(289 F.) cross-examination, was legitimate, and strictly in reply, not to anything that Zimmerman had said on cross, but to Zimmerman's categorical denial of acquaintance on his direct evidence. It seems to us that the point is self-evident, although the fullness of cross-examination allowed in the case of a defendant who offers himself as a witness has recently been restated and emphasized in Shipley v. United States (C. C. A.) 281 Fed. 134. Judgment affirmed. THE NEWARK. (Circuit Court of Appeals, Second Circuit. April 9, 1923.) No. 240. 1. Collision 106-Rule of special circumstances applicable, where tug moving in slip near piers. Where one tug is navigating or moving in a slip and near the piers bounding the same, the situation is always regarded as calling into play the rule of special circumstances. 2. Collision 96 Evidence held to require finding that both tugs at fault. In libel for collision between tugs, evidence that libelant's tug was backing out of a slip bounded on one side by piers, as claimant's tug approached the pier end, intending to stop there for orders, but that the latter tug overreached the pier end, at which point the collision occurred, the libelant's tug having blown no slip whistle, but her flagstaff having been observed by claimant's navigators as they approached the pier, held to require decree that both vessels were at fault, one for failure to blow the appropriate slip whistle, and the other for approaching the pier with such speed as to be unable to stop within the time afforded her after seeing the moving flagstaff. Appeal from the District Court of the United States for the Eastern District of New York. Libel in admiralty by the Flannery Towing Line, Inc., against the steam tug Newark, her engines, etc.; the Delaware, Lackawanna & Western Railroad Company, claimant. Decree for claimant, and libelant appeals. Decree modified. Foley & Martin, of New York City (William J. Martin and George V. A. McCloskey, both of New York City, of counsel), for appellant. J. E. Morrissey, of New York City, for appellee. Before ROGERS, HOUGH, and MAYER, Circuit Judges. HOUGH, Circuit Judge. [1] This case is one of navigating, or rather moving, in a slip and near the piers bounding the same a situation always regarded as calling into play the rule of special circumstances. The William A. Jamison, 241 Fed. 950, 154 C. C. A. 586; The Washington, 241 Fed. 952, 154 C. C. A. 588. Libelant's tug, the Quigley, was backing out of the slip bounded on one side by a pier, at the end of which was an office or place of call, to which claimant's tugs were in the habit of resorting for orders. The Newark, belonging to claimant, approached the pier end, intending to stop there and inquire for further directions. She overreached the For other cases see same topic & KEY-NUMBER in all Key-Numbered Digests & Indexes 289 F.-51 pier end, so that her bow collided with the taffrail of the Quigley at a point 6 or 7 feet beyond the termination of the pier end and about the same distance out in the stream; i. e., beyond the end of the slip. The Quigley had blown no slip whistles, but just as the Newark was approaching the place where she intended to make fast at the pier end her navigators saw the flagstaff of the Quigley as she backed out as aforesaid. [2] The foregoing statement is taken from the testimony of the Newark's captain, and on it we are of opinion that that vessel was at fault as well as the Quigley, whose fault, as found below, consisted in failure to blow the appropriate slip whistle. The M. Moran, 254 Fed. 766, 166 C. C. A. 212; McWilliams v. Payne (C. C. A.) 276 Fed. 917. The Newark is at fault for approaching the pier end with such speed that she was not able to stop within the time afforded her on seeing the Quigley's moving flagstaff. In our opinion, had she been moving at moderate speed, appropriate to such crowded navigation, there would have been no collision. The decree below is modified, so as to hold both vessels in fault, and costs of this court are awarded to appellant; costs below to be divided. THE ASCUTNEY. UNITED STATES v. SAFE DEPOSIT & TRUST CO. OF BALTIMORE. (Circuit Court of Appeals, Fourth Circuit. March 23, 1923.) No. 1989. Maritime liens 21-Furnisher of necessaries to charterer, held not entitled to lien. One furnishing necessaries to the charterer of a vessel with knowledge of the terms of the charter party under which the charterer was without authority to bind the vessel held not entitled to a lien, under Act June 23, 1910, § 3 (Comp. St. § 7785), and