issue for the arrest of said vessels, and for an attachment of the property of said owners. Held: 1. The contract for stevedores' services is maritime. 2. No services having been rendered either of the vessels in question, and the contract for services being without reference to either of these vessels, no maritime lien exists upon either of them, and actions in rem will not lie. The remedy of libelants is by actions in personam against the owners. The libelants having no right to proceed in rem, the question of joinder of such a proceeding with an action in personam is immaterial. The exception in the case of the Allerton as to such joinder, and to so much of the libel in that case as constitutes a proceeding in rem, is allowed. The remaining exceptions are overruled. THE MARY A. TRYON. (District Court, S. D. New York. March 22, 1899.) LIEN FOR TOWAGE-CHARTERED BOAT. A boat cannot be subjected to a lien for towage services rendered under a contract with a charterer in the usual course of his business, the tower having knowledge that it was chartered, unless by a previous understanding to that effect with the owner. In Admiralty. Lien for towage. Chartered boat. Benedict & Benedict, for libelant. James J. Macklin, for claimant. BROWN, District Judge. The libelant seeks to recover $295 for towages of the canal boat Tryon on the Hudson river in the months of August, September and October, 1895. The evidence shows that the boat was chartered by the claimant to John Scott, who was engaged in the ice business, and who was running a number of chartered boats, all of which were towed during that season by the libelant under a contract for towage made in the spring with the libelant's agent; that the libelant knew that the boats were chartered; and that the bills for towages were rendered by the libelant to Scott monthly, pursuant to the contract, charg ing the towages against him, and specifying the amounts for tow ing each boat respectively. In August, on account of the previous monthly bills not being satisfactorily paid, one Quigly, who had chartered a boat to Scott, was notified by the libelant that it would look to the owners of the boats for the payment of the towages, and he was requested to notify the other owners of the boats that Scott was running to that effect. This was before claimant's boat was hired. Quigly thereupon withdrew his boat from Scott's employ, and introduced Scott to the claimant, who thereafter on the 19th of August let the Tryon to Scott at the rate of $4 a day, including the service of a man on board as caretaker. Quigly testifies that when he introduced the matter to the claimant, he told him that the Cornell Com. pany had notified him that they would look to the owners for the payment of towages, and that he for that reason had withdrawn his boat from Scott's employ. The claimant wholly denies this statement, and testifies that he would not for a moment have let his boat to Scott under such circumstances, as the towages were $8 a day, and his own pay but $4; and that it had never been the custom of the libelant or anybody else to his knowledge to collect the towage of chartered canal boats from the owners, but only from the charterers. Scott failed in October; and not until after that was any notice given by the libelant to the claimant that it looked to him for towage or expected him to pay it, although the collecting agent of the libelant had been accustomed to see the claimant during the three months previous almost daily, and the libelant knew that the claimant was the reputed owner of the Tryon. The claimant further testifies that he had been frequently accustomed to have towages done for him by the Cornell Company, and a bill was rendered for the towages trip by trip. Under the circumstances above stated, I can have no doubt that the contract for the season's towage originally contemplated a personal liability only, without any lien upon the boats towed. The J. M. Welsh, 8 Ben. 211, Fed. Cas. No. 7,327; The Tillie A., 84 Fed. 684. The cross-examination of Quigly throws doubt upon his statement that he told the claimant when the boat was hired in August that he. had withdrawn his own boat because the libelant would look to the boat for towage, and in view of the claimant's entire denial of it, and the extreme improbability that the claimant would have chartered his boat if thus informed and have incurred such responsibilities greatly in excess of the hire, leads me to credit the claimant's statement rather than Quigly's. It is against conscience that in a business like this towages for the charterer's account, when the tower knows that the boats are chartered, should be imposed upon the owner without a previous understanding to that effect. Knowledge that the boat was chartered, and the necessary implication in such a business as this, that the charterer and not the owner should pay for towages, as well as Quigly's testimony to the ordinary practice to collect of the charterers only, and the libelant's dealing with Scott alone and not with any master of the boat, are sufficient to prevent the libelant's recovery. The case is similar in principle to that of The Kate, 164 U. S. 458, 465, 17 Sup. Ct. 135, where it was held that no lien would exist merely upon dealings with the charterer, even if the credit were given to both the charterer and to the vessel, because the charterer had no authority to bind the vessel. In this regard I do not think towages in the usual course of the charterer's business, and not arising in any exceptional emergency, stand