The William P. Donnelly

• Decision Date: 06 August 1907
• Citation: 156 F. 302
• Parties: THE WILLIAM P. DONNELLY. THE SANDY HOOK.
• Court: U.S. District Court — Western District of New York

156 F. 302

THE WILLIAM P. DONNELLY. THE SANDY HOOK.

United States District Court, W.D. New York.

August 6, 1907

Clinton & Clinton, for libelants.

Love &amp Keating, for claimant.

HAZEL District Judge.

The libel was filed in this cause to recover the sum of $356.64 for supplies furnished the tugboat William P. Donnelly at the port of Buffalo, N.Y., during the season of navigation on the Great Lakes for the year 1904. Reliance is placed upon the statute of the state of New York (Laws 1897, pp. 526, 527, c 418, Secs. 30-32, as amended by chapter 246, p. 494, Laws 1904), which provides for liens upon vessels for supplies and materials furnished and for work done in the repair or equipping of domestic vessels at their home port. That a valid lien upon a domestic vessel filed under the above statute is enforceable in admiralty is clearly settled by the authorities. The Lottawanna, 21 Wall. 558, 22 L.Ed. 654; The J. E. Rumbell 149 U.S. 1, 13 Sup.Ct. 498, 37 L.Ed. 345. Both sides concede that according to decisions controlling upon this court a valid lien will not attach in the absence of proof that credit was given to the ship. This rule applies equally to liens enforceable in admiralty under the general maritime law and under state statute, and such rule is not altered by reason of the fact that the vessel proceeded against is under charter or in the possession of a prospective purchaser. The Golden Rod, 151 F. 6-8, 80 C.C.A. 246.

The claimant contends that the supplies were furnished on the credit of the Donnelly Contracting Company, and not of the vessel. In so far as material, the evidence in this case shows that the supplies in question were delivered by libelants pursuant to directions received by them over the telephone from an employe of the charterer, the Donnelly Contracting Company. It was customary for libelants to each month deliver itemized statements for groceries and supplies furnished to the tugboat and to other vessels chartered by the Donnelly Contracting Company, and at different times promissory notes were taken for the total amount due them. On July 12 and September 9, 1904, promissory notes were taken to evidence the debt, which said notes were surrendered at the trial, and the amount of the debt representing deliveries of supplies to the tug Donnelly is now sought to be recovered herein. Indeed, the course of business for some time prior to the indebtedness in question was to take notes from the Donnelly Contracting Company for the amount of supplies furnished to vessels chartered by it. The Donnelly Contracting Company was a domestic corporation, and at the time the debt was incurred was engaged in the business of dredging at the port of Buffalo, N.Y., where libelants were also engaged in transacting the business of grocers. The tugboat in question had painted on her stern the corporate name of the charterer, and she was enrolled at Buffalo, N.Y., in the name of William P. Donnelly, who was the treasurer of the corporation. But it is not claimed that libelants made any inquiries in relation to the enrollment, or that they in any manner were induced to give credit to the vessel by the distinguishing name or mark upon her stern. They were not informed of the fact that the vessel was chartered by the Donnelly Contracting Company, and at the time the supplies were furnished they had no knowledge in relation thereto. In the month of November, 1904, the charterer was declared bankrupt, and thereupon the local lien in the form required by the statute was filed in the office of the clerk of Erie county. The proofs show that under the terms of an oral charter party the charterer was to pay all the expenses for the navigation of the tugboat and return her 'free and clear at the end of the season. ' Libelants testified that the supplies were furnished on the credit of the vessel. Such testimony, however, is not entitled to controlling weight, unless it is corroborated by other competent evidence of the surrounding circumstances. The Gracie May, 72 F. 283, 18 C. C.A. 559;

The Acme, 7 Blatchf. 366, Fed. Cas. No. 28; Kelly v. Pittsburgh, Fed. Cas. No. 7,674. Nor is the evidence that the supplies were charged against the Donnelly Contracting Company and the tugboat on the books of the libelants entitled to great weight. The Samuel Marshall, 54 F. 396, 4 C.C.A. 385.

Upon the above facts the libelants did not in my opinion obtain a lien on the vessel for the supplies furnished and not paid for. It is clear that, if libelants had made inquiries regarding the ownership of the tugboat, they would have learned that she was chartered to the Donnelly Contracting Company and used in its business of dredging for the season of 1904. In The Valencia v. Ziegler, 165 U.S. 264 17 Sup.Ct. 323, 41 L.Ed. 710, the Supreme Court substantially held that a person supplying goods to a vessel or repairing her on the order of a charterer who was obliged under the charter party to pay for such supplies or repairs cannot acquire a maritime lien 'if (to quote from the syllabus) the circumstances of the transaction put him upon inquiry as to the existence and terms of such charter party, and he fails to make the inquiry, and chooses to act on a mere belief that the vessel will be liable for his claim. ' So, in the case at bar, the bare assertion by libelants that they parted with the...