Merchant Marine Act June 5, 1920, § 30, subsec. R. Appeal from the District Court of the United States for the District of Maryland, at Baltimore; John C. Rose, Judge. Suit in admiralty by the Safe Deposit & Trust Company of Baltimore, executor of the estate of Wilbur F. Spice, deceased, against the United States, as owner of the steamship Ascutney. Decree for libelant (278 Fed. 991), and the United States appeals. Reversed. Arthur M. Boal, Sp. Asst. U. S. Atty., of Boston, Mass. (Amos W. W. Woodcock, U. S. Atty., of Baltimore, Md., on the brief), for the United States. George Forbes, of Baltimore, Md. (Henry L. Wortche, of Baltimore, Md., on the brief), for appellee. Before KNAPP and WOODS, Circuit Judges, and MCDOWELL, District Judge. For other cases see same topic & KEY-NUMBER in all Key-Numbered Digests & Indexes (289 F.) WOODS, Circuit Judge. In November, 1920, the steamship Ascutney, owned by the United States and chartered to the Ascutney Steamship Company, came into the port of Baltimore, in ballast, consigned to Wilbur F. Spice, doing business as Wilbur F. Spice & Co., as agent. The agent paid the charges against the ship for night engineer, quarantine fumigation, launch hire, customs entry, tonnage tax, inward pilotage, and other small items, aggregating $393.34. The District Court held that these advances would have constituted liens against a ship privately owned, and that, therefore, the United States, as owner, is liable for them in personam under section 2 of the Act of March 9, 1920 (41 Stat. 525). The charter provided: "The charterer will not suffer nor permit to be continued any lien, incumbrance, or charge which has or might have priority over the title and interest of the owner of said vessel." By act of June 23, 1910, 36 Stat. 604, § 3 (Comp. St. § 7785), and section 30 of the Merchant Marine Act of 1920 (41 Stat. 988, § 30, subsec. R), the furnisher cannot acquire a lien for necessaries, where the charterer or conditional vendee contracts not to suffer or permit any lien on the vessel, unless the furnisher has failed after reasonable diligence to ascertain that the charter so provides. In this instance the record shows that the furnisher actually knew all the provisions of the charter. It follows that the decree must be reversed, and the libel dismissed, on the authority of United States v. Carver, 43 Sup. Ct. 181, 67 L. Ed., decided January 2, 1923. Reversed. KNAPP, Circuit Judge, who took part in the hearing of this case, died before the opinion was announced. UNITED STATES et al. v. RAPID COALING & TRANSFER CO., Inc. Maritime liens 21-Furnisher of coal to charterer held not entitled to lien. Under Act June 23, 1910 (Comp. St. §§ 7783-7787), as re-enacted by Merchant Marine Act June 5, 1920, § 30, subsecs. P-T, where a company furnishing coal to charterers of a vessel, who were without authority to bind the vessel therefor, did nothing to inform itself of the ownership of the vessel, or of the existence of charter parties affecting it, although such information could have been acquired by the exercise of reasonable diligence, the company was not entitled to a lien for the coal. Appeal from the District Court of the United States for the District of Maryland, at Baltimore; John C. Rose, Judge. Suit in admiralty by the Rapid Coaling & Transfer Company, In For other cases see same topic & KEY-NUMBER in all Key-Numbered Digests & Indexes corporated, against the United States and another. From a decree for libelant, respondents appeal. Reversed, and libel dismissed. Arthur M. Boal, Sp. Asst. U. S. Atty., of Boston, Mass. (Robert R. Carman, U. S. Atty., of Baltimore, Md., on the brief), for appellants. H. N. Abercrombie, of Baltimore, Md. (J. Craig McLanahan, of Baltimore, Md., on the brief), for appellee. Before KNAPP and WADDILL, Circuit Judges, and GRONER, District Judge. WADDILL, Circuit Judge. On the 30th of September, 1920, the United States Shipping Board Emergency Fleet Corporation chartered its ship Awensdaw to the Lowrence Navigation Company, a corporation chartered under the laws of Massachusetts, for the period of three months, upon a bare boat charter. Subsequently, on the 20th of October, 1920, the charterer rechartered the ship to Coale & Co., of New York, for a cargo of coal from Baltimore, Md., to Rouen, obligating themselves to obtain bunkers for the voyage. On the 28th of October, while at the port of Baltimore, the appellee, at the instance of Coale & Co. placed upon the vessel, and incurred incidental expenses in connection therewith, some 