142

FEDERAL

63.

testimonY,JIS to tbeir methQd 8ampling,oras to the care taken by them to obtain t,ruea:t;ld proper samples of the dflmaged sugar for the chemist's On the whole,.1 am to sustain the commissioner's ruling in this. respect" aJtb.oughnot because there is any evidence, or any special reasonin this case to believe, that there was any intentional unfairness in the sampIes from the. damaged bags; but it is obvious that ,the samples would be inferior to the either if the samples were drawn from the wetter parts of the bag, Or if the wetter parts drawn out, were not thoroughly mixed with the drier parts upon the table. . rp.e liability to considerable err<w isobvi()us, unless caJ.'e was taken to draw :the samples fajrly to mb:: them thoroughly, before 1;be final drawing, of samples froUl table for. The practice in other cases of Illllcine damage requires; that reasonable protection be. afforded to the otber side against either mistake or intentional exaggElration of damages,by giving an opportunity to the' other .l'!ide to.bepresentat sUIWeys. and examinations. After these sugars. were sampled,Abey}Vent into immediate pr()cessofrefining, an4;l. t4ere Wlas nofllrther opp()rtunityforexamination.. Had the sampleS t,aken by. samplers agreed upon by both parties, or by: 'Samplers. appointed by each side, IsIwuld consider the polar. iscope test based thereppon of the greatest, vallIe and weight In the present cas.e, however:, the representative of the libelant in sUQmittillg the claim for damages, estimated the. depreciation at 3i .per or one-1;J.alf the aOlOunt indicated by the polariscope te8,t, in connection with a claim for loss of weight This depreciationwasadDlitted by thedefl'lndant and adopted by thecommissioner.. To this ltem should be added the value of the 26,664 pounds, aliJ the Jeast presumaQIe contents. of, the 88 empty bags above stated,with interest With this modification the report is the other overruled.
THE ADVANCE.

THE ADVANOE. (District Court, S. D. New York. July 11, 1894.)
HARD et al. v.

MARiTiME LIENS-ADVANCES-By SnIP'S AGENT.

When bankers; acting as agents for a line ofstoomers in a foreign port,. are used to advance thest!lamers such IPoneys as they may need on leav· lng, ,and to tender. an ,account monthly for such advances and their commissIons, aIJ,d to draw on the steamship company for the amount due, they are giving 'credit to the company, and have no lien on the ships for their advances.

tihelby ·Anson W.·:Hflrd and others against the of the :tavance, for certain disburse· .. " . dlsm,lssed.. , .1 " . Cary & Whitridge and for libelants. Yarter.& Ledyard and Mr. for Atlantic Trust Co., mortgagee.

IIi

THE AnvANcE,

143

BROWN, District Judge. The above libel was filed by the libelHnts, bankers in New York, to enforce an alleged maritime lien for moneys advanced at Victoria, Brazil, by a branch house of the libelants' firm, for the purpose of disbursing the steamship Advance upon her last departure from that port before the failure of the United States & Brazil Mail Steamship Oompany, her owners, in February, 1893. 'l'he libelants' branch bouse bad been acting as tbe agents of the company's steamers at Victoria for about a year previous, under a power of attorney executed to tbem by the steamship company, dated :March 3, 1892. This power of attorney autborized them "to sign bills of lading, receive and deliver goods, contract for freight, issue passage tickets, receive money, audit and settle claims, and generally to do and perform the business of steamship agents for and in behalf of said company at the port of Vietoria, Brazil, aforesaid." The course of business under this power of attorney W(tS for the Victoria house, as the ship's agents, to advance such moneys as were necessary for the company's various ships on sailing from Victoria, which left tbere about once a month; to render an account thereof to the steamship company, including their commissions of 5 per cent. on the freights obtained at Victoria, and 2! per cent. on their advances; and after crediting any collections of money made there, to dr!'l:W on the steamship company at New York at 30 days' sight for the residue. 'rhe advances in this case were made in the llilual course of business,without any agreement for a lien, or any hypothecation of the ship or freight, or any understanding that the advances were made upon the credit of the ship or freight. The balance due for disbursing the Advance when she left Victoria in February, 1893, was $661.23; and the libel is filed for that amount. Of this balance a little over two-fifths is made up of commissions, and the rest is for advances. A draft at 30 days' sigbt was drawn on the company at New York as usual, and forwarded to the libelants' principal house here for collection. On presentment it was not accepted or paid, the company being then in the hands of a receiver. Upon the above facts, and I find no other facts to modify their force, the great weight of authority is, that the dealings between the steamship company and the agents of their ships at Victoria were presumptively on the personal credit of the owners alone, and that no maritime lien can be implied. See The Esteban De Antunano, 31 Fed. 920; Insurance Co. v. Ward, 8 C. O. A. 229, 59 Fed. 712; The Raleigh, 32 Fed. 633, affirmed 37 Fed. 125; and other cases there cited. n is said that the branch house at Victoria contained some different partners from the New York house, and that the moneys supplied to disburse the ships were really the moneys of the New York house supplied to the Victoria branch. But this does not change the relations of tbe parties. The only dealings of the steamship company, or of their masters or officers, were with the VictoIlia branch house under the power of attorney given to that honse. The money supplied by the New York house to the Victoria

