The Neversink

18 F. Cas. 21, 5 Blatchf. 539, 1867 U.S. App. LEXIS 775

• Court: U.S. Circuit Court for the District of Southern New York
• Decided: November 22, 1867
• Status: Published

Opinion

NELSON, Circuit Justice.

That the coal supplied was necessary to enable the vessel to perform her daily trips, and earn her freight and passenger money, and that the credit for the supplies, as a matter of fact, was given to her and her owners, cannot be doubted, upon the proofs. The main ground of controversy is, whether or not there is sufficient evidence of an apparent necessity, existing at the time, within the rule of the maritime law, which justified the furnishing of the coal on the credit of the vessel. It has been said, or intimated, by very respectable authority, that this rule has been extended beyond its ancient strictness, in the recent cases of Thomas v. Osborn, 19 How. [60 U. S.] 22, and Pratt v. Reed, Id. 359, and that a greater degree of proof of this necessity is now required, by these adjudications, than had been previously exacted in the administration of this branch of the rule. I may be permitted to say, having written one of the opinions, and fully concurred in the other, after extended arguments at the bar, and the very full discussions by the judges in their conferences, ■ arising out of the differences of opinion among them, that no such purpose existed on the part of the court or of any one of the justices; and a reference to the cases will show, that the opinion delivered in each of them was placed, and intended to be placed, upon ancient and settled authority. Some prominence, it is true, was given to this branch of the'rule, and the propriety of properly enforcing it, in both opinions, for the reason, that, in several cases that had come before us, it had been overlooked or disregarded, and the decisions had proceeded upon the ground that proof of an apparent necessity for the credit constituted no part of the maritime rule. That error it was intended to correct, by recalling to the notice of the profession the rule as established by both the ancient and the modern authorities. I do not intend to go over this subject again, as I regard the two eases above referred to as laying down the principles which govern it. Applying those principles to the case in hand, I am satisfied that the proofs show an apparent necessity for the credit in question. The master had no funds to meet the payment for the coal as delivered, and the owners, the charterers, were not present, but resided at a distance, and, in the sense of the maritime law, in a foreign jurisdiction. The master was one of the charterers, but this does not affect his authority as master. He had no means, either as master or owner, which makes the apparent necessity for the credit to the vessel the stronger. I lay out of view the general owner, because the master was not his agent, and could bind him by no act of his. He could bind only the vessel and the charterers.

As to the sufficiency of the proof of this apparent necessity, no fixed rule, from the great-diversity of the cases that arise, can be laid down in advance. It must necessarily rest in the sound judgment of the tribunal before which the proofs are presented. Good faith and fair dealing, in every case, are exacted on the pa# of the person furnishing the supplies, in every ease; and the absent owner should be guarded against collusion by the master with the material man or the furnish-er of supplies, and against an unnecessary tacit incumbrance upon his vessel.

Decree affirmed.