Opinion of the Court.

254 U.S.

statute for the conflicting state statutes." The act relieves the libelant of the burden of proving that credit was given to the ship when necessaries are furnished to her upon order of the owner, but it in no way lessens the materialman's burden of proving that the supplies in question were furnished to her by him upon order of the owner or of some one acting by his authority. The maritime lien is a secret one. It may operate to the prejudice of prior mortgagees or of purchasers without notice. It is therefore stricti juris and will not be extended by construction, analogy or inference. The Yankee Blade, 19 How. 82, 89; The Cora P. White, 243 Fed. Rep. 246, 248.

The Coal Company relies strongly upon The Kiersage, 2 Curtis, 421, and Berwind-White Coal Mining Co. v. Metropolitan Steamship Co., 166 Fed. Rep. 782; 173 Fed. Rep. 471. The language of the state statutes there under consideration differs from that of the federal act. Furthermore, the state legislation creating liens for work and materials furnished in the repair and supply, as well as in the construction of vessels, are largely extensions of the local mechanic's lien laws applicable to buildings.'

The Coal Company also urges upon our attention The Yankee, 233 Fed. Rep. 919, 925, 927. There the court in sustaining a maritime lien declared that the supplies were delivered not to the charterer but to the vessel, holding that "a materialman may make actual delivery of supplies to a vessel in the maritime sense, by causing them to be transported by rail and water carriers by interrupted stages from point of origin to the vessel side, when the transaction is begun by a valid order indicating that the supplies are for the vessel and are to be delivered to her, and is completed by an actual delivery to the vessel

1 See "Confusion in the Law Relating to Materialmen's Liens on Vessels," 21 Harvard Law Review, 332, and "The New Federal Statute Relating to Liens on Vessels," 24 Harvard Law Review, 182, both by Fitz-Henry Smith, Jr.

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consistent with the instructions of the order and the intentions of the parties giving and accepting it." And in respect to the coal supplied the court there found specifically that "the quantity to be supplied to and daily consumed by the Yankee, was mentioned and considered by the parties.” In the case at bar there was no understanding when the contract was made, or when the coal was delivered by the libelant, that any part of it was for any particular vessel or even for the vessels then composing the fleet. And it was clearly understood that the purchasing corporation would apply part of the coal to a nonmaritime use. The difficulty here (unlike that presented in The Vigilancia, 58 Fed. Rep. 698; The Cimbria, 156 Fed. Rep. 378, 382; and The Curtin, 165 Fed. Rep. 271) is not in failure to show that the coal was furnished to the vessels but in failure to prove that it was furnished by the libelant.

It was also argued that the parties made an express agreement that the Coal Company should have a lien; that is, that they created by agreement a non-statutory lien. The concurrent findings of fact by the lower courts, which we accept (Baker v. Schofield, 243 U. S. 114, 118; La Bourgogne, 210 U. S. 95, 114; The Germanic, 196 U. S. 589, 595;) are to the contrary.



254 U.S.



No. 13, Original. Motion for appointment of commission submitted October 5, 1920.-Decree entered October 11, 1920.

Interlocutory decree defining boundary and appointing commissioners to locate and designate it, etc. See Minnesota v. Wisconsin, 252 U. S. 273.

THIS cause came on to be heard by this court, on the motions and suggestions of counsel for the respective parties, for the appointment of a commission to run, locate and designate the boundary line between the State of Minnesota and the State of Wisconsin, as indicated in the opinion of this court, delivered on the 8th day of March A. D. 1920, [252 U. S. 273], and thereupon and on consideration thereof

It is ordered, adjudged, and decreed as follows:

1. That the true boundary line between the complainant and the defendant in and through Lower St. Louis Bay, Upper St. Louis Bay, and the St. Louis River, from Upper St. Louis Bay to the "Falls" in the said river, is as hereinafter specified.

2. That said boundary line must be ascertained upon a consideration of the situation existing in 1846 and accurately described by the Meade chart, more specifically hereinafter referred to.

3. That said boundary line runs from a point midway between Rice's Point and Connor's Point through the middle of Lower St. Louis Bay to and with the deep channel leading to Upper St. Louis Bay and to a point therein immediately south of the southern extremity of Grassy Point, thence westward along the most direct

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course through water not less than eight feet deep eastward of Fisherman's Island, as indicated by the red trace A-B-C on Minnesota's Exhibit No. 1 (said Exhibit 1 being the Meade chart offered and received in evidence in this suit and now a part of the record), approximately one mile to the deep channel and immediately west of the bar therein, thence with such channel north and west of Big Island up stream to the "Falls."

4. A commission, consisting of Samuel S. Gannett, of Washington, D. C.; William B. Patton, of Duluth, Minnesota; and John G. D. Mack, of Madison, Wisconsin, competent persons, is here and now appointed by the court to run, locate, and designate the boundary line between said States along that portion of said bay and river heretofore described in this decree, and to locate said boundary line by proper monuments, courses, and distances, as fixed by the court in this decree.

5. Before entering upon the discharge of their duties each of said commissioners shall be duly sworn to perform faithfully, impartially, and without prejudice or bias, the duties herein imposed, said oaths to be taken before the clerk of this court or before the clerk of any district court of the United States or before an officer authorized by law to administer an oath in the State of Minnesota or the State of Wisconsin, and returned with their report. Said commission is authorized and empowered to make examination of the territory in question and to adopt all ordinary and legitimate methods of survey in the designation of the true location of said boundary line fixed by the decree, to examine and consider carefully the opinion of this court delivered on March 8, 1920, the said Minnesota's Exhibit 1, being the Meade chart, or a certified copy thereof; and said commission shall do all other matters necessary to enable it to discharge its duties and to obtain the end to be accomplished conformably to this decree,

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6. It is further ordered that should any vacancy or vacancies occur in said board of commissioners by reason of death, refusal to act, or inability to perform the duties required by this decree, the Chief Justice of this court is thereby authorized and empowered to appoint another commissioner or commissioners to supply such vacancy or vacancies, the Chief Justice acting upon such information in the premises as may be satisfactory to him.

7. It is further ordered that said commissioners proceed with all convenient dispatch to discharge their duties conformably to this decree.

8. It is further ordered that the clerk of this court shall forward at once to the governor of each of said States of Minnesota and Wisconsin and to each of the commissioners hereby appointed a copy of this decree and of the opinion of this court delivered herein March 8, 1920, duly authenticated.

9. Said commissioners shall make a report of their proceedings under this decree as soon as practicable on or before the 1st day of May, 1921, and shall return with their report an itemized statement of services performed and expenses incurred by them in the performance of their duties.

10. All other matters are reserved until the coming in of said report or until such time as matters pertaining to this cause shall be properly presented to this court for its consideration.

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