The Grapeshot,
9 Wall. 129, affirmed on the second point adjudged therein (pp.
77 U. S. 133-141),
and the doctrine again declared, that in the case of alien asserted
against a vessel supplied or repaired in a foreign port, necessity
for credit must be presumed where it appears that the repairs and
supplies for which a lien is set up were ordered by the master, and
that they were necessary for the ship when lying in port, or to fit
her for an intended voyage, unless it is shown that the master had
funds, or that the owners had sufficient credit, and that the
repairer, furnisher, or lender knew those facts, or one of them, or
that such facts and circumstances were known to them as were
sufficient to put them on inquiry, and to show that if they had
used due diligence they would have ascertained that the master was
not authorized to obtain tiny such relief on the credit of the
vessel.
This was a suit in admiralty to enforce a lien claimed upon the
steamer
Lulu for repairs made upon her at the request of
the master. It was consolidated with other suits, all brought by
materialmen for supplies or repairs to the vessel to the extent of
$8,796.21.
The steam vessel was owned in New York, which was her home port,
but employed in the trade between Baltimore, in Maryland, and
Charleston, in South Carolina. When the libel was filed she had
been plying in the trade about eleven months, that is to say, from
April, 1866, to March, 1867. The repairs and supplies for which
satisfaction was sought were furnished in Baltimore during and
after July, 1866, but chiefly in November and afterwards, at
Page 77 U. S. 193
fair prices, and were proper and necessary, and there was
no
proof whatever that the master had any funds which he could
have applied to procure the repairs and supplies.
In each suit a New York company filed a claim and answer,
asserting a prior right to satisfaction out of the proceeds of the
steamer, which under an order of the court had been sold, bringing
but $10,250. The claim of this company was founded upon a bill of
sale, made to it by the former owners of the vessel (residents of
New York also) in consideration of an advance of $12,000 on the
24th of August, 1866. This bill of sale, though in form absolute,
was intended as a mortgage to secure repayment of the advance in
six months from the date, but no part of it had been repaid.
The only question in the case was: "Were the repairs and
supplies in question furnished under such circumstances as would
entitle the materialmen to the liens which they claimed?" If they
were, this lien was superior to that created by the bill of sale or
mortgage, whether prior or posterior in time, and the mortgage or
most of it was cut out.
The district court, in which the libel was originally filed,
decreed for the materialmen, but the case coming before the circuit
court, held by the Chief Justice in November, 1868, and therefore
before the recent judgment in
The Grapeshot, [
Footnote 1] which explained what had
been received as law since
The Laura [
Footnote 2]
(Thomas v. Osborn), and more
particularly since
The Sultana [
Footnote 3]
(Pratt v. Reed), in which last
case the Court stated the rule thus:
"The proof of a necessity at the time of procuring a supply for
a credit on the vessel . . . is as essential as that of the
necessity of the article itself. . . . It is only under very
special circumstances, and in an unforeseen and unexpected
emergency, that an implied maritime hypothecation can be
created,"
and put the decision of the case upon the ground not that the
supplies were not necessary, but that there was no sufficient proof
of necessity for the implied hypothecation of the vessel or of any
unexpected or unforeseen exigency
Page 77 U. S. 194
that required it -- the circuit court finding itself "unable to
make any distinction which had substance" between that case and the
present, felt "constrained" to reverse the decree, and with obvious
reluctance deprived the materialmen of their lien.
The case was now here on appeal from that reversal, the case of
The Grapeshot being in the meantime decided, and deciding
that if there have been,
1. A necessity for the repairs,
2. If the credit have been given to the ship and not to the
owner, master, or agent,
3. Then a presumption of necessity for the credit will arise,
conclusive in the absence of evidence to the contrary, if the
materialman has acted in good faith.
Page 77 U. S. 196
MR. JUSTICE CLIFFORD delivered the opinion of the Court.
Experience shows that ships and vessels employed in commerce and
navigation often need repairs and supplies in
Page 77 U. S. 197
course of a voyage, when the owners of the same are absent, and
at times and places when and where the master may be without funds
and may find it impracticable to communicate seasonably with the
owners of the vessel upon the subject.
