THE BERTHA M. MILLER. TARR et al. v. JORDAN et al., 79 F. 365

WEBB, District Judge., The schooner Bertha M. Miller, owned in Gloucester, in the state of Massachusetts, was by her owners chartered to the captain and crew for the business of “fresh fishing,” in March, 1894, for the fishing season. By the terms of the charter, the captain and crew were to have sole control of the whole vessel, during the season (unless sooner the owners should terminate the charter, the right to do which was reserved), in the prosecution of the fishing business.

The charterers were to provide-everything necessary for the contemplated business at their own expense, and it was expressly agreed that neither the owners nor the vessel should be liable for any- debts or liabilities incurred by the charterers for fishing gear, outfits, provisions, or other expenses in the prosecution of the fishing enterprise, but that for all such debts the charterers should be solely responsible.

As compensation for the use of the vessel, the owners were to receive one-fifth of the gross proceeds of the fish which might be caught on said schooner, or in the prosecution of the fishing enterprise, during said time, all expenses of towing, wharfage, and weighing being first deducted from said gross proceeds. There can be no doubt that, under this charter, the charterers became owners of the schooner pro liae vice; that is, so long as the charter should continue in force.

The “fresh fishing business” was prosecuted along the coast, and consisted of catching fish, which were kept .fresh; by being packed in ice, until the vessel could run into some port where her fish could be sold. The trips were from one or two days to two weeks in duration, according to circumstances', depending on the distance it might be necessary to go, and the success in taking fish. While this charter remained in force, Au,gust 14, 1894, the schooner, with a fare on board, ran into the port of Portland, in the state of Maine, to inalíe sale of her catch.

While, there, the captain, finding the vessel stood in need of provisions and. supplies for the further prosecution of her business, ordered of the libelants what was so necessary, and the articles ordered were supplied. ' . That Portland was a foreign port for this schooner is not disputed. That fact gave the master power to subject the véssel to a maritime lien for necessary supplies, furnished by one having no knowledge of the particular terms on which he was sailing her. But this power of the master is not without limitation or qualification.

It must appear that the supplies are reasonably necessary, .and that the credit to the vessel herself is necessary. The necessity of the supplies is presumed from their nature, and from the fact that the master orders them; and, in the absence of other facts, the necessity for binding the vessel may also be presumed. But if the inateriai man knows that the captain has funds or means of his owners, or of his own, credit to the vessel is not authorized, and no lien is created. The Lulu, 10 Wall. 192; Thomas v.

Osborn, 19 How. 22; The Kolorama, 10 Wall. 204; The Patapsco, 13 Wall. 329; The Grapeshot, 9 Wall. 129, When the Bertha M. Miller, in August, 1894, sailed into Portland, she had on board the fish caught on her trip, and they were to be sold there. Whether they belonged to the owners or to the captain and his associates, they furnished the captain with means to pay for the small quantity of supplies his vessel wanted. As matter of fact, he had bargained his fish before the supplies were ordered, and was to be paid for them in cash as soon as they were delivered.

The libelants knew the business in which the schooner was engaged, and how that business was conducted. We do not mean to be understood as saying that they knew anything about the charter of the vessel. Had the schooner come in empty, after an unsuccessful fishing cruise, we have no doubt that she might have been made subject to a lien for the supplies furnished by these libelants. Some controversy lias arisen on the question whether the libelants credited the vessel or her owners for those supplies.

The evidence leads to the conclusion that the libelants made the charges on their hooks to the schooner and owners, showing that they looked to both for payment. But the important question now is whether they had a right to charge these supplies to the vessel-, and make her responsible for them. In view of all the evidence, we cannot doubt that the libelants not only knew the nature and methods of the business of the schooner, but that they also knew that she brought in for a market a fare of fish, which the captain could make use of to procure necessaries, without binding his vessel.

Under such circumstances there was no right to charge those supplies to the schooner, and the form of entry on the libelants’ book was of no effect. But it is contended that, inasmuch as the vessel departed on the same day the supplies were put aboard, to pursue further her fishing business, the charge to her was warranted. The rights and obligations of the parties must be determined by the facts as they existed when the credit was given, and not by subsequent events, especially if there was no fraud practiced.

In this ease the master of the schooner, after receiving pay for his fish, called at the libel-ants’ place of business, to pay for his supplies, and was postponed by the statement that the libelants had not had time to make up their bills. It was only after this that he sailed from Portland. Had this cause depended alone upon the facts noticed in its opinion by the district court, we should unhesitatingly have affirmed its decree.

But as it appears to us that, however necessary the supplies were, there was no necessity for furnishing them on the credit of the vessel, and that this was known to the libelants, the decree must be reversed. The decree of the district court is reversed, and the case is remanded to that court, with directions to dismiss the libel, with costs for the appellants in each court.