
    COURTS — ADMIRALTY—WATER CRAFTS — LIENS.
    [Cuyahoga (8th) Circuit Court,
    February 29, 1904.]
    Hale, Marvin and Winch, JJ.
    Robert A. Shailer v. Mark H. Hanlon.
    1. Federal Courts Have Exclusive Jurisdiction or Actions to Enforce Lien Upon Water Crafts Under Sec. 5880 Rev. Stat.
    The federal courts of admiralty jurisdiction have exclusive jurisdictior of actions to enforce the lien upon water crafts created by Sec. 5880-Rev. Stat. for all debts' contracted on account of the building, repairing, furnishing, or equipping of. vessels navigating the waters within or bordering upon the state of Ohio. Such lien cannot be made the basis of an action in the state courts.
    2.-State Court May Construe Sec. 5880 Rev. Stat., Creating Lien Upon . - Water Crafts, When.
    A state court has jurisdiction to construe Sec. 5880 Rev. Stat.', creating a lien upon water crafts, in an action to recover the balance of the purchase price of a vessel, where the vessel is sold and the balance-due therefor is paid into court, and an alleged lienor, who is brought. into the action by interpleader, sets up his lien; and the state court, having all the parties before it, the money- under its control, and after construing the statute, has jurisdiction to direct to whom the money shall be paid.
    3. Supplies Furnished “On Account” of Water Craft Sufficient to Create-LlEN.
    To secure a lien upon a water craft under Sec. 6880 Rev. Stat., the evidence need not affirmatively show that the contract for supplies was made with the understanding on the part of both vendor and vendee that they were furnished on the credit of the boat; it is sufficient if the debt is contracted “on account” of the water craft, unless the evidence shows that the supplies were furnished upon the credit of the owner, charterer, or other persons, and not upon the credit of the vessel.
    4. Coal Sold in Bulk for Navigating Vessel and Other Purposes — Extent-of Vendor’s Lien.
    Where coal is sold in bulk to the owner of a steam vessel navigating the waters of Lake Erie, to be used in navigating the vessel and other purposes at the “crib,” but without distinction or separation, at the time-of its delivery, between that to be used for navigating the vessel and that to be used at the “crin, the vendor is entitled to a lien against the vessel under Sec. 5880 Rev. Stat., to the extent that the coal was used for navigating the vessel.
    Error to Cuyahoga common pleas court.
    Goulder, Holding & Masten, for plaintiff in error:
    Jurisdiction. The John E. Rumbell, 148 U. S. 1, 11 [13 Sup. Ct. Rep. 498] ; Moran v. Sturges, 154 U. S. 256 [14 Sup. Ct. Rep. 1019] ; The Glide, 167 U. S. 606 [17 Sup. Ct. Rep. 930].
    Defendant in error has no lien. The St. Jago De Cuba,'22 U. S. (9 Wheat.) 409; The General Smith, 17 XT. S. (4 Wheat.) 438; The Samuel Marshall, 54 Fed. Rep. 396, 401; Hazlehurst v. The Lulu, 77 U. S. (10 Wall.) 196, 197.
    No coal was sold “on account” of the vessel, as required under Sec. 5880 Rev. Stat.
    The coal was furnished to the company on an agreement as to prices that were to control for the year and there could be no lien. The Iris, 100 Fed. Rep. 104, 106; Cuddy v. Clement, 113 Fed. Rep. 454.
    Russell & Eichelberger, for defendant in error,
    cited:
    Section 5880 Rev. Stat.; Rodd v. Heartt, 88 U. S. (21 Wall.) 558; The John E. Rumbull, 148 U. S. 1 [13 Sup. Ct. Rep. 498]; Moran v. Sturgess, 154 U. S. 256 [14 Sup. Ct. Rep. 1019].
    Has no application whatever to this case.
    It is only proceedings in'rem that dre forbidden to state courts in enforcing these statutes. Hind v. Trevor, 71 U. S. (4 Wall.) 555; Wagoner v. St. John, 57 Tenn. (10 Heisk.) 503; Stewart v. Harry, 66 Ky. (3 Bush) 438; the act of congress of 1789.
    The interpretation of local statutes is for local courts.
    