in any better position than repairs and supplies. The same rule was re-affirmed still more pointedly in The Valencia, 165 U. S. 264, 17 Sup. Ct. 323, where the supply men had no express knowledge of any charter but had knowledge of facts sufficient to put them on inquiry. In the present case, moreover, the fact that no notice of any claim for towages was sent by the libelant to this claimant, nor any account of towages till after Scott's failure, notwithstanding the fact that during this delay of three months the claimant was seen frequently by the collecting agent, and the fact that the bills during all this time were rendered to Scott alone, forbid the finding that the towage was in fact upon the bona fide credit of the boat rather than the personal credit of Scott. The libel is dismissed with costs. THE MARY ADELAIDE RANDALL. (District Court, D. Connecticut. March 24, 1899.) SHIPPING-CHARTER PARTY-CONSTRUCTION-VOYAGE-Discharge. ** A schooner was chartered at the port of New York "for as many voy ages as vessel [could] make from Fernandina to New York between" November 8, 1897, and June 30, 1898. This period was ordinarily sufficient for five trips, including discharges, which were an important factor. The vessel was to "receive on board during the aforesaid voyage the merchandise hereinafter mentioned." The charterer engaged to furnish a cargo of ties each trip, and to pay "for the use of said vessel during the voyage aforesaid, fifteen cents for each tie delivered, payable in cash on proper delivery of cargo at port of discharge," and also agreed "to pay vessel's wharfage, if any [should be] incurred while discharging under this charter." It was agreed that "the lay days for loading and discharging [should] be as follows: * Commencing from the time the vessel is ready to receive or discharge cargo, at least 75,000 feet per running day * * to be furnished the vessel for loading, and customary dispatch for discharging at port of discharge," and that a certain sum should be paid per day for detention by fault of the char terer. On one trip, at the charterer's instance, the vessel went up the river to Bush's Bluff, though it involved a delay. Held, that the term "voyage" included the discharge of the cargo, and therefore the vessel was not bound to undertake a fifth trip, where she could not have completed it and have discharged her cargo by June 30th. * * This is a libel by George S. Baxter & Co. against the schooner Mary Adelaide Randall, etc., to recover damages for breach of a charter party. Dismissed. Carpenter & Park, for claimants. Cowen, Wing, Putnam & Burlingham, for libelants. TOWNSEND, District Judge. In admiralty. November 8, 1897, libelants and claimants executed the following charter party: "This charter party, made and concluded upon in the city of New York the eighth day of November, 1897, between J. L. Randall, master and agent for the owners of the Schr. Mary Adelaide Randall, of Port Jefferson, of the burden of 1,108 tons or thereabouts, registered measurement, now lying in the harbor of New York, of the first part, and Messrs. G. S. Baxter & Co., of New York, of the second part, witnesseth: That the said party of the first part agrees in the freighting and chartering of the whole of the said vessel (with the exception of the cabin and necessary room for the crew and the storage of provisions, sails, and cables), or sufficient room for the cargo hereinafter mentioned, unto said party of the second part, for as many voyages as vessel can make from Fernandina to New York between the date of this charter party and June 30, 1898, on the terms following: The said vessel shall be tight, staunch, strong, and every way fitted for such a voyage, and receive on board during the aforesaid voyage the merchandise hereinafter mentioned. The said party of the second part doth engage to provide and furnish to the said vessel, each trip, a full and complete cargo, under and on deck, of yellow pine railroad cross-ties, sawn and hewn square on four sides, and sawn square at ends, measuring 7"x9"x8% ft. each. Charterers have privilege of shipping smaller sizes at pro rata rate of freight, and to pay the said party of the first part, or agent, for the use of said vessel during the voyage aforesaid, fifteen (15) cents for each 7"x9"x81⁄2 ft. tie delivered, smaller sizes at pro rata rate of freight, payable in cash on proper delivery of cargo at port of discharge, free of commission or discount. Party of the second part also agrees to pay vessel's wharfage, if any is incurred while discharging under this charter. It is understood the charterers have privilege of loading vessel at Brunswick at same rate and terms. It is agreed that the lay days for loading and discharging shall be as follows (if not sooner dispatched): Commencing from the time the vessel is ready to receive or discharge cargo, at least seventy-five (75) thousand feet per running day, Sundays and legal holidays excepted, to be furnished the vessel for loading, and customary dispatch for discharging at port of discharge; and that for each and every day's detention by default of said party of the second part, or agent, seventy-five ($75) dollars per day, day by day, shall be paid by said party of the second part, or agent, to the said party of the first part, or agent. The cargo or cargoes to be received and delivered alongside, within reach of the vessel's tackles. It is agreed that the vessel shall proceed light each trip for Fernandina, and after discharge of cargo at this port to enter upon this