The opinion of the court was delivered by: BYERS
The claimant has filed exceptions and exceptive allegations to a libel against the Norwegian S/S Trajan, to recover for stevedore services rendered under contract with the charterer of the ship.
The matters so presented fall within local Admiralty Rule 21 and the cause is therefore appropriate for disposition as therein contemplated. There is no apparent dispute as to the facts, but argument is made concerning the legal effect to be attributed to them. In other words, if the cause were to proceed to a hearing, the following would emerge as the ultimate facts:
A. The ship is of Norwegian registry, and during the period between September 10, 1953 and January 7, 1954 was owned by the claimant Aksjerederiet Julian, a corporation of Norway.
B. During the dates mentioned she was under charter to Marine Transport & Terminal Co. S.A. (to be called Marine) of which Bercovici Navigation Agency, Inc. (to be called Bercovici) was the agent of the charterer in New York.
C. The charter party bears date of March 17, 1953 and was entered into in New York between the then owner Hillmar Reksten and the said charterer. The date of transfer of title to the ship has not been stated, but it is not asserted to have been later than September 10, 1953, when the stevedoring services alleged in Article 4 of the libel were begun in the Port of New York.
D. The master of the ship then, and at the filing of the libel, was Thorleif Wibe.
E. The charter contains the following provision:
'* * * Charterers will not suffer, nor permit to be continued, any lien or encumbrance incurred by them or their agents which might have priority over the title and interest of the owners in the vessel.'
A true copy of the charter at all times material to this controversy was in possession of the said master on the ship.
F. The stevedoring contract between libelant and Bercovici pursuant to which the stevedoring services were rendered which are described in the libel, bears date of June 15, 1950. Bercovici is therein described as 'Owner, Agent or Charterer.'
G. The said contract for present purposes was between libelant and Bercovici as agent for the charterer above named.
H. The libelant did not at any time between the dates named in 'A' above visit the S/S Trajan while she was in this port, and interrogate her master Wibe concerning any aspect of the relationship between the charterer and the owner; nor ask to examine the copy of the charter which was in his custody and possession.
I. The said stevedoring services were not performed at the request of the said master directly or indirectly.
J. For present purposes it is assumed that on August 11, 1953, Gans, the comptroller of libelant, called upon Lazar Bercovici in the office of his company, herein called Bercovici, of which he is president. He is also president of Marine, the charterer of the S/S Trajan. It is likewise assumed that Gans discussed monies due for work done under the contract referred to in 'F' on sundry vessels, including the S/S Trajan, and ...