936 tons of coal, for which they were not paid either by Coale & Co. or the Lowrence Navigation Company, and thereupon the libel in this case was filed against the United States and the United States Shipping Board Emergency Fleet Corporation, appellants herein. The District Court by its decree of January 14, 1922, adjudged the United States and the United States Shipping Board Emergency Fleet Corporation, owners of the vessel, liable for the amount of the bill, with interest, from which decision this appeal is taken. The sole question presented is whether liability exists against the ship for the amount of said decree. The District Court evidently took the view that under the Act of June 23, 1910, 36 Stat. 604 (Comp. St. §§ 77837787), as re-enacted by subsections P, Q, R, S, and T of section 30 of the Merchant Marine Act of June 5, 1920 (41 Stat. 1005, 1006), a lien existed against the vessel for the claim, regardless of the liability of others therefor. Since this decision was rendered, the Supreme Court of the United States on January 2, 1923, in the case of United States v. Carver, 43 Sup. Ct. 181, 67 L. Ed. 214, held that, where a vessel was being operated by a charterer, no recovery could be had against the ship, where the parties furnishing supplies could, or by the exercise of reasonable diligence would, have ascertained that by the terms of the 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. Under the agreed facts in this case, it is admitted that the appellee did nothing to inform itself as to the ownership of the vessel, or the existence of either of the charter parties affecting the same, and it is fairly deducible from all the facts that there would have been no difficulty in procuring this information by the exercise of reasonable diligence. It follows under the Carver decision aforesaid, and the decision of this court in the case of United States v. Safe Deposit & Trust (289 F.) Co., 289 Fed. 802, decided March 23, 1923, that the decree of the lower court should be reversed, and the libel dismissed. Reversed. KNAPP, Circuit Judge, who took part in the hearing of this case, died before the opinion was announced. DEIBERT BARGE-BLDG. CO. v. UNITED STATES. (Circuit Court of Appeals, Fourth Circuit. May 1, 1923.) Maritime llens No. 2081. 21-Furnisher of goods to prospective purchaser in possession of vessel held not entitled to lien. Where a company which had contracted to purchase a vessel from the United States Shipping Board Emergency Fleet Corporation was in possession of the vessel, and such company's relations with a barge-building company, which performed work on and furnished supplies for the vessel, were such as to charge the barge-building company with knowledge of the existence of the rights of the government, and at all events to have advised it of the true condition respecting such rights, had it exercised the reasonable diligence required of one in its position, held, that it was not entitled to a maritime lien, in view of Act June 23, 1910 (Comp. St. §§ 7783-7787), as re-enacted by Merchant Marine Act, June 5, 1920. Appeal from the District Court of the United States for the District of Maryland, at Baltimore; John C. Rose, Judge. Proceeding in admiralty between the Deibert Barge-Building Company and the United States. From a decree for the United States, the libelant appeals. Affirmed. John H. Skeen, of Baltimore, Md. (S. A. Williams, of Bel Air, Md., and Reuben Oppenheimer, of Baltimore, Md., on the brief), for appellant. A. W. W. Woodcock, U. S. Atty., and Frederick W. Brune, Asst. U. S. Atty., both of Baltimore, Md., for the United States. Before WOODS and WADDILL, Circuit Judges, and McCLINTIC, District Judge. WADDILL, Circuit Judge. The contest in this case is over the distribution of certain funds under the control of the court, arising from the sale of barge Northern No. 44, formerly known as the schooner barge Caskata, and of the right of appellant, the Deibert Barge-Building Company, to a maritime lien on said barge for work. and labor on and materials furnished prior to the sale thereof in these proceedings had by consent of parties, and with the understanding that all rights of lien would be transferred to and preserved against the fund. Appellant filed its libel and intervening petition in the District Court, setting up its indebtedness of $10,518.85, with interest, for which the maritime lien was claimed. The libel charges that the bill was for re For other cases see same topic & KEY-NUMBER in all Key-Numbered Digests & Indexes |