party cannot 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.

The law is even more succinctly stated in the case of the Kate, 164 U. S. 458, as follows:

The principle would seem to be firmly established that when it is sought to create a lien upon a vessel for supplies furnished upon the order of the master, the libel will be dismissed if it satisfactorily appears that the libellant knew, or ought reasonably to be charged with knowledge, that there was no necessity for obtaining the supplies, or, if they were ordered on the credit of the vessel, that the master had, at the time, in his hands, funds, which his duty required that he should apply in the purchase of needed supplies. Courts of admiralty will not recognize and enforce a lien upon a vessel when the transaction upon which the claims rests originated in the fraud of the master upon the owner, or in some breach of the master's duty to the owner, of which the libellant had knowledge, or in respect of which he closed his eyes, without inquiry as to the facts.

If no lien exists under the maritime law when supplies are furnished to a vessel upon the order of the master, under circumstances charging the party furnishing them with knowledge that the master cannot rightfully as against the owner, pledge the credit of the vessel for such supplies, much less one is recognized under that law where the supplies are furnished, not upon the order of the master, but upon that of the charterer who did not represent the owner in the business of the vessel, but who, as the claimant knew, or by reasonable diligence could have ascertained, had agreed himself to provide and pay for such supplies, and could not, therefore, rightfully pledge the credit of the vessel for them.

Where a charterer becomes the owner pro hac vice, as usually occurs in the case of a "bare-boat" charter, necessary supplies ordered by the master will entitle the supplier to a maritime lien under the statute, unless the charter party contains stipulations that were known to the supplier or which he could have readily ascertained, excluding such liens. Thus in the latest decision of the Supreme Court in which the act of June 23, 1910, was construed (South Coast S. S. Co. v. Rudnbach, decided March 1, 1920) a bare vessel was chartered to one Levick, the contract stipulating that Levick was to pay all charges and save the owners harmless from all liens. There was also a provision that the owner might retake the vessel in case Levick failed to.discharge any liens within thirty days, and a provision for the surrender of the vessel free of

all liens, if Levick failed to make certain payments. The master of the ship had been appointed by the owner, but was under Levick's orders. When the supplies were ordered representatives of the owners warned the supplier that the steamer was under charter and that he must not furnish supplies on the credit of the vessel. He disregarded the warning and furnished the supplies and libeled the vessel for his lien. The Court upheld his right to the lien, holding that the warning of the owner was ineffectual because the charterer had become the owner pro hac vice, the master being his agent and not that of the owner, and that

Unless the charter excluded the master's power the owner could not forbid its use. The charter-party recognizes that liens may be imposed by the charterer and allow to stand for less than a month, and there seems to be no sufficient reason for supposing the words not to refer to all the ordinary maritime liens recognized by the law. The statute had given a lien for supplies in a domestic port, and therefore had made that one of these ordinary liens. Therefore the charterer was assumed to have power to authorize the master to impose a lien in a domestic port, and if the assumption expressed in words was not equivalent to a grant of power, at least it cannot be taken to have excluded it. There was nothing from which the furnisher could have ascertained that the master did not have power to bind the ship.

II. Not Sole Remedy. The reader will not be misled into supposing that the absence of a right to a maritime lien means that the debt is uncollectible by legal process. While the admiralty court is closed to the creditor if there be no right to a maritime lien, he has the same remedy as any other creditor by a suit at law to recover the debt or damage from the debtor, or person liable, i. e., the owner, the temporary owner, or the person who ordered the goods or did the damage as the case may be. Such a remedy lacks the peculiar advantages of the maritime lien (§ 2 supra, this chapter). There may also be special remedies open to him under state statutes (but see § 13, this chapter).

