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now well settled that no such jurisdiction exists, but that admiralty alone can enforce maritime liens by proceedings in rem. The Belfast, 7 Wall. 624; Leon v. Galceran, 11 Wall. 192; The Lottawanna, supra; The De Smet, 10 Fed. Rep. 483; The Guiding Star, supra.
Now, in order that a judgment may operate as a merger, it is not only necessary that the identical cause of action between the same parties or their privies should have passed into judgment, but also that the plaintiff should have had a full and complete opportunity to recover his whole demand. Black, Judgm. § 675. Thus in Toby v. Brown, 11 Ark. 308, it was held that a judgment in rem against a steamboat, if unsatisfied, could not be pleaded as a bar to a subsequent action against the owners. The court proceeded on the theory that, as in the proceeding in rem no satisfaction could be had against the owners, such proceeding was no bar to a suit in the state court. See, also, Durant v. Abendroth, 97 N. Y. 142. Under the water-craft law the plaintiff had a full and complete opportunity to recover his whole demand against the craft and her owners. In this case, as no recovery could be had in the state court against any one or anything except the part owner and his interest, there was no full and complete opportunity to recover the whole demand. It may further be suggested, in view of the difference between the character of the two proceedings, that the parties defendant in the two proceedings are not the same, and do not stand in the same relation to the seamen. The Pioneer, 21 Fed. Rep. 426. In Boynton v. Ball, 121 U. S. 466, 7 Sup. Ct. Rep. 981, where there was a judgment on a debt, the court held that, notwithstanding the change in form by merger into a judgment of a court of record, it still remained the same debt. Here the debt for seamen's wages is the foundation of this lien, and, as such, if unsatisfied, should, it seems to me, in the absence of laches or misrepresentation, be enforceable against the res, which has presumably been preserved by means of the services for which recovery is sought. This is the view taken in the English cases. Thus in The Bold Buccleugh, 7 Moore, P. C. 267, this whole ques. tion is fully discussed, and the right of one having an admiralty lien to proceed in rem without reference to a prior suit in personam in the state court is upheld even as against purchasers without notice. And in The Bengal, Swab. 468, Dr. Lushington, in a case strikingly like the present in all essential particulars, sustained the right to proceed against the vessel, and held that one having a twofold security for his wages—the personal action at common law, and the action in rem in the admiralty--might "avail himself of the second; the first which he tried (the personal action) having practically failed to give relief.” The personal action had proceeded to judgment against the original owner, but he was bankrupt. Before the commencement of the proceeding in rem the vessel had been sold to third parties. See, also, The John and Mary, supra. If the cause of action was not merged, clearly the lien was not waived. In The Gate City, 6 Biss. 207, Judge Blodgett says:
“It is a settled principle of admiralty law that a seaman or mariner wbo has acquired a maritime lien will not be construed as having parted with that lien and waived it by anything short of an express contract or payment."
Let a decree enter for the amount of libelants' claims.
THE SAMUEL MARSHALL
Under the general maritime law, one who furnishes supplies to a vessel has a right to suppose her home port to be that where she is enrolled, and therefore that which is painted on her stern; but where she is chartered by her owners, the charterer to have full control, and to employ and discharge her oilicers and men, with the obligation of paying all running expenses, her home port, for the purpose of determining whether the supply man's lien attachts, is the port of the charterer, provided the supply man has knowledge of the facts, or sufficient notice to put him on
inquiry. 49 Fed. Rep. 754, affirmed. 2. SAME-NOTICE OF CHARTER-AGENT'S AUTHORITY.
An employe in charge of a coal dock in the Detroit river had authority to furnish coal to any steamer calling for it, and to either receive cash, or take a receipt from the master, and get the name of the person who would pay the bill. He was then to take a memorandum of all these facts, and at once notify his employers. Demand for payment was always made personally or by mail, but the coal was always charged on the books against the steamer to which it was furnished. Held, that the employe was clothed with apparent authority to sell on credit, and so to receive notice of any limitation of the vessel's liability, and that the supply man, under the general maritime law, could not hold the vessel liable, when the master notified the employe that she was chartered by a citizen of the samo
state as the supply man. 3. SAME-SUPPLIES FURNISHED ON CREDIT OF THE VESSEL-EVIDENCE.
