MARITIME LIEN FOR REPAIRS DEPARTMENT OF ADMIRALTY. EDITOR-IN-CHIEF, MORTON P. HENRY, ESQ. Assisted by HORACE L. CHEYNEY. DISTRICT COURT OF THE UNITED STATES, DISTRICT OF DELAWARE. "THE Now THEN." 1 Lien-Suiiilies- Work Done.-When supplies are furnished to a vessel in a foreign port by order of her master a lien is implied, but for work by 6rder of the owner no lien will be held to exist unless proved by the agreement of the parties. MARITIME LIEN FOR REPAIRS AND SUPPLIES TO A SHIP. When, in the early stages of the however, be truly said that the development of our system of mari- civil law was followed, as our courts time law, the question of the ex- being influenced by the common istence of a maritime lien for law repugnance to secret liens did necessary repairs and supplies to a not adopt the broad principle of ship, came before the courts for the implied hypothec of the civil consideration, they rejected the law, but based the existence of the English law, which held that no maritime lien for supplies upon the such lien existed, on the ground necessity for credit to the ship. As that the non-existence of such a a ship is constructed for action lien in England was due alone to rather than inaction, or as has been the lack of jurisdiction of the said, that "a ship is made to plow courts of admiralty, by reason the seas and not to rot by the of the prohibition of the courts of walls," the courts were compelled common law. The Supreme Court by the necessities of commerce and having previously decided that the trade to hold that where, in order grant of admiralty and maritime to prevent a defeat of that purpose, jurisdiction in the Constitution was credit to the ship was necessary, not a grant o f the limited jurisdic- that the law would imply that an tion of the admiralty courts of hypothecation had been made, i. e., England, no similar objection to that a maritime lien existed. the jurisdiction of the Federal The theory of the courts that in courts could be made, and it was cases only of a necessity for credit held, following the civil law, that to the ship would a maritime lien one who furnished necessary sup- exist, greatly affected the subse- plies had a lien upon the ship itself quent development of the law, and for his security, which could be en- has created many points of differ- forced by an action in rem: "The ence from the civil law. Aurora," I Wheat., 96. It cannot, 'The first point of difference ef- IReported in 50 Fed. Rep., 914. Decided June 2, 1892. AND SUPPLIES TO A SHIP. fected arose in "The Gen'l Smith," sailing "The Laura" under the 4 Wheat., 438 (18ig), where it was agreement, then by the maritime held that if supplies were furnished law the repairs and supplies fur- to a ship in the port or State to nished at his request are presumed which she belonged, that the mari- to have been furnished upon his time law would imply no lien, and personal credit, unless the contrary that nofie existed unless given by afifears." the local municipal law. Under In 1869 the question came before these circumstances the owner be- the Supreme Court in "The Kalo- ing present, or presumptively pres- rama," io Wall., 204, and it was sent, the presumption is that his then held that it was no objection personal credit will suffice to obtain to the assertion in the admiralty of supplies, and the law will not en- a maritime lien against a vessel for courage secret liens by implying necessary repairs made and supplies one, but will recognize an express furnished to her in a foreign port lien by way of bottomry alone. that the owner was there and gave The tendency at first was to con- directions in person for them, the fine these liens within the strictest same having been made expressly limits. Thus, in "The St. Jago dd on the credit of the vessel. In de- Cuba," 9 Wheat., 409 (18 24), JOHN- livering the opinion of the Court, SON, J., said, in delivering the CLIFFORD, J., said: "Implied liens, opinion of the Court: "It is not in it is said, can be create d only by the the power of anyone but the ship- master, but if it is meant by that master, not the owner himself, to proposition that the owner or give these implied liens upon the owners, if more than one, cannot vessel. The law marine attaches the order repairs and supplies on the power of pledging or subjecting the credit of the vessel, the Court can- vessel to material men, to the office not assent to the proposition, as the of shipmaster. The necessities of practice is constantly otherwise. commerce require that when remote Undoubtedly, the presence of the from the owner he shall be able to owner defeats the implied authority subject the owner's property to of the master, but the presence of that liability, without which it is the owner would not destroy such reasonable to believe he will not be credit as is necessary to furnish able to pursue his owner's interests. food to the mariners and save the When the owner is present the vessel and cargo from the perils of reason ceases, and the contract is the sea." inferred to be with the owner him- In "The Guy," i Ben., 112; 9 self, on his own responsibility, Wall., 758, it was held that a mari- without a view to the vessel." time lien existed for supplies fur- But the same necessities of coni- nished to the owner upon his order, merce which led the courts to the Court finding that "there was recognize these liens led to a an agreement based upon the credit modification of the doctrine pro- of the vessel," and that "the re- nounced in this dictum. sponsibility of the boat for the *bill In Thomas v. Osborn, 19 How., was a feature in the transaction, 22 at page 38, TANEY, C. J., says: recognized by both parties at the ' Now, if Leach is to be regarded time of the contracting of the as owner for the time when he was debt." MARITIME LIEN FOR REPAIRS The rule, deducible from these sustained. This is allowed because cases, is that where the owner is even an owner in a foreign .port present in a foreign port and sup- may be without the means, reputa- plies are furnished to a ship,'that tion or credit, and hence maybe the presumption is that they are under the same necessity as the furnished upon his .personal credit, master for making use of the credit but the presumption is not a con- of the ship. But as I have said, this clusive one, and may be rebutted necessity in the case of the owner by evidence that the personal credit is not presumed. It must appear in of the owner in the foreign port is proof, either from the circumstan- not sufficient to supply the wants ces or from the terms of the nego- of the ship, and that the credit of tiation, which may afford conclusive the latter is actually relied upon. evidence both of the iltent and of Notwithstanding these decisions, the necessity. In all the however, the later cases are not reported decisions where a lien has harmonious, owing to the use of been sustained for supplies fur- certain expressions by the Court in nished by an owner in person .in a "The Kalorama." foreign port, the Court has found In Stevenson v. "The Francis," 21 an intent by both parties that the Fed. Rep., 715 (1883), it was held ship should be charged, and has by BRowN, J. (S. D. of N. Y.), that placed the decision directly upon where a known owner obtaining that ground." supplies on his personal order in a To the same effect are "The Union foreign port, not being master ("The Express," i Brown Adm., 537; "The Mary Bell," i Sawy., 135), that he Sarah Harris," 7 Ben., 177; "The deals presumptively on his pen.onaf Rapid Transit," ii Fed., 329. It is credit only, and no lien will be im- questionable whether the dictum o plied unless the libellant satisfies BROWN, J., in "The Frances," su- the Court, from the negotiations or fira, to the effect that to create a circumstances, that there was a maritime lien for supplies furnished common understanding to bind the in a foreign port, that evidence of ship. both necessity of credit to the ship The Court said: "In a foreign and a common intent to burden the port when the o*ner is present and ship is correct, in view of the rea- procures the supplies in'person, not son laid down for the existence of being master, in the absence of any such liens. Whether or not the express reference to the- ship as a parties intend to hypothecate the source of credit, the sanmie presump- ship is immaterial, as no verbal tion as to the owner's means and as hypothecation is known to our law, to his intention exists primafacie; the only species known being by but this presumption is not conclu- express hypothecation in the nature sive, as in the home port, and may of bottomry, or the hypothecation be repelled by proof drawn either which the law implies where from from the express language of the the circumstances the credit to the parties or from any other circum- ship is necessary.