Weaver v. The S. G. Owens

GBIEB, Circuit Justice. In reference to the question, whether a court of admiralty has jurisdiction to enforce a lien on a vessel given by a state law. I need only say that the supreme court of the United States has decided that such a lien may be enforced, and that the point is not open. Peyroux v. Howard, 11 Pet. [36 U. S.] 324, 341. The eighth section of the present act I may add, however, contemplates that this lien may be enforced in a court of admiralty as well as in a state court. The next question is, whether this ship is foreign or domestick, as regards the port of Philadelphia ? It is admitted that a vessel owned in a port of any other state, which puts into the port of Philadelphia, would be liable, under the general maritime law of the United States, for repairs made or necessaries supplied, in order to enable her to prosecute her voyage. She is considered for this purpose as a foreign vessel, when in the port of a state where her owner does not reside, notwithstanding her national character as an American vessel remains the same. The enrolment of a vessel is for the purpose of establishing her national character and to give her the privileges of an American vessel. In a question of ownership inter partes, it is but prima facie evidence of title in the person in whose name she is registered, and liable to be rebutted by proof of actual ownership in another, whether temporary or absolute, as lessee or vendee. It is not necessary to enquire whether by the maritime law the title to a ship can pass by parol. I have no doubt but that by the law of Pennsylvania, the title would pass by actual sale and delivery as in the case of other personal chattels, without any written bill of sale. The formal bill of sale reciting the registry may be necessary for the puipose of enrolment, but as between the parties, and those who deal with the vessel, and where the national character is not in dispute, the person rightfully in possession navigating the vessel for his own use and profit, by officers and mariners appointed and employed by himself, will be considered the special owner, whether he be lessee, mortgagee or parol vendee, notwithstanding some other person may be the registered owner, and have the. so called, legal title, or general ownership in himself. If the Town-sends had hired this vessel for a year, or for a single voyage from Philadelphia to California [492] and back again, although Hr. Buck in Baltimore, might be the lessor, and registered and general owner of the vessel, with the legal title, yet the Townsends and not Buck, w'ould be considered as owners, as between themselves and all persons dealing with the Townsends, for supplies furnished to the vessel. Neither they nor the captain, their officer and agent, could bind Hr. Buck the registered owner, by any contract made for such supplies. A vessel hired or leased by a merchant in Philadelphia from a merchant in Baltimore, for the purposes of a voyage from Philadelphia to California and back again, and furnished and equipped by the lessee in this port, could not be considered as a foreign vessel by those who dealt with the lessee in this place, notwithstanding the legal title and general ownership of the Baltimore lessor. In such case this would be considered as the home port of the vessel. We have in this case not a mere agreement to sell at a future time, but a sale in verba de-presenti — (we “do by these presents sell said named vessel) — an actual delivery to the ven-dee, and a large sum of money paid to the vendor. It is true there is an attempt to give a defeasible title, on condition subsequent. The vendor has endeavoured in this way to retain a lien in the nature of a mortgage to secure the balance of the purchase money;— whether successfully or not we need not en-quire. The Townsends having thus obtained rightful possession of the vessel, with a title (de-feasible perhaps on condition subsequent, or as mortgagor) whether legal or equitable it matters not, — proceed to equip her for a voyage to carry passengers from this port to California. They appoint the captain, hire mariners, contract with passengers; and the libellants treat with them as owners, and supply materials to furnish and equip the vessel for her intended voyage. No one supposed he was dealing with Buck in Baltimore as owner, or that the Townsends or the captain appointed by them, could bind Buck by any contract. Buck is guilry of no fraud to the injury of libellants. They treated with the Townsends as owners, who for the time at least, resided here. As to the libellants and all who dealt with them, the ship was a doniestick vessel, and this her home port. No seizure of the vessel by Buck, under his supposed legai title as mortgagee, would defeat or supersede any liens obtained by the libellants or others against the ship, while in the possession of the Townsends. If the libellants treated with them as the legal owners, they cannot complain, if every remedy against the vessel be allowed them as. if such were the actual fact. tinder no view of the facts of this case, therefore, can this vessel be treated as foreign. Being a domestick vessel, then, have the li-bellants any lien under the act of Pennsylvania, which enumerates ship chandlers among the persons entitled to such protection? Although the counsel for the owners insist that many of the articles provided by the libellants, as groceries, crockery-ware, cooking stoves and cooking utensils, muskets and guns, are not ship chandlery; yet they furnish us with no criterion to test the fact as to -what articles are, and what are not within the definition. A chandler is defined by lexicographers. as “an artisan whose trade is making candles, or as one who sells candles.” This was the meaning of the term as originally used: but as sellers of candles in course of time, extended their business and assortments so as to include groceries of many kinds, the-meaning of the term became more expanded; and we find it used as a synonime for “dealer.” Thus a dealer in corn is called in England a corn chandler. A “ship chandler” is usually defined, as “one who deals in cordage, canvass and other furniture of ships.” Now it has been decided (Brough v. Whitmore, 4 Term R. 206) that provisions for the use of the crew are included in the term “furniture” of a ship. In fact, “furniture of ships,” ex vi termini, includes every thing with which a ship requires to be furnished or equipped to make her seaworthy. The testimony of the merchants and nautical men who have been examined on this subject, leaves no doubt that the term is indefinite, and includes all articles furnished by ship chandlers, which are almost innumerable. Persons fitting out vessels apply to these persons for every tiling necessary for the outfit, from a needle to an anchor, including groceries, liquors and all ship stores; in a word every thing necessary to furnish and equip a vessel, so as to render her seaworthy for the intended voyage. The materials necessary to-fit, furnish and equip a vessel, must depend on the nature of the voyage. A steam packet and a whaling vessel, would' require very different furniture and equipments, both in character and amount. A vessel bound for California with two hundred and fifty passengers, would not be seaworthy for such a long voyage, without immense stores of provisions of all sorts. It is moreover found necessary for vessels going round Cape Horn, to carry arms-for the purpose of defence. The law gives a lieD to a ship chandler, and does not define or limit the articles for which he is to have this lien, further than that they shall be used in “fitting, furnishing and equipping the vessel;” and every debt contracted by the master or owner of a vessel, with a ship chandler for articles or materials used for anyone of those purposes, is within the letter as well as the spirit of the act; it matters not by what other names the same article or material may be designated. The master and owners of this ship have also given their own definition of ship chandlery, by ordering from the libellants, who as “ship chandlers,” advertised these things, to fit and equip the ship-with them for the voyage. Decree of the district court affirmed with costs.