The opinion of the court was delivered by: GALSTON
The matter before the court is the consideration of the petitions of the Wheeler Shipyard, Inc., and the Vimalert Company, Ltd., to intervene and establish their respective liens against the motorboat Tally-Ho in the above entitled action.
One opinion will suffice.
The Tally-Ho was seized on August 12, 1932, within the jurisdiction of this court, while laden with a cargo of intoxicating liquors. The defendants, constituting the crew of the vessel, were indicted and charged with transportation and possession of the intoxicating liquors. To this indictment they pleaded guilty. Upon the entry of this plea, and sentence having been imposed, the government moved for the forfeiture of the vessel. This motion was granted, and an order was entered thereon on October 26, 1932, directing the United States marshal for the eastern district of New York to take the vessel into his possession and to publish a notice directing all lienors and claimants to file their claims and liens.
As to petition of the Wheeler Shipyard, Inc.: Beginning on or about March 13, 1931, and continuing until on or about November 10, 1931, this company furnished materials and supplies and performed certain work, labor, and services upon the vessel in the shipyard which aggregated the sum of $3,102.60. No payments were made until November 10, 1931, when $800 was paid on account, and on January 30, 1932, $1,000 was paid.
The sole question involved is whether the intervener falls within the provision of title 27, U.S. Code, § 40 (27 USCA § 40), as possessing a bona fide lien "created without the lienor having any notice that the carrying vehicle was being used or was to be used for illegal transportation of liquor."
Eugene M. Wheeler, the secretary of the petitioner, testified that one Johnny Harrison, whom he had never seen before and did not know, represented himself as the captain of the boat. This man called on him in the yard before the boat arrived at the dry dock. Harrison told him to get the boat at a freight station somewhere in Jersey City, where the boat was on a freight car. Harrison did not tell him the name of the owner, nor did the witness inquire who the owner was, nor anything about the owner. Asked what arrangements he had entered into with Harrison, the witness said: "I said when the boat came in we would look it over and see what repairs he wanted done, and we would go ahead and do them."
No estimate of the probable cost was made or given to Harrison, no written contract was entered into in respect to these repairs, and no writing made of any kind whatsoever.
Leslie L. Wheeler, a brother of the secretary of the company, said:
"The first I knew the boat was on the float. I did not have anything to do with bringing it there. My brother told me to go down and talk to the captain and see what work he wanted done; so he asked me to go out for a ride with him on the boat, so I did. The boat was a great big mahogany runabout with two big engines. * * *
"It had a very short forward deck, with a little cover over the engine, and it was open forward and aft. It was a very rough day when we went on the ride and the fellow said, 'What do you think of the boat,' when we got back, and I said it was terrible. He said, 'What can you do to it?' I said, 'We will do whatever work is necessary to make it stand up in salt water.' It was a fresh water boat."
Q. Did he tell you then for what purpose he wanted the boat? A. No."
"Q. And he laid out the work to be done? A. Yes."
"Q. What was that work? A.We put heavy stringers inside to hold the boat together, and changed the iron shafts to bronze, and changed any iron fittings in the boat to bronze so that it would stand up in salt water. The bow of the boat was very low and any time a solid wave hit it it went down, so we raised the bow up and we ...