Union Dry-Dock Co. v. The F. E. Spinner , 48 F. 577 ( 1891 )

Coxe, J.

The libel cannot be sustained for salvage. There is neither allegation nor proof of a salvage service. The action is in rem to recover of the Spinner §868, the value of a chain furnished, as the libelant alleges, for the use and on the credit of the vessel and at the request of her master and owners. In order to recover the libelant must prove these allegations. It has wholly failed to do so. The contract was negotiated by telegram and letter. The master and owners of the vessel were not connected with it in any way. The only parties were the libel-ant on the one side and the Detroit Tug & Transit Company on the other. The latter company hired the chain for'45 days, agreeing to pay §500 rental with an option of purchase at ?40 per ton if accepted prior to November 1st. There is not the slightest allusion to the sunken propeller from one end of the correspondence to the other. There is nothing therein to indicate that the libelant knew for what purpose the chain was intended. The two persons who represented the libelant in the negotiations, Capt. Drake and Mr. Bullard, testify that they “supposed” and “inferred” that the chain was to be used in raising the propeller, but neither of them says that it was furnished to the propeller “at the request of her master and owners and upon the credit of said vessel;” neither of them says that there was an intent on the part of the libelant, at any time, to hold the vessel responsible. Indeed, it appears that, six weeks after the delivery of the chain, the libelant still looked for payment to the tug and transit company, and to no one else. On the 3d of November, the libelant, addressing the tug and transit company, refers to “the terms of our agreement” and proposes to draw at sight fox the value of the chain.

The contract is top plain to require a resort to inferences drawn.from extraneous considerations; but were presumptions necessary or permissible it might be pertinent to inquire whether it is likely that the libel-ant intended to part with valuable property upon the credit of a foreign bottom, lying as an abandoned wreck, under 138 feet of Canadian water, 500 miles from Buffalo. The fact that individuals interested in the vessel were also connected with the tug company and the wrecking company does not avail tbe libelant. The evidence shows an agreement between tbe libelant and the tug company as clear and unmistakable in terms as can well be imagined. A finding that the libelant parted with its chain oil tbe credit of the propeller or with intent to look to her in any contingency for payment, would be wholly unsupported by the proof. It is to be regretted that the libelant lias lost its chain, but this is a result which usually follows where an irresponsible party has been trusted.

The libel is dismissed, with costs.