The C. W. Moore

SEAMAN, District Judge. The libelant furnished his wharf for the use of the steamer at the home port of the charterers, and under their personal contract of rental for the season; and the claim of lien against the vessel rests alone upon the maritime nature of the contract, and the fact of use by the vessel, with no exigency or special circumstance to create the need for an implied hypothecation. The contention in support of the libel is this: That wharfage dues are not only entitled to a maritime lien, hut are so far distinguishable from claims of material men for repairs and supplies furnished to the vessel that the lien is not subject to the limitation to foreign vessels imposed upon claims of the latter class under the general maritime law. That the lien exists for wharfage, if doubtful before, is settled by the decision in Ex parte Easton, 95 U. S. 68, 75, 24 L. Ed. 373; but the opinion, is guarded in its application to foreign vessels, and [958] no distinction is there recognized from liens for repairs and supplies. On the other hand, decisions in the Second circuit, following the case of The Kate Tremaine, 5 Ben. 60, Fed. Gas. No. 7,622, place wharfage claims in a special class, and grant a lien as well against domestic vessels. The Scow No. 15, 35 C. C. A. 149, 92 Fed. 1010, and cases cited. Unless this exceptional rule is adopted here, it is manifest that no lien could arise in favor of the libelant’s claim, for the reason that the port where the wharfage accrued was the place of residence of the charterers, making' it the home port of the chartered vessel for the purposes of this inquiry, and thus excluding the claim from allowance as a maritime lien under the general doctrine in admiralty. The Valencia, 165 U. S. 264, 272, 17 Sup. Ct. 323, 41 L. Ed. 710; The Samuel Marshall, 6 U. S. App. 389, 394, 402, 4 C. C. A. 385, 54 Fed. 396. In the case at bar, however, it is unnecessary to consider the difficult question whether such lien may arise at the home port, if the essential facts do not appear to create the lien in either view. The fundamental requisite for the creation of this lien is a maritime claim contracted or incurred on the credit of the vessel, and not on the credit of the owner or other person in interest. In the absence of such credit in the transaction, express or implied, there is no hypothecation, but the Credit to the vessel is implied when the obligation, is incurred by the master under conditions otherwise authorizing the implied hypothecation. A contract of like nature made by the owner or charterer in person, not being master as well, stands on a different footing, — is presumptively made on the personal credit of the contracting party,—and, without proof of facts or circumstan'ces to repel the presumption, no lien attaches. This rule was declared in the early case of The Kt. Jago de Cuba, 9 Wheat. 409, 417, 6 L. Ed. 122, and there has been no departure from it in subsequent cases. Like presumption of personal responsibility arises in the case of the charterer by whom all expenses of the vessel are assumed, and for stronger reasons, as exemplified in recent opinions. The Kate, 164 U. S. 458, 465. 470, 17 Sup. Ct. 135, 41 L. Ed. 512; The Valencia, 165 U. S. 264, 270, 272, 17 Sup. Ct. 323, 41 L. Ed. 710; The Samuel Marshall, 6 U. S. App. 389, 394, 401, 4 C. C. A. 385, 54 Fed. 396; The Stroma, 11 U. S. App. 673, 681, 682, 3 C. C. A. 530, 53 Fed. 281. It is true that these cases relate to coal and other supplies ordered by the charterer, but the rulings in reference to wharfage claims, as above cited, have effect merely to extend the lien to domestic vessels, while it is otherwise subject to all the conditions required for a lien for repairs or supplies, and so expressly held by the circuit court of appeals for the Second circuit in The Advance, 38 U. S. App. 197, 199, 18 C. C. A. 404, 71 Fed. 987. The testimony as to the arrangement by the charterer for rent of the wharf in suit fails to repel the presumption of personal credit, and, moreover, leaves no room for reasonable inference that a pledge of the credit of the steamer was contemplated. The libelant, if not informed of the fact or terms of the charter, was clearly put upon inquiry, under the circumstances disclosed. The opinions by Mr. Justice Harlan in The Kate, supra, and The Valencia, supra; seem to be substantially applicable here, and I am satisfied that the libelant fails to establish a lien against the [959] steamer. The Illinois statute which is cited, if otherwise operative, does not touch the case of an order by the charterer, and is not applicable. Accordingly the libel is dismissed.