Certain merchants furnished coal to a steamer for a part of two seasons, receiving payment, from time to time, from a company not the owner. They had furnished coal to other vessels, and received payment from the same company, and in previous seasons had furnished coal to the same master, then in charge of another vessel, and been paid by the same company, which was well known, and of good financial standing. Its principal business office was directly across the street from the supply man's office, and it was engaged in business requiring it to charter vessels. The supply man had twice received its acceptances for coal furnished to this vessel, though it was charged on the supply man's books to the credit of the vessel. Held, that the supply man had notice that the company had chartered the vessel, or of facts sufficient to put him on inquiry; and that the coal was furnished on the credit of the charterer, and not of the vessel. SAME.
The len on a vessel given by a state statute (How. Ann. St. Mich. $ 8236) for all debts contracted for by the owner or master on account of supplies furnished is maritime in its nature, because the contract out of which it springs is maritime, and as such it is subject to the limitations of the general maritime law. It therefore does not attach unless the supplies wero furnished on the credit of the vessel. 49 Fed. Rep. 754, affirmed. The Young Mechanic, 2 Curt. 404, applied. The Ilinois White and Cheek, 2 Flip. 383, disapproved.
Appeal from the District Court of the United States for the Eastern District of Michigan.
In Admiralty. Libel by James E. Pittman and others against the steam barge Samuel Marshall (Edward Smith and others, claim. ants) for supplies. The district court dismissed the libel. 49 Fed. Rep. 754. Libelants appeal. Affirmed.
Bowen, Douglas & Whiting, for appellants.
Before JACKSON and TAFT, Circuit Judges, and SAGE, District Judge.
TAFT, Circuit Judge. This is an appeal from a decree of the district court for the eastern district of Michigan in admiralty, dismissing a libel against the steam barge Samuel Marshall. The libelants were a firm of coal merchants doing business in Detroit, Mich. The Samuel Marshall was a steam barge enrolled at Buffalo, N. Y. The libel alleged that she was a foreign vessel, wholly owned by persons residing at Buffalo; that at the several times during the year 1890, mentioned in the schedule of coal deliveries attached to the libel, while the vessel was lying at the port of Detroit, the master represented that the vessel stood in need of supplies and fuel to render her seaworthy and able to proceed on her voyages or trips, and requested the libelants to furnish the same, which the libelants did; that the libelants, in doing so, relied upon the credit of the vessel, as well as upon that of the master and owners thereof, and would not have furnished the supplies and fuel except upon the credit of the vessel. The claim is for $1,193.11, with interest from the 1st day of November, 1890. The defense was that the vessel was under charter by the J. E. Potts Salt & Lumber Company, a corporation organized under the laws of and doing business in the state of Michigan, with its principal office at the city of Detroit; that the company was bound under the charter to furnish all supplies and fuel which it should need or desire on said vessel; and that the fuel and supplies furnished were not, and could not be, for the benefit of the vessel, or the actual owners thereof,—all of which was well known to libelants when the coal was furnished. Subsequently an amended libel was filed in which the claim for the lien was based, not only on the general maritime law, but also upon the laws of the state of Michigan conferring a lien for supplies furnished to boats navigating the waters of the state. The evidence shows that the libelants owned and used a dock on the Detroit river, at which they were in the habit of supplying coal to steamers. The dock was in charge of one McDonald, an employe of libelants, who was given authority to furnish coal for any steamer that called for it, and to receive the cash if tendered. If cash was not paid, then it was his duty to take a receipt for the coal from the master, and to get from him the name of the individual or company who would pay the bill. McDonald entered upon a memorandum book all these facts, and at once gave notice of them to the libelants, whose principal office was some distance from the dock. Demand for payment was made either by
the local collector of the firm or by mail, as the person named by the master was a resident or nonresident of Detroit. The coal delivered on credit was always charged on the books of the libelants against the steamer to and for which it was furnished.