Contracts for repairs and supplies under such circumstances may
be made by the master to enable the vessel to proceed on her
voyage, and if the repairs and supplies were necessary for that
purpose and were made and furnished to a foreign vessel or to a
vessel of the United States in a port other than a port of the
state where the vessel belongs, the
prima facie
presumption is that the repairs and supplies were made and
furnished on the credit of the vessel unless the contrary appears
from the evidence in the case.
Where it appears that the repairs and supplies were necessary to
enable the vessel to proceed on her voyage and that they were made
and furnished in good faith, the presumption is that the vessel, as
well as the master and owners, is responsible to those who made the
repairs and furnished the supplies, unless it appears that the
master had funds on hand, or at his command, which he ought to have
applied to the accomplishment of those objects, and that they knew
that such was the fact, or that such facts and circumstances were
known to them as were sufficient to put them upon inquiry and to
show that if they had used due diligence in that behalf, they might
have ascertained that the master, under the rules of the maritime
law, had no authority to contract for the repairs and supplies on
the credit of the vessel.
Repairs and supplies amounting to eight thousand seven hundred
and ninety-six dollars and twenty-one cents, as adjudged by the
district court, were made and furnished by the various parties
mentioned in the record to the steamship
Lulu at the
request of her master while she was lying in the port of Baltimore,
and the owners of the steamer refusing to pay for the same, those
several parties, including the appellants in this case, filed
separate libels against the steamer in the district court to
recover the amount of their
Page 77 U. S. 198
respective claims. Monitions were issued in the several suits,
and the steamer was arrested to answer to the allegations of the
respective libels.
Appearance was entered in each suit by the owners of the steamer
as claimants, and on their petition, and pursuant to the order of
the court, the steamer was sold by the marshal and the proceeds of
the sale were paid into the registry of the court to abide such
further order of the court as might be made in the respective
causes.
Answers were filed by the claimants to the several libels and
the suits were subsequently consolidated, and the order of the
court was to the effect that they should be heard together.
Testimony was taken on both sides, and the district court
entered a decree that the several libels filed in the case, except
one, "be allowed as liens against the steamer to the amount of the
respective claims," and by the decree of distribution the court
awarded to the appellants the sum of two thousand three hundred and
thirty-seven dollars and forty-six cents, as appears of record.
Appeal was taken from that decree by the claimants to the
circuit court for the same district, where the parties were again
heard, and the circuit court reversed the decree of the district
court and ordered, adjudged, and decreed that so much of the fund
in the registry of the court as was applicable to the payment of
the appellant's claim, under the decree of the district court,
should be paid to the claimants as the owners of the steamer.
Dissatisfied with that decree, the libellants appealed from the
same to this Court, and now insist that it ought to be
reversed.
Prior to the twenty-fourth of August, 1866, the title to the
steamer was in the grantors of the claimants, but the claimants
admit in their answers that their grantors as well as themselves,
were residents of New York, and that the port of New York was the
home port of the steamer. Whatever title they have was acquired by
virtue of a bill of sale executed on that day, and the record shows
that it is duly recorded in the custom house of that port.
Although
Page 77 U. S. 199
the bill of sale is absolute in form, the claimants allege that
it was intended only as a mortgage, but the fact alleged is of no
importance in the decision of the case, as it is admitted that the
former owners, as well as the claimants, were residents of a state
other than the one where the repairs were made and the supplies
furnished, and that the steamer belonged to a port of the state
where her owners resided.
When arrested, the steamer had been engaged for a period of
eleven months in carrying passengers and freight between the ports
of Baltimore, in the State of Maryland, and Charleston, in the
State of South Carolina, and the evidence is full to the point that
the repairs made and the supplies furnished were necessary to
enable the steamer to continue to make her regular trips between
those ports and to fulfill the obligations to the traveling and
commercial public which her owners had contracted. Argument upon
that topic is quite unnecessary, as the point is conceded by the
claimants, but they deny that the repairs and supplies were made
and furnished on the credit of the steamer, or that the evidence
shows that there was any necessity for any such credit to the
steamer. Full proof is exhibited that the repairs were made and the
supplies furnished in the several cases at the request of the
master, and there is no proof whatever that he had any funds which
he ought to have applied, or which he could have applied, to
accomplish those objects or any other.
Attempt is made to show that the agent of the steamer had funds
derived from freight which might have been so applied, but the
evidence in the case fails to establish that theory and satisfies
the court that he had no funds of the owners and that he was not
under any obligations to grant them any further credit for that
purpose.