12. How Divested.— Maritime items are only completely divested by payment or by an admiralty sale. Laches that is to say delay or sloth—on the part of the lienor may prevent their enforcement against the rights of subsequent lienors or purchasers for value in good faith, but the ship is really only absolutely free from them when she has passed through a sale in proceedings in rem that is, a suit against the ship. This transfers all claims

to the proceeds in the registry of the court and passes a clear title to the purchaser. The Garland, 16 Fed. 283, is illustrative; she had sunk a yacht in the Detroit River with great loss of life; her business was that of a ferry between Detroit, Michigan, and Windsor, Ontario, and her value was about $20,000; libels were filed against her in Detroit on account of the collision and she was then arrested in Windsor, by process from the Maritime Court of Ontario, for a coal bill of $36.30; that court sold her in accordance with the usual admiralty practice. She then resumed her business and was arrested under the Detroit libels. These were dismissed by the United States court because all liens had been divested by the admiralty sale in Ontario and such sales are good throughout the world. No other sales, judicial or otherwise, have this effect since they convey only the title of the owner in the thing and not the thing itself. Maritime liens, therefore, are not divested or affected by the foreclosure of a mortgage, or a sheriff's sale on execution, or a receiver's sale, or any other form of conveyance of an owner's title. Nor are they divested by a writ of execution issued out of a court of common law, nor postponed to such execution. This has been held, even where the execution was in favor of the government.

13. State Liens.- For many years there was an open question in the maritime law of the United States as to the status of liens which arose in the home port of the vessel and numerous conflicting decisions were made by the courts. The effect was that in all cases of liens arising out of contract, like supplies and repairs, the question of upon whose credit the work was done and the supplies furnished became very important; where the transaction was in the home port, there was a presumption that it was on the personal credit of the owner and no lien was allowed; and the theory of home port became extended to include the entire State in which the owner resided. Thereupon all of the states interested in maritime affairs enacted statutes providing for liens upon vessels, both maritime and nonmaritime in their nature, and a sort of admiralty proceeding against the ship to enforce them; the procedure portions of these statutes were generally held void as interfering with the exclusive jurisdiction in rem of the Federal courts, but the liens which they created, if maritime in their nature, were usually enforced. By the act of Congress of June 23, 1910 (as amended and reënacted by the Merchant Marine Act of 1920,

see Appendix), relating to liens on vessel for repairs, towage supplies or other necessaries, it was declared unnecessary to allege or prove that credit had been given the vessel and also provided that the Act shall supersede the provisions of all state statutes conferring liens on vessels so far as they purport to create rights in rem, that is to say, rights against the vessel herself. It is yet unsettled whether those of a non-maritime class survive, as in the case of the lien for shipbuilding which, not being regarded by the admiralty as maritime, has been enforceable under the state statutes.

14. Builders' and Mechanics' Liens.- These may arise upon a ship under the provision of local statutes and be entirely enforceable so long as they do not come into conflict with maritime liens and the exclusive jurisdiction of the admiralty. So, also, a lienor may assert his common-law right to retain possession of the ship until payment is made. This depends entirely on possession and cannot be enforced by judicial proceedings, although it may be recognized by the court when it arrests the vessel on other accounts.

15. Foreign Liens.— Maritime liens often depend on the law of the place in which the obligation is incurred and also upon the law of the ship's flag. In other words, inquiry must frequently be made whether the local law gives a lien, whether the law under which the ship sails gives the master power to create the lien, and whether the country in which the suit is commenced has the legal machinery to enforce the lien. There is no doubt about our own admiralty courts having adequate jurisdiction and equipment to enforce any maritime lien which exists by the law of a foreign country. Its enforcement is a matter of comity and not of right when the parties are foreigners. Thus the maritime lien for collision will generally be enforced wherever the offending ship may be seized, irrespective of the place where the collision occurred. That lien exists by virtue of the general maritime law. On the other hand, there may be a closer question in regard to the lien for supplies. They may be furnished in a port of a country whose laws do not provide such a maritime lien but only give a remedy by attachment of the ship. The tendency of the weight of authority is to enforce such liens in the courts of this country whenever they exist by virtue of the general maritime law, even

if they could not be enforced in the courts of the country where they arose. Possibly this gives a foreigner an advantage here over what he would have at home, but this is not really material.

16. Enforcement of Liens.-This is discussed in Chapter XVII, Admiralty Remedies.

REFERENCES FOR GENERAL READING

Admiralty, Hughes, Chapter XVII.

Admiralty Liens of Material Men, IX American Law Review, 654. Features of Admiralty Liens, XVI American Law Review, 193. Maritime Liens, 4 Law Quarterly Review, 379.

Priorities among Maritime Liens, II University Law Review, 122. The DeSmet, 10 Fed. 483 (excellent annotation).

Lottawanna, 21 Wall. 558.

John G Stevens, 170 U. S. 113.