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THE ALJOHN

May 16, 1934

THE ALJOHN; W. & J. TIEBOUT
v.
SETTANNI



The opinion of the court was delivered by: CAMPBELL

CAMPBELL, District Judge.

This is a libel for articles of hardware, fittings, and materials, brought by the libelant against motor oil screw boat Aljohn, in the sum of $393.72, and alleged to have been furnished and delivered upon the credit of said vessel, between the 29th day of June, 1933, and the 31st day of July, 1933.

On June 12, 1933, the Aljohn was chartered by Albert J. Settanni, the owner, to Herbert H. Foster, under a written charter party, which among others contained the following provisions:

 "4. And it is hereby further agreed that neither the said charterer, nor the master of the said Fishing Boat 'Aljohn' shall have any right, power or authority to create, incur, or suffer, or permit to be placed or imposed upon the said vessel any maritime lien, or other lien, or incumbrance or charge, or to incur any debt, obligation or charge upon the credit of the said vessel. And the said charterer shall, in due course, but in any event within fifteen days after the same becomes due and payable or enforceable against the said vessel pay, discharge, and make adequate provision for the satisfaction or discharge of any or all lawful liquidated claims and demands, which if unpaid might, in equity, in admiralty, at law, or by any statute operate as a lien, incumbrance, or charge upon the said vessel, and the charterer shall, in the event a libel be filed against the said vessel during the term of this agreement, or in the event the said vessel is otherwise levied against or taken into custody by virtue of any legal proceedings in any court, within fifteen days thereafter, cause the vessel to be released and the asserted lien or claim to be discharged.

 "5. And it is further understood and agreed that the charterer shall place and cause to be carried on board the said vessel an original copy of this charter party, and shall cause the same to be exhibited to any person having business with the said vessel which might give rise to any maritime lien or to any other lien, incumbrance, or charge whatsoever; and shall cause to be placed and kept permanently in the cabin a typewritten notice reading as follows:

 "'This vessel is chartered by Albert J. Settanni to Herbert H. Foster. Under the terms of the said charter party, neither the charterer nor the master of the said vessel, has any right, power or authority to create, incur or suffer or permit to be imposed upon the vessel, any maritime lien or other lien, incumbrance, or charge of any nature, kind, or description.'"

 "10. Reserving the right to discharge, the charterer shall employ as engineer on the said vessel at his own expense and risk Wilbur Martine of 185 St. Marks Avenue, Village of Freeport, County of Nassau. It is hereby stipulated and agreed that the said Wilbur Martine shall at all times, as representative of the owner, have access to all books and records, vouchers, bills and statements kept by and in the possession of the charterer and having reference to the income of the said vessel. It is further stipulated and agreed that the said Wilbur Martine, or his successor, shall nevertheless be and remain at all times during the term of this charter the servant and agent of the charterer in all respects except as herein specifically set forth.

 "In the event that the said Wilbur Martine is discharged or leaves his position the owner shall have the right to appoint his successor or successors within the foregoing limitations."

 A copy of the charter party was at all times carried on the vessel, and a small copy of the notice and a large placard containing the same information was pasted on the cabin window.

 During all the times mentioned in the libel, the Aljohn was lying in Randall's Bay and not at the foot of South Grove street, Freeport, Long Island, in water identified as Sportsman creek.

 The license of the Aljohn, as indorsed June 29, 1933, shows Herbert H. Foster as master.

 The goods in question were ordered by the said Foster from J. Charles Hecker, credit and office manager and in general charge of the office of the libelant, and were ordered and sold on the credit of the sailing vessel Maritime, and sent to the said Herbert H. Foster, at 415 South Grove street, Freeport, Long Island, N.Y. The said sailing vessel Maritime was said to be lying at the foot of South Grove street, Freeport, aforesaid, in water identified as Sportsman creek. Most of the items mentioned in the several invoices (Exhibit 1) were used on the Aljohn; some were taken elsewhere by Foster.

 At the time that the contract was entered into between Foster and the libelant, no mention was made of the Aljohn, and the libelant knew nothing about the Aljohn and made no investigation as to it.

 No investigation of any kind was made by the libelant to ascertain the truth of Foster's statement that he was the owner of the Maritime, and that the goods ...


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