      Section 5880 needs no interpretation, as its terms are so plain and conclusive that it only needs to be applied to the facts.
    The Ohio statute was not passed as were similar statutes in coast states to supply a seeming' defect in the admiralty law as to domestic vessels, but to give to the lake supply men a security similar to that of the maritime law at a time when it was held the jurisdiction of the admiralty courts did not extend to the lakes. This condition continued until the passage of the act of 1845 extending the admiralty jurisdiction to the lake,'subsequently nullified by the Propeller Genesee Chief v. Fitzhugh, 53 U. S. (12 How.) 443.
    The lien given by the Ohio statute is “coeval and coexistent with the liability,” add is superior to á mortgage and the purchaser takes the property subject to the lien. Johnson v. Ward, 27 Ohio St. 517.
    It is incumbent upon one seeking to deny the lien to show that exclusive credit was given to the owner or master. The Chusan, 2 Story 455, 457 [5 Fed. Cas. 680]; Peyroux v. Howard, 32 U. S. (7 Pet.) 324, 344. (i '
    The necessity of supplies furnished at a foreign port need not be proved as it is in such a case conclusively presumed. 2 Conklin, Admiralty (2 ed.) 596; The Grapeshot v. Wallerstein, 76 U. S. (9 Wall.) 129, 139; Hazlehurst v. The Lulu, 77 U. S. (10 Wall.) 192, 203.
    Necessity for credit is also presumed. Hazlehurst v. The Lulu, supra.
    
    That Hanlon has. an unsecured claim cannot prejudice the claim for which he has a lien under See. 5880 Rev. Stat. There can be no presumption that he waived such a claim. • The H. E. Foster, 3 Ware 165 [11 Fed. Cas. 952].
   MARVIN, J.

The original action was brought by Robert A. Shailer against The Standard Contracting Company, a corporation, to recover a balance due upon the purchase price of the steamer George T. Burroughs, which wás bought by the defendant from the plaintiff. By the contract of sale, the plaintiff guaranteed said steamer to be free of all liens. The amount remaining unpaid upon the purchase price is $950. The defendant in error, Mark H. Hanlon, was brought into the case by inter-pleader, the original defendant by one of its officers filing the proper affidavit that said Hanlon claimed a lien upon the steamer, and said Hanlon was thereupon made a party in the ease and filed his answer,, setting up that he had a lien and the nature thereof.

The steamer was used on Lake Erie in carrying supplies from the dock at the city of Cleveland, Ohio, to what is known as the “crib,” some five miles out in the lake from the dock.

The lien claimed by Hanlon grows out of the following state of facts:

Hanlon was a coal dealer in the city of Cleveland, and for a series of years prior to the year 1901 had furnished coal which was taken upon this steamer and used in part for the navigation of the vessel, and in part was unloaded at the “crib” and used there. Up to the year 1901 the coal so delivered by Hanlon to the steamer was paid for by the owner •or charterer of the steamer.

The steamer, during the greater part of that time, was owned by The Shailer & Schniglau Company, but on or about October 20, 1901, the boat was sold by that company to the plaintiff:. After such sale the boat was chartered by said Shailer & Schniglau Company from the -plaintiff:, and was used in the same way as it had theretofore been used. The owner of the boat, or the agent, made inquiry of Hanlon as to the price at which he would furnish coal to the boat for the season of 1901, •and Hanlon then gave the price at $1.95 per ton. Beyond this, no contract was ever entered into between the parties, except that from time to time during the season of 1901 the master of the boat, and sometimes •some other representative of the parties operating the boat, ordered coal to be delivered to the boat by Hanlon, and this was accordingly done. The coal furnished by Hanlon to, the boat during the season of 1901 •amounted to about 1,200 tons.

At the time that Hanlon first began furnishing coal to this boat it was charged by him directly to the steamer, but during the season of 1901 it was charged to The Shailer & Schniglau Company per Steamer George. T. Burroughs.

Of the coal thus delivered to the boat by Hanlon 225 tons were used for the purpose of navigating the boat. The balance was unloaded at the “crib” for other purposes.

No part of the coal furnished for the season of 1901 was paid for.

No distinction or separation was made, at the time the coal was delivered, between that which was to be used for the navigation of the boat and that which was to be delivered at the “crib.” The coal was simply delivered in bulk and from that bulk such part was used for this navigation as was necessary. Hanlon claims a lien for the coal used in navigating the boat, under See. 5880 Rev. Stat., which reads:

“Any steamboat, or other water craft navigating the waters within or bordering upon this state, shall be liable, and such liability shall be a lien thereon, for all debts contracted on account thereof by the master, owner, steward, consignee, or other agent, for materials, supplies, or labor in the building, repairing, furnishing, or equipping of the same.”

The original defendant comes ¡into court and admits the indebtedness on account of the purchase price of the boat and tenders payment to the party who shall be found to be entitled to such payment.

The court of common pleas held that Hanlon had a lien for the 225 tons used in navigating the boat, at the price of $1.95,per ton, as fixed as the value of the coal delivered, and ordered that the value of this amount at this price should be paid to Hanlon out of the money due from the original defendants.

On the part of the plaintiff in error it is claimed, first, that the court was without jurisdiction to determine this lien and direct the payment of the money to Hanlon, and, further, that even if the court' had jurisdiction, the facts do not entitle Hanlon to a lien.

