THE GOLDEN GATE
Decision Date | 14 September 1931 |
Docket Number | No. 6423.,6423. |
Parties | THE GOLDEN GATE. KNUTSEN v. ASSOCIATED OIL CO. |
Court | U.S. Court of Appeals — Ninth Circuit |
Young, Lillick, Olson, Graham & Kelly, E. R. Young, and H. R. Kelly, all of Los Angeles, Cal., and Ira S. Lillick and J. Arthur Olson, both of San Francisco, Cal., for appellant.
Derby, Sharp, Quinby & Tweedt and Daniel W. Hone, all of San Francisco, Cal., and Ray Howard, of Los Angeles, Cal., and Joseph C. Sharp, of San Francisco, Cal., for appellee.
Before WILBUR and SAWTELLE, Circuit Judges, and NETERER, District Judge.
This is an appeal from a decree in rem against the steamship Golden Gate for the value of fuel oil furnished the vessel by the libelant-appellee. There is no contention that the oil was not in fact delivered, but appellant contends that the charter party under which the vessel was operating at the time the oil was furnished prohibited the charterer from subjecting the vessel to maritime liens, and that the libelant knew, or by the use of reasonable diligence could have ascertained, that the charterer was without such authority.
The oil was delivered to the vessel in four different lots during the year 1926, two at Balboa, Canal Zone, and two at San Pedro, Cal. At that time the vessel was under time charter from the owner to the Southern Alberta Lumber & Supply Company, Limited. The law governing maritime liens at the time was as follows:
"Notice to person furnishing repairs, supplies, and necessaries. * * *; but nothing in this chapter shall be construed to confer a lien when the furnisher knew, or by exercise of reasonable diligence could have ascertained, that because of the terms of a charter party, * * * the person ordering the repairs, supplies, or other necessaries was without authority to bind the vessel therefor." Id., § 973.
Appellants rely strongly on the case of United States v. Carver, 260 U. S. 482, 43 S. Ct. 181, 182, 67 L. Ed. 361, in which the Supreme Court held that no lien arises for supplies furnished a chartered vessel where the charter forbids it, and where the materialman, by reasonably diligent investigation, could have ascertained there was a charter and gained knowledge of its terms. In that case there was an express provision in the charter party that the charterers "will not suffer nor permit to be continued any lien," and this provision was held to deny the right of the charterer to create a lien. In the instant case the charter party contains a provision requiring the charterer to provide and pay for all fuel oil, but contains no express provision denying the right of the charterer to bind the ship for supplies furnished. It provides "that the charterers shall provide and pay for all the coals and fuel oil except as otherwise agreed. * * *"
The decision of the Supreme Court in The South Coast, 251 U. S. 519, 40 S. Ct. 233, 64 L. Ed. 386, deals with a charter in which the charterer agreed to pay for fuel and supplies furnished the vessel, but did not prohibit the incurring of liens therefor, and held that under such a charter the master could create a lien therefor. This decision is controlling here. The Portland (C. C. A.) 273 F. 401. Appellants contend that this case is distinguishable from The South Coast, because there the charterer was not only required to pay for fuel, but also to discharge liens, thus impliedly recognizing the right to create liens. In answer to a similar contention in The Portland, 273 F. 401, 404, supra, this court said:
Again:
The rule enunciated in The Portland, supra, applies to supplies ordered by the charterer as well as by the master. By the provisions of 46 USCA §§ 972, 973, supra, the charterer is authorized to create liens on the chartered vessel for necessary supplies furnished it, because it is a "person to whom the management of the vessel at the port of supply is...
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