United States v. Safe Deposit & Trust Co.

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, sub-sec. 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.