ELY v. MURRAY & TREGURTHA CO., 200 F. 368

PUTNAM, Circuit Judge. This is a libel in admiralty, filed in view of the first

section of the Act of June 23, 1910, c. 373, 36 Stat. 604 (U. S. Comp. St.

Supp. 1911, p. 1192), as follows: “Any person furnishing repairs, supplies, or other necessaries, including the use of dry dock or marine railway, to a vessel, whether foreign or domestic, upon the order of the owner or owners of such vessel, or of a person by him or them authorized, shall have a maritime lien on the vessel, which may be enforced by a proceeding in rein, and it shall not be necessary to allege ■or prove that credit was given to the vessel.” .The libel was filed in rem for the agreed price of a gasoline engine installed in a launch owned by Ely, the appellant, on a contract with him.

The decree was in favor of the libelant. Ely admits in his answer that the libelant sold him, on or about April 4, 1911, the engine in question, and that it was to be installed in the launch then .at New York. After some delay the engine was so installed. It cannot be satisfactorily questioned, on the proofs in the record that the engine was sold to the owner of the launch for the purpose of being installed in the launch, and that it was in fact so installed, and was put in use, and remained in her continuously so far as the record shows her history.

The engine was installed in the home port of the owner: but, under the statute cited, this is no longer a matter of importance.

Reyond that, all the statute requires is that whatever was furnished should have been furnished on the order “of the owner”; and it also provides that, in order that a lien therefor may be enforced in rem, “it shall not be necessary to allege or prove that credit was given to the vessel.” Of course, this does not liar proof that whatever was furnished was furnished on the mere credit of the owner, and in no sense on the credit of the vessel; but it meets the presumption that there is no lien for materials furnished on the order of the owner, as there is a presumption in favor of a lien when the articles are ordered by the master under appropriate circumstances.

The purpose of the statute in these respects will be illustrated by an examination of The Iris, 100 Fed. 104, 40 C. C. A. 301, Cuddy v. Clement, 113 Fed. 454, 51 C. C. A. 288, and the same case in 115 Fed. 301, 53 C. C. A. 94, and Berwind-White Coal Mining Co. v. Metropolitan S. S. Co. (C. C.) 166 Fed. 782, and the same case in the Circuit Court of Appeals in 173 Fed. 471, 97 C. C. A. 477, with a further reference thereto on the denial of a petition for certiorari in 215 U. S. 600, 30 Sup. Ct. 400, 54 L. Ed. 343.

All the difficulties appearing in those cases with regard to the burden of proof, or to the presumptions as to supplies ordered by the owner, and with reference to the question whether credit was given io the vessel, are met so far as this case is concerned by this statute, and need not be explained by us in detail, except by citing the opinion of the learned judge of the District Court now appealed from. So far as the maintenance of libel is concerned, the only substantial issue brought to our attention is whether what was furnished was in the way of construction or in the way of repairs.

If the record was in a more specific form as to this question, we probably would be able to solve it by referring to the facts and the result reached in The Iris, whiebrwas a case largely of reconstruction, aind of fitting a vessel for a new trade; but it is enough for us to say that this record does not show the facts definitely enough to enable us to determine whether the engine was furnished in the line of construction or in line of repairs or improvements. This leaves the case on this point, therefore, where the District Court left it.

What remains are questions of recoupment — one for alleged delay in delivering the engine, and the other for some defect which developed contrary to the warranty given by the libelant. The first claim was disposed of by the learned judge of the District Court as a pure question of fact, as to which we cannot differ. The proposition as to the warranty arises out of the usual provision of a contract for the -construction of an engine, that all materials and workmanship should be first-class.

As to this the learned judge of the District Court says that Ely failed to show that the engine broke down by reason of anything for which the libelant was responsible. It is claimed that the breakage was on the first trip, with Ely aboard, because of the failure of the automatic, oiler to work. The accident occurred as the .launch was leaving Portland harbor. The man who had charge of the boat had her towed back into Portland, and - wrote for assistance.

It is a matter of public knowledge, that at Portland marine repairs can be made very promptly, and there is nothing iu the record to show that these repairs were not of a characte.r which could be properly made' at that port at very small expense. Therefore, so far as we can discover,, any claim on this account, if there is one, was a matter for a suit at law, and not for a proceeding in admiralty, which ordinarily, except with regard to the protection of mariners, deals only with substantial matters. This is the rule both in equity and admiralty. Munson v. Steamship Co., 102 Fed. 926, 928, 43 C. C.

A. 57; Saxlehner v. Siegel Cooper Co., 179 U. S. 42, 21 Sup. Ct. 16, 45 L. Ed. 77. The decree of the District Court is affirmed, with interest, and the appellee recovers its costs of appeal.