The Kalorama, 77 U.S. 204 (1869)
U.S. Supreme CourtThe Kalorama, 77 U.S. 10 Wall. 204 204 (1869)
77 U.S. (10 Wall.) 204
2. It is no objection to the assertion in the admiralty of a maritime lien against a vessel for necessary repairs and supplies to her in a foreign port that the owner was there and gave directions in person for them, the same having been made expressly on the credit of the vessel. The Guy, 9 Wall. 758, affirmed.
3. Nor that the libellant have brought a common law action for the value of the repairs and supplies, the action not being yet determined.
Morgan, of New York, owning the steamer Kalorama, belonging to that port, and Comstock of the same place, owning the Custer, belonging to the port of Georgetown, D.C., agreed with one Pendergast, of Baltimore, Md., who was disposed to purchase both steamers, that he should run them for two trips between Baltimore and Charleston, and if after this trial he liked the vessels, that he might purchase them. For the two voyages Pendergast was to charge 10 percent commission on the gross freights of the vessels, and to disburse the steamers, and to have all freights and disbursements insured for the benefit of the owners, and in case the vessels were not satisfactory after a trial of two trips, Pendergast was to retain them in the Southern trade on the same terms. Pendergast accordingly took the two vessels to make the trips, and the owners of them respectively being at the time in Baltimore, he with their consent changed the master, and selected some of the crew. After the two trial trips, he elected not to make the purchase, and subsequently refused to disburse the vessels on the credit of the owners.
While in the port of Baltimore, the steamers needed repairs and supplies to enable them to make their trips to Charleston. The masters of neither vessel had funds which they could apply to the purpose, nor could either procure any on the credit of the respective owners. Pendergast therefore made repairs and furnished supplies to both, all of the repairs being made and the supplies furnished at the request of the masters in the absence of the owners, or at the request of the owners themselves when present in Baltimore, as they frequently were on the arrivals of the steamers in that port; and as the court considered that it was in every case "quite clear" "with the express understanding that the repairs were so made and furnished on the credit of the steamer." [Footnote 1] Part of the supplies and repairs were made during the two trips made under the agreement and part during two afterwards, but part of the bills had been paid before any libel was filed, and payments were made afterwards also. For the value of the repairs and supplies unpaid for, Pendergast
brought a common law suit against the owners in one of the state courts of Baltimore, and while that suit was pending and undecided filed a libel for the same repairs and advances on the admiralty side of the district court at Baltimore.
The district court decreed in favor of the libellants, the amount allowed by it being for a less sum than had been disbursed by Pendergast after the first two trips had been made. The circuit court, the Chief Justice holding it, reversed the decree, he stating that he thought that a literal construction of the language used by this Court in the cases of The Sultana [Footnote 2] and The Laura [Footnote 3] made it his duty as a Circuit Judge to do this, but stating it to be his opinion also that the Supreme Court did not in those cases intend to establish the law which the language used in the opinions in those cases seemed to announce, and that, considered in connection with the facts of the cases in which it was used, the language was susceptible of a different interpretation, and that this, the Supreme Court, in The Grapeshot and The Guy which had been argued and were then pending before it, and which involved, as he considered, the same points, might give to it an interpretation, as he himself as a judge of this Court might feel at liberty to do, which would necessitate the reversal of his own decrees and the affirmance of those of the district court.
It was in these circumstances that the appeals came before this Court.