The Worthington

• Decision Date: 04 October 1904
• Docket Number: 1,040.
• Citation: 133 F. 725
• Parties: THE WORTHINGTON.
• Court: U.S. Court of Appeals — Seventh Circuit

133 F. 725

THE WORTHINGTON.

No. 1,040.

United States Court of Appeals, Seventh Circuit.

October 4, 1904

The Ashland National Bank filed its libel against the steamer Worthington, of the port of Chicago, Ill., to recover the sum of $300, advanced at the port of Ashland, Wis., for the use of the vessel. The Chamberlain Transportation Company, a corporation of the state of Illinois, the owner, intervened and bonded the vessel. The steamer was due at the port of Ashland on May 29, 1902, where she was to take on a cargo of lumber to be transported to Chicago, or to some port in the state of New York. The owner was without funds to pay the necessary expense of loading, and by direction of the owner its secretary on that day applied to the Ashland Bank for the loan of the sum of $300 upon the credit of the vessel stating that the money was needful for and would be used to pay the necessary cost of loading the vessel at that port. The money was thereupon loaned by the bank upon the credit of the vessel for the purpose indicated; the secretary of the owner giving to the bank a draft upon the owner at Chicago as he was authorized by the transportation company to do which draft was accepted, but never paid. At the hearing no evidence was offered by the libelant to show that the money so loaned was actually used to pay the expense of loading the vessel, and the offer of the owner to show that it was diverted from the purpose for which it was loaned was overruled. The court below pronounced for the libelant, and from a decree for the amount loaned an appeal is taken to this court by the owner, the Chamberlain Transportation Company.

Joseph McInerney, for appellant.

Charles E. Kremer, for appellee.

Before JENKINS, GROSSCUP, and BAKER, Circuit Judges.

JENKINS Circuit Judge (after stating the facts).

Within the ruling of the Supreme Court of the United States in the cases of The Grapeshot, 9 Wall. 129, 19 L.Ed. 651, The Kalorama, 10 Wall. 204, 19 L.Ed. 941, and The Emily Souder, 17 Wall. 666, 21 L.Ed. 683, it is clear that there was an implied hypothecation of the steamer. The vessel was due at the port of Ashland-- a foreign port-- to load and to continue her voyage. The owner was without funds. At the request of the owner, the libelant advanced the necessary funds for the purpose of loading the vessel, and upon the credit of the vessel. That the services of a stevedore in loading or unloading a vessel in a foreign port constitute a maritime contract for which a lien is given upon the vessel is no longer doubtful. The Canada (D.C.) 7 F. 119; The Hattie M. Bain (D.C.) 20 F. 389; The Director (D.C.) 34 F. 57; The Gilbert Knapp (D.C.) 37 F. 209; The Main, 2 C.C.A. 569, 51 F. 954; Norwegian Steamship Company v. Washington, 6 C.C.A. 313, 57 F. 224; The Hattie Thomas (D.C.) 59 F. 297; The Sirius (D.C.) 69 F. 226; Boutin v. Rudd, 27 C.C.A. 526, 82 F. 685. Such services constituting a maritime lien, moneys advanced to pay for them are also entitled to a maritime lien; certainly if they were in fact expended for such purpose. There is here a sufficient showing of circumstances of exigency, of the supplying of the funds upon the credit of the vessel, of the necessity for the credit, and of implied hypothecation.

It is said and it was sought to be shown that the moneys thus procured upon the credit of the vessel upon representation by the owner that they were necessary for the lading of the vessel were not in fact expended for the purpose for which they were borrowed, but were diverted to some other purpose and it is insisted that therefore no maritime lien exists. The cases upon which this doctrine is sought to be lodged are cases of supplies furnished...