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7) Mhe Mani ne Recond. MARITIME LAW. SUPPLIES—PAYMENT—MISREPRESENTATION— EQUITABLE ESTOPPEL—PART OWNER’S NOTE —DISCHARGE ©F OTHER PART OWNERS— PERSONAL LIABILITY OF NOMINAL OWNER FOR SUPPLIES. BORLAND VS. ZITTLOSEN ET AL. U. S. District Court, Southern District of New York. 1. Supplies were furnished to a vessel by one B. who took in payment the 4 month’s note of Z., the ship’s husband. Z subse- quently failed and the note was never paid. On suit brought by B. against the owners an equitable estoppel was set up in defence, on the ground that when the master had funds of the ship in his hands, he had in- quired whether B.’s claim was settled and B. bad said that it had been paid or a settle- ment made with Z., the ship’s husband, whereupon the master paid over the funds to Z. Onthetrial, this. alleged misrepre sentation of B. was not clearly proved, nor was it shown that B.’s reply was intended to effect the payment of his bill by the cap- tain, and further it was not proved that the defendants had been prejudiced by such statement of B. Held, therefore, that the estoppel had not been made out and that libelant should recover. 2. It appearing that when B. took the note of Z., that was the best he could do under the circumstances to obtain payment of his bill, beld, that such taking of Z.’s note by B. did not discharge the other part own- ers. 3. “The law is well settled in thiscountry, that a mere registered owner, holding nominal title only for the benefit of another, and taking no part or interest in the ves<el’s business, is not personally liable for supplies furnished. In such cases, though the vessel jointly liable, and the latter is afterwards altered for the worse through their dealings with the agents, no doubt the owners are discharged. (Macl. Ship. 3 Ed. p. 113 186; Strong vs. Hart, 6 B. & C. 160.) But in this cuse the evidence does not suggest any inti- mation to Borland that he might have pro- cured the money from any other person than Zittlosen. He was the only authorized channel of payment. So far as appears, Borland, in taking Zittlosen’s note, did the best he could to obtain payment. The mas- ter was away; Booth, I think, was known not to be really interested in the matter, and Kruger was kuown not to be the person from whom payment was expected, nor in any condition to pay. Taking the note of Zittlosen was, therefore, not in itself any discharge of the other defendants. (In Salem’s Cargo1Spg. 392; Bottowley vs. Whitlock, 1 Cow. 290; Davidson vs Donald- son, 9 Q. B. Div. 623.) The estoppel relied on is based upon the alleged statements or admissions of Borland, which three witnesses testified were made by him to Kruger in July, 1883' to the effect that he had been paid, or had been settled with, by Zittlosen. If the proofs satisfied me that statements of this kind had been deliberately made by Borland, aud made either with the design to influence the re- mittance of funds to Zittlosen; or under cire cumstances which Borland might reason- atly have supposed would influence the con- duct of the other owners, and that the other owners, relying upon this statement, had may be bound in rem, the master or ship’s agent has no authority to bind the merely nominal owner personally.” Brown, J. This libel was filed to recover a bill of $1441.77 for supplies furnished to the ship Zephyr by the libelant in. January, 1883. The proof shows that the registered owners were the defendants Zittlosen, Springler & Booth; but that Booth was a mere nominal owner, holding his interest for the benefit of the defendant Kruger, a prior registered owner, in whose interest the voyage con tinued to be made as before; that Zittlosen was ship’s husband and general agent of the vessel in New York, and that Booth took no part and had no beneficial interest in her navigation. The amount of the supplies was admitted. The law is well settled in this country that a mere registeced ownei, holding nominal title only for the benefit of another, and taking no part or interest in the vessel’s ‘business, js not personally liable for supplies furnished. In such cases though the vessel may be bound in rem, the master or ship’s -- agent has no authority to bind the merely nominal owner personally. ( Macey vs. “Wheeler, 30 N. Y. 281, 241; Stedman vs. Fielder, 20 N. Y. 437; Scully vs. Reymond 18 Fed. Rep. 547, 549; 550, and cases there ~elted.) ° : : Ifin any such case an equitable estoppel might ariseagainst registered owner through the effect of the registry and the representa- tions of the captain or agent, the estoppel -could not arise where the material man was put upon his guard, or had reason to sup- pose that the registered owner was a merely nominal