Nelligan v. The Idlehour

PEE CURIAM. We are unable, upon these facts, to concur in the conclusion of the district judge. The state statute reserves a lien in the case of debts contracted by the “master, owner, charterer, builder, or consignee, or the agent of either of them,” but Tower was certainly not in fact such agent. His contract with the owner shows that the restaurant which he conducted was his own independent enterprise, and the circumstance that he agreed to feed the crew at so much per meal does not alter the situation. Kretzmer v. The William A. Levering, 35 Fed. 783; Durando v. Steamboat Co. (City Ct. N. Y.) 4 N. Y. Supp. 386. Nor is there proof sufficient to sustain the decree upon the theory that the owner of (lie vessel, having held Tower out to the world as the vessel’s steward, is now estop-ped from denying that he held any such relation. The opinion in the district court thus states the ground of decision: “Tt is undisputed that the libelant’s goods wore delivered there [on board the vessel] openly, in broad daylight, his wagons frequently coming there, with his name upon them; and I think it was the duty of the owners of the vessel, if they did not wish to have the vessel libeled, under such circumstances, to noiify the persons furnishing goods to the mac who occupied the position of steward, so far as Ike public were concerned, that they were not. responsible; ■“ * * and, not having done so, X am inclined to think that the owners are now estopped from saying that the man who was ostensibly the steward was not in fact the steward.” We do not think that the evidence supports a finding that Tower "'occupied the position of steward,” nor that he was “ostensibly the steward,” and we know of no authority which would require the owners of an excursion steamer to hunt np all persons who may send goods aboard of the kind required by an independent contractor for the restaurant privileges, and notify them that the purchases' are not being made for the ship. Reference is made to The Sylvan Stream, 35 Fed. 314, but in that case as appears from the opinion “the goods were sold upon the order of the uniformed and certificated steward of the Sylvan Stream, with the knowledge and consent of the master.” And in Bovard v. The Mayflower, 39 Fed. 41, also referred to on the brief, it is stated in the opinion that the provisions for the lunch counter were “furnished under a general order given by the captain.” The decree of the district court is reversed, with costs.