The steamer Samuel Marshall was chartered for the season of 1889 by the Potts Salt & Lumber Company, a corporation of the state of Michigan, with its principal office in Detroit. Under the charter the Potts Company was given possession of the vessel, and authority, at its own expense, to victual, man, and navigate her, to hire a master agreeable to the owners, to exercise entire and sole control and direction over him, to summarily discharge him for disobedience of orders, and employ another to be approved by the owners The master was given power to hire and discharge the other officers and the crew. The Potts Company bound itself to furnish the master with funds sufficient to pay all running and partial loss expense of the vessel. The charter was renewed for the season of 1890. The Potts Company did a most extensive business in carrying salt and lumber on the lakes, and had several vessels under charter. The master of the Marshall in 1890 had been in 1888 and 1889 master of the Colwell, another vessel chartered by the Potts Company, and had during those seasons procured his monthly supplies of coal from libelants, who collected the bills from the Potts Company. As master of the Marshall he had obtained monthly supplies of coal from libelants from April until September, 1890, and the Potts Company had paid for them. The company had other vessels under charter in 1890 whose coal bills with libelants it also paid. The principal office of the Potts Company was immediately opposite that of libelants, on the same street, in Detroit. It was a well-known company, with very large interests, and up to November 24, 1890, had good financial standing. In July, 1890, before the coal was delivered for which this libel was filed, the master of the Marshall told McDonald, libelants' dock man, that his vessel was under charter by the Potts Company. In September, when payment was de manded of the Potts Company for the coal delivered to the Marshall in the previous month, the collector was tendered an acceptance of the company for the amount. He telephoned his principals to know what he should do, and was directed to receive the acceptance, and receipt the bill, which he did. In November of the same year, on the presentation of another bill for additional coal delivered to the Marshall, and including also coal delivered to another vessel chartered by the Potts Company, a second acceptance was received by the collector, this time without special authority from libelants. The second acceptance was, however, delivered by their collector to libelants, and deposited by them in their cash drawer. On November 24, 1890, the Potts Company made an assignment for the benefit of creditors, and on the next day, before the second acceptance was due, the libel in this case was filed.
The questions in the case are two: First. Did the libelants obtain a lien for the coal furnished to the steamer Marshall under the general maritime law? Second. If they did not, then are they entitled to a lien under the state law of Michigan? Judge
Severens, in the court below, held, in a satisfactory and convincing opinion, that they had no lien in either aspect of the case, and we entirely concur with him in that view.
Under the general maritime law, any one furnishing necessary supplies or material to a vessel in a foreign port, on the order of its master, and on the credit of the vessel, has a lien thereon, entitling him to proceed against the vessel in rem, and have her sold to pay his claim. Such a lien is not given when the supplies are furnished to a vessel in her home port, because it is then supposed that they are furnished on the credit of the owner. The home port of the vessel is the port of the country where her owner lives. In The General Smith, 4 Wheat. 443, it was held by the supreme court that vessels having their home port in one state of the United States are to be regarded, in the application of the foregoing rules, as foreign vessels, in the port of another state. One of the owners of the Marshall lived in Michigan, and the other three in New York. The vessel, as has been stated, was enrolled at Buffalo, and carried that as her hail port upon her stern. When a material or supply man furnishes supplies to a vessel without other knowledge of her, he has a right to suppose that her owners live in the state of the port where she is enrolled, and that, therefore, her home port is that which is painted on her stern. When a vessel is chartered by her owners so that the charterers are to have full control of the vessel, and to employ and discharge her officers and men, with the obligation of paying all her running expenses, then the charterer becomes the owner pro hac vice; and the home port of a vessel, for the purpose of determining whether a lien attaches, is the port of the charterer, and not the port of the actual owners, provided that the supply or material man has knowledge of the change of ownership, or has notice of facts putting him on inquiry with reference thereto. The Golden Gate, 1 Newb. Adm. 308; Beinecke v. The Secret, 3 Fed. Rep. 665; The Norman, 6 Fed. Rep. 406; The Secret, 15 Fed. Rep. 480; Stephenson v. The Francis, 21 Fed. Rep. 715.
The first important inquiry in this case, in view of these principles of the admiralty law, is whether notice was brought home to the libelants that the Samuel Marshall was under charter to the Potts Company. The libelants deny all knowledge of the fact.
. The master of the Marshall says he told McDonald that the Marshall was chartered by the Potts Company. McDonald was not called as a witness by libelants, and his absence is not accounted for. It must, therefore, be taken as a fact that McDonald knew that the Marshall was chartered by the Potts Company. It is vigorously urged, how ever, that McDonald had no authority to receive notice of such a fact. His orders were to deliver coal to any steamer whose master requested it,-if cash was paid, to receive it; if not, to take the name of the person from whom collection should be made. It is said that he had no discretion to pass on credits. The question is of apparent authority. If the libelants gave McDonald orders to deliver coal at request to any steamer without receiving cash, then they have clothed him with apparent authority to sell on credit, and so to receive notice of any limitation upon the liability of the