Unless the repairs or supplies, as the case may be, are
necessary to render the ship or vessel seaworthy or to enable her
to prosecute her voyage, it is quite clear that the master, as
between himself and the owners, is not authorized to make any such
contracts or purchases either on the credit
Page 77 U. S. 200
of the vessel or her owners. Such necessity usually arises when
the ship or vessel is in a port distant from the owners, and
oftentimes when they have no knowledge or means of knowledge as to
the actual condition of the vessel, and it is chiefly for that
reason that the authority is reposed in the master to act in their
behalf and for the best interest of all concerned, but it should be
borne in mind that his authority in that respect is limited to the
circle of duties which that necessity requires should be performed
before the owners can be consulted.
Merchants are not obliged to make advances to the master, nor to
make repairs or furnish supplies at his request, and before they
can safely do so they should be reasonably satisfied that the
vessel needs what the master requests them to make and furnish, as
the law supposes that the vessel is in the port where the request
is made, and that they have the opportunity of making due inquiry
and investigation upon that point. [
Footnote 4]
Subject to that limitation the master is the agent of the owners
for the voyage, and they are bound to the performance of all lawful
contracts made by him relative to the usual employment of the ship
and for repairs made and supplies furnished for her use in a
foreign port. [
Footnote 5]
Ports of states other than those of the state where the vessel
belongs are for that purpose considered as foreign ports, and the
authority of the master in contracting for repairs and supplies is
not confined to such as are absolutely or indispensably necessary,
but includes also all such as are reasonably fit and proper for the
ship and the voyage. Where such repairs and supplies are reasonably
fit and proper, the master, if he has not funds and cannot obtain
such on the personal credit of the owners, may obtain the same on
the credit of the ship, either with or without giving a bottomry
bond, as necessity shall dictate. Reasonable diligence
Page 77 U. S. 201
in either event must be exercised by the merchant or lender to
ascertain that the repairs and supplies were necessary and proper,
as the master is not authorized to hypothecate the vessel unless
such was the fact within the meaning of the maritime law. [
Footnote 6]
Such necessity for repairs and supplies is proved where such
circumstances of exigency are shown as would induce a prudent
owner, if present, to order them, or to provide funds for the cost
of them on the security of the ship. [
Footnote 7]
Proof that the repairs and supplies were necessary will not in
any case be sufficient to entitle the furnisher or lender to
recover by a suit
in rem against the vessel if it appear
that the master had funds sufficient to execute the repairs and
furnish the supplies and that the party who made and furnished the
same knew that fact or that facts and circumstances were known to
him sufficient to put him upon inquiry and to show that if he had
used due diligence, he would have ascertained that no funds except
such as the master already possessed were necessary for any such
purpose.
Good faith is undoubtedly required of a party seeking to enforce
a lien against a vessel for such a claim, but the fact that the
master had funds which he ought to have applied to that object is
no evidence to establish the charge of bad faith in such a case
unless it appears that the libellant knew that fact or that such
facts and circumstances were known to him as were sufficient to put
him upon inquiry within the principles of law already explained.
[
Footnote 8]
Express knowledge of the fact that the master had sufficient
funds for the purpose is not necessary to maintain the charge of
bad faith, as it is well settled law that a party to a transaction,
where his rights are liable to be injuriously affected by notice,
cannot willfully shut his eyes to the means of knowledge which he
knows are at hand, and thereby escape
Page 77 U. S. 202
the consequences which would flow from the notice if it had
actually been received; or in other words, the general rule is that
knowledge of such facts and circumstances as are sufficient to put
a party upon inquiry, and to show that if he had exercised due
diligence, he would have ascertained the truth of the case, is
equivalent to actual notice of the matter in respect to which the
inquiry ought to have been made. [
Footnote 9]
None of these rules, however, has any application to a case
where the master had no funds which could be applied to any such
object, as the party making the repairs and furnishing the supplies
could not know what was not true in point of fact, nor could he be
put upon any inquiry in respect to any supposed funds which had no
real existence.
Inquiry certainly needs not be made as to the necessity for
credit if the master has no funds nor any other means of repairing
his vessel or furnishing her with supplies, and it is equally
certain that proof of failure to institute inquiries is no defense
to such a claim even if the master had funds, unless that fact was
known to the libellant or such facts and circumstances were known
to him as were sufficient to put him on inquiry and fairly subject
him to the charge of collusion with the master or of bad faith in
omitting to avail himself of the means of knowledge at hand to
ascertain the true state of the case.
