
    THE DANA.
    (District Court, E. D. New York.
    February 21, 1921.)
    Maritime liens @=>28—Eight to lien for coal furnished on order of charterer.
    Libelant, who furnished coal to a steam lighter under charter requiring her return free from any liens accruing during the charter period, on orders from one representing both charterer and owner, who told him of the charter, held entitled to a lien under Act June 23, 1910, §§ 1, 3 (Comp. St. §§ 7783, 7785).
    In Admiralty. Suit by B. F. Guinan, Incorporated against the steam lighter Dana.
    Decree for libelant.
    Foley & Martin and James A. Martin, all of New York City, for libelant.
    Gilroy & Townsend and Richard Townsend, all of New York City, for claimant.
   CHATFIRFD, District Judge.

The libelant supplied coal to the Dana, which was owned by the Weehawken Dry Dock Company, and which had been chartered to the Atlantic Ship Salvage Corporation for certain work off the coast of Fong Island during the summer of 1919. The manager of the claimant’s lighterage department was acting under temporary employment as purchasing agent or manager for the Salvage Corporation, and ordered the coal in question. In so doing he had conversations with the vice president of the libelant, in which evidently the fact of a charter of the boat by the Salvage Corporation must have been discussed or understood, and the credit of the Salvage Corporation considered.

The claimant shows that the charter contained the customary provision, that the charterer was to return the boat in the same condition as received, free from all claims and Hens which may accrue during said charter period. The charterer was not only an owner pro hac vice during this period, but evidently the officer ordering the coal represented the charterer as well as the claimant, and therefore is within the class of persons who may, like the master, order necessaries and supplies for the benefit of the vessel, and whose act will bind the vessel, unless, under section 3 of this statute (Comp. St. § 7785), the person furnishing the credit is shown to have known, or could by reasonable inquiry have ascertained, that the person ordering the supplies did not have authority to bind the vessel. Piedmont & George’s Creek Coal Co. v. Seaboard Fisheries Co., 254 U. S. 1, 41 Sup. Ct. 1, 65 L. Ed.-, decided in the Supreme Court of the United States October 11, 1920; The Halteras, 255 Fed. 518, 166 C. C. A. 586.

In the case of the South Coast, 251 U. S. 519, 40 Sup. Ct. 233, 64 L. Ed. 386, it was held that a charter party, requiring the charterer to pay all expenses and save the owner harmless from liens, presumed authority of the charterer to bind the vessel for necessary supplies, and that denials and warnings from the owner could not defeat a lien, if the supplies were furnished to the vessel upon the vessel’s credit when ordered by the master or charterer.

If the supplies were not ordered by the master, but by a person who represented the charterer, and who also in warning the customer as to the solvency of the charterer was attempting to safeguard the interests of the owner, there would be nothing from which the materialman, supplying coal, would have reason to infer that supplies sold to the vessel would not be a lien upon the vessel. In fact, the very warning against selling goods directly on the credit of the charterer would lead the materialman to depend upon his lien, and to sell the goods solely on the credit of the vessel, rather than upon the credit of the person whose solvency was questioned. The South Coast, supra.

The facts in the present case do not show any reliance upon nor personal credit given to the charterer. The circumstances were all those which had existed when supplies had been ordered for various vessels owned by the Weehawken Dry Dock Company, and nothing would rebut the presumption and the positive evidence that credit was given to the vessel, unless definite language had been proven, indicating that an express agreement by the charterer to pay the bill was entered into, and that no lien was to be sought. In fact, a lien might have existed, even though an additional contract in the nature of a guaranty was made. The Piedmont Coal Co. Case, supra; The Bronx, 246 Fed. 809, 159 C. C. A. 111. In the Halteras, 255 Fed. 518, 166 C. C. A. 586, the Circuit Court of Appeals for this circuit has stated that the presumption established by the statute of June 23, 1910 (Comp St. §§ 7783-7787), may be rebutted, unless the supplies be ordered by the vessel’s master, ship’s husband, or other person in charge of the vessel at some place where the owner is not present. But such rebuttal must show facts from which it can be inferred or by which it is proven that credit was not given to the vessel, or that the charter of the vessel, like a time charter (Curacao Trading Co. v. Bjorge [C. C. A.] 263 Fed. 693), does not make the charterer the owner pro hac vice, and. that the charterer has no authority, in the absence of the ordering of supplies by the master, to bind the vessel’s credit.

The libelant may have a decree.  