As to the jurisdiction, it is settled that the liens upon water craft provided' for in the state statutes cannot be made the basis of an action in the state courts, but that the federal courts, having admiralty juris diction, have the exclusive jurisdiction in actions brought to enforce the lien. But that is not the present case. The boat has been sold. The money due upon the purchase price is brought into the state court. A construction of a statute of the state becomes necessary. We hold that the state court has the jurisdiction to construe the statute and that the money, being brought to the court by the party owing it, when the court has construed the statute, it has the jurisdiction to direct to whom it shall be paid. Otherwise, we should have this situation, that Hanlon was called upon to plead in this case. Being so called upon, he must either set up his claim, or ignore the court and commence an action in the federal court. If he had failed to assert his rights in the state court the court might have proceeded to direct the money to be paid to the plaintiff, even though a part of it were due to Hanlon, and the original defendant, being under the jurisdiction of the state court, would be bound to obey the order of the court, and then when Hanlon brought his suit in the federal court the original defendant might be required to pay again the amount of Hanlon’s lien, if it should be determined that he had a lien.

Though this question is not free from doubt, it seems to us that the better reasoning is that the court which has the parties -before it *and the money under its control, and having jurisdiction to construe the statute, should have the authority to direct to whom such money should be .paid. We hold, therefore,. that the court of common pleas had the jurisdiction to determine the rights of the parties in" this case.

There remains the question of whether Hanlon, under the facts, was entitled to a lien. Statutes similar to our own are in force in most, if not all, of the states. They were enacted because, under the .admiralty laws, liens were given only for supplies furnished to a vessel in a foreign port, but these statutes provide for. many things not provided for by the admiralty laws, and whether or not it would be necessary, in order to hold a lien under, admiralty law, for one furnishing supplies to a vessel to show affirmatively that the contract for supplies was made with the understanding on the part of both the vendor and vendee that.such supplies were furnished on the credit of the boat. "We hold that it is not necessary under our statute.

It is said, in the ease of Hazlehurst v. Steamer Lulu, 77 U. S. (10 Wall.) 192, decided by the Supreme Court of the United States:

“Experience shows that ships and vsssels employed in commerce and navigation often need repairs and supplies in course of a voyage, when the owners of the same are absent, and at times and places when and where the master may be without funds, and may find it impracticable to communicate seasonably with the owners of the vessel upon the subject.
“Contracts for repairs and supplies, under such circumstances, may be made by the master to enable the vessel to proceed on her voyage, and if the repairs and supplies were necessary for that purpose, and were made and furnished to a foreign vessel or to a vessel of the United States in a port other than a port of the state where the vessel belongs, the prima facie presumption is that the repairs and supplies were made and furnished on the credit of the vessel unless the contrary appears from the evidence in the ease. ’ ’

The syllabus in the same case reads:

“In the case of a lien asserted against a vessel supplied or repaired in a foreign p.ort, necessity for credit must be presumed where it appears that the repairs and supplies for which a lien is set up, were ordered by the master, and that they were necessary for the ship when lying in port, or to fit her for an intended voyage, unless it is shown that the master had funds, or that the owners had sufficient credit, and that the repairer, furnisher, or lender knew these facts, or one of them, or that •such facts and circumstances were known to them as were sufficient to put them in inquiry, and to show that if they had used due diligence they would have ascertained that the master was not authorized to obtain any such relief on the credit of the vessel. ’ ’

We hold that, under our statute providing for a lien for supplies furnished “on account” of such vessel is sufficient to give the person furnishing such supplies a lien, unless the evidence shows such supplies were furnished upon the credit of the owner, charterer, or some other person, and not upon the credit of the vessel.

Coming, then, to the question of whether because of the fact that the coal, for which this lien is claimed, was furnished in bulk with other coal, no lien could be upheld, we hold that to the extent that this coal was used for the navigation of the vessel Hanlon was entitled to his, lien. We think this holding is justified by the holding of the circuit court" of the United States for the first circuit, in the case of The Kiersall,. 2 Curt. 421 [14 Fed. Cas. 466]. In that case, a statute of 'the state of Maine was being considered. The facts were that certain parties, furnished materials for the building of two vessels of the same pattern and tonnage, in the same way, in the same yard, át the same time. A claim was made that the parties furnishing these materials were, entitled to a lien on each vessel for the materials furnished for both, and the court say upon this question, at page 423:

‘ ‘ The next question which has been argued in this appeal arises out of the following facts. The builders of this vessel were building another of the same tonnage and model in the same yard, at the same time while-this one was being constructed. The libellants furnished materials for-the two vessels without distinguishing between them.”

And on page 425, this language is used in the opinion:

"At the same time, I think that where materials are furnished for two specific vessels, though the original contract does not appropriate them specifically to either, yet when they are afterwards appropriated, they may properly be considered as furnished for that vessel, in the-construction of which they are used.”

As bearing upon the questions arising in this case, attention is called to the case of The H. B. Foster, 3 Ware 165 [11 Fed. Cas. 952] ,

Entertaining the views expressed in this opinion, the judgment of the court of common pleas is affirmed.

Hale and Winch, JJ., concur.  