Norwegian Steamship Co. v. Washington

Fifth Circuit

Norwegian Steamship Co. v. Washington

57 F. 224, 6 C.C.A. 313, 1893 U.S. App. LEXIS 2163

CourtCourt of Appeals for the Fifth Circuit

DecidedJune 20, 1893

DocketNo. 136

StatusPublished

Cited by20 cases

This text of 57 F. 224 (Norwegian Steamship Co. v. Washington) is published on Counsel Stack Legal Research, covering Court of Appeals for the Fifth Circuit primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook

Norwegian Steamship Co. v. Washington, 57 F. 224, 6 C.C.A. 313, 1893 U.S. App. LEXIS 2163 (5th Cir. 1893).

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Opinion

LOCKE, District Judge,

(after stating the facts.) Where a necessary maritime service, or a necessary service which gives a maritime lien, is rendered to a foreign vessel upon the application of the master, or iu his behalf, the presumption is that it is rendered upon the credit of the vessel, and the burden of proof is upon him who contends otherwise. The Grapeshot, 9 Wall. 141; The Lulu, 10 Wall. 192; The Patapsco, 13 Wall. 329. It has been settled as the rule in (his circuit that a stevedore’s services, rendered to a ship in taking in, stowing, and discharging cargo, are services of a maritime nature, and, when rendered in other than a home port, a maritime lien will result. Dennett v. The Main, 2 C. C. A. 569, 51 Fed. Rep. 954. Such services have in numerous cases been deemed as necessary to enable a vessel to pursue the general business of the transportation of cargo and the earning of freight, for which the vessel is intended, as any other class of maritime services. The Canada, 7 Fed. Rep. 119; The Velox, 21 Fed. Rep. 479; The Gilbert Knapp, 37 Fed. Rep. 209; The Onore, 6 Ben. 564.

The duties of consignees or agents of ships, or the agents of charterers or owners, are so similar and undistinguishable that witbou t some positive knowledge of their relations, contracts, and agreements, it is impossible to determine to which class an agency may belong; and the fact that a merchant purchases supplies, or procures services to he rendered a vessel, raises no presumption that he therefore sustains relations with the owners that make him responsible, and relieve the vessel from a lien. In the great majority of instances, in ordinary- practice, the material man or stevedore contracts with, and takes his hill for payment to, the agent of the [226]*226ship, whether he represents'the owners or charterers, without the intervention of the master; but by so doing he does not abandon his right to look to the vessel in event of a nonpayment. It cannot be presumed or expected that he can be informed as to the exact provisions of the charter, or the responsibilities of the parties, in each particular case.

Examining this case in the light of these general principles, we fail to find any affirmative proof that the libelant was informed of the character or conditions of the charters, or either of them, or the responsibilities of the vessel or charterers, or in any way gave the agent personal credit, to the exclusion of the vessel, or that the circumstances are shown to be such that he should be held to have done so.- The final charter — the one under which he was loading at this time — specified distinctly that the vessel should pay for the stevedoring; and, had he known of this, it was in no way compulsory upon him to go back of that, and find to whom the term “the vessel,” there used, referred, — whether owners or previous charterers; and, were he ignorant of the provisions of either charter, it cannot be presumed he knew of, or contemplated, any paymaster but the vessel. There is nothing that shows that he knew what relation Hoadly & Co., through whose instrumentality he was employed, held to the vessel, any more thaii that they were the agents of Andress & Mitchel, whom he says he supposed to be the charterers’ or owners’ agents, — some one who looked out for the business. His testimony upon this point is:

“The charterers or the agents of the ship, who handled the business, made the agreement.” “Andress & Mitchel, and John G-. Woods, were the agents of Hoadly & Co., who were the managing owners here.” “I made the contract with the agents of the ship.” “The owners’ agents at that time, I suppose, were Andress & Mitchel.”

He states plainly that he did not know they were the charterers, as that did not concern him.

It is not enough to show that an agent who employs labor or procures supplies for a vessel is a charterer, and under that charter liable for the bills incurred, but it is necessary that the creditor also be aware of the relation, and furnish the supplies or services with such an understanding. The Patapsco, supra.

There is nothing in the case that raises the presumption that libelant performed the services upon the credit of Andress & Mitchel, and intended to look to. them for his pay. They do not appear to have been residents of New Orleans, but are described as “two men from New York, who had opened an enterprise between this [Hew Orleans] and Honduras.” Any property or credit they may have had in New Orleans, by which it might appear libelant had probably trusted them, is not shown. Hot only is there a lack of affirmative proof that Washington was aware of the relations of vessel and charterer, and intended to waive his admiralty lien, but everything tends to strengthen the presumption that he intended to rely upon it. His bill was made against the vessel; he procured the attestation of the master; and, al[227]*227(hough it was presented to Hoadly & Co., it was as • agents of Andress & Mitchel, whom he considered agents for the owners. In the cases of The Stroma, 53 Fed. Rep. 281; The Golden Gate, 1 Newb. Adm. 313; The Aeronaut, 30 Fed. Rep. 499; and the other cases relied upon by respondent, — the charterers were owners pro hac vice, and the libelants’ agents knew them to be such. Here, such is not the case. The owners appointed and paid master and crew, and held control of the vessel subject only to the terms of the charter party. The charterers were not special owners. Nor do we find that the libelant knew the conditions of the charter party, or that by it the charterers were to pay for stevedoring.

