# The Kalorama the Custer

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United States Supreme Court
77 U.S. 204
The Kalorama the Custer
THE case was exactly the same in both these appeals; which were accordingly argued with one set of briefs, on one set of depositions, contained in one record; the appeals having been, in fact, regarded at the bar as presenting throughout identically the same points. The case was thus:
Morgan, of New York, owning the steamer Kalorama, belonging to that port, and Comstock, of the same place, owning the Custer, belonging to the port of Georgetown, D. C., agreed with one Pendergast, of Baltimore, Md., who was disposed to purchase both steamers, that he should run them for two trips between Baltimore and Charleston, and if, after this trial, he liked the vessels, that he might purchase them. For the two voyages Pendergast was to charge 10 per cent. commission on the gross freights of the vessels, and to disburse the steamers, and to have all freights and disbursements insured for the benefit of the owners; and in case the vessels were not satisfactory after a trial of two trips, Pendergast was to retain them in the Southern trade on the same terms. Pendergast accordingly took the two vessels to make the trips, and the owners of them respectively being at the time in Baltimore, he with their consent changed the master, and selected some of the crew. After the two trial trips he elected not to make the purchase, and subsequently refused to disburse the vessels on the credit of the owners.
While in the port of Baltimore, the steamers needed repairs and supplies to enable them to make their trips to Charleston. The masters of neither vessel had funds which they could apply to the purpose, nor could either procure any on the credit of the respective owners. Pendergast therefore made repairs and furnished supplies to both; all of the repairs being made and the supplies furnished at the request of the masters in the absence of the owners, or at the request of the owners themselves when present in Baltimore, as they frequently were on the arrivals of the steamers in that port; and as the court considered that it was, in every case, 'quite clear' 'with the express understanding that the repairs were so made and furnished on the credit of the steamer.' Part of the supplies and repairs were made during the two trips made under the agreement, and part during two afterwards, but part of the bills had been paid before any libel was filed, and payments were made afterwards also. For the value of the repairs and supplies unpaid for, Pendergast brought a common law suit against the owners in one of the State courts of Baltimore, and while that suit was pending and undecided filed a libel for the same repairs and advances on the admiralty side of the District Court at Baltimore.
The District Court decreed in favor of the libellants, the amount allowed by it being for a less sum than had been disbursed by Pendergast after the first two trips had been made. The Circuit Court, the Chief Justice holding it, reversed the decree, he stating that he thought that a literal construction of the language used by this court in the cases of The Sultana and The Laura made it his duty as a Circuit Judge to do this; but stating it to be his opinion also that the Supreme Court did not, in those cases, intend to establish the law which the language used in the opinions in those cases seemed to announce, and that, considered in connection with the facts of the cases in which it was used, the language was susceptible of a different interpretation, and that this, the Supreme Court, in The Grapeshot and The Guy, which had been argued and were then pending before it, and which involved, as he considered, the same points, might give to it an interpretation, as he himself as a judge of this court might feel at liberty to do, which would necessitate the reversal of his own decrees and the affirmance of those of the District Court.
It was in these circumstances that the appeals came before this court.
Messrs. J. H. Thomas and S. T. Wallis, for the appellants:
Since the recently announced opinions of this court in The Grapeshot and the The Guy, there is nothing open in this case. The former case, explaining the ill-considered language of the opinions in The Sultana and The Laura, settles conclusively that the repairs and supplies, supposing them to have been furnished in the owner's absence, are a lien; and the case of The Guy, where obviously the owner was present, treats that feature as not qualifying the general principle.
We need say nothing about the writs issued out of the State court of Baltimore City; these proceedings in personam, are of course no bar to the right to maintain libels in rem; it being perfectly and long settled that creditors making advances to ships in a foreign port are entitled to a threefold remedy,-against the ship, the master, and the owners; that these are cumulative, not alternative, and that they may all be pursued simultaneously.
The judgment of the Circuit Court must be reversed, and that of the District Court affirmed, as of course.
Mr. William Shepard Bryan, contra:
1. The advances were made in pursuance of a contract entered into with the owners personally, by which the appellants assumed entire charge of the steamers for a series of voyages, and were to receive the specified compensation of 10 per cent. commission on the gross freights. They became the agents of the owners; freighted the ships, collected the freights, and paid their expenses. These agents appointed captain, officers, and crew, ordered supplies, and stood in the place of owners generally. There is nothing in the nature of a maritime lien in the case, but the case is the ordinary one of an agent against a principal for a settlement of accounts, and the remedy is by assumpsit at common law. Indeed, from such common law suit having been brought, it is plain that the suit in admiralty is an afterthought.
2. The claim maintained in the libels is for a tacit or implied hypothecation. Now all the authorities show that no one but the master can create these liens. The owner himself cannot do it, except where he also sustains the character of shipmaster or captain. This seems to be assumed as settled law in The Grapeshot. The Guy hardly decides that if the master be present the lien can exist. Such a doctrine would be in the face of the whole idea and nature of a maritime lien, such as is set up here. That lien exists only in case of a foreign vessel in a foreign port. It is an implied trust, founded on a necessity, and never existing without a necessity, proved or presumed. A constant argument against this class of liens has been that the master or material men could have communicated with the owner. This very argument is made in The Lulu; and that the port was not a foreign port, but, on the contrary, one where the owner was, or could readily come to.
If the lien can be created in a foreign port where the owner is, and appears, and acts, why shall it not exist, coeteris paribus, in the domestic port? Yet it does not exist there. No doubt an owner can either at home or abroad pledge his vessel, or he can sell her, and whether he have credit or no credit, funds or no funds. But an actual pledge is not here set up. The libel proceeds upon the idea of 'a maritime lien,' that sort of implied lien given to persons who, in cases of necessity, repair or supply a foreign vessel in a foreign port at the master's instance; an ancient, well-known, and well-defined lien.
But, independently of that question, everything was in this case defined by a contract, and Pendergast was to make the disbursements.
3. The suit in the State court of Baltimore is still pending. It may be proceeded in to judgment; and if a decree is sustained on this libel, two judgments would be had for the same claim. The pendency of the common law suit is a bar within the maxim, Nemo debet bis vexari pro e adem caus a.
Mr. Justice CLIFFORD delivered an opinion of the court in each of the cases, thus:

## Notes

* ↑ See opinion of the court, infra, p. 214.
* ↑ Thomas v. Osborn.
* ↑ Pratt v. Reed.
* ↑ 8 Wallace, 141.
* ↑ 9 Id. 758.
* ↑ Certain Logs of Mahogany, 2 Sumner, 589, 91; The Paul Boggs, 1 Sprague, 369; Harmer v. Bell, 22 English Law and Equity, 70.
* ↑ Minturn v. Maynard, 17 Howard, 477.
* ↑ The St. Jago de Cuba, 9 Wheaton, 409-416.
This work is in the public domain in the United States because it is a work of the United States federal government (see 17 U.S.C. 105).
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