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THE EVEROSA

July 6, 1937

THE EVEROSA; WILLIAM H. SWAN & SONS, Inc.,
v.
F. GRAUDS KUGNIECIBAS AKD. SAB.; OLIVER REEDER & SON, Inc., v. SAME



The opinion of the court was delivered by: BYERS

BYERS, District Judge.

These causes were tried together because they involve closely allied facts concerning the sale of supplies for the S. S. Munorway during 1934, whereby each libelant seeks to establish a lien against the vessel. The libels were filed April 7 and 9, respectively, 1937.

In each cause, in lieu of evidence, a stipulation has been filed, and brief reference should be made to the facts as so embodied.

 As to the first cause, the libelant is a Virginia corporation, having its principal office in Norfolk. The Munorway called at that port in January, 1934, and her master prepared a list of stores and supplies other than fuel, and delivered it to Taylor & Andrews, the local agents of Munson Steamship Line, to which the vessel was under a 30-day charter.

 The vessel was owned by a Norwegian corporation and her registry was of Oslo. The Munson line owned all but three qualifying shares of stock in that corporation.

 By the terms of the charter, the supplies in question were required to be furnished by the owner, not the charterer.

 Taylor & Andrews submitted the master's list to the New York office of Munson, whence it was returned with the request that the quantity be reduced, in contemplation of a shorter ensuing voyage than the master's instructions had previously indicated, and the supplies were furnished according to an amended list.

 Whether the abbreviation in the list was made by Taylor & Andrews, acting for Munson, or by the master acting for the ship, is not stated in the stipulation. Perhaps, as a practical matter, it comes to the same thing, since Munson in reality was both owner and charterer, though in legal concept the entities were separate. Ct. New York Trust Co. v. Bermuda-Atlantic S.S. Co. (D.C.) 211 F. 989.

 The stipulation as to the placing of the order is that "Libelant's witnesses, if called, would testify that the verbal order for the supplies on the amended list was given either by a representative of Taylor & Andrews, or by the master, or by both together".

 The claimant is without evidence on the subject, because it is a corporation of Latvia which purchased the vessel on August 16, 1934, when she was in Rotterdam, Holland, without knowledge of the fact that the supplies in question had not been paid for. Transfer to Latvian registry and flag at once ensued and the vessel's name was changed to Everosa.

 That purchase was made from the Norwegian corporation and the bill of sale was joined in by the Trustees of the Munson Steamship Line, then in 77B (11 U.S.C.A. § 207) proceedings in the Southern District of New York which had been instituted June 11, 1934. That document contained a warranty, on the part of the debtor corporation, that the vessel was free from liens and that the purchaser would be held harmless from any liens that might have to be paid.

 If that undertaking gives rise to a possible administrative expense of the Trustees, which no one has argued in this cause, and as to which it would not be appropriate to venture an opinion, the equities are rendered quite uncertain.

 The proctor for claimant argues that its only claim would be against the debtor, the time to file which has expired. If that is so, and there is no permission granted to file nunc pro tune, the question of laches, presently to be considered, will be affected by that aspect of the situation.

 The claimant argues, first, that the creation of the lien itself has not been clearly shown, because of the disjunctive form in which the quoted portion of the stipulation is cast; and second, that the libelant has been so lacking in diligence that the libel should be dismissed for laches. The Munorway, having taken the supplies, cleared Norfolk on February 8, 1934. Her subsequent visits to United States ports were as follows: Tampa Arrived Mar. 3, 1934, Sailed Mar. 7, 1934 Tampa Arrived Mar. 30, 1934 Sailed April 3, 1934 New Orleans Arrived Apr. 6, 1934 Sailed May 2, 1934 Freeport, Tex. Arrived May 4, 1934 Sailed May 5, 1934 Mobile, Ala. Arrived May 8, 1934 Sailed May 8, 1934 Norfolk Arrived May 16, 1934 Sailed May 17, 1934 Providence, R.I. Arrived Nov. 26, 1934 Sailed Dec. 8, 1934 New York, N.Y. Arrived Dec. 9, 1934 Sailed Dec. 17, 1934 (1935 -- no visits to American waters.) (1936 -- no visits to American waters.) New York, N.Y. Arrived Jan. 9, 1937 Sailed Jan. 13, 1937 Boston Arrived Jan. 14, 1937 Sailed Jan. 30, 1937 New York, N.Y. Arrived Apr. 5, 1937

 The master of the Munorway died in Norway during July of 1935, and his testimony therefore, as to the giving of the order for the supplies, is not available.

 Whether the lien as asserted ever had a valid inception, is necessarily to be determined.

 The statute (title 46 U.S.C. § 972 [46 U.S.C.A. § 972]) names the managing owner, ship's husband, master, or any person to whom the management of the vessel at the port of supply is entrusted, as those presumed to have authority from the owner, to procure supplies.

 The previous section provides that any one furnishing supplies shall have maritime lien on the vessel, which may be foreclosed without proof that credit was given to the vessel.

 It seems unnecessary to devote time to the discussion prompted by claimant as to the creation of the lien. While the stipulation is in the disjunctive, it is not to be scrutinized as an indictment in a criminal cause.

 If the master and Taylor & Andrews cooperated so as to induce the libelant to furnish the supplies, the precise contribution of each to the result is unimportant. The Munson Line in effect owned this vessel, or its Trustees under section 77B of the Bankruptcy Act would not have joined in executing the bill of sale. Taylor & Andrews represented them and it is no part of the court's duty, as presently understood, to seek to ascertain whether they were functioning in behalf of the owner or the charterer.Presumably it was in the former guise, or there would have ...


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