The opinion of the court was delivered by: BYERS
These causes have to do with the furnishing of fuel oil by the libellant to the vessels named, under a contract with a time charterer, and the questions for determination are whether a lien existed, and if so, whether it has been lost. There are no contested issues of fact.
In the Pajala case the circumstances were these: On July 21, 1931, the ship was chartered in London by its owner (the claimant corporation) to Canadian-American Shipping Co., Ltd., apparently a Canadian corporation of Vancouver, B.C., on time charter (government form) and she continued thereunder until redelivery in England on February 6, 1932. Delivery under the charter was made as agreed at Colon, C.Z., on August 18, 1931. She proceeded thence to Vancouver, stopping at San Pedro for bunker oil, at the charterer's directions.
After a voyage to the Orient, the ship returned to Vancouver pursuant to the requirements of the charterer and proceeded thence to San Pedro, where bunkers were taken again, sufficient for a voyage through the Canal to England.
The Pajala's master was instructed in Vancouver by Captain Wilson, Marine Superintendent of the charterer, to procure enough bunker oil to do this and to have left in her tanks about 100 tons at redelivery.
The charter party contains the following:
The owner pays for provisions, wages, shipping and discharging fees; insurance of the vessel; all stores, and to maintain the vessel's class and keep the steamer in an efficient state in hull, machinery, etc.
The charterer "shall provide and pay for all the bunker oil, except as otherwise agreed," port and other usual expenses.
Charterer accepts bunker oil on board at delivery, and owners at redelivery, at agreed prices.
"30. Charterers to supply first-class Diesel oil of quality suitable for the vessel."
No other provisions of the document seem to bear upon this controversy.
The charterer had a contract dated September 30, 1929, with the libellant, which was in force until January, 1932, for the supply of fuel oil "for the operation of its (the charterer's) vessels owned, controlled or operated under charter," delivery to be at wharf, or barge or lighter, as stated, at various ports, including San Pedro.
The second taking of bunkers at San Pedro was completed on December 6, 1931, and 2,380.65 barrels of Diesel oil were delivered by barge or lighter at the contract price of $2,380.65. This was payable by the charterer, according to the contract, on January 10, 1932, and was billed accordingly. The only other efforts to collect the bill consisted in writing a letter requesting payment and the making of oral requests.
Bankruptcy proceedings against the charterer ensued in July of 1932, in Canada, and a trustee was appointed ...