MOTT v. RUCKMAN, 17 F. Cas. 905

NELSON, Circuit Justice. Looking at the case in any aspect in which it can be viewed, it is quite crear, that, although Ruckman was. the general owner of the vessel at the time, tne supplies were furnished, yet Jennett who-procured them, was himself the owner pro hac vice, by virtue of the charter-party, and hence-the person exclusively responsible for them. Frazer v. Marsh, 13 East, 238; McIver v. Humble, 16 East, 169; Reeve v. Davis, 1 Adol. & El. 312; Abb. Shipp. (4th Am. Ed.) 22, and notes; Webb v. Peirce [Case No. 17,320].

He was not the master of Ruckman at the time, but the master of the vessel, representing his own interest as charterer. Ruck-man had neither appointed him, nor held him out to the public as the master of a vessel over which he had any control; and hence Jennett possessed no power to bind him, as his agent This was admitted by the counsel for the libellant, on the argument; but it was insisted that in the absence of notice of the charter-party to the persons who furnished the stores, it must be regarded as null and void, under the provisions of the act of July 29, 1850 (9 Stat. 440).

But, assuming this to be so, I am satisfied that the Messrs. Bloomfield are chargeable with notice. Besides the positive testimony of Jennett, it appears that they made inquiry in respect to the fact of the purchase of the vessel by Ruckman and of the transfer of her title, of which vessel Jennett was to become the master. Having made this inquiry, they must have known tlie relation in which he stood as master of the vessel; or, if they did not, the failure must be attributed to their own negligence.

After they took so much pains to ascertain the point of time when the negotiation for the vessel was concluded, and when Ruck-man became owner, so as to charge him with the stores previously ordered by Jennett, and delayed the delivery till he could become the master, it is difficult to say that they were not cognizant of all the circumstances connected with the transaction, and consequently of the relation in which he stood as master of the vessel. I cannot doubt, therefore, that they are properly chargeable with notice of that relation, if the fact be at all material.

The act of July 20, 1850, provides, that no bill of sale, mortgage, hypothecation, or conveyance of any vessel, &e., shall be valid against any person other than the grantor or mortgagor, his heirs and devisees, and persons having actual notice thereof, unless the same be recorded in the office of the collector, &c. The second

section provides for the recording; and the third, that the collector shall keep an index of such records, inserting, alphabetically, the names of the vendor or mortgagor, and of the vendee or mortgagee, &e. The argument is, that the charter-party in question is a conveyance, within the first

section of the act, and, not having been recorded, is, therefore, void as to third persons who have not had actual notice of it, and hence is not in the way of the libellant. There is, undoubtedly, some plausibility in the argument, and some difficulty in answering it. And yet, the instrument in question is so common and well known in the business of commerce, and in the use and employment of vessels, that if congress had intended to embrace it, it would have been most natural to have mentioned it in terms. And the phraseology of “vendor” and “ven-dee,” and “mortgagor” and “mortgagee,” used in the third

section of the act, to designate every description of conveyance specified in the first, is scarcely appropriate language to define a charter-party. But, be this as it may —and I do not intend to express any definite opinion upon it — it seems to me quite clear that, even conceding the construction contended for, the only consequence would be to subject the vessel to liability in favor of .third persons, the same as if no conveyance . had been made. Recording acts relate to conflicting interests, and liens acquired in and upon lands and chattels, and are designed to regulate the same.

Thus, in the present case, if the Messrs. Bloomfield had had a valid lien upon the vessel for the stores furnished, a previous unrecorded conveyance by the master would be postponed. This is the extent of the act. In my judgment, it has nothing to do with the personal liability of the owner of the vessel. It is important when the question relates to an interest in or claim upon the vessel itself, but not otherwise. In any view, therefore, that I have been able to take of the case, I think that the decree of the court below was erroneous, and that it must be reversed, with costs.