The Surprise

• Decision Date: 29 March 1904
• Docket Number: 495.
• Citation: 129 F. 873
• Parties: THE SURPRISE. ROBINSON et al. v. WHITCOMB.
• Court: U.S. Court of Appeals — First Circuit

129 F. 873

THE SURPRISE. ROBINSON et al. v. WHITCOMB.

No. 495.

United States Court of Appeals, First Circuit.

March 29, 1904

Benjamin Thompson (Alvah L. Stimson, on the brief), for appellants.

Walter Bates Farr (M. F. Dickinson, on the brief), for appellee.

Before COLT and PUTNAM, Circuit Judges, and ALDRICH, District Judge.

PUTNAM Circuit Judge.

This is an appeal against a decree of the District Court for the District of Massachusetts, taken by two joint libelants of the steamer Surprise, owned and registered at the port of Boston, in the state of Massachusetts. One libelant Robinson, alleges that he was engaged in the general grocery and provision business at Portland, in the state of Maine and that, on sundry days, which he names, in August and September, 1902, the Surprise, being then in the port of Portland, and standing in need of supplies to enable her to continue the prosecution of her business, he, on the orders of her steward, furnished her the same, amounting, in the whole, to $732.68. He further alleges that the supplies were delivered on the credit of the steamship but he does not allege that she was without funds, or that there was any necessity for pledging her credit, or that he was entitled to an admiralty lien on account of the premises.

The other libelant is a corporation known as 'The Proprietors of Union Wharf.' It alleges that it is the owner of Union Wharf, at Portland; that the wharf is specially arranged for the landing of passengers and freight; and that, between September 11 and September 26, 1902, the Surprise, while making regular passages between Portland and Boston, was needing the use of a wharf and dockage in order to land and receive her passengers and freight, and to enable her to continue the prosecution of her business. It is further alleged that The Proprietors furnished this wharfage and dockage 'at the special request of the agent of said steamship and upon her credit,' for which is claimed $73.33. The same defects exist with reference to allegations of lack of funds, necessity of credit, and right to a lien. The defense, however, as to both libelants, seem not to have noticed these omissions. Neither does the defense make any claim on account of the use of the word 'agent,' without further defining; and the case does not come down to such close issues that we require to dwell on these peculiarities.

The Surprise was under charter, and the appellee, who is the claimant of the steamer and her registered owner, apparently relies on the theory that The Kate, 164 U.S. 458, 17 Sup.Ct 323, 41 L.Ed. 710, apply, although, as we have explained heretofore, The Kate and The Valencia have no relation to dealings with a master. We have also explained that, with dealings such as occurred in this case, although not done personally by the master, being, nevertheless, under his eye, and relating to the usual minor incidents of a maritime voyage, the legal effect is the same as though they had involved his personal acts. In The Kate there was a continuous current account between the proprietors of a line of steamers and the furnishers of coal, the bargain having been made at the principal office of the furnishers, and under such circumstances that the case might well have been put on the ground that there never was any expectation of holding the vessel; so that it was, in substance, like Cuddy v. Clement, decided by us and reported in two opinions, one passed down on January 16, 1902 (113 F. 454, 51 C.C.A. 288), and one passed down on April 10, 1902 (115 F. 301, 53 C.C.A. 94). However this may have been, the court in the later case, The Valencia, is careful to say at page 265, 164 U.S., page 323, 17 Sup.Ct., 41 L.Ed. 710, that none of the coal there in controversy was delivered by the order of the master, or by his procurement, or with his consent. On the other hand, in The Philadelphia, 75 F. 684, 686, 21 C.C.A. 501, 503, we said:

'The supplies were delivered to the steamers libeled, at their respective wharfs at their ports of touch, on their round trips. in small quantities, as needed for daily use, in the presence of the masters of the respective steamers, and while they were in control of them, and in the absence of both their owner and their charterers. Therefore the transactions were in the usual course of business by which ordinary supplies are commonly furnished to vessels by the order of the master, and away from the port where the owners reside. It would be intolerable, and entirely contrary to the practice of the courts, to hold that persons furnishing vessels such supplies in small quantities, to meet the requirements of the law for effectuating a lien, must prove express orders by the master. It is prima facie sufficient in such cases that the supplies are of the character which we have described, and come aboard under such circumstances that the master can properly be assumed to acquiesce in their purchase and reception; and this, without reference to whether or not the immediate orders for them came from some person occupying a subordinate position.

