(273 F.) interests concerned in the Ohio litigation, we think it enough to say that we find no assertion that the Supreme Court of the District of Columbia has taken any action, or assumed any attitude which, in our opinion, amounts to a surrender of its jurisdiction over petitioner. It does not appear, from the record before us, that that court was ever advised, until about the time its bench warrant was issued (which was in August, 1920), that petitioner had been allowed to leave the hospital. Manifestly, neither the hospital superintendent's knowledge of and attitude toward petitioner's stay in Ohio and his conduct of his litigation therein, nor petitioner's notice to the superintendent that he regarded his connection with the hospital ended, could work a surrender by the trial court of its jurisdiction. It is equally manifest that neither the action which was had by the District Court for the Southern District of Ohio, nor even knowledge and acquiescence on the part of the district attorney either of that district or of the District of Columbia with respect to petitioner's absence from the hospital and his conduct of his litigation in Ohio, could as matter of law, accomplish that result. Even an express consent to that effect by the United States Attorney for either district would be futile until judicially approved by the Supreme Court of the District of Co lumbia. The conclusion, therefore, seems inevitable that, notwithstanding the unusual situation which has grown up during this long period of years, the trial court must be deemed, for the purposes at least of this habeas corpus hearing, still to have jurisdiction over the subjectmatter of the criminal suit and the person of petitioner. 5. We have considered all of petitioner's contentions and have discussed all which seem to justify discussion. The petition contains. more or less allegations addressed to the merits of the criminal prosecution, which manifestly call for no mention. Our conclusion is that the court below properly discharged the writ of habeas corpus. We think, however, that the bench warrant should be interpreted. not (as it seems to have been by the court below) as necessarily ordering the presentation of petitioner for sentence, but rather-in the language of the warrant-"to answer the United States touching the offense charged against him." The trial court may or may not find that petitioner has been restored to sanity. Moreover, so far as appears from the record here, petitioner's motion of August 3, 1910, to vacate the previous order overruling motions in arrest of judgment. and for new trial, has never been passed upon. The disposition of the case, whatever it may be, is in the hands of the Supreme Court of the District of Columbia. We of course intimate no opinion as to what that disposition should be. Subject to the modification we have stated above, the order of the District Court for the Southern District of Ohio discharging the writ of habeas corpus is affirmed. • We interpret the entry of June 26, 1911, as applying to the motion for new trial of the insanity issue. THE PENN. THE LORD BALTIMORE. (Circuit Court of Appeals, Third Circuit. June 18, 1921.) No. 2707. 1. Maritime liens 12-Supplies for restaurant on passenger ship “neces- Supplies for the restaurant of a passenger ship, making 12-hour trips [Ed. Note.-For other definitions, see Words and Phrases, First and 2. Maritime liens 28-Furnisher of supplies on order of charterer held Under a charter party providing that "the working of this charter Appeal from the District Court of the United States for the Eastern Suits in admiralty by Max Fleishman against the steamer Penn and Lewis, Adler & Laws, of Philadelphia, Pa. (Otto Wolff, Jr., of Phil- John Cadwalader, Jr., of Philadelphia, Pa., for appellees. WOOLLEY, Circuit Judge. These cases were argued together, both The Steamers Penn and Lord Baltimore, hailing from the Port of (273 F.) that may arise during the possession of said steamers by the said Harrison or his assignees under (the cited) charter party." The charterer then assigned the charter party to the Washington-Southern Navigation Company, Inc. This corporation operated the Steamers Penn and Lord Baltimore, during the time in question, in the transportation of passengers and freight between Washington and Norfolk, and other Bay points, on a daylight schedule, the vessels, bound on opposite courses, leaving one of the named ports in the morning and arriving at the other in the evening. Each carried ordinarily several hundred passengers and maintained a restaurant service, but the passage money did not include the price of meals. The libelant delivered to the two steamers at Norfolk, Virginia, supplies of the kind, in the amount, and at the prices named in his libels, under orders to which we shall presently refer. These supplies consisted of a variety of things. A few were non-edible, such, for instance, as toothpicks, cigars and matches. But they consisted in the main of food ranging from plain substantial food like potatoes, and bread and butter to delicacies such as spring chicken and ice cream. After payment for the supplies had been refused and libels had been filed, the learned trial judge, on the hearing (first reviewing in the companion case of O'Brian v. Steamer Lord Baltimore [D. C. Pa.] 269 Fed. 824, the law of maritime liens as revised and clarified by the Act of Congress of June 23, 1910, 36 Stat. c. 373 [Comp. St. §§ 7783–7787]), was unable to find from their quantity and character that the supplies "were for the crew or were necessaries," but found that the supplies themselves indicated "that they were intended for a stock in trade to be sold on the ship but in no real sense were intended for her," and on this ground dismissed the libels. These appeals followed. [1] Thus the real question raised by the decree is whether supplies for the restaurant of a passenger ship are necessaries within the maritime sense, for which a maritime lien against the ship can be maintained. * * * There is no dispute about the facts. The steamers were licensed passenger ships; they were provided with dining quarters; the charter party provided "that the owners shall furnish at their expense full equipment for dining saloons, lunch counter, etc., ready for service"; the voyage of about twelve hours which each ship made daily covered a time within which at least one of several meals is ordinarily served; and the supplies, though not of the kind and quality usual for victualing a crew, were not unusual for passengers. There is no hard and fast definition of "supplies or other necessaries" in the maritime law as declared by the act of June 23, 1910. The test of what is necessary is what is reasonably needed in the ship's business. If the ship is a freighter, supplies of the kind and quality usually used for victualing the crew are "necessaries," in that they are needed to enable the ship to prosecute the particular business in which she is engaged. Obviously, supplies of another kind and quality furnished a freighter are not necessaries for which a lien may be enforced under the Act. The Sterling (D. C.) 230 Fed. 543. If the ship is a passenger ship, or, as in this case, partly one, she becomes engaged in another business with other needs in prosecuting the same. Among these needs are supplies for victualing the passengers she carries, considered with regard, as in this case, to the length and character of her voyages. In The Plymouth Rock, 13 Blatchf. 