The Yankee
| Decision Date | 18 May 1916 |
| Docket Number | 2083. |
| Parties | THE YANKEE. |
| Court | U.S. Court of Appeals — Third Circuit |
Howard M. Long, George W. Harkins, and Howard H. Yocum, all of Philadelphia, Pa., for appellants.
Russell T. Mount, of New York City, and Bruce A. Metzger, of Philadelphia, Pa., for appellee.
Before BUFFINGTON, McPHERSON, and WOOLLEY, Circuit Judges.
This is an appeal from a decree of the District Court, affirming the report of a Commissioner and dismissing five libels filed against a vessel for supplies. As the report was affirmed and the decree entered without an opinion, we must assume that the Commissioner's findings were accepted by the court as an expression of its views.
It is not necessary to recite or even summarize the testimony of each case. It will be sufficient to state only so much thereof as will present to the best advantage the theory of the law upon which the claimant made its defense and the Commissioner based his findings.
The dredge Yankee was a centrifugal blower dredge, owned by the Rivers and Harbors Improvement Company and leased to the Breakwater Construction Company under covenants which prohibited the lessee 'to suffer or permit any lien or liens, maritime or other, to attach' to the vessel. The Yankee was then chartered or 'rented' by the Breakwater Company to the Atlantic Dredging Company, for use in its dredging operation on the River Delaware. A written charter was prepared but not executed. There was an exchange of letters between the officers of the two companies stating the terms upon which the Yankee was to be used. These letters were lost, but their contents were proven. For the purpose of this discussion we will assume, without deciding, that this correspondence constitutes a charter party, that thereby the Dredging Company derived from the Breakwater Company no greater power than the latter company acquired under the lease, and that therefore the Dredging Company was without authority to bind the vessel for supplies and necessaries.
It is conceded that the possession of the dredge by the Dredging Company was not tortious or unlawful, and it is not denied that the Dredging Company, in its relation to the dredge, was in the position described by the statute, of a 'person to whom the management of a vessel at the port of supply is entrusted.'
The Dredging Company was engaged in dredging the channel of the Delaware river south of Philadelphia under contract with the United States. The Yankee was procured to enlarge the fleet already assembled and to promote the operation then under way. In preparing the Yankee for work, and during its progress, certain repairs, supplies and necessaries were required. These were ordered from the libellants on one occasion by the captain and on all others by the Dredging Company. Each order specified the supplies to be for the Yankee, and in each instance the supplies were forwarded to her pursuant to shipping instructions accompanying the order. These instructions varied according to the source of the supplies and to the railroad over which they were to be shipped, but in each instance the instructions designated a wharf or pier in Philadelphia to which the supplies were to be delivered, whence they were carried either by tugs or barges of the Dredging Company or by other river craft to the Yankee in her position on the lower river.
The transaction of delivery which best presents the position of the claimant, is that of Charles H. Whitney and Company. The Dredging Company inquired of that company its price for dredge pipe. Whitney and Company replied, quoting price 'f.o.b. works' at an interior point in Pennsylvania 'freight allowed to Philadelphia.' The Dredging Company gave the order as follows:
'Ship to Atlantic Dredging Company at Christian Street Wharf, % Armstrong and Latta Company, via P.R.R., marked 'For Dredge Yankee,' immediately, 1000 feet ID. pipe.'
Pursuant to these instructions, the pipe was marked and billed 'For Dredge Yankee,' and shipped over the Pennsylvania Railroad to Christian Street wharf in Philadelphia, at which place it was unloaded by the Dredging Company and then loaded on one of its barges and towed to the Yankee, and by her received and used as a part of her tackle and equipment. The claimant maintained, and the Commissioner found, that as these supplies were not delivered by the libelant directly to the vessel, but were delivered to her by means of transportation instrumentalities which were not the agents of the libellant, the transaction, therefore, did not constitute 'furnishing * * * supplies * * * to a vessel' within the meaning of the act conferring a maritime lien, but constituted a delivery to the Dredging Company at the interior point of consignment in completion of a common law sale to that company.
