PENZA. PANAMA RAILROAD COMPANY, Libellant, v8. STEAMSHIP PENZA. United States District Court, Southern District of New York, Jan. 5, 1925. MARITIME LIENS-253. What Limitations will Defeat Lien-" Charterer Shall Provide and Pay For "-24. Duty of Inquiry as to Authority. Where charter-party provided "that charterers shall pay for coal and provisions," and supply men know that steamer is on charter but fail to ask to see the charter, no maritime lien arises for bunkers and provisions furnished on the master's order. RICHARD REID ROGERS, for Libellant. VICTOR E. GARTZ (CHARLES RECHT, of Counsel), for Claimant. AUGUSTUS N. HAND, D. J.: The Penza belonged to the so-called Russian Volunteer Fleet and was chartered to the firm of Innes & Manu, of Hong Kong, China. Under the terms of the charter party the owners were to pay the wages of the captain, officers, engineer, firemen and crew, insurance and all deck and engine-room stores; the charterers coal and general charges not above enumerated. The charter party also provided that: “*** Although appointed by the owners the captain shall be under the order and direction of the charterers as regards employment, agency, or other arrangement and the charterers hereby agree to indemnify the owners from all consequences or liabilities that may arise from the captain or officers personally or by agents signing bills of lading or other documents or otherwise complying with such orders, "That charterers shall pay all charges and expenses arising from taking coolie passengers and shall supply all provisions, galleys, fitting and fresh water, cooks, medicines, medical stores, doctor, water casks, etc. in every respect in accordance with the government ordinance, and to the satisfaction of the emigration officers. The captain to allow charterers the use of the steamer's water tanks as far as not required for the crew. *** That any expense incurred by steamer being obliged to put into a port of distress in consequence of sickness or mutiny on board on account of passengers to be paid by charterers." The vessel was without adequate funds or provisions and the master 1925 A. M. C. asked for a supply of bunker coal and food supplies at Panama and was supplied upon the order of the master. The question arises whether the captain had authority to bind the vessel. In my opinion the case comes within the decision of the case of The Clio-The Morganza, United States vs. Carver, 1923 A. M. C. 47, 260 U. S. 482, rather than that of The South Coast, 251 U. S. 519. In the latter case the charterer had an option to purchase, and was under the facts found by the Court owner pro hac vice. In the former case there was a clear provision in the charter that the charterer could suffer no lien to be imposed. While in the present case the charter contained no such provision, it does provide that the charterer, and not the owner, shall be responsible for the coal and provisions for which these libels are brought, and the master consequently had no authority to order them at the expense of the owners, or their vessel. I do not think that the charterer had such complete control of the vessel that he was the owner pro hac vice. While the Maritime Lien Act of June 23, 1910, Chapter 373, Sections 2 and 3, was intended to raise a presumption that a vessel is bound for supplies ordered by the master, it provides that "nothing in this Act shall be construed to confer a lien when the furnisher knew, or by the exercise of reasonable diligence could have ascertained, that because of the terms of a charterparty, agreement for the sale of the vessel, or for any other reason, the person ordering the repairs, supplies or other necessaries was without authority to bind the vessel therefor." I am not persuaded that the libellant exercised reasonable diligence to ascertain the terms of the charterparty. In neither case was an attempt made to see it and there is no proof that it was not available. Libellant knew of its existence and the statement of the master that a bond had been given the owner to cover such matters was not important, if true. Ample reason might exist for requiring such a bond because of extreme caution without thereby affecting the legal relations of the parties. The Oceana, 244 Fed. 80. Nor is the fact determinative of anything that a cable was sent to the office of the Russian Volunteer Fleet in Japan to which no reply was received. It would have been much wiser to ask to see the charterparty, which would have told the whole story, and this was not done. Each libel is dismissed, but without costs. HALLFRIED. JOHNSON & HIGGINS, AS TRUSTEES, Libellant, vs. GARFIELD ANILINE WORKS, INC., Respondent. United States District Court, District of New Jersey, January 9, 1925. GENERAL AVERAGE-Bond-Authority of Agent to Give. A person authorized by the consignee's general manager to "take care of the receipt of his cargo for him" has authority to sign a General Average bond for his principal. GENERAL AVERAGE-Contribution-Liability for. A consignee who exercises dominion over his cargo and receives all the benefits thereof, has bound itself to bear its share of salvage sacrifices and expenses. SALE OF GOODS-C. I. F. Where a buyer orders goods which are shipped, and he receives a delivery order and has actually made payment, title to the goods has passed completely. MCDERMOTT, ENRIGHT & CARPENTER (T. CATESBY JONES and M. P. DETELS, of Counsel), for Libellant. AUTENRIETH & GANNON, for Respondent. On libel to recover contribution under average agreement. RUNYON, D. J.: This suit is brought by the general average adjusters as trustees to recover the amount of general average contribution alleged to