U.S. Court of Appeals — First Circuit |
Paul Johnston, of Birmingham, Ala., and Archibald C. Matteson, of Providence, R. I. (Forney Johnston, and Cabaniss & Johnston, all of Birmingham, Ala., on the brief), for appellant.
P. A. Beck, of New York City (Harold R. Semple, and Raymond & Semple, all of Providence, R. I., on the brief), for appellee.
Before BINGHAM, WILSON, and MORTON, Circuit Judges.
The question is whether the steamship Everosa is subject to a maritime lien in favor of the libelant for coal furnished to her at Mobile, Ala., on November 22, 1933, and May 8, 1934. On final hearing in the District Court the steamer was held not liable and the libel was dismissed. Libelant has appealed. The facts are as follows:
At the time when the coal in question was furnished, the Everosa was called the Munorway and was owned by a Norwegian company. She was sold to her present owners, a Latvian company, and her name was changed in August, 1934. The Norwegian company was a subsidiary of the Munson Steamship Line of New York and the steamer at the time in question was under a time charter to the Munson Line. The charter party provided, inter alia, that bunker fuel should be furnished by the charterer; but it contained no provision forbidding the charterer from subjecting the vessel to maritime liens.
The coal in question was supplied by the libelant under a standing contract between it and the Munson Line dated April 16, 1933. The terms of the contract now material were as follows:
Then followed certain provisions which need not be stated for adjustment of the price to meet changes in laws or regulations. The contract continued:
As to the first item, in November, 1933, the Munorway was on voyage from Mexico to Tampa and was to be refueled at Mobile. A few days before she was due there, the Munson Line representative at New Orleans telegraphed the libelant at Boothton, Ala., to have 725 long tons of coal at Mobile on the morning of November 22 for the Munorway's bunkers. This order was acknowledged by the libelant with the statement that coal would be at Mobile in ample time to take care of the vessel. The coal was loaded on cars at Boothton and reached Mobile at the date stated; it was shipped on bills of lading consigned to Bay City Fuel Company at Mobile. On arrival there it was loaded on the steamer from railroad cars and was trimmed into her bunkers by the Bay City Company. The Bay City Company was employed by the coal company and appears to have had no contractual relations with Munson. Its charge for trimming and the freight from Boothton to Mobile were included in the coal company's bill. The coal was billed by the libelant to the "S. S. Munorway and owner Munson Steamship Line." The steamer's master and chief engineer signed receipts, stating it was "received of Southern Coal & Coke Co., Boothton, Alabama," etc. The master of the steamer paid for the coal on delivery by giving to the libelant's representative a thirty-day draft on the Munson Line to the order of the coal company for the amount due, including, as has been said, the cost of the coal and transportation and trimming charges.
When the first draft fell due, the Munson Line appears to have been unable to meet it in full and arranged with the libelant to pay $1,000 and give a note for the balance, it being stated that this was done without waiver or prejudice to any lien upon said vessel. The balance of this note, less other partial payments, forms part of the present claim. It seems clear that if the libelant had a lien on the steamer for the coal which was furnished, the lien was not lost by anything which was done with relation to the payments by drafts or notes.
The second bunkering of the Munorway took place at Mobile on May 8, 1934. The circumstances, mutatis mutandis, were the same as before. The master's draft on the Munson Line for $2,216.62 in payment for the coal and charges was later, by agreement of the parties, converted into a promissory note of the Munson Line which was accepted by the coal company "without waiver and prejudice to any lien upon said vessel."
The libelant did not know that the Munorway was under charter; it made no inquiry on that point. There is no reason to suppose that if it had inquired it would not have been told the facts.
The District Judge held that the coal was delivered by the coal company to the Munson Line under the outstanding contract between them; that the title to it passed when it was put on the cars at Boothton; that the coal was not restricted to any particular vessel; that the consignment to the Bay City Fuel Company was not a reservation of title in the seller, but was done for the convenience of the buyer in getting the coal trimmed. He accordingly held that the case was controlled by Piedmont & George's Creek Coal Co. v. Seaboard Fisheries Co., 254 U.S. 1, 41 S.Ct. 1, 65 L.Ed. 97, and dismissed the libel on the ground that the coal was not furnished by the libelant.
The decisive question is whether in each instance title to the coal passed at Boothton, or not until the coal was put on board at Mobile. It is to be determined, as both parties agree, on the Alabama Sales Act, Ala.Gen.Acts 1931, p. 570, as interpreted by the Supreme Court of that state. Under the Alabama statute, which is the Uniform Sales Act, the passing of title depends on the intention of the parties as gathered from the writings, from such oral agreements relating to the matter as may be admissible, and from the surrounding circumstances. The evidence in the record on this point has been supplemented by the Chamberlin deposition taken under rule 14. The objections to the deposition are not of sufficiently substantial character to require that it be struck out or essentially limited. The contract was silent on such indispensable details as places and amounts of deliveries under it. It was clearly the intention of the parties that it should be supplemented from time to time by oral or written orders. In each of the instances before us such orders were given, the coal company being instructed by the Munson Line to furnish a stated amount of coal at a certain place and date for bunkering a designated steamer. The coal company accepted the orders as part of its contract and sent the coal to its own consignee at the place of delivery with orders to have it trimmed into the designated vessel's bunkers. Whether the...
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