505, Fed. Cas. No. 11,237, where a passenger steamer plied between the City of New York and Long Branch, New Jersey, making several trips a day each way, the court found that food furnished the steamer for its passengers were necessaries, and, though dispensed to passengers through a restaurant, furnished a basis for a lien on the ship. The same principle, though concerned with wages of one engaged in dispensing nourishment on the ship, was invoked in the J. S. Warden (D. C.) 175 Fed. 314, and in cases there cited. Following these cases, the court in The Satellite (D. C.) 188 Fed. 717, though enforcing a Massachusetts statute distinguished from general maritime law only in that it afforded a maritime lien against a vessel in her home port, granted a maritime lien for liquor supplied a passenger vessel, saying: be "If passengers are carried, whatever may be reasonably supposed to meet the ordinary wants of the class of passengers expected must necessaries, whether strictly essential to their safety and comfort or not." Without protracting this discussion, we express the opinion that the law of this line of cases is sound, that the facts of the instant cases invoke its principle, and that, in consequence, the decrees below must be reversed-if the other requisites of a valid maritime lien are present. [2] The next requisite of a maritime lien for supplies or other necessaries furnished a vessel, enforceable by proceeding in rem under the Act of June 23, 1910, is that they must have been furnished upon the order of "the owner or owners of such vessel, or of a person by him or them authorized." Section 1 (Comp. St. § 7783). In cases where supplies are furnished a vessel, when, as here, there is between the owner and charterer an obligation on the part of the latter to protect the vessel and its owner from maritime liens, and the order for supplies is not given by the owner, the statute meets the situation by naming the persons who "shall be presumed to have authority from the owner or owners to procure supplies, and other necessaries for the vessel." Section 2 (section 7784). These are, among others, "any person to whom the management of the vessel at the port of supply is intrusted" (section 2), including officers and agents of a vessel "when appointed by a charterer" (section 3 [section 7785]). But an order for "supplies or other necessaries," even when given by a person with apparent authority, does not sustain a maritime lien when "the furnisher knew, or by the exercise of reasonable diligence could have ascertained, that because of the terms of a charter party, or for any other reason, the person ordering the supplies, or other necessaries was without authority to bind the vessel therefor." Section 3; The Yankee, 233 Fed. 919, 922, 147 C. C. A. 593; The Oceana, 244 Fed. 80, 156 C. C. A. 508. * * * The evidence which was offered to prove that the supplies were furnished on the order of one in authority shows that while the actual (273 F.) orders were given by the stewards of the vessels respectively, they were filled and the supplies delivered at the instance and request of Charles H. St. Johns, the Vice-President and General Manager of the Washington-Southern Navigation Company, Inc. This was the corporation to which the "working of the charter party" had been assigned by the charterer according to the charter party terms, and to which "the management of the (vessels) at the port of supply was intrusted"; and St. Johns was the managing officer of the corporation. We find nothing in the evidence to indicate that the libellant "knew, or, by the exercise of reasonable diligence could have ascertained, that because of the terms of the charter party * the person ordering the supplies, or other necessaries, was without authority to bind the vessel." The Yankee, 233 Fed. 919, 147 C. C. A. 593; The Oceana, 244 Fed. 80, 156 C. C. A. 508. On the contrary, the libellant was led to believe that the steamers belonged to the Washington-Southern Navigation Company, Inc. The libellant asked St. Johns whether the steamers belonged to his company and St. Johns replied that his company had purchased them. We are of opinion that on these facts the supplies were delivered on the order of one in authority within the meaning of the Act. * * * The remaining question is, whether the supplies were delivered to the vessels libeled. As there was no dispute about this, we find that the three essentials of a maritime lien under the Act of Congress of June 23, 1910, as stated by the court below in its opinion and as defined by the Supreme Court in Piedmont & George's Creek Coal Co. v. Seaboard Fisheries Co., 254 U. S. 1, 41 Sup. Ct. 1, have been met, and that, in consequence, the decrees below must be reversed and the libels reinstated. PENNSYLVANIA CO. v. ZAHNER METAL SASH & DOOR CO. et al. (Circuit Court of Appeals, Sixth Circuit. June 17, 1921.) No. 3448. 1. Appeal and error 930 (4)-Verdict presumed to respond to instructions and proof. Where,. in an action to recover for loss of property by fire, defendant was charged with two acts of negligence, one of which would render it liable for the entire loss, and the other for only part of the loss, as the jury were instructed, and the verdict was for a sum much less than the entire loss, as shown by the evidence but approximately the amount claimed under the second cause of action, it must be presumed to have been based on that cause alone. 2. Railroads 222 (5)-Negligence in cutting fire hose proved. The finding of a jury that employés of a railroad company negligently ran a train over fire hose laid across the track, and that but for the cutting of the hose a building adjoining the one then on fire would have been saved, held supported by evidence. 3. Negligence 134 (2)—Provable by circumstantial evidence. Where an allegation that plaintiff sustained injuries by reason of the negligence of defendant is not susceptible of direct proof, it may be susFor other cases see same topic & KEY-NUMBER in all Key-Numbered Digests & Indexes 273 F.-63 |