Appeal from the District Court of the United States for the Eastern District of Wisconsin; Ferdinand A. Geiger, Judge.
Before ALSCHULER, EVANS, and SPARKS, Circuit Judges.
This appeal is from a decree in admiralty ordering the sale of the Steamship Schuyler and three consort barges to satisfy the claims of twelve libellants. Appellant, the owner of the steamship and barges, challenged, in the District Court as well as here, the allowability of the claims filed by the various libellants. It does not question the amount of any claim, if liability therefore exists.
The facts: On November 3, 1933, the Steamship Schuyler, while on a trip from New York to Chicago, with a cargo, was grounded off the Wisconsin shore of Lake Michigan near Marinette. Most of the claims arose out of the operations undertaken to release the vessel. The steamship was sold by the marshal. Funds on hand available for distribution are not sufficient to pay all claims in full.
Appellant owned the Schuyler and as such owner, under a conditional sales contract, sold the same to one Hess, and the National Steam Barge Line Corporation was immediately organized to take over and operate the vessel. It was in charge of the boat when it grounded. Material provisions of the conditional sales contract are set forth in the margin.*fn*
The purchaser had defaulted on the notes before any libel was filed. The vessel was enrolled in the port of New York, appellant being named as the owner, and the certificate of enrollment was on the vessel among its papers. The conditional sales contract was nowhere recorded, nor was there any evidence of it among the ship's papers.
Four questions are argued: (a) In view of the terms of the conditional sales contract, was the master in charge of the steamer authorized to pledge the credit of the steamer for necessary repairs, supplies, towage, salvage and wreaking operations? (b) Were libellants required to make inquiry to ascertain the authority of the master of the ship to bind the steamer for salvage services? (c) Were the libellants Seidl and Angwall, whose claims arose out of salvage work, barred from asserting maritime liens because of an agreement providing for the salvor's compensation made by Captain Clarke with libellants? (d) Are the salvage claimants entitled to priority over other claimants in the disposition of the proceeds of sale?
(a) All libellants are agreed that the first question should be answered in the affirmative. Appellant, however, argues that the vendee under the conditional sales contract was not authorized to create voluntary liens. In support of its position, United States v. Carver, 260 U.S. 482, 43 S. Ct. 187, 67 L. Ed. 361; United States v. Robins Dry Dock & Repair Co. (C.C.A.) 13 F.2d 808; North Coast Stevedoring Co. v. United States (C.C.A.) 17 F.2d 874, are cited. It points to the language of the conditional sales contract:
"The Purchaser hereby undertakes and agrees to keep said vessels free and clear of liens throughout the period they may be in his possession, and while the title thereto remains in the Seller."
Appellees on the other hand, in support of their construction of the contract, rely upon the language of subsection (e):
"Such bills of sale to be made by the Seller and delivered to the Purchaser upon completion of the payment of the purchase price, shall convey title to each of said vessels "as is, where is," but must contain the usual warranty that they are free, and clear of all liens as of the date of this agreement, but subject to such liens, if any, as may be created during the time they are in the possession of the purchaser, * * *"
The contract under consideration in United States v. Carver, 260 U.S. 482, 43 S. Ct. 181, 182, 67 L. Ed. 361, contained no such provision as appears in the contract before us.
The two designs, The South Coast, 251 U.S. 523, 40 S. Ct. 233, 64 L. Ed. 386, and United States v. Carver, supra, determine ...