not strictly mariners or seamen, may all sue for their wages in the admiralty because they contribute in their several ways to the preservation and support of the vessel and her crew." The Farmer, Gilp. 531. The charge for services in purchasing the steamer cannot be entertained in this court. It does not spring from a maritime contract. A shipbroker cannot sue in admiralty for services in procuring a charter-party, as they do not arise out of a maritime contract. The Thames, 10 Fed. Rep. 848. Nor do the services of an agent in soliciting freight come within this category. The Crystal Stream, 25 Fed. Rep. 575. Nor is a contract for building a ship, (Cunningham v. Hall, 1 Cliff. 43,) nor for furnishing materials for building a ship, (The Orpheus, 2 Cliff. 29,) a maritime contract. The underlying principle is this: All these are preliminary services leading to a maritime contract. They do not constitute in themselves a maritime contract. Of the same character is the purchase of a vessel. See Edwards v. Elliott, 21 Wall. 532. The service in the purchase of the steamer in this case was not a maritime contract. The claim for advances made to the master and steamer do not come within our jurisdiction. "Admiralty has no jurisdiction over an account between the agent of a steam-boat and its owners for moneys paid for its use." Minturn v. Maynard, 17 How. 477; White v. Dollars, 19 Fed. Rep. 848; Hen. Adm. p. 135, § 47; Bank v. The Charles E. Page, (MS. Cir. Ct. South Carolina, Dec. 1886.) The same conclusion must be reached with regard to the claim for services in coming on the steamer from New York. He was not master, pilot, officer, engineer, fireman, or one of the crew. He only stood for the owner,-a privileged passenger. His service was not in its nature maritime, did not relate to maritime affairs, had no connection with the navigation of the steamer, nor with her equipment or preservation or with the maintenance or preservation of the crew. The libel is dismissed for want of jurisdiction. No decree can be made as to costs. Railway Co. v. Swan, 111 U. S. 387, 4 Sup. Ct. Rep. 510; Blacklock v. Small, 127 U. S. 105, 8 Sup. Ct. Rep. 1096; Mayor v. Cooper, 6 Wall. 250. Each party is responsible to the officers of the court for costs incurred at his instance.

BOVARD et al. v. THE MAYFLOWER.

(District Court, W. D. Pennsylvania. June 1, 1889.)

1. MARITIME LIENS-SUPPLIES FOR RESTAURANT ON BOAT.

Under the Pennsylvania act giving liens against domestic vessels navigating the rivers Allegheny, Monongahela, or Ohio, a lien exists for supplies furnished to an excursion boat, and dispensed to passengers from a lunchcounter kept on board the boat, such supplies having been furnished upon the credit of the boat on the order of the master, a part owner.

2. SAME.

Debts thus contracted for soda-water, cider, and spirituous and malt liquors, supplied to the boat and dispensed thereon to passengers, are liens under the act.

8. SAME.

The lien for a debt thus contracted for provisions supplied to the boat, is not affected by a private agreement between the owners of the boat and the person in charge of the lunch-counter, unknown to lien claimant.

In Admiralty. Sur exceptions to the report of the commissioner distributing the fund in the registry of the court.

E. P. & C. W. Jones, for Wilson, Bailey & Co.

A. Y. Smith, for J. C. Buffum.

Knox & Reed, (E. W. Smith, of counsel,) for W. H. Holmes & Son. J. Chas. Dicken, for G. S. Martin & Co.

D. T. Watson, for Jos. Walton & Co.

Miller & McBride, for report.

ACHESON, J. The Pennsylvania act of April 20, 1858, (1 Purd. Dig. 126,) giving liens against domestic vessels navigating the rivers Allegheny, Monongahela, or Ohio, is awkwardly drawn, but it has always been construed by this court as embracing stores and provisions furnished to any such vessel upon the credit thereof, when ordered by the owners, or by the master or other authorized agent. Under the general admiralty law, necessity, as respects supplies to a vessel, is a relative term, and is open to much latitude of construction. Ben. Adm. § 268. In the case of The Plymouth Rock, 13 Blatchf. 505, it was adjudged that a lien existed for food of various kinds supplied to a vessel engaged in inaking several trips each day between New York and Long Branch, although the food was dispensed to passengers from a restaurant on board the vessel. In the Pennsylvania act the word "necessity" does not occur, nor is there any express limitation as respects the nature of the supplies for which a lien is given. Where the owner himself gives or sanctions the order, there would seem to be no good reason for questioning the existence of a lien because of the alleged absence of necessity, or the supposed unfitness of the articles, if the goods were furnished in good faith upon the credit of the vessel. The Hoyle, 4 Biss. 234, 238; The James Guy, 1 Ben. 112. At least that view should prevail in such a case as this, where the fund for distribution is the surplus remaining after the maritime liens are paid, and all the claimants come in only by virtue of the local statute.

