The CABARGA, 4 F. Cas. 960

NELSON, Circuit Justice. A great deal of evidence has been taken in this case upon the question as to whether the boats were built in a workmanlike manner, and with suitable materials; and, also, as to whether they were accepted by the master, or by those acting in his behalf.

The proof is very conflicting upon the first question, but upon the second it is quite clear in favor of the claimants; and, this being so, I shall not enter into the question whether they were built according to the contract, for, in my judgment, assuming that they were, the libellant has not made out a case in which the vessel is chargeable for the price of them.

This is an attempt to push the doctrine of the lien upon a vessel in behalf of material men, and of persons furnishing supplies by the order of her master, beyond any case or principle of the maritime law that has come under my notice; namely, to make her chargeable, not for necessary materials and supplies furnished, but for damages arising out of_the breach of a contract to furnish them, the breach being the master's refusal to accept them.

I think it will be found, on looking into the origin and foundation of this rule in the maritime code, that the reasons and policy upon which it rests, are applicable only to cases where the materials and supplies have been actually furnished to the ship — in other words, where the material man or shipchandler has parted with the materials and stores, and the ship has received the benefit of them — and that in those cases only the lien attaches.

In the case of materials and repairs, the articles furnished enter into and give value to the ship itself; and, in the case of stores, they are necessary to enable her to earn her freight. Both are essential to fit her for entering upon and completing her voyage; and hence the propriety and justice of charging the ship with the expense of the articles furnished or the work done.

The origin and foundation of the rule that gives to material men and persons who fit out a ship, or who lend money to the master for the purpose, a privilege or right of payment over other creditors upon the value of the ship, is fully examined by Sir John Nicholl, in the case of The Neptune, 3 Hagg. Adm. 129, and in Abb. Shipp, pt. 2, c. 3, §§ 1-4. I had occasion to consider this question incidentally in the case of The Pacific [Case No. 10,643], and expressed the opinion there which I have now stated a little more at large.

The libellant is not without a remedy, as the master is personally liable for any damages he may have sustained from the breach of the contract, as is also the owner, if the master was acting within the scope of his authority. The decree must be reversed, with costs.