owner for the benefit of auother, In ‘this ease, 1 think the evidence is sufficient to show that the material man did know ‘that Booth had no actual interest in the ves- ‘sel. In Brodie vs. Howard, (17 C. B. 109, 121,) and Frazer-vs. Cuthbertson, (6 Q. B. Div. 93,) knowledge that a part owner dis- sented was held immaterial. It was held a sufficient detence that the other owners and master had no authority tobind him. Upon either ground the defendant Booth must be held not liable in this case. In September, 1833, the libelant took the note of Zittlosen, the ship’s husband, at four months, for the amount of the bill. Before it matured Zittlosen became insolvent and the note was protested and has never heen paid. The libelant died, aud the case was continued by his administratrix. It is con tended that the other defendants are dis- charged on the ground of equitable estoppel, because the master, before remitting to Zittlosen, tue ship’s husband, several sums of money in August, 1883, amounting al- together to about $7500, caused inqniries to be made of Borland, through Kruger, whether his bill for supplies had been paid, and that Borland, in answer to these in- quiries, stated that it had been paid or settled, by Zittlosen, and that in consequence of this statement the remittances were sent by the master to Zittlosen, and that but for such assurances the master would have paid the libelant’s bill through some other chan- nel, as some question already existed as to Zittloseu’s credit. If a material man voluntarily takes a note or bill from the ship’s husband, or one of the part owners, knowing that he might have the money from the other owners a a afterwards remitted funds to Zittlosen to their prejudice, no doubt a legal estoppel would be madé out against any subsequent claim upon the other owners; for the remittance and the consequent injury would in that case have been charge- able to the wrongful misrepresentation ef the creditor. (Thompson vs Daven port,9 B. & C. 78; Robbins vs, Read, do. 449; Irvine vs. Watson, 5 Q. B. Div. 414: Davison vs. Donaldson, 9 Q. B. Div. 623; Heald: vs. Kenworthy, 10 Exch. 739, 746; Berwitd ve. Schultz, 25 Fed. Rep. 912,920; the Irthington, supra.) Conceding that’ something of the purport alleged was commu nicated by Kruger to the captain, although that fact was not strictly or properly proved, and. that about $7500 Was afterwards remitted by the captain to Zittlosen, in order to constitute an equitable estoppel or an estoppel in pais, the proofs must show: (1) rcasonable certainty as tothe misrepresentation alleged ; (2) an intent that the statements should be acted on, or knowl- édge that the representation was one likely to be acted upon; or that it was of a nature and under circumstances calculated to mislead the other party to his prejudice; (3) and that the other party was thereby induced to act upon it to his prejudice. (Bigelow on Estoppel, 3 Ed. 484, 490, 541549.) [am not satisfied that the tacts and circumstances proved are sufficient to constitute such an estoppel in this case, tor the follow ng rea- sons: ' 1. Certainty as to the facts is the first essential requisite of such an _ estoppel. Bigelow on Estoppel, 490;»Belle of the Sea, 20 Wall, 421, 430.) ‘lestimony as to naked admissions given by witnesses who, though not parties to the record, are in. close sympathy and interest with the party call- ing thein, is one of the most untrustworthy kinds of evidence (Greenl. on Evid. § 200.) In Boxford vs. Burr, (10. Ves, 518,) Sir William Grant say-: “This isin all cases most unsatisfactory evidence on account of the facility with which it may be fabricated and the impossibility of contradicting it; be- sides the slightest mistake or failure of recollection may totally alter the effect of the declaration.”? This was approved by the Chancellor in Boxford vs. Burr, (2 Johns. Ch, 412) and by Story, J.in Smith vs. Burn- ham, (3 Sum, 438.) Under the present practice, which allows parties to be wit- nesses, where such testimony is given after the death of the person alleged to have made the statements, so that only one side can be heard, it is liable to pecullar suspicion, Usually the witnesses cannot give the pre- cise language, nor the whole of it; a little difference of expression, or a slight qualifica- tion omitted, forgotten, or suppressed, might neutralize all its legal effect. In the cases above referred to the absence of corroborative circumstances, with some countervailing proofs, were held sufficient ground for dis- regarding it, leading to the conelusion, as Story J. observes, that “there may have been some mistake or misapprebensions, to say the least, on the part of the witnesses as to the purport and effect of the conversation to