Shipman, D. J., dismissed the libel, delivering the following opinion:
—This is a suit in rem, to enforce an alleged lien on the steamer Patapsco, for coal furnished her in the months of February and March, 1866, by the' libellant at ■ Baltimore.
It is insisted that the coal was a part of the necessary .supplies of the vessel furnished at that port, and that it was furnished on the credit of the vessel.
Of the necessity of the coal there can be no doubt. The question in dispute is whether it was furnished on the credit of the vessel.
The steamer was owned by John R. Bacon, at the time the article was furnished, but was running in a line owned by the Commercial Steamboat Company, a corporation chartered by the legislature of Rhode Island. This company had an office in New York, and ran their boat between that city and Baltimore. They had exclusive control of the Patapsco as well as other boats of their line, and must be deemed, for the time owners pro hoc vice. • •
This company had an agent in Baltimore, who attended tq their business there, including the purchase of the necessary supplies for the steamers which were required at that port.
The steamers, several in number, had been running on this line for several months and the- agent had been in the habit of purchasing coal for them of different parties, and among others of this libellant. The amount of coal required for each vessel from time to time was ordered by the company’s agent, in writing, the order in each instance designa
This was done as a matter of convenience and to avoid the multiplication of bills.
Purchases of coal had been made of the libellant from time to time, from December 1865 down to March 24, 1866, the date of the last charge in the account upon which this suit is brought. They were all paid by the agent up to February 1. The bills were made out to the Commercial Steamboat Company, but designating the name of the ship to which each parcel was delivered. That delivered in February and March was not paid for, and the libellant seeks to charge the ship.
Now, in order to do this, the libellant must prove that this coal was furnished on the credit of the ship, and that there was an apparent necessity for resorting to that credit. I think the proof fails on both these-points. The libellant dealt not with the master of the vessel, but with the accredited agent of the company, resident in Baltimore. I think that it is clear, that he looked to the company generally and not to the particular ship for his pay. Again, there is no satisfactory proof of a necessity apparent at the time for resorting to the credit of the ship. There is proof that the affairs of the company were, in fact, in a state' of embarrassment, and approaching the crisis of insolvency. But the proof fails to show that they had not sufficient credit in Baltimore to obtain supplies required for their ships at that port.
That fact must be clearly proved before this court can assume, that the credit of each ship was or could be resorted to in order to obtain the supplies furnished to such vessel.
The facts in this case, if not exactly the reverse, fall far short of those in the case of Ross agt. The Steamboat Neversink, where I held the boat liable.
As I discussed the general question of law involved upon principle and authority in the latter case, I do not feel called upon to repeat or enlarge upon that discussion here.
Let an order be entered dismissing the libel, with costs.
From that decree the libellant took an appeal to the circuit court, and the cause was heard before his honor Samuel Nelson, associate justice, and was argued by
After advisement Justice Nelson, reversed the district court, and decreed in favor of the libellant, giving the following opinion:
—The bill in this case was filed to recover ' for supplies of coal furnished in the months of February and March, 1866, at Baltimore, to the steamship Patapsco. The only question in the case is, whether or not the coal was furnished on the credit of the.vessel, or of the owners, The Commercial Steamboat Company, which ran a line of steamers from the city of New York to Baltimore, and occasionally from thence to Charleston. The arrangement was, that the coal should be furnished on the requisition of the engineers of the vessel for cash, but for convenience in making out the bills and transacting the business, they were made out against the vessel once a month and presented for payment. The weight of the evidence is, that Boyce in this arrangement, and time taken to make out and present the bills, looked to the vessel as security in the meantime for the payment of them, and did not intend, thereby to rely on the credit of the company.- The company was a corporation under the laws of the state of Rhode Island, and, of course, not accessible to him, a resident doing business in Baltimore.
The company had not long been engaged in running this
Decree below reversed, and decree for libellant, with reference.
On that decision a reference was had, and the commissioner reported in favor of the libellant for $1,982 01. To which report exceptions were filed, but' after argument the same were overruled and final decree rendered in favor of the libellant for said- amount, and interest from July 15, 1868, date of the report, and for costs to be taxed in the district and the circuit courts.
, From such decree appeal was taken to the supreme court of the United States, and after a motion was made to dismiss the appeal, which was denied, and is reported in 12 Fa?., the cause was heard cin the December term, 1871.
Mr. Justice DaviS delivered the opinion of the court.
Boyce, a coal dealer in Baltimore, filed a libel against the steamer Patapsco, in the district court at New York, to recover a demand for six separate supplies of coal, furnished between the 3d oí February and the 26th of March, 1866, to the steamer Patapsco.- One Borland intervened as claimant. The question was whether the coal had been furnished on the credit of the vessel or on that of her owners only t
The facts as we assume them from the weight of the evidence, itself somewhat inconsistent, were thus: The Commercial Steamboat Company, a corporation of" Rhode Island, owned and chartered certain steamers, the Kingfisher, &c., and used them as a line of steamers from New York to Baltimore.' The Patapsco was chartered by the company to run on the line, and registered at New York in the individual name of one Bacon, president of the company; though the company controlled her. The company had an agent at Baltimore, and the course of dealing was as follows:
The entries in the libellant’s journal were thus—one example showing all:
Baltimore, March, 1866.
