The Underwriter

• Decision Date: 01 August 1902
• Docket Number: 1,007.
• Citation: 119 F. 713
• Parties: THE UNDERWRITER.
• Court: U.S. District Court — District of Massachusetts

119 F. 713

THE UNDERWRITER.

No. 1,007.

United States District Court, D. Massachusetts.

August 1, 1902

Nichols & Cobb, for libelant.

Frederic Dodge and Frederic Cunningham, for respondent.

LOWELL District Judge.

This was a libel filed against the tug Underwriter for the value of coal furnished her in a foreign port while under charter to the Atlantic Transportation Company. The charter provided that the charterer should pay for coal. The coal was furnished upon the order of the master. The evidence is somewhat conflicting, but I find that the following facts are established:

The libelant, thorough its officers and agents, either knew that the Underwriter was under charter to the transportation company, or knew enough to put upon inquiry a reasonable man who wished to know if there was such a charter. The libelant did not know that the charter expressly provided for the furnishing of supplies by the charterer, but it was put upon inquiry concerning this fact also, and might easily have ascertained it. The coal was ordered by the master. The libelant charged the coal to the tug and owners, and in fact looked to the tug for payment. There was no contract made between the charterer and the libelant to furnish the coal. The correspondence between the tow, if any existed, amounted to no more than a request by the charterer and the libelant to furnish the coal. The correspondence between the two, if any existed, amounted to no more than a request by the charterer for the libelant's price list. If the libelant had a right to look to the vessel for the coal, it did not waive that right by any act. No actual necessity for pledging the credit of the vessel was shown. I do not think that the conversation between Capt. Wiley and Mr. Abernethy regarding the credit given to the tug was proved. Under these circumstances the court has to determine if a lien exists where in a foreign port, necessary supplies are ordered by the master of a vessel known by the libelant to be under a charter which provides for the payment for supplies by the charterer. No reference has been made to any statute, and the case must be decided by the general admiralty law. This question has not always received the same answer in the courts of the United States, and similar answers have not always rested upon like grounds. For this reason a somewhat extended examination of the history of the lien of a materialman upon a vessel seems desirable.

The admiralty law on this subject administered in the federal courts is derived rather from the civil law and the maritime law of continental Europe than from the common law of England. Dig. 42, 5, 26, 34 provides, 'Qui in navem extruendam, vel instruendam, credit, vel etiam emendam privilegium habet. ' 'Quodquis navis fabricandae vel emendae, vel armandae vel instruendae causa, vel quoque modo crediderit, vel ob navem venditam petat, habet privilegium post fiscum. ' See Dig. 49, 14, 17. If this language be taken literally, and if 'privilegium' be translated 'lien,' then, so far as the Roman law is concerned, the question is answered, and a lien is created by a mere contribution to the construction or maintenance of a vessel, irrespective of the authority of the person ordering the work or supplies. The lien depends upon the fact that the materialman has contributed to the existence or maintenance of the object upon which he claims the lien. See, also, Dig 20, 4. 5. This construction has been put upon these passages by some civilians and by some courts of England and the United States. See The Sandwich, 1 Pet. Adm. 233, note (S.C Fed. Cas. No. 13,409). This seems to have been the opinion of Mr. Justice Story. See The Nestor, 1 Sumn. 73, 79. Fed.Cas. No. 13,409). This seems to have been the opinion of Mr. Justice Story. See The Nestor, 1 Sumn. 73, 79. Fed. Cas. 10,126; The General Smith, 4 Wheat. 438, 4 L.Ed. 609. But in The Young Mechanic, 2 Curt. 404, Fed. Cas. No. 18,180, Mr. Justice Curtis pointed out the difference between 'lien' and 'privilegium.' A privilege may mean no more than a general priority in the distribution of the debtor's assets. See Desjardins, Droit Com. Mar. 1, 213. See, Also Pardessus, lois Mar. 1, p. 98, note 4, page 113, note 1, and page 119, note 3, where the author states that, according to the best opinion, an express agreement is necessary to create the lien mentioned in the texts of the digest above quoted. If this be true, then these texts prove no more than that an express hypothecation of the vessel to pay the debt of a materialman gives priority over other liens, hypothecations, and conveyances, and is inferior only to the fisc. Under this construction of the Digest, no lien exists by force of the repairs and supplies without an express hypothecation of the vessel. The authority to hypothecate, therefore, must be important