The act of June 23, 1910 (36 Stat. 604, c. 373 (Comp. St. 1913, Secs. 7783-7787)), which is recited in full in the margin, [1] affords a maritime lien, under certain circumstances, to any person 'furnishing repairs, supplies or other necessaries * * * to a vessel. ' It is maintained by the claimant, that this expression had received judicial interpretation prior to its use in the act, that the expression, as employed by the act, conveys the meaning judicially given it, and that that meaning supports the contention of the claimant and the finding of the Commissioner. Of the cases on which the claimant relies for authority, several have been decided since the enactment of the statute and two before. The later cases are Ely v. Murray, 200 F. 368, 118 C.C.A. 520; The Geisha (D.C.) 200 F. 865; The Bethulia (D.C.) 200 F. 879. These do not require discussion, for they do not bear upon the matter before us except as they cite with approval a certain expression found in the two earlier cases. The earlier cases are the Vigilancia (D.C.) 58 F. 698, decided by the District Court of the United States for the Southern District of New York in 1893, and the Cimbria (D.C.) 156 F. 378, decided by the District Court of the United States for the District of Massachusetts in 1907.
The Vigilancia was libeled for supplies. The circumstances were unique. The vessel was lying in her home port of New York, and the supplies ordered by her owner were furnished by the libellants from the State of New Jersey. They consisted of oleomargarine, the sale and delivery of which within the State of New York were prohibited by the laws of that state. As delivery of supplies of this kind to the vessel lying in New York would be an infraction of the law, and as delivery of supplies of any kind to the vessel at her home port would not at that date raise a maritime lien, the libellants disclaimed delivery in New York and maintained that the supplies had been furnished to the vessel in the State of New Jersey and a maritime lien had there been acquired under an arrangement with the owner that the sale and delivery were intended to be completed in Jersey City upon their delivery to truck-men for transfer to the ship in New York.
In The Cimbria, supra, the facts were strikingly similar to those of The Vigilancia. Equipment for that vessel had been shipped f.o.b. New York on the owner's order. The vessel was lying in Bangor, Maine, her home port. Because of this impediment to a maritime lien, the libellant disclaimed delivery to the ship at her home port, and maintained that delivery had been made to the ship in New York at the time of consignment.
In each of these cases the court was called upon to determine a question then always present in cases of maritime liens, namely, whether the supplies were furnished the owner upon his credit or the ship upon her credit. The courts in the two cases decided, that to hold a vessel in rem for supplies or cargo, actual delivery thereof must be made to the vessel. Pollard v. Vinton, 105 U.S. 7, 9-11, 26 L.Ed. 998; and that when supplies are concededly delivered at a port distant from the port in which the vessel lay, there can be no constructive delivery to the absent vessel, and the delivery must therefore be to her owner. In neither case did the court decide, that a materialman at an interior point could not ship and actually deliver supplies to a vessel lying in a distant port. In announcing its decision with reference to facts which precluded actual delivery to the vessel, the court in The Vigilancia repeated a well recognized principle of maritime law, that:
'There can be no delivery to a ship, in the maritime sense, whether of supplies or of cargo, so as to bind the ship in rem, until the goods are either actually put on board the ship, or else are brought within the immediate presence or control of the officers of the ship.'
The claimant has grasped this expression and clings to it as authority for its contention that when a materialman does not himself deliver supplies directly to the ship, but delivers them by the indirect means of rail and water carriers, the delivery is made at the point of consignment. The difference in fact between The Vigilancia and The Cimbria and the cases under consideration, as well as the difference in the law effected by the act of Congress of 1910, deprives those cases of a bearing upon the question under consideration. In The Vigilancia and The Cimbria, actual delivery to the vessels, either by direct or indirect means, was impossible and was specially disclaimed because of the necessities of the situation. In the cases before us, supplies could actually be delivered and in fact were actually delivered to the vessel at her port of supply. The question in these cases is not whether there was a constructive delivery to the vessel, but whether the delivery made was to the charterer at the source of the supplies or to the vessel at their destination....
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