'The supplies having thus been furnished under such circumstances that we ought to presume that they were obtained on the express or implied orders of the master, the parties furnishing them were also entitled, at the time the supplies were furnished, to the benefit of the same presumption; and, if the owner of either steamer would rebut the case as thus made, he must show that the orders came from the charterers themselves, and that the parties furnishing the supplies knew that they so came, and thus knew that the course of business was other than that apparent on the face of the transactions, and other than that which they had a right to presume it to be. The record fails to furnish any proof of this character.'

In The Iris, 100 F. 104, 106, 107, 40 C.C.A. 301, 303, 304, we said:

'By the maritime law, no lien for supplies or labor furnished a vessel is presumed to arise on a contract made by the owner, and proof is required that the minds of the parties to the contract met on a common understanding that such a line should be created. Neither is it sufficient that the party who furnished the labor or supplies gave credit, so far as his own intentions were concerned, to the vessel, or would not have furnished them except on the belief that he was acquiring a lien for them. In this respect the status is different from what it is with reference to liens for labor and supplies furnished a vessel on the order of her master. This general rule is stated in The St. Jago de Cuba, 9 Wheat. 409, 417, 6 L.Ed. 122; Thomas v. Osborn, 19 How. 22, 29, 40, 43, 15 L.Ed. 534; The Grapeshot, 9 Wall. 129, 136, 137. 19 L.Ed. 651; The Kalorama, 10 Wall. 204, 214, 215, 19 L.Ed. 941; The Emily B. Souder, 17 Wall. 666, 671, 21 L.Ed. 683; and The Stroma, decided by the Circuit Court of Appeals for the Second Circuit, and reported in 53 F. 281, 283, 3 C.C.A. 530. It is expressly stated to the same effect in The Valencia, 165 U.S. 264, 270, 271, 17 Sup.Ct. 323, 41 L.Ed. 710.

'This distinction has been emphasized with regard to alleged liens for supplies furnished on the order of the charterers of a vessel, especially where there was no apparent necessity for pledging her credit. The Kate, 164 U.S. 548, 17 Sup.Ct. 135, 41 L.Ed. 512; The Valencia, 165 U.S., at page 271, 17 Sup.Ct. 325, 41 L.Ed. 710; and The Samuel Marshal, decided by the Circuit Court of Appeals for the Sixth Circuit, reported in 54 F. 396, 4 C.C.A. 501, decided by the Circuit Court of Appeals for the First Circuit, where it was maintained that the facts were similar to those in The Kate and The Valencia, the question which arose in those cases was laid aside, because the court found that the supplies were obtained under such circumstances that they were to be held as furnished in a foreign port on the orders of the master, thus bringing the circumstances within The Patapsco, 13 Wall. 329, 20 L.Ed. 696, and within the supposed hypothetical case stated in The Kate, 164 U.S., at pages 470, 471, 17 Sup.Ct. 140, 41 L.Ed. 512. In respect to this entire subject-matter, there is a distinction recognized throughout between supplies on the one hand, and seamen's wages and contracts of affreightment on the other, as to which liens presumptively arise.'

In Cuddy v. Clement, 113 F. 454, 461, 462, 51 C.C.A. 288, 295, 296, we said:

'The rule that an owner of a vessel, who is not also the master, may create an implied lien on her for supplies, is a modern one, confined to the United States, and not a part of the maritime law. This is historically well known, and it is, also, stated by so eminent an authority as Flanders on Maritime Law, Sec. 241. Mr. Flanders understood this proposition to be supported by the opinion of Mr. Justice Johnson in The St. Jago de Cuba, 9 Wheat. 409, 416, 6 L.Ed. 122. The fact that the owner may hypothecate a vessel by an implied lien, without bottomry, must be regarded as established in the United States by The Grapeshot, 9 Wall. 129, 19 L.Ed. 651, The Guy, 9 Wall. 758, 19 L.Ed. 710, and The Kalorama, 10 Wall. 204, 214, 19 L.Ed. 941. The rule has been recognized in other cases, but it originated with those to which we have referred. It happens that, as the rule was developed, no proper distinctions or limitations have been given concerning it, except those explained by the extracts we have made from The Iris, and there shown to have been fully sustained by the Supreme Court.

'In the case of supplies and repairs ordered by a master in a foreign port, their necessity being shown, everything else is presumed prima facie in favor of a lien, and the burden is thrown on whomsoever disputes its validity; but, with reference to supplies ordered by the owner, it

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