The Mayflower was an excursion boat plying in the vicinity of Pittsburgh, and there was a lunch-counter on board the boat for the accommodation of the passengers. The claim of J. C. Buffum & Co., amounting to $67.32, is for a class of goods designated in the testimony as "soft drinks," principally soda-water and syrup, furnished to the Mayflower in July and August, 1888; and the claim of W. H. Holmes & Son, amounting to $428.20, is for spirituous and malt liquors furnished to the boat in 1887 and 1888. It is shown that, with the knowledge and sanction of Capt. Lewis N. Clark, the master of the Mayflower, and one of her owners, all these goods were sold and delivered to the boat, upon the credit of the boat, and were used on her-sold to the passengers. The claim of George S. Martin & Co., amount

ing to $48, is for cider sold and delivered to the boat upon her credit, on the order of Capt. Clark, and in large part used on the boat by the excursionists and crew. Now, these claims were disallowed upon the ground that the articles were not necessaries. But in view of what I have heretofore said, and under the authorities cited I am constrained to differ from the learned commissioner. The term "provisions" has been held to embrace wines and brandy. Mooney v. Evans, 6 Ired. Eq. 363. Under all the circumstances, I think the debts due these claimants were liens against the Mayflower within the fair meaning of the act. I am unable to concur with the commissioner in his disallowance of $1,178.88, part of the claim of Wilson, Bailey & Co., for provisions furnished to the Mayflower during the few months when Fred Pastre and W. P. Clark ran the lunch-counter under an arrangement with the owners of the boat. It appears that those provisions were furnished under a general order of Capt. Lewis N. Clark. In particular instances, indeed, Pastre ordered some of the goods, but the claimants understood that he was the steward of the boat, and they gave no personal credit to him. In his report the learned commissioner refers to the evidence taken in the case of Marx v. The Mayflower, and treats it as evidence to be considered in this case. But this is not allowable. The present lien claimants were not parties to that suit. It does not appear that the evidence taken therein was offered in this case, and, if it really was, it was only admissible to the extent of showing that Pastre gave contradictory testimony in the two cases. But, independently altogether of Pastre's testimony, it is here clearly shown that Wilson, Bailey & Co., in pursuance of a general order given by Capt. Clark, sold and delivered all said provisions to the Mayflower upon the credit of the boat, and that they were actually used on the boat. Nor is there sufficient evidence to show that these claimants had any knowledge of the alleged arrangement between the owners of the boat and Pastre and W. P. Clark. On the contrary, it satisfactorily appears that they had no knowledge on that subject. In this respect this case differs widely from that of Marx v. The Mayflower.

Touching the claim of Joseph Walton & Co., for the cost of repairing their fuel-flat, the action of the commissioner was entirely correct. The damages to the flat could only be allowed as a lien of the fifth class under the act. And now, June 1, 1889, the exceptions to the commissioner's report filed by J. C. Buffum & Co., W. H. Holmes & Son, and George S. Martin & Co., and the first and second exceptions filed by Wilson, Bailey & Co. are sustained, but all other exceptions are overruled; and the case is recommitted to the commissioner, with directions to correct his schedule of distribution in conformity with this opinion.

HOADLEY et al. v. THE LIZZIE AND CArgo.

(Circuit Court, E. D Louisiana. May 21, 1889.)

1. SHIPPING-CARRIAGE OF GOODS-DELAY.

*

On October 2d libelants chartered a vessel to carry a cargo of lumber; the vessel to be at the port of loading by October 15th, "excepting the acts of God in weather # preventing," and to be loaded as fast as the vessel could receive. Though ready to be moved in two or three days, the vessel was allowed to remain moored at her wharf until October 11th, and did not reach the port of loading until November 2d. She was detained for painting four or five days longer, though it appeared that the painting could have been completed in three days. Fourteen days were consumed in loading, during which time the master was absent, and the loading suspended, for four days. The loading could have been done in six days, and the lumber was ready on October 15th. An old pilot advised the master to clear a certain bar when partly loaded, and have the balance lightered down, offering him lighters, but the master refused. When the vessel arrived at the bar, it could have passed over, but the master was absent, and remained away for six days, during which time he was urged to depart promptly with the cargo. The vessel did not get across the bar until December 22d, having gone aground. Libelants had meanwhile urged lightering, saying that the cargo would be thrown on their hands unless promptly forwarded, and that they would seize the schooner for damages, and had offered the master a tug to haul the vessel over the bar, which he declined. The sale of the cargo was lost by the delay. Held, that the delay in loading and departure violated the charter-party, and entitled libelants to damages.

