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Opinion of the Court.
treated that company as the owner of all the vessels used on its line. This is apparent from the opinion, which states that "whether the coal was furnished on the credit of the vessel or of the owners is the only point of inquiry in this case."
Nor is there anything in The Guy, 9 Wall. 758, which bears directly on the question now presented. The opinion was very brief and stated nothing more than that upon the facts established that case was governed by the principles announced in The Grapeshot, decided at the same term. According to the reporter's statement of the facts it was a case of repairs ordered by one claiming to be the proprietor and agent of the company operating the vessel, and who "seemed to have been the owner." It was substantially the case of necessary repairs made pursuant to an agreement or understanding with the owner that they were made on the credit of the vessel, the owner himself being known to be insolvent and unworthy of credit.
In the present case, the question of lien or no lien on the vessel arises under circumstances not disclosed or discussed in any of the cases upon which libellants rely. Although the libellants were not aware of the existence of the charter party under which the Valencia was employed, it must be assumed upon the facts certified that by reasonable diligence they could have ascertained that the New York Steamship Company did not own the vessel, but used it under a charter party providing that the charterer should pay for all needed coal. The libellants knew that the steamship company had an office in the city of New York. They did business with them at that office, and could easily have ascertained the ownership of the vessel and the relation of the steamship company to the owners. They were put upon inquiry, but they chose to shut their eyes and make no inquiry touching these matters or in reference to the solvency or credit of that company. It is true that libellants delivered the coal in the belief that the vessel, whether a foreign or a domestic one, or by whomsoever owned, would be responsible for the value of such coal. But such a belief is not sufficient in itself to give a maritime lien. If that belief was founded upon the supposition that
Opinion of the Court.
the steamship company owned the vessel, no lien would exist, because in the absence of an agreement, express or implied, for a lien, a contract for supplies made directly with the owner in person is to be taken as made "on his ordinary responsibility, without a view to the vessel as the fund from which compensation is to be derived." The St. Jago de Cuba, 9 Wheat. 409, 416, 417. And if the belief that the vessel would be responsible for the supplies was founded on the supposition that it was run under a charter party, then the libellants are to be taken as having furnished the coal at the request of the owner pro hac vice, Stephenson v. The Francis, 21 Fed. Rep. 715, 717, The Samuel Marshall, 54 Fed. Rep. 397, 399, without any express agreement for a lien, and in the absence of any circumstances justifying the inference that the supplies were furnished with an understanding that the vessel itself would be responsible for the debt incurred. In the present case, we are informed by the record that there was no express agreement for a lien, and that nothing occurred to warrant the inference that either the master or the charterer agreed to pledge the credit of the vessel for the coal.
In Beinecke v. Steamship Secret, 3 Fed. Rep. 665, 667, United States District Court for the Southern District of New York, which was a suit against a vessel owned by a foreign corporation having an office and transacting business in New York, and with good credit there, but operated by Murray, Ferris & Co., a New York firm, under a charter party requiring the charterers to furnish all supplies, Judge Choate said: "They [the libellants] knew they were dealing with New York parties, and not with the foreign owner or the master, who presumably represents the owner; and they were put upon inquiry as to the interest and relation of Murray, Ferris & Co. to the vessel, and are chargeable with the facts they might have ascertained on such inquiry. They could easily have learned that Murray, Ferris & Co. had no right or power to bind the owners or the vessel for the supplies, and that they were, in fact, the owners, so far as concerned parties supplying the ship." So, in The Norman, 28 Fed. Rep. 383, 384, Judge McKennan said: "But Murray, Ferris & Co. [the
Opinion of the Court.
