The Lucille , 208 F. 424 ( 1913 )

TOULMIN, District Judge.

Prior to the enactment of the Act of June 23, 1910, c. 373, 36 Stat. 604, there was no' lien given by the general maritime law on a domestic vessel for repairs, supplies, or other necessaries furnished her in her home port. P>ut that act created a new legal liability giving such lien. U. S. Comp. St. Supp. 1911, p. 1192.

No lien was given by the general maritime law to materialmen for supplies, etc., furnished a vessel in her home port, because in that case, according to the generally accepted theory, the presumption was that credit was given to the owner and not to the ship itself.

When necessary repairs, supplies, etc., were furnished to a vessel in a foreign 'port on the order of the master, nothing else appearing, there was a presumption that they were furnished on the credit of the vessel, and the maritime law gave a lien on the vessel. On the other hand, where necessary repairs, supplies, etc., were furnished to a vessel in a foreign port on the direct order of the owner who is present, there is a presumption that the repairs were furnished, not on the credit of the vessel, hut solely on that of the owner. Rut this presumption is not conclusive. It may be rebutted by circumstances. The Ella (D. C.) 84 Fed. 471, 478, 481.

The act of June 23, 1910, provides that any person furnishing repairs, supplies, or other necessaries to a vessel, whether foreign or domestic, shall-have a maritime lien on the vessel.

“All it requires is tliat whatever was furnished should have been furnished on the order of the owner, or some one duly authorized by him; and it provides that, in order that a lien therefor may be enforced in rem, it shall not be necessary to allege or prove that credit was given to the vessel.” Ely v. Murray & Tregurtha Co., 200 Fed. 371, 118 C. C. A. 523.

The First Circuit Court of Appeals, in considering this statute, in the case last cited, said:

“Of course, this does not bar proof that whatever was furnished was furnished on the mere credit of the owner, and in no sense on the credit of the vessel.” 200 Fed. 371, 118 C. C. A. 523.

An-agreement or understanding as to whom credit was given may be inferred from acts and circumstances as well as from express language, as is ordinarily true with reference to all alleged contracts where it must be shown that the minds of the parties met. Cuddy v. Clement, 115 Fed. 301, 303, 53 C. C. A. 94.

The existence of an agreement may be shown by either direct or circumstantial evidence; and an express agreement is none less express because circumstantial evidence is resorted to for its establishment.

The said act also provides:

“That nothing in this act shall be construed to-prevent a furnisher of repairs, supplies, or other necessaries from waiving his right to a lien at any time, by agreement or otherwise, and this act shall not be construed to affect the rules of law now existing, either * * * in regard to laches in the enforcement of liens on vessels, or -in regard to the priority or rank of liens, or in regard to the right to proceed in personam.”

“It is settled law that a mortgage is to be treated, not as a debt, but as a mere incident of it; not as the principal thing, but as the mere accessory. * * * If a mortgage be thus but an accessory and incident of the note, and the note itself does not displace the maritime lien upon the vessel, then the mere fact of taking a mortgage does not operate as a waiver of the maritime lien. If, however, the taking of the mortgage be attended by acts inconsistent with the lien, or prejudicial to other maritime creditors, * * * or if the execution of the mortgage be in manner such as to make it conflict with the rights of maritime creditors whose claims are of equal dignity with that secured by the mortgage, then it would be inequitable to allow to the mortgagee the benefit of two remedies against the ship, and his taking the mortgage would be held as waiving the maritime lien.” The D. B. Steelman (D. C.) 48 Fed. 580, 581.

In the Lottawanna, 21 Wall. 558, 22 L. Ed. 654, it was held that rule 12 adopted by the Supreme Court in 1872 that “In all suits by materialmen, for supplies, or repairs, or other necessaries, * * * the libelant may proceed against the ship and .freight in rem, or against the master and owner alone in personam,” was to render rule 12 of 1844 general in its terms, giving to materialmen in all cases their option to proceed either in rem or in personam.

If the parties interested in this proceeding had the option to proceed either in rem or in personam, they unquestionably had the option to give credit to the owner or to the vessel, and if they gave credit to the owner they thereby waived their right to a lien on the vessel. There is no law to prevent such waiver. Act June 23, 1910, § 4; The D. B. Steelman (D. C.) 48 Fed. 580, 581.

It is contended by the counsel opposing the exceptions that it clearly appears from the evidence in the case that the libelants gave credit to the owner for the supplies furnished, and that they thereby waived their right to a lien on the vessel. From- a careful examination and consideration of the evidence, my conclusion is that the contention is well made.

The ruling of the commissioner is, in my opinion, correct, and his report is accordingly in all things confirmed. It is so ordered.