Commercial St’b’t. Co. :
80 tons Cteo. C’K, st’r Kingfisher, $7.................... $560
55 ‘* 44 11 44 Patapsco, 7.................... 175
60 41 •“ 44 44 Kingfisher, 7......-............. 560
42 4* 14 44 44 Patapsco 7.................... 294
$1,589
And in his ledger they were thus:
The form of entries in the libellant’s day-book did not ap
The coal was sold at the lowest price, and it was necessary for the Patapsco to make her trips, and was used by her in making them. The agent of the steamship Company stated that “ the coal bought for the Patapsco was ordered for this steamer expressly, but on account of the Commercial Steamship Company, the same as all coal was ordered and bought for the several steamers constituting the line.” “ The owners or charterers,” he added “ were not known in the transaction, but the steamer was supposed to belong to the Commercial Steamboat Company by the parties who furnished the coal.”
During the whole time that this coal was furnished, the steamboat company was in an embarrassed state. And on the 3d of February, on which day the first item of the coal for which the steamer was libelled, was furnished, the steamship company executed six promissory notes for $7,500 each, $45,000 in all, to the Baltimore and Ohio Railroad Company; following them immediately, and by the 6th, by mortgages on three of their steamers to secure payment. " And it owed a balance of $25,800 to the Neptune Steamboat Company on the 1st of February, 1866, so much remaining due for money laid out, paid, or advanced in the preceding year.
On the 2d of April, 1866, nine days after the last item of coal furnished to the Patapsco, the registered owner, Bacon, executed a bill of sale of her to Borland, already mentioned as the claimant in the case, to secure to him a debt of $10,500. And on the 10th following, the company failed entirely; the failure being followed by attachments to a very large amount, much of it, like the $25,800 already mentioned, for money lent, or debts due, prior to the 3d February, 1866 ; and the result being a general break up of the company in which the creditors got but a small portion of their claim from the whole effects,of the corporation.
The district court dismissed the libel; holding that there was no credit to the vessel. The circuit court, on appeal, held that there was, and reversed the decree. From, this reversal Borland appealed to this court.
Whether the coal was furnished on the credit of the vessel, of of the owners is the only point of inquiry in this case. The case itself is not without its embarrassments, for the evidence, in some of its aspects, is not consistent with either theory, but the weight of it, in our opinion, enables us to assert the lien against the ship. It is undisputed that the Patapsco was m a foreign port, and that the coal was ordered for her, specifically by name, and delivered to the officers in charge of her. It is equally free from dispute that the supply of coal was necessary—indeed, indispensable—to enable her to make her voyage at all.
In such a case the inference is, that the credit was given to the vessel, unless it can be inferred that the master liad funds, or the owners had credit, and that the material man knew of this,' or knew such facts as should have put him on inquiry (The Lulu, 10 Wall., 192). There is no reason to ■suppose that the master had funds, or the owners of the line credit, nor that the libellant was guilty of laches. On the contrary, it is'in proof that the company which owned the line of steamships was, at the date of these transactions hopelessly insolvent and were borrowing large sums of money on a mortgage of their steamers, away from home, and in the very city where the libellant resided. It would be strange if the libellant did not know this condition of things, and, in the absence of proof on the subject, it is a reasonable inference that he did. If he had this knowledge it would be a violent presumption to suppose that he relied on the credit of the company at all for the supplies which he furnished. The company running the steamers was a distant corporation, of no established name, and without personal liability in case-
But, from the form of entry in the journal itself (where the amount furnished to each vessel is set opposite to its name), we are led to the conclusion that the day-book entries which are thus journalized were debited to each steamer by name.
If this be so, the journal entries are not inconsistent with the idea of the credit being given on the security of the ship. More especially is this apparent when it is proven that the reason why monthly accounts were made to the steamboat company in bulk was for the sake of convenience, and. to save a useless accumulation of bills.
There is nothing besides this journal entry to indicate that
The lien of material men for supplies in - a foreign- port is of so high a character that, in the case of The St Jago de Cuba, (9 Wheat), it was protected, along with that of seamen’s wages, against a forfeiture which had accrued to the United States ; and the recent decisions in this court have had the effect to place this lien on a more substantial footing than some previous cases had seemed to have left it (Grapeshot, 9 Wall., 129; 10 Wall., 192, 204.)
On the whole, while we concede, that the case is not free from difficulty, we are not disposed to disturb the decree of the circuit court, in any particular.
Decree affirmed.