Nor do we find the rates charged to have been exorbitant ot; unreasonable. They appear to have been hiss than were paid by some merchants, and the same as paid by all the vessels consigned to the same agents; and the preponderance of evidence is very largely in favor of their being but fair, just, and reasonable.

We find no error in the judgment of the court below, and it is affirmed, with costs.

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LOCKE, District Judge,

(after stating the facts.) Where a necessary maritime service, or a necessary service which gives a maritime lien, is rendered to a foreign vessel upon the application of the master, or iu his behalf, the presumption is that it is rendered upon the credit of the vessel, and the burden of proof is upon him who contends otherwise. The Grapeshot, 9 Wall. 141; The Lulu, 10 Wall. 192; The Patapsco, 13 Wall. 329. It has been settled as the rule in (his circuit that a stevedore’s services, rendered to a ship in taking in, stowing, and discharging cargo, are services of a maritime nature, and, when rendered in other than a home port, a maritime lien will result. Dennett v. The Main, 2 C. C. A. 569, 51 Fed. Rep. 954. Such services have in numerous cases been deemed as necessary to enable a vessel to pursue the general business of the transportation of cargo and the earning of freight, for which the vessel is intended, as any other class of maritime services. The Canada, 7 Fed. Rep. 119; The Velox, 21 Fed. Rep. 479; The Gilbert Knapp, 37 Fed. Rep. 209; The Onore, 6 Ben. 564.

The duties of consignees or agents of ships, or the agents of charterers or owners, are so similar and undistinguishable that witbou t some positive knowledge of their relations, contracts, and agreements, it is impossible to determine to which class an agency may belong; and the fact that a merchant purchases supplies, or procures services to he rendered a vessel, raises no presumption that he therefore sustains relations with the owners that make him responsible, and relieve the vessel from a lien. In the great majority of instances, in ordinary- practice, the material man or stevedore contracts with, and takes his hill for payment to, the agent of the [226]*226ship, whether he represents'the owners or charterers, without the intervention of the master; but by so doing he does not abandon his right to look to the vessel in event of a nonpayment. It cannot be presumed or expected that he can be informed as to the exact provisions of the charter, or the responsibilities of the parties, in each particular case.

Examining this case in the light of these general principles, we fail to find any affirmative proof that the libelant was informed of the character or conditions of the charters, or either of them, or the responsibilities of the vessel or charterers, or in any way gave the agent personal credit, to the exclusion of the vessel, or that the circumstances are shown to be such that he should be held to have done so.- The final charter — the one under which he was loading at this time — specified distinctly that the vessel should pay for the stevedoring; and, had he known of this, it was in no way compulsory upon him to go back of that, and find to whom the term “the vessel,” there used, referred, — whether owners or previous charterers; and, were he ignorant of the provisions of either charter, it cannot be presumed he knew of, or contemplated, any paymaster but the vessel. There is nothing that shows that he knew what relation Hoadly & Co., through whose instrumentality he was employed, held to the vessel, any more thaii that they were the agents of Andress & Mitchel, whom he says he supposed to be the charterers’ or owners’ agents, — some one who looked out for the business. His testimony upon this point is:

“The charterers or the agents of the ship, who handled the business, made the agreement.” “Andress & Mitchel, and John G-. Woods, were the agents of Hoadly & Co., who were the managing owners here.” “I made the contract with the agents of the ship.” “The owners’ agents at that time, I suppose, were Andress & Mitchel.”

He states plainly that he did not know they were the charterers, as that did not concern him.

It is not enough to show that an agent who employs labor or procures supplies for a vessel is a charterer, and under that charter liable for the bills incurred, but it is necessary that the creditor also be aware of the relation, and furnish the supplies or services with such an understanding. The Patapsco, supra.

There is nothing in the case that raises the presumption that libelant performed the services upon the credit of Andress & Mitchel, and intended to look to. them for his pay. They do not appear to have been residents of New Orleans, but are described as “two men from New York, who had opened an enterprise between this [Hew Orleans] and Honduras.” Any property or credit they may have had in New Orleans, by which it might appear libelant had probably trusted them, is not shown. Hot only is there a lack of affirmative proof that Washington was aware of the relations of vessel and charterer, and intended to waive his admiralty lien, but everything tends to strengthen the presumption that he intended to rely upon it. His bill was made against the vessel; he procured the attestation of the master; and, al[227]*227(hough it was presented to Hoadly & Co., it was as • agents of Andress & Mitchel, whom he considered agents for the owners. In the cases of The Stroma, 53 Fed. Rep. 281; The Golden Gate, 1 Newb. Adm. 313; The Aeronaut, 30 Fed. Rep. 499; and the other cases relied upon by respondent, — the charterers were owners pro hac vice, and the libelants’ agents knew them to be such. Here, such is not the case. The owners appointed and paid master and crew, and held control of the vessel subject only to the terms of the charter party. The charterers were not special owners. Nor do we find that the libelant knew the conditions of the charter party, or that by it the charterers were to pay for stevedoring.

Nor do we find the rates charged to have been exorbitant ot; unreasonable. They appear to have been hiss than were paid by some merchants, and the same as paid by all the vessels consigned to the same agents; and the preponderance of evidence is very largely in favor of their being but fair, just, and reasonable.

We find no error in the judgment of the court below, and it is affirmed, with costs.

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57 F. 224, 6 C.C.A. 313, 1893 U.S. App. LEXIS 2163, Counsel Stack Legal Research, https://law.counselstack.com/opinion/norwegian-steamship-co-v-washington-ca5-1893.

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