which they testified.’’” Where there, are no corroborative circumstances, and the proofs show beyond controversy the incor- rectness of the statements alleged, and that. there was no motive to mistake the fact it is Nuttell, 5 Conn. B., N.S., 122; Muldon php ORS SE a ae Se ee eee Se more rational to suppose misunderstanding or mistake or inaccuracy in the testimony, than to suppose statements made which the circumstances show to be in the highest degree improbable, if net incredible. Such is precisely the situation of the libel- ant’s claim here. At the time the alleged statements are alleged to have been made by Borland, that isin July, 1883, it is per- fectly certain that nota dollar had been Fed. Rep. 912, 920; Keay vs. Fenwick, 1 Com. B. 745, 754.) The libellant is entitled toa decree against all the detendants with costs, except a against Booth, against whom the libel is dis- missed with costs, March 30, 1886. MUTUAL ASSURANCE. As an outgrowth of the recent failure to paid upon his claim, and that no settlement | OTSanize a hull pool in this city, it is now had been made in reference to it; although it is probable from other testimony that some efforts had been made to obtain it. The note was not taken until in September. No motive is suggested that Borland could have had to state untruly that his claim was either paid or settled. Had it been intimated to him that the captain would send him the money for his bill, there is no possible doubt that he would have accepted the proposition at once. No such intimation was given him. 2, Whatever the conversation may have been, it is not stated that there was any sug- gestion to Borland that the inquiry was made in the master’s behalf, or intended to be communicated to the master, or made with reference to securing the payment of the libelant’s bill; or that any remittances of money to Zittlosen were intended. Kruger, to whom the statements are said to have been made, was at the time largely in- debted to the ship, and no payment or settle- ment was expected by Borland through bim: So far as related, the conversation even as testified to, would seem merely casual. Estoppels of this character are based upon the obligation of good faith. This obligation is inutual, aud requires that no estoppel be drawn from conversations merely, unless the person answering inquiries knows, or. has reason from the circumstances to know, that the action of others is likely to be in- fluenced by his answers. (Pierce vs. Andrews, 6 Cush. 4; Bigelow on E toppel, 529, 541, 484.) There was nothing to indi cate anything of this kind to Borland, Whatever the conversations referred to may have been, I am not satisfied ‘that the testi- mony as to Borland’s remarks fairly repre- sents all that occurred; the remarks may have been misunderstood, or imperfectly reported, or not seriotisly meant: he could not have suppored or suspected that they would influence any one’s conduct; they may have'been mere. facetiae or persiflage, or made after the note had been taken in September,—too late to operate as an estoppe’. . 3. To constitute an estoppel it must further appear that the defendants have been legally prejudiced; that is, so sub stantially injured thatit would be unjust to allow the libelant’s demand. The evi- dence fails to show this. The proof shows that both the other owners were indebted to the ship, and to Zittlosen, as the ship’s husband, far beyond all the moneys remitted by the captain, after the alleged statements by Borlind, If the captain had paid Bor- land’s bill, so much Jess would have been remitted to Zittlosen, and the liability of the master and of Kruger’to him have been so much more, Itis not claimed and there is no reason to suppose that the master] would not have sent to Zittlosen the remain- ing $6,000. As a creditor of the ship he was entitled to that money. It is a matter of indifference to these defendants whether their indebtedness was to Zittlosen, alone, or to Borland and Zittlosen. They have lost nothing by paying the whole $7500 to Zittlosen, instead of paying some $1500 of it to Borland, Tha fact that so large in amount of money in excess of Borland’s bill was sent to Zittlosen, renders it improbable that the conduct of the defendants in sending the money to Zittlosen was at all induced by Borland’s statements; or that the master’s inquiry by letter to Kruger was anything more than a mere voluntary friendly act for Borland’s security. Even this view is somewhat doubtful, from the fact that the alleged intention to pay Borland directly, rather than through Zittlosen, if he was not already paid, was in no way communicated to Borland at the time, as it naturally weuld have been if really intended; and that alleged intent even now rests