The South Coast

• Decision Date: 01 October 1917
• Docket Number: 2865.
• Citation: 247 F. 84
• Parties: THE SOUTH COAST. [1]
• Court: U.S. Court of Appeals — Ninth Circuit

247 F. 84

THE SOUTH COAST. ^[1]

No. 2865.

United States Court of Appeals, Ninth Circuit.

October 1, 1917

On June 19, 1915, the South Coast Steamship Company chartered to Howard R. Levick, Jr., with the right of purchase, the steam schooner South Coast, on terms and conditions set forth in the charter party, which contains, among others, the following provisions:

'Fifth. It is understood that this charter is a charter of the bare vessel, and that said party of the second part shall furnish the crew, pay their wages, victual them, furnish all deck and engine room and saloon stores and supplies of every kind and nature, pay for all fuel, fresh water, port charges, wharfages, customs charges, customs fines, or government fines, pilotages, overtime of crew, agencies commissions, consular charges, dry-docking, painting of the hull of said vessel, furnishing all lines and slings, and pay all other charges whatsoever of every nature, whether of the same kind as hereinabove enumerated or otherwise that may be incurred in or about the use of said vessel during the term of this charter.'

By the sixth paragraph the owner is accorded the right to appoint the master, who is to be under the orders of the charterer as to the management of the ship, and whose wages are to be paid by the charterer.

By the eighth paragraph, in default of any payment, or upon failure on the part of the charterer, within 30 days after incurring the same, to discharge any debts or liabilities which are liens on the vessel, the owner is given the right to withdraw the vessel from the service of the charterer.

By the tenth paragraph it is provided that, if the payments (charter hire) are not made, then, at the option of the owner, the vessel shall be delivered to it, 'free from all liens and claims of every kind or description whatsoever during the term of this charter party, except the lien for any salvage services that may be rendered to said vessel, and that he, the said party of the second part, will hold and save harmless the said party of the first part from all liens, claims, or demands upon or against the said vessel that may be preferred against the said party of the first part or against the said vessel, and arising or created during the term of this charter party, except any claim for salvage services that may be rendered to said vessel, and further will save said party of the first part harmless from all liens, losses, damages, costs, or expenses that said party of the first part may sustain or be put to in consequence of such liens, claims, or demands, or in respect to any litigation arising out of or in respect thereto or connected therewith.'

As to the further facts, we adopt the statement of the trial court, as follows:

'Libelant furnished supplies at various times to the steamer South Coast in the harbor of San Pedro, each time on the order of the person then her master. The vessel was, during this period, being operated by one Levick under a charter from the owners, which charter was also in the nature of a conditional bill of sale, or option to purchase. Libelant, before furnishing any of the supplies in question, was informed that the vessel was under charter to Levick and had been warned by the owners of the vessel not to have any bills go on the ship's account, and had also been advised that Levick and Oliver would pay the bills. To this he replied that it was immaterial to him who paid the bills, but that he would not sell any goods to the ship in any other way than by charging them to the ship and her owners, and if they did not want it that way he would not deliver any goods. This was stated by him to one Mills, who first informed him that Levick was operating the ship, and who had been directed by the owners to give him warning not to sell on the credit of the ship. He was also warned by Mr. Sooy, one of the owners, not to deliver any goods on the credit of the ship. So that if the owners, after the delivery of the ship to the charterers, had any power to prevent the attaching of a lien for supplies by warning the libelant not to furnish such supplies on the credit of the ship, such warning was clearly and definitely given.'

Marcel E. Cerf and C. H. Sooy, both of San Francisco, Cal., for appellant.

Ira S. Lillick, of San Francisco, Cal., for appellee.

Before GILBERT and HUNT, Circuit Judges, and WOLVERTON, District Judge.

WOLVERTON District Judge (after stating the facts as above).

Prior to the adoption of the act of Congress of June 23, 1910 (36 Stat. 604), relating to liens upon vessels for repairs, supplies, or other necessaries, there was much confusion respecting the law, as to whether a lien would attach where the necessaries and supplies, etc., were ordered by the master when the owner was personally present, or whether such a lien was susceptible of being impressed orally by the owner in case the supplies, etc., were furnished through his personal order on the credit of the ship. In the first instance, it was thought that it would not attach because, the owner being present, the presumption seemed to prevail that there was want of authority in the master to bind the vessel. But, if the ship were in a foreign port and the owner were not present, the authority of the master to bind the ship would exist through necessity, that the ship might be repaired and provisioned in order to go forward upon its voyage. Thomas et al. v. Osborn, 19 How. 22, 15 L.Ed. 534; The Kalorama, 10 Wall. 204, 212, 213, 19 L.Ed. 941; The Underwriter (D.C.) 119 F. 713, 755.

In the second instance, according to many authorities, the personal order of the owner gave rise to the presumption that the supplies were furnished on his personal credit. The St. Jago de Cuba, 9 Wheat. 409, 6 L.Ed. 122. And it was not even clear that the owner could impose a lien upon the vessel by oral agreement. The Iris, 100 F. 104, 40 C.C.A. 301; Cuddy v. Clement, 113 F. 454, 51 C.C.A. 288. But all this controversy has been put at rest, or rather obviated, by the statute, which imposes a lien in favor of the person furnishing repairs, supplies, etc., 'upon the order of the owner or owners, * * * or of a person by him or them authorized. ' Section 1 (Comp. St. 1916, Sec. 7783). The lien follows, therefore, in any event, where the repairs or supplies are furnished by direction of the owner, though by the fourth section of the act (section 7786) it may be waived on the part of the furnisher of such repairs, supplies, etc., by agreement or otherwise. By the second section (section 7784) the master, among others, is presumed to have authority from the owner to procure repairs, etc., and by the third (section 7785), the presumption is declared to extend to such officers and agents 'when appointed by a charterer, by an owner pro hac vice, or by an agreed purchaser in possession of the vessel. ' So that one who disputes the validity of a supposed lien claimed for repairs, etc., furnished on the order of the master, is required to overcome the presumption which the law imposes of the master's authority to represent the owner respecting the particular involved. In other words, the presumption imposed by the statute is disputable in character, and it has been held that it is but declaratory of a principle previously recognized in maritime jurisprudence. The Yankee, 233 F. 919, 147 C.C.A. 593.

There is a divergence of opinion among the cases as to whether a charter party of the nature and character of the one here involved withdraws the authority of the master to act for the owner in the ordering of repairs, supplies, etc. Judge Lowell has held, in a most learned and searching opinion, that it does. The Underwriter, supra. But this decision is disapproved by the Circuit Court of Appeals of his circuit in the case of The Surprise, 129 F. 873, 64 C.C.A. 309, which impresses us as being based upon the stronger reasoning. The court there says:

'We should also observe that much has been made of the fact that, in The Kate and The Valencia, there were formal charter parties which expressly provided that each charterer should disburse the vessel for ordinary current expenses and protect her from all liens on account thereof. There seems to be an impression that there was something in this fact of special importance, and it has apparently appealed to the legal imagination. It was, however, absolutely immaterial, because, on every charter of the hull of a vessel, the substantial

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