The opinion of the court was delivered by: CAMPBELL
CAMPBELL, District Judge.
This suit was brought by libellant in admiralty to recover in personam from Henri Vervliet, a subject of the King of the Belgians, the purchaser of the American Motor Vessel Munmotor, the name of which was later changed to Rubens, and in rem against the said Motor Vessel Rubens, formerly Munmotor, etc., to recover the sum of about $2,800, the alleged aggregate value of the following items, with interest and costs:
1. For fuel oil, unbroached stores, supplies, etc., alleged to have been on board the said vessel when title was transferred to respondent, which were not included in the purchase price of the vessel.
2. For the alleged balance of the expense of shifting the vessel from Providence to New York at the request of the respondent, so as to transfer title to and possession of the ship at the latter port, instead of the former as had been originally agreed.
3. For alleged marine insurance premiums and the cost of extending libellant's marine insurance to protect the interest of respondent in the ship pending the transfer of title and until the owner could place his regular insurance.
At the opening of the trial the libellant withdrew the suit in rem against the Motor Vessel Rubens, formerly the Munmotor, and the trial proceeded only upon the suit in personam against the respondent Henri Vervliet.
The $125,000 agreed to be paid for the vessel, was paid, and is not in question here.
At the outset it may be well to dispose of the respondent's attempt to interject, by way of separate defense in this suit, the alleged contract of January 9th, 1940, between Eliot or Eliot Export Corporation and the respondent Vervliet.
Neither Eliot or the Eliot Export Corporation had any claim or title legal or equitable to the Motor Vessel Munmotor, nor did it have any legal and binding agreement for the purchase of that vessel at that date, or at any time with which we have any concern, and any agreement made by Eliot or Eliot Export Corporation to sell the said vessel to the respondent Vervliet, if there was such agreement, was simply an agreement by Eliot or Eliot Export Corporation to sell something he or it did not own, and as to which he or it had no claim, or title legal or equitable, but was merely capitalizing hope, and the libellant herein is in no way bound by any such alleged contract. I allowed much evidence oral and documentary to be offered with reference to the alleged agreement by Eliot or the Eliot Export Corporation to sell the said vessel to the respondent Vervliet, and the alleged surrounding circumstances on the theory that they were to be connected up to bind the libellant, but they were not, and, therefore, such evidence, oral and documentary, requires no further consideration, and will be disregarded.
The respondent was very anxious to obtain the vessel if he could change her reigistry and flag from that of the United States of America to that of the Kingdom of Belgium.
During the latter part of January, and the first half of February, 1940, negotiations for the purchase of the vessel from the libellant for $125,000 were carried on by Eliot or Eliot Export Corporation claiming to be acting as agent for the respondent Henri Vervliet, the libellant being represented in these negotiations from February 1st, 1940, to February 10th, 1940, by its secretary, Irving L. Evans, Esq., who is its proctor in this suit. These negotiations had proceeded to a point where a proposed agreement to sell had been drawn to sell the vessel to the respondent, being represented by Eliot or Eliot Export Corporation as agent, but the authority of Eliot or Eliot Export Corporation to purchase said vessel and sign application to Maritime Commission as the agent for the respondent, not being shown to the satisfaction of the libellant, steps were taken by Eliot or Eliot Export Corporation and Captain Robin, who had been sent from Belgium to take command of the vessel, to meet this objection.
A conversation was had by long distance telephone at which Mr. John D. Hyde was present between New York and Antwerp, Belgium, in which Mr. Eliot, Captain Robin in New York, Mr. Vervliet, and a Mr. Gordon in Antwerp participated. Those in New York spoke English, those on the other side, French.
As a result a cablegram was received by the said John D. Hyde, reading as follows:
"Broadstreet 15 or 150 New York
"I hereby appoint John D. Hyde my power of attorney with full power and authority to represent me and sign on my behalf as purchaser of vessel Munmotor all necessary documents in order to vest to me title to vessel Munmotor free of charter changes indebtedness mortgage liens encumbrances and legally transferred to Belgian flag
"Henri Vervliet 31 Rempart
Captain Robin, the Belgian master, sent over by the respondent to take command of the ship, was in communication with Mr. Hyde, and Mr. Vervliet, also Mr. Evans, and was informed as to the conditions of sale and saw and read the proposed agreement before it was signed, and I am convinced informed his principal, the respondent, as to the terms of the proposed agreement.
On February 15th, 1940, the said John D. Hyde, as attorney in fact of the respondent, signed the agreement of sale, Exhibit 1.
The Motor Vessel Munmotor had been under charter expiring in May, 1940, and some time had been consumed in securing a release which libellant had accomplished.
At the time of signing the agreement said John D. Hyde also signed the application to the Maritime Commission as attorney in fact of the respondent, for leave to sell the Munmotor to the respondent and to transfer her to Belgian registry, and flag, Ex. 2.
The ship was to be delivered at Providence, R.I.
On February 23rd, 1940, the day the Maritime Commission approved the sale of the vessel to the respondent herein, and her transfer to Belgian registry and flag, the said John D. Hyde, as attorney in fact of respondent, while at Washington, D.C., because of lack of dry dock facilities at Providence requested the libellant in writing to change the port of delivery of the Munmotor, from Providence to the port of New York, and offered and agreed, as such ...