charterers] were residents of New York, at which port the vessel was lying when the coal was furnished, and they furnished it directly, without the intervention of the official representative of the vessel. They were owners pro hac vice, because they had possession of the vessel, and she was at their "sole disposal" until the end of the charter. These facts repel the implication that the coal was furnished upon the credit of the vessel, but warrant the inference that it was furnished upon the personal credit of the charterers and ostensible owners. At least they were sufficient to put the libellant upon inquiry as to the actual relations of Murray, Ferris & Co. to the vessel, and their obligations under the charter party; and this must have resulted in the knowledge that the act of the charterers could not, under the circumstances, impose a lien upon the vessel." In The Samuel Marshall, 49 Fed. Rep. 754, 757, affirmed in 6 U. S. App. 389, Judge Severens said: "If the vessel is then in the use, possession and control of others than the owner, a presumption arises that such others are liable to pay the charges incident to the employment; and if the party furnishing the supplies knew, or should have known, the facts in regard to the use and control of the vessel, there is the same reason for the presumption against the credit being given to the vessel, when the charterer or other person standing in a similar relation to the vessel resides at the port of supply, as in cases where the owner operating the vessel on his own account resides at such port, and where there is the same reason there should be the same law." See also The Suliote, 23 Fed. Rep. 919; The Pirate, 32 Fed. Rep. 486; The Glenmont, 34 Fed. Rep. 402; The Golden Gate, 1 Newberry, 308.
Under what circumstances, if under any, a charterer who has control and possession of a vessel under a charter party requiring him, at his own cost, to provide for necessary supplies and repairs, may pledge the credit of the vessel, it is not necessary now to determine. We mean only to decide, at this time, that one furnishing supplies or making repairs on the order simply of a person or corporation acquiring the control and possession of a vessel under such a charter party can
Opinion of the Court.
not acquire a maritime lien if the circumstances attending the transaction put him on inquiry as to the existence and terms of such charter party, but he failed to make inquiry, and chose to act on a mere belief that the vessel would be liable for his claim.
For the reasons stated the question certified to this court is answered in the negative.
PIM v. ST. LOUIS.
ERROR TO THE SUPREME COURT OF THE STATE OF MISSOURI.
No. 180. Argued January 27, 1897. Decided February 1, 1897.
No Federal right was set up in this case until after the final decision of the case by the Supreme Court of Missouri; and then by a petition for rehearing. Held, that the claim of a Federal right came too late, so far as the revisory power of this court is concerned.
THE case is stated in the opinion.
Mr. Leverett Bell (with whom was Mr. Henry B. Davis on the brief) for plaintiff in error.
Mr. W. C. Marshall appeared for defendant in error, but the court declined to hear further argument.
MR. JUSTICE HARLAN delivered the opinion of the court.
This was an action for the recovery of certain real estate in the city of St. Louis of the possession of which the plaintiff in error, who was the plaintiff below, alleged that she was illegally and wrongfully deprived by the defendants. The city denied the plaintiff's claim, and relied upon continuous adverse possession for ten years prior to the accruing of the plaintiff's cause of action.
We held at the present term in Chicago & Northwestern
Opinion of the Court.
Railway v. Chicago, 164 U. S. 454, 457, as had frequently before been adjudged, that this court could not review the final judgment of the highest court of the State, alleged to have denied a right protected by the Constitution of the United States, unless such right was specially set up or claimed in the state court by the party against whom the judgment was rendered. Rev. Stat. § 709.
It is contended on this writ of error that the judgment below deprived the plaintiff in error of her property without due process of law, and that this result was accomplished by applying to the case a certain statute of limitations of Missouri as construed and enforced by the highest court of that State.
Upon inspecting the record, we find that no Federal right was set up or claimed, in any form, until after the final decision of the case by the Supreme Court of Missouri, and then by a petition for rehearing. That petition was overruled by that court without any determination of the alleged Federal question, indeed without any allusion to it. The claim of a Federal right came too late, so far as the revisory power of this court is concerned. Loeber v. Schroeder, 149 U. S. 580, 585; Sayward v. Denny, 158 U. S. 180, 183.
It is contended that the cases of Huntington v. Attrill, 146 U. S. 657, Marchant v. Pennsylvania Railroad, 153 U. S. 380, and Scott v. McNeal, 154 U. S. 34, recognized some exceptions to this general rule. But an examination of the first and last named of those cases, as reported, will show that a Federal right was specially claimed in and was passed upon by the state court. In Marchant v. Pennsylvania Railroad it does not distinctly appear from the opinion of the court that the Federal right alleged to have been violated was specially claimed in the state court. But the record of that case shows not only that such was the fact, but that the jurisdiction of this court in that case was beyond question.
The writ of error must be dismissed for want of jurisdic