Another text of the Digest seems to have affected more considerably the later continental law regarding the rights of the materialman. Dig. 14, 1, 1-7. 'De exercitoria actione.' This text deals with the authority of the master to bind the owner of the vessel for repairs, supplies, seaman's wages, etc., and his authority to borrow money for these purposes. It declares how far the owner is bound if the master misapplies the money borrowed; and it makes the right of action against the owner to depend, not upon the actual maintenance of the ship, for the right of action may exist where the ship gets no benefit, but upon the authority of the master to contract, reasonably supposed to exist by the materialman or lender. How far this text deals with a lien upon the ship, rather than with the personal liability of the owner, is not clear.

The maritime law of England was affected more directly by the maritime laws of continental Europe than by the Roman law. As applied in the English admiralty, the civil law was usually, though not always, first passed through a later continental medium. It is to 'the ancient collections of sea laws,' as Mr. Justice Curtis calls them, rather than to the Digest, that reference is commonly made by modern judges; and it was these collections, rather than the civil law at large, by which the commons of England in the fifteenth century wished the English courts of admiralty to be governed. 1 Rolle, Abr. 528; 3 Rolls Parl. 498. Of these laws, in their relation to the Roman law and to maritime liens, Mr. Justice Curtis said in The Young Mechanic, 2 Curt. 404, 408, Fed. Cas. No. 18,180:

'Whether the texts of the Roman law were misunderstood, and so were the source of the existing usages, or whether it was only intended to adapt them to those usages which had already obtained, it is certain that in the general maritime law of Europe privileged hypothecations were tacitly conferred in the cases in which what we term 'liens' now exist. It is true we do not find their precise nature described in any of the ancient collections of sea laws so far as I have discovered. These laws were, generally, simple practical rules, often partaking of the rudeness of the age in which they were compiled, dealing rarely with abstractions, containing few definitions, and, with the exception of the customs and ordinances of Catalonia and Arragon, collected by Pardessus in volume 5. p. 333 et seq., and they are not laws of procedure. In the Consulat de la Mer, the most ancient and important of all, there is no definition of maritime lien, nor any account of the way in which it was to be worked out. Its usual formula is, simply, the ship ought to be sold, and the debt or damage paid from its price. And so, when the personal liability of the master is ordained, it is only said he ought to be put into the power of the magistrate. See chapter 289. But that the right or privilege of the seaman in the ship as a security for his wages (chapters 138, 193), of the merchant for injury or loss of his goods, etc. (chapters 59, 254, 259, 277, 106, 63) or for the price of his goods sold to raise money for the necessities of the ship (chapter 107), was a real right,-- a jus in re, in contradistinction to a mere personal privilege to be paid in a concourse of creditors,-- I have no doubt. In the Laws of Wisbuy ^[1] this is clearly shown. Emerigon (Con. a la Grosse, c. 124, Sec. 4) and Boulay-Paty (Cours de Droit Com. vol. 1, p. 38), translate the forty-fifth article of these laws respecting the right of a merchant whose goods have been sold to supply the necessities of the vessel, or who has lent money for the same purpose, 'Auront special hypotheque et suit le navire.' See, also, 1 Pardessus, Col. des Lois Mar. 492, art. 43. Le Guidon (chapter 19, arts. 1, 2; Pardessus, Col. des Lois Mar. 424) denominates such a right 'special hypotheque."

Many other passages in various maritime laws show that a lien of some sort upon the ship was contemplated as the result of repairing or supplying her. By the Laws of Oleron ^[2] dating from the thirteenth century, which had especial authority in England, Pard. I, 323, art. 1, the master may, under some circumstances, pledge part of the tackle of the ship in a foreign port to raise money for the needs of the ship. See the reproduction of the Judgments of Oleron in the Judgments of Damme, Pard. I, 371, in the Castilian Law, Pard. VI, 57, and in the Laws of Wisbuy,¹art, 15, Pard I, 471. See the Laws of Denmark, Pard. III, 298, 265. By the Laws of Hamburg, Pard. III, 352, 367, the tackle could be pledged for provisions in a foreign port, but not the ship. If, however, the master sold the cargo for this purpose, as apparently he had the right to do, the owner of the cargo sold had a lien upon the ship valid as against a purchaser. By the Laws of Genoa, Pard. IV, 520, it is implied, if not precisely stated, that for necessaries a master may bind the...