be due upon a shipment of ninety-nine casks of nitrate of soda, being a part of the cargo of the S. S. Hallfried, on April 19, 1920. Before the shipment in question had been discharged, fire broke out aboard the Hallfried, and the efforts expended in extinguishing the fire gave rise to the lien on the cargo for contribution toward general average expenses. Concerning these features there is no dispute, as witness the following stipulation agreed to by all parties: "While the steamship Hallfried was at Bush Terminal, Brooklyn, discharging cargo from Skien, Norway, and other ports, a fire broke out in one of her holds on April 19, 1920. In extinguishing the fire certain sacrifices were made and losses and salvage expenses were incurred at the request of the master of the Hallfried, which constitute a general average to be borne by the vessel, freight and cargo proportionately." 1925 A. M. C. Pursuant to the custom obtaining in such cases, the nitrate here involved was not delivered until Johnson & Higgins, as General Average Trustees received an average agreement or bond. This bond. was furnished and signed on behalf of the respondent herein by W. A. Williamson as its agent, whereupon the goods were released and delivered to the respondent company, which received and used them. The defense interposed by the respondent to the present suit is two-fold; first, that Mr. Williamson had no authority to execute the agreement in its behalf, and secondly, that the respondent had no ownership in the goods until after the fire had taken place and the expenses been incurred in salvaging the vessel and cargo. The purchase contract for the nitrate bears date February 18, 1920, providing for a sale "c. i. f. N. Y.," and was followed by a letter of March 23, 1920, sent by the sellers to the respondent, and reading in part as follows: "We have your favor of March 20th and we herewith rescind your letter of March 18th and will accordingly deliver to you 20 tons which we have on order for you. "Will you be kind enough to tell us whether we can present papers upon arrival of same and whether you want us to do anything in the line of attending to the shipment for you." This letter was at once forwarded to Mr. Haebler, respondent's president, who subsequently got into touch with Mr. Williamson and requested him to "take care of the matter for him." The Hallfried arrived in New York April 15, 1920, and one day later respondent's secretary sent a letter to the seller's agents enclosing a check in payment for the nitrate and requesting immediate delivery of portions of the shipment, the balance to be held awaiting additional instructions. It was three days thereafter, or on April 19, 1920, that the fire in question occurred, a happening of which both Mr. Haebler, the president, and Mr. Darvin, the secretary of the respondent, were cognizant. Upon the question of express authority in the premises having been given to Mr. Williamson, there is a conflict in the testimony. Mr. Williamson testified that he distinctly recalled having reported to Mr. Darvin the necessity of executing an average agreement, and that Mr. Darvin, who was secretary and general manager of the respondent, in reply told him to "go ahead and sign it." This conversation Mr. 245. Darvin denied, or at least professed having no recollection concerning it. The facts remain, however, that before the matter of signing the average agreement confronted the parties, Mr. Williamson had been instructed by Mr. Haebler to arrange for delivery of the goods on arrival; the goods had been paid for by the respondent; the fire had occurred and both Mr. Haebler and Mr. Darvin knew about it; the delivery order had been put into respondent's possession; respondent was most anxious to get hold of the nitrate, and the market for nitrate, which had been exceedingly low at the time of the original purchase, had advanced four hundred to five hundred per cent., at the time of the fire, thus making it especially desirable to acquire. While these facts are, perhaps, in themselves not wholly determinative, they yet present a situation wherein, seemingly, the most natural thing for respondent to do, having a proper regard for its own interests, would have been to employ some means or agency whereby it might secure possession of the goods in question without delay. In other words, and in view of Mr. Williamson's positive testimony, the attendant circumstances and conditions lend a strong and persuasive plausibility to his recital that this is just what the respondent did. And furthermore, it is undisputed that the goods were delivered to and made use of by respondent. So far as objection is made that Mr. Darvin had no authority to sign such an agreement himself, or to delegate the signing thereof to anybody else, the fact that he was the general manager of the concern, so recognized and accepted in his company's general dealings, clothes him with such authority as to make his acts binding upon his principal. "The terms 'general manager' are words of large meaning. In and of themselves they imply duties and responsibilities which would devolve upon a person having the management and control of the corporate affairs. By giving such a title to this officer the corporation holds him out to the world as its managing agent, its alter ego, as the person having general and supreme authority as the immediate representative of the directors in the conduct of the corporate affairs and in its dealings with the public. To allow a corporation to confer such a title upon one of its officers and thus hold him out to the world as possessing the large responsibilities and powers which are to be im |