solely upon these long subsequent statements of mere secret uncommunicated intentions at that time. Upon my strong doubts of the correctness of the testimony as to the statements alleged to have been made by Borland, the absence of any cor- roborative circumstances and of any offer to pay him at the time; and upon the evidence showing that there has been no substantial legal prejudice as respects the liabilities of the defendants, on the whole, I must hold the estoppel not made out. (Machl. Ship. 114, 186; The Active. Ole. 286; Robinson vs. Reed 9 B & C. 449; Muldon vs. Whit- lock, 1 Cow. 290; Berwind vs. Schultz, 25 | said that efforts sre being made among ves- ; Sel owners to formulate a practical plan by which they can assume their own ri-ks, and whereby they hope to avoid several | items of expense which it is contended make | hull insurance rates exorbitantly high. [Et jis asserted that such items of expense are berne by owners to the virtual enrichment of parties engaged in wrecking, and the charge is made that many of the insurance companies have profited at the expense of vessel owners, who might save at least 40 per cent of all wreckage charges by assum- ing control of the wreck themselves. The movement has not as yet assumed definite shape, but a great deal of quiet agitation is being done with a view of instituting such measures as will give hull insurance at much lower rates than are charged by the Buffalo underwriters, who practically con- trol the business at present. The idea is to secure the indorsement of a large majority of owners, and having suc- ceeded in this,to enlist the assistance of sonie good, reliable insurance company, in whose office the clerical work of the association can be done, and by whom a portion of the hull risks can be carried. Chicago owners are believed to be in active sympathy with the proposed venture, and if the movement is sufficiently indorsed at this port, an active and immediate effort will be made to secure the assistance of owners all over the lakes. . The heavy and unnecessary salvage ex- penses attending the adjustment of marine disasters has financially wrecked more than one vessel owner, while those whose fortunes are locked up in single vessels have been — compelled to see their property exten up by a system of exorbitant wrecking bills, which have driven them from the business, and in a great measure put a stop to shipbuilding on the lakes.’ : A prominent vessel man said: fam sorry the Bostun Marine Insurance Compaby was not alive to the situation when the Buffalo Managers were here. An opportunity was presented to the Boston Company at that rtime which, had it- been taken advantage of, would have forced the Buttalo gentlemen to assumne a less arbitrary position. If the Boston Company, finding itself practically read out of the hull pool association, had dex clared war at once by making a proposition to vessel owners, pledgitig its resources to assist in taking ri-ks and guaravteeing such rates as would have been equitable and f ir, I believe a successful vessel owners’ mutual assurance company could have been organ- ized. It is no.y too late for this season, but you may rest assuredsthat some such institu- tion will be the result of the present com- plications. Vessel owners generally are not particularly well pleased with the way in which the hull pool’ has been condueted in years past, ‘There is money enough behind the owners, and it requires but a slight ex- ertion on the part of earnest men to once and for all prevent a continuation of the present obnoxious practices. Another year will see such an association in working shape, and it will then be possible to secure risks without. feeling that in case of disaster a man’s property is to be sacrificed in paying all sorts of exorbitant charges, to the ruin of himself individnally and to the virtual extinction of the lake marine.”—Chicago Times, DEATH OF AN OLD LAKE STEWARD. ing, the 8th inst., at hisho» e, No. 32 Fourth street. He leaves a widow and three grown up children, Frank T, and Hugh R. Ryan, of Detroit, and Mrs. Jown Prindiville, jr., of Chicago. The funeral took place at 9:30 a.m. Monday from the church of St. Peter and St. Paul in Detroit. , Mr, Ryan was born in Ireland in the year 1824 and was consequently 62 years of age, . When 12 years of age he came to America with his parents, two brothers and three sisters, and lived in Brooklyn, until 1840. In that year the family moved to Detroit by way of the Erie canal to Buffalo and up Lake Erie. He then went to Lapeer, going most of the way on foot, but returned to De- troit the next year. He commenced sailing in 1842 on the steamer General Scott.. Next Thomas R. Ryan died on Thursday morn- - 4, i paces aint RO Om