144

FEDERAL REPORTER,

vol. 63.

branch; if the la.tter was legally a different body, became themon· eys of the The libelants, in that event, could claim a lien by subrogation only, and in this case there was no lien to which they could be subrogated. The cases of supplies in a foreign port by material men, and others, who were not the agents of the owners, are here inapplicable. On these grounds, the libel must be dismissed, with costs.

THE ALVIRA. DE LANO et. a1. v. THE ALVIRA (BATCHELDER et aI., Interveners.) (District Court, N. D. California. August 7, 1894.) No. 10,849.

1.

MAnITIME LIENS-LIENS UNDER STATE STATUTES-RuLES ApPLICABLE.

Liens arising under local statutes for supplies, materials, and repairs furnished in the home port are assimilated to general admiralty liens, and the principles relating to maritime liens are in general applied to them. But the two are not always exactly alike in all their features an'd incidents. Thus, the principle that supplies furnished in a foreign port when the owner is with his ship are presumably furnished on his personal credit is inapplicable to liens in the home port, for, the owner being resident there, this would wholly defeat the lien.

2.

SAME.

Under the gelleralprinciples of admiralty law relating to maritime liens, applicable to the creation of liens un.der a local statute (Code Civ. Proc. Cal. § 813), to give efficacy to sU'.lh a lien there must be (1) a necessity for the supplies, materials, or repairs; (2) a necessity for credit; and (3) credit must be given to the vessel. But proof of necessity for the supplies, etc., carries with it a presumption ·of the second requisite,-the necessity for credit. The fact that a freight vessel is chartered to do passenger business, for which she is totally unfitted unless repairs are made, and tbat liberty to make repairs is given, together with an option to purchase at a fixed price on the expiration of the charter party, is sufficient proof of necessity for the repairs.

8.

SAME-NECESSITY FOR REPAIRS-WHEN SHOWN.

4.

SAME-RELIANCE ON VESSEL'S CREDIT-BOOK ENTRIES Afl EVIDENCE.

Great importance is not to be attached to the fact that material and repair nlen gave credit on their books to the vessel alone, or to both the vessel and the party ordering the materials and repairs, or to the latter alone; but the intent is rather to be gathered from all the facts and evidence in the case.

5.

SAME-REPAIRS ORDERED BY CHARTERER"-WHEN LIEN EXISTS.

'.rhe fact that materials and repairs are furnished upon the order of the charterer, who is personally liable, and that the owner is. not personally liable, does not prevent the vesting of a lien under a local statute (Code Civ. Proc. Cal. § 813) when the charterer is owner pro hac Vice, and ilie rna· terial and repair men believe him to be the general owner, and have no cause to suspect otherwise. 'l'he Samuel Marshall, 4 C. C. A. 385, 54 Fed. 396, distinguished. It seems that ilie rule stated In The Patapsco, 13 Wall. 329, In relation to foreign liens for supplies, namely, that where credit Is shown to have been given to the vessel there 1s a lien, and the burden of displacing It is

6.

SAME-BuRDEN OF PROOF.