The Mt. Desert

158 F. 217, 1907 U.S. Dist. LEXIS 26

• Court: District Court, E.D. Virginia
• Decided: December 17, 1907
• Status: Published

Opinion

WADDIRR, District Judge

(after stating the facts as above). It may be conceded that ordinarily the provisions of the charter party above recited would disentitle the libelants to recover against the Mt. Desert for the repairs put upon her, covered by the claim in suit. Still, under the facts and circumstances of this case, there can be no doubt of their right to recover. The owners of the Mt. Desert not only supervised the work done upon her, rendered necessary by the collision with the Woodbury, while in libelants’ shipyard, but they subsequently libeled the Woodbury, and received damages for the very work now sought to be paid for; that is, for restoring the Mt. Desert to seaworthy condition. To take this money and turn it over to the general ^creditors of the Tidewater Navigation Company, leaving the libelants unpaid, and have the Mt. Desert escape liability because, forsooth, the provisions of the charter party may have been intended to protect her from responsibility such as is sought to be enforced here, would be unconscionable. The money awarded for the injury to the Mt. Desert that the libelants repaired is in the hands of the Atlantic Trust & Deposit Company, placed there by the owners of the Mt. Desert to await the determination of this controversy, and the same should be paid to libelants. If the owners of the Mt. Desert have placed the same beyond their control, these libelants should not be denied' their right of recovery herein against the vessel which they repaired. , , .

What has been said as to the libelants’ claim applies with equal force to that of the petitioner the Norfolk Marine Railway Company, and also to that of the petitioner Hudgins, whose supplies were, furnished upon the express order of the owners of the Mt. Desert.

The claim of the petitioner the Southern Supply Company was for supplies necessary for the operation of the steamer; and: while it is true they were furnished either upon the order of the master of the Mt. Desert, or her engineer, still it was under such circumstances as that her owners should not be held responsible for. The steamer was being operated by the Tidewater Navigation Company, regularly engaged under a charter party, for the carriage of passengers from the port of Norfolk to the Jamestown Exposition during the Exposition period, and the petitioner had such knowledge or opportunities of knowledge of the fact that the Mt. Desert was not owned by the Tidewater Navigation Company, and was operated under such charter party, as to put it upon notice of the terms and conditions thereof; and, having failed to exercise proper diligence in this respect, the Mt,. Desert should not be held responsible for the petitioner’s bills. The petition is accordingly dismissed.

A decree may be entered in favor of the libelants for the amount claimed by them; also for the petitioner the Norfolk Marine Railway Company, and also for the petitioner R. W. Hudgins, for the amounts of their respective claims.