,:'
THE JENN'IE MIDDLETON.'
Cas. add'q}trroll v. Tbe T. P. No.. 2,455. These decisions fayor,- the application of the doctrme of subrogation in admiralty practice, as do many others, but they do not give any countenance to a claim of the right to be subrogated by one who merely ,aided the owner of a vfSsel liens. by becoming afilurety, and who ,did not pay any Jebt unhl after aU bens for preYiously existing debts . had been completely destroYed by an admiralty sale. 1'be' principle which must govern tb,e decision of this case, and the reasons therefor, are concisely and strongly stated in the opinion by'Mr.J'ustice Bradley in the c8$e of Roberts v.The HuntSVille, Fed. Cas: No. 11,904, and the authority of that case is supported by'the decision of Judge Dyer in the case of The Robert· son, Fed. Cas. No. 11,923, and the decision of Judge Toulmin in The Madgie, 31 Fed. 926. ' Ordered that the balance in the registry be paid to the abovenamed mortgagees. THE' MIDDLETON. May 23; 1899.) ,
(District Court, D. New Jersey.
1. 2.
MAniTfME LIENS-REPA.IRS IN FORE.fGN PORT.
Where repairs' are made In a foreign port by order of the managing owners, the presumption Is against the existence of a maritime lIen. 1
SAMhi·-EvIDEN{;""
The refusal of the managing owners to pledge their personal credit for repairs d1>es not justify an inference of the existence of a maritime, lien, where the repairer agrees to accept payment out of earnings of the vessel, aathey accrue.
Joseph H. Brinton, for libelant. Flanders & Pugh, for claimants. KIRKPATRICK, District Judge. The libel in t4is case was filed to recover a balance due for repairs on the schooner Jennie Middleton incurred under the following circumstances; , In March, 1898, the schooner Jennie Middleton was in the yard of the libelants at Camden,N. J., in need of repairs. The captain did not feel authorized to determine the extent of these repairs, and the shipwrights were referred by him to Messrs. Bartlett & Sheppard, of Philadelphia, who were the managing owners of the schooner, for orders respecting the same. Subsequently Mr. Mathis, one of the libelants, and Mr. Bartlett, one of the managing owners, met at the office of Bartlett & Sheppard, and discussed the matter of the tlxtent of the repairs to the schooner, when Mr. Bartlett directed Mr. Mathis to make only tlUch repairs a8 he might deem necessary. Mr. Mathis then asked if Messrs. Bartlett & Sheppard would personally guaranty the bill for the repairs, to which they replied, "No." It is a&>erted by Mr. Bartlett and by Mr. G. W. Sheppard, Jr., who was present at the interview, that Bartlett said to Mathis that, if he (Mathis) took the nlO/s.l;),()., C. A. 679. 1
As to maritime liens for supplies and services, see note to The' George Du. ,
684
94'/ FEDERAL REPORTER. '1/ :/ .· I
job. "ot repaIring the schooner, he,wollldbe obliged to)"ait }I>r bis p,a;r until the schooner earned the1lloliey, and that tothi,sMatliis agreed. Mathis denies that he did sba!gree, but I think his denial on for I,arn,satisfied that relates to any the understanding of ,the parties was" that the repairs should be paid froll!' the earnings of the ,as has ,their custom dealings:, It is not by this mg, when the repaIrs were ordered,anythmg waS saId'bY WhICh It ',?r' suggested that the repaIl'$' should .be lien, u-,?on the bOlLt.' Arter' being was to leave the upon her voluntary ret!lrJ;1 there, some. months afterwards, 'this libel was filed. In The, HaValina, 87 Fed.,487, Judge Butler said that, "where, repairs are made in a foreign port on the order' '6{'Dwllers,the presumption'is against the of a marlien, and the burden is on the libelant to clearly. show a con· trae!,:·l In the case of The Havanna; tile home port of the vessel was Philadelphia. The repairs were madeat Baltimore. The 'alleged lien was for a balance on repairs o"rdered by the managing owner. ",In the absence of evidence The repairs were charged to the tending to show express agreement for lien, the libel was dismissed. In the case unde'r consideration, the same state of facts exists. The record fails to disclose any evidence of express contract for lien, and ,o.:p.ly C,tl,'culllstance from' which it ,could be inferred is the refusal of the, managing owners to, pledge their personal credit for the repairs. I think such inference, however, unwarranted, in view of the evidence'relating to the agreement of the libelant to accept payment for schooner out of the #aI'n:ings as they accrued. In acdordfi:nce wftIf the principles laid down in The Havanna, 87 Fed. 487, affirmed 92 Fed. 1008, and the other cases therein cited, the . libel will be dismissed. v -=,== RICHARD et aI. v. HOGARTH et al. (District Court, D. New Jersey. :\fay 23, 1899.)
ADMIRALTY JURISDICTION-)1ARITIME CONTRACTS-SUIT FOR SERVICES IN PROCURING CHARTER. ,
A C(lurt of admiralty is without jurisdiction of a suit to recover compensation for services rel1deredin proem'ing a contract of affreightment for a vessel, the contrnct for such services not being maritime, but merely preliminary to a maritime cpntract; and it does not'become maritime becalise of a provision of. the charter party for the paYJJ1ent of the broker's commission and recitirigJpat it is due by the
This was a suit in admiralty to recover for services rendered for procuring a contract of affreightment fo.l' a vessel owned by respondents. ' Corbin&, 'Oorbin, for libelants. Kirlin, for; 1 For admiralty jurisdicti0ll as to matterscof contract, see note to The Rich· al'd "Winslow, 18 C. C. A. 347, and note to Boutin v. Hudd, 27 C.C. A. 530.