Whenever the necessity for the repairs and supplies is once made
out, it is incumbent upon the owners, if they allege that the funds
could have been obtained upon their personal credit, to establish
that fact by competent proof, and that the libellant knew the same
or was put upon inquiry, as before explained, unless those matters
fully appear in the evidence introduced by the libellant. [
Footnote 10]
Extended discussion of that question, however, is no longer
necessary, as the principle is conclusively settled by a recent
Page 77 U. S. 203
decision of this Court. Where proof is made of necessity for the
repairs and supplies,
or for funds raised by the master to pay
for the same and of credit given to the ship, a presumption
will arise, said the Chief Justice, in the absence of evidence to
the contrary, of necessity for credit. [
Footnote 11]
Remarks are found in two cases decided by this Court quite at
variance with that rule, but it is unnecessary to comment upon
those cases or to enter into any explanation of those remarks, as
it is clear that if they assert any different rule of decision,
they are in that respect directly overruled. [
Footnote 12]
Whether the master has funds or not is a matter always known to
him, and seldom or never known to merchants in the port selected by
the master as a port for relief, unless they obtain it from the
master. Masters, if they are honest, will not ask for such
assistance when they are supplied with funds, and if they are
dishonest, they are not likely to communicate any facts to the
merchant which would induce him to refuse to make the requested
advances.
Inquiry as to the credit of the owners of the vessel, except of
the master, would seldom be of any avail unless it was extended to
the great majority of the merchants resident at the port of
distress, and any rule which should impose that obligation upon the
merchant as a condition to his right of action to recover the
amount of his advances would in many cases operate as a denial of
justice, as he could better afford to lose his claim than to incur
the expense of making the required investigation.
Viewed in any light, it is clear that necessity for credit must
be presumed where it appears that the repairs and supplies were
ordered by the master, and that they were necessary for the ship
when lying in port or to fit her for an intended voyage, unless it
is shown that the master had funds, or that the owners had
sufficient credit, and that the repairer, furnisher, or lender knew
those facts or one of
Page 77 U. S. 204
them, or that such facts and circumstances were known to them as
were sufficient to put them upon inquiry and to show that if they
had used due diligence they would have ascertained that the master
was not authorized to obtain any such relief on the credit of the
vessel. Applying that rule to the present case, the conclusion is
inevitable that the decree in the circuit court was erroneous.
[
Footnote 13]
Decree in the circuit court is reversed and the cause
remanded with instructions to enter a decree affirming the decree
of the district court.
[
Footnote 1]
76 U. S. 9 Wall.
129.
[
Footnote 2]
60 U. S. 19 How.
28.
[
Footnote 3]
60 U. S. 19 How.
359.
[
Footnote 4]
2 Parsons on Shipping 329; Bold Buccleuch, 7 Moore, Privy
Council, 284; Roberts on Admiralty 395.
[
Footnote 5]
The General
Smith, 4 Wheat. 443;
The Bark Union, 2
Story 463;
The Aurora,
1 Wheat. 102.
[
Footnote 6]
The Paragon, Ware 336;
The Fortitude, 3 Sumner
225.
[
Footnote 7]
The
Grapeshot, 9 Wall. 141;
The Alexander, 1
W.Robinson 362;
The Medora, 1 Sprague 139.
[
Footnote 8]
The Sarah Starr, 1 Sprague 455.
[
Footnote 9]
May v. Chapman, 16 Meeson & Welsby 355;
Goodman v.
Simonds, 20 How. 343.
[
Footnote 10]
The
Virgin, 8 Pet. 538;
The Phebe, Ware 265; 2
Parsons on Shipping 333;
The Nestor, 1 Sumner 73.
[
Footnote 11]
The
Grapeshot, 9 Wall. 141;
The Barque Mason,
2 Story 463.
[
Footnote 12]
The
Grapeshot, 9 Wall. 141;
Thomas v.
Osborn, 19 How. 22;
Pratt v.
Reed, 19 How. 359;
The Sea Lark, 1 Sprague
571;
The Prospect, 3 Blatchford 526.
[
Footnote 13]
Roberts on Admiralty 210;
The Fortitude, 3 Sumner 268;
The Nelson, 1 Haggard 176.