holes clear through them. The barge was an old converted vessel and this condition was solely the result of ordinary wear and tear.
Colonna made the repairs upon the credit of the barge and its charge for the work was $877.50 which was a fair and reasonable charge. Shortly after the repairs were completed on September 22d bills were sent by Colonna to Steel and were entered by Steel as a liability upon its ledger but they have never been paid. At the same time Colonna billed Steel $160 for the cleaning and painting job and this bill was paid by Steel on January 18, 1937.
Upon these facts Colonna claims a maritime lien against the barge and a decree against Steel for the amount of the repairs. It will be observed that the agreement under which Chesapeake had possession of the barge was a bare boat demise charter and contained no restriction upon the right of the charterer to create liens against the vessel for necessary repairs. It undoubtedly placed the charterer in possession of the barge as owner pro hac vice.
Subsections P, Q, and R of the Ship Mortgage Act 1920 (section 30, Act June 5, 1920), 46 U.S.C. §§ 971, 972 and 973, 46 U.S.C.A. §§ 971-973, contain the following pertinent provisions:
Subsection P: "Any person furnishing repairs * * * to any vessel * * * upon the order of the owner of such vessel, or of a person authorized by the owner, shall have a maritime lien on the vessel, which may be enforced by suit in rem, and it shall not be necessary to allege or prove that credit was given to the vessel."
Subsection Q: "The following persons shall be presumed to have authority from the owner to procure repairs * * * the managing owner, ship's husband, master, or any person to whom the management of the vessel at the port of supply is intrusted."
Subsection R: "The officers and agents of a vessel specified in subsection Q, section 972, shall be taken to include such officers and agents when appointed by a charterer, by an owner pro hac vice, or by an agreed purchaser in possession of the vessel; but nothing in this chapter shall be construed to confer a lien when the furnisher knew, or by exercise of reasonable diligence could have ascertained, that because of the terms of a charter party, agreement for 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."
In the light of this statute, the charter agreement containing no contrary provision, it is clear that Chesapeake as owner pro hac vice had full authority to incur a lien against the barge for necessary repairs. The evidence established that Cherry was placed in charge of the barge by Chesapeake and was expressly authorized by it to procure the repairs. Since Chesapeake was in fact authorized to incur liens it is clear that there was no duty upon Colonna to inquire as to the authority of Chesapeake or Cherry, its agent in charge of the barge, to order repairs made at the expense of the vessel. South Coast S.S. Co. v. Rudbach (The South Coast), 251 U.S. 519, 40 S. Ct. 233, 64 L. Ed. 386; The Golden Gate (C.C.A.) 52 F.2d 397.
It follows that a maritime lien arose in favor of Colonna for the cost of the repairs made to the barge at Chesapeake's direction through its agent, Cherry.
Steel does not seriously controvert these propositions but urges that Colonna in fact waived its right to a lien and in making the repairs relied exclusively upon the credit of Chesapeake, the charterer. I am unable to find this to be the fact, however. On the contrary it appeared that while these repairs were being made, Colonna at Cherry's direction did certain cleaning and painting work, which it also billed to Steel. So far as appears both repair jobs were undertaken by Colonna under substantially the same circumstances upon orders from Cherry. It is obvious that the painting job was not undertaken upon the credit of Chesapeake and I am satisfied that the same was true as to the other repairs.
Libelant also seeks a decree against Steel, the owner of the barge. However, since Chesapeake was the owner pro hac vice Steel cannot be held personally liable for the repairs ordered by Chesapeake. McCarthy v. Eggers (C.C.) 1 F. 478. Libelant may, therefore, not have a decree in personam against Steel.
Conclusions of Law.
The Oil Barge U.S. 219 is subject to a maritime lien in the sum of $877.50, in favor of Colonna, representing the cost of necessary repairs furnished to the barge by it.
Colonna is not entitled to a decree in personam against Steel Oil Transport Corporation as respondent.
Colonna is entitled to a decree for $877.50 with interest from January 18, 1937, against Steel Oil Transport Corporation, as claimant, and Indemnity Insurance Company of North America, its surety, upon the stipulation filed in this case.
A decree may be entered in accordance with this opinion.
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