charter. The vessel to report to atfor cargo. The dangers of the seas, fire, and navigation of every nature and kind always excepted. A commission of five per cent. upon the gross amount of this charter (including demurrage) is due from the vessel to A. Dayton & Co. upon the signing hereof. To the true and faithful performance of all and every of the foregoing agreement, we, the said parties, do hereby bind ourselves, our heirs, executors, administrators, and assigns, and also the said vessel's freight, tackle, and appurtenances, and the merchandise to be laden on board, each to the other in the penal sum of estimated amount of this charter. "In witness whereof, we hereunto set our hands the day and year first above written. "[Signed] "[Signed] J. L. Randall. Thereafter claimants entered upon the performance of said charter, and made four round trips. The vessel arrived at New York on the fourth trip from Fernandina on April 22d, completing her discharge May 9th, and then made certain necessary repairs, which were not completed until May 18th. Claimants claimed that there was insufficient time to make another voyage, including discharge, by June 30th, and refused to take another load of ties under the terms of said charter party. The charterers thereupon hired another vessel at an increased freight, and have filed this libel to recover $454.82 damages for breach of said charter. The case is peculiarly complicated by several close questions of law and fact. Thus, one of the libelants states that the master of the vessel never said anything to him about not having time to make another trip before June 30th, which statement is not denied by the master. On the other hand, the master testifies, on his direct examination, as to conversations with Mr. Ferguson, another of the libelants, as follows: "A. My conversation was, with him, that I wouldn't have time to make another voyage on the contract, and unless they would give me a different contract, that would agree to take my cargo when I got in, and pay me the same rate of freight that I had had hitherto, I couldn't think of going out again," On cross-examination his testimony was to the same effect, namely: "Q. Did you give them no notice that you elected to terminate your contract, or that it was impossible to carry it out? Nothing but a message over the telephone? A. I had done that several days previous. Q. To whom? A. To Mr. Ferguson. Q. What did you say to him? A. I said that it would be impossible for me to make another voyage under this contract, and if I went again I should have to have a new contract, so as to be sure that they would pay me my freight when I got back. Q. Did you ask them to do that.-to give a stipulation that, if you got back a little later, you would be paid? A. I told them that I would have to have it before I went." These conversations are not denied by Mr. Ferguson. Again, while the witnesses practically agree that the vessel could have reached the port of New York on her fifth trip from Fernandina by June 30th, their testimony conflicts as to whether or not the discharge could have been completed by that time. Anderson, a wit ness for libelants, says that 35 days would be a prudent estimate of the length of time for a trip, not including the discharge, at that time of year. And inasmuch as the preponderance of the expert testimony on behalf of the libelants is to the effect that the chances were against the vessel's getting back and discharging by June 30th; and inasmuch as the average of time of previous voyages, including discharges, was about 44 or 45 days, and, if the fifth voyage had consumed the same amount, it would not have been completed by July 1st; and inasmuch as the testimony of the captain to the ef fect that such a voyage in April and May is ordinarily longer, owing to the condition of wind and weather, than during the preceding months, is uncontradicted, and as the testimony of claimants' wit nesses is to the effect that the voyage and discharge could not have been completed until long after June 30th,-I find the chances were so far against the vessel making a fifth voyage, and discharging by June 30th, that she was not bound under said charter party to undertake said trip, provided the term "voyage" be held to include such discharge. There is a further conflict of testimony as to the length of time occupied in the discharge of vessels; Baxter, one of the libelants, testifying that the Randall could have been discharged in four or five days, if necessary. But Bolander, who is in the employ of libelants, and has charge of unloading their vessels, testifies, on crossexamination, that it remained with the railroad company to tell how quick a cargo should be discharged, and further testifies as follows: "Q. Did not Capt. Randall come to you repeatedly, and to Baxter & Company, with your knowledge, and ask for a quicker discharge of the Mary Adelaide Randall? A. Yes, sir. Q. Did you tell him that you were discharg ing him as quick as you could? If not, what did you tell him? A. I don't think we told him we was discharging him as quick as we could. We was doing the best we could. Q. Can you tell the court why it was, the very tast time he was there discharging, he was sixteen or seventeen days lying there discharging? A. I don't know whether it was lack of cars, or what the difficulty was." The average time of discharge on the four trips was 17 days, and I find this to be the time it would probably have required to discharge the vessel, had she taken the fifth trip. In view of the libel |