2. SAME-FREIGHT.

Though the charter-party provided that the freight should be paid in advance on the vessel's being loaded, libelants could properly refuse to pay the freight because of the delay.

In Admiralty. Libel for damages. On appeal from district court. Following is the opinion of the district court, delivered March 20, 1889, by BILLINGS, J.:

"The facts in this case, established by the testimony, are as follows: On October 2, 1888, the master and owner of the schooner Lizzie entered into a charter-party with Hoadley & Co., the libelants, to carry a cargo of lumber of about 90,000 feet, from Jay & Davis' saw-mill, on the Tchefuncta river, near Lake Pontchartrain, to Carthagena, United States of Columbia, South America, the vessel to be at the port of loading by October 15, 1888, excepting the acts of God in weather, such as storms, calms, head winds, preventing.' About the time of the making of the charter-party the schooner was at Morgan City, La., she having her center-board out of order and having it replaced. The charterparty also stipulated that there should be the usual quick dispatch in loading, as fast as the vessel could receive.' The master went to Morgan City. The center-board was replaced in two or three days, but the master allowed the vessel to remain inactive, and to stay moored at the wharf there, until October 11th, when he started for Jay & Davis' mill. It took him six days to come from Morgan City to the Rigolletes, where, by the quarantine, he was detained six days longer, for not having procured a clean bill of health, and he did not arrive at Jay & Davis' mill until November 2d, which will be observed was seventeen days after the time fixed for the commencement of the loading by the terms of the charter-party. Instead of proceeding at once to load, the master left the schooner in charge of a single man, and came to New Orleans and directed the schooner to be put on the ways at Madisonville for painting, where she was detained another four or five days. The evidence

shows that this painting could have been completed in three days. The lumber was ready, and had been ready for a long time prior to October 15th When the master commenced loading he consumed fourteen days in loading the vessel, and the evidence shows that loading could have been accomplished in six days at the outside. During four of these days he again left the schooner, and all work of loading was suspended. Up to this time there was an abundance of water on the bar, even after the master's return. The schooner at that time had nearly her hold load in, and Mr. Jay, one of the owners of the mill, an old pilot, advised him to at once proceed with the cargo in the hold as far as St. Joseph's island, and to have the balance of the cargo lightered down to him at that point; offered him the lighters, and told him he would not have such an opportunity for any great length of time. The master's reply was that he knew his own business. The water on the bar fell. The master went on slowly loading until the 16th November, and loaded the schooner to a greater depth than the water on the bar allowed, and finally started down the river. After he came to the ship-yard, where his schooner had been painted, he again left the vessel anchored in the stream, with only one man, and again came back to the city, where he remained for another period of six days. The testimony of the mate shows that the vessel, after it arrived at the bar, could have passed over; but the master was absent, and there was nobody there to take the vessel over the bar. When the master returned from New Orleans he told the mate that he was going to have trouble with the charterers, and asked him to fix up the log-book so as to fit the master's side of the case, and the log was then commenced. On November 16th the schooner started for the bar, and stuck fast and remained aground until the 16th of December. The master absented himself from November 23d to December 1st, and from December 3d to December 13th, with no one on board but the mate, and a portion of the time a cook, who was not a sailor, but who was sick, and in bed. The schooner finally got over the bar on the 22d of December, when the master came to the city, leaving his vessel at the shipyard. He was told there was urgent necessity for the prompt departure of the cargo to South America. After it was learned that the vessel was aground, the libelants sent a messenger over, urging him lightering, with the statement that the cargo would be thrown on the hands of Hoadley & Co. unless it was promptly forwarded. These representations were made to the mate in charge, who, in the absence of the master, answered that if the proper precaution and energy had been used the vessel at that date-the 22d December -would have already delivered her cargo at the place of destination, and have been on her way back to the United States. The captain was found in New Orleans, and informed that unless the cargo started at once the same would be thrown upon the hands of the charterers, and they would seize the schooner for any damages they might sustain. At the same time they offered him a tug to haul the vessel over the bar. This the master declined. Had there been help on board the schooner to handle her anchors she would have been hauled over the bar, and could have been lightered on the bar, as she was subsequently lightered on this side of the lake, before going into the new basin. The mere taking off of her deck-load would have raised her up seven inches, and she could have gone over the bar at four or five different times. On December 22, 1888, Hoadley & Co. libeled the vessel and cargo, claiming damages $1,189 for breach of charter-party, and on January 14, 1889, the libelants discontinued the proceedings against the cargo, but reserved all rights against the vessel. Furthermore, the evidence shows that in consequence of the delay on the part of the schooner in loading and starting on her voyage the parties at Carthagena, South America, to whom the cargo had been sold, receded from their bargain, as they had the right to do.

The respondents have filed a cross-bill, asking $654 damages. The charter