1923 A. M. C. of the tugs, and that tugs owed a duty to the barges to stand by and see to their safety. Decree for libellant. Following The Atlas No. 5, 272 Fed. 171; The May McGuirl, 256 Fed. 20; Doherty vs. P. R. R. Co., 269 Fed. 959, and The Wm. G. Howard, 252 Fed. 85. MACKLIN, BROWN & VAN WYCK (RICHARD F. LENAHAN, of Counsel), Proctors for Libellant. KIRLIN, WOOLSEY, CAMPBELL, HICKOX & KEATING (ROBERT S. ERSKINE, of Counsel), Proctors for Claimant. THE SANTA RITA. AMERICAN FUEL OIL & TRANSPORTATION COMPANY, ET ALS., Appellants, vs. JOHN R. ADAMS & COMPANY, ET ALS., Appellees. AMERICAN FUEL OIL & TRANSPORTATION COMPANY, ET ALS., Appellants, vs. SABINE ICE, WATER & TOWING COMPANY, ET ALS., Appellees. United States Circuit Court of Appeals for the Fifth Circuit, Mar. 22, 1923. Before: WALKER, BRYAN and KING, Ct. JJ. Appeals from the District Court of the United States for the Eastern District of Louisiana. SUPPLIES-ACCOUNTS. Supplies were furnished by libellants to steamers of respondents. The only question was as to the accuracy of the accounts. The lower court found on the evidence that libellants had furnished the ship with the supplies, for the payments of which this suit was brought. The judg ment was affirmed. GEORGE DENEGRE, VICTOR LEOVY, HENRY H. CHAFFE and HARRY MCCALL, for Appellants. JOHN D. GRACE and M. A. GRACE (JOHN D. GRACE, M. A. GRACE and EDWIN H. GRACE, on the brief), for Appellees. SUBMARINE BOAT CORPORATION AND TRANSMARINE United States District Court, Southern District of New York, April 9, 1923. PRACTICE-REMOVAL FORM STATE COURT-ACTION FOR PERSONAL INJURY AGAINST OWNER AND CHARTERER JOINTLY-SEPARABLE CONTROVERSY. Where the complaint alleges joint liability for a tort, and the facts pleaded could not support a joint liability, the controversy is separable, and the whole action may be removed from the State to the Federal Court if there is diversity of citizenship. DAVID M. FINK and JACQUIN FRANK, for Plaintiff. BIGHAM, ENGLAR & JONES (Mr. GEORGE S. BRENGLE), for Defendants. On motion to remand to New York State Court. AUGUSTUS N. HAND, D. J.: This is a motion to remand this action to the New York Supreme Court from which it was removed because it was said to involve a separable controversy. The complaint alleges that the steamship Suhoclo was owned by The Submarine Boat Corporation and that the Transmarine Corporation was the charterer and in control and operation of the steamship; that while the Suholco was being unloaded by the Stevedoring Company, the plaintiff, while engaged in work on the vessel, through the negligence of the defendants, was struck by a This volume may be cited as 1923 A. M. C. 459 1923 A. M. C. bucket which came down upon him due to a defective winch with which the plaintiff was required to work. The complainant further alleges: "That the defendants, their agents, servants and employees were reckless, careless and negligent in that after having invited plaintiff on to the said vessel they failed to take reasonable care in avoiding injury to him and in that they permitted the equipments, tackle and appliances of the said vessel to be and remain in a rotten, broken, worn and defective condition rendering the said vessel and its appliances unseaworthy for the purpose of being unloaded, by reason thereof injuring the plaintiff.” It is true that the question of removal is to be determined by the face of the complaint, not, however, by conclusions pleaded, but by facts. Coker vs. Monaghan Mills (1904), 110 Fed. 803; McIntyre vs. Southern Ry. (1904), 131 Fed. 985. If the charterer was in control and operation of the ship and the charter a demise, it alone would be liable; if not, the owner would be liable. There is apparently no joint liability in analogous cases to invitees or licensees. Coker vs. Monaghan Mills (1904), 110 Fed. 803; Yeates vs. Illinois Central (1905), 137 Fed. 943; Hamnstrown vs. New York Contracting Co. (1907), 122 N. Y. A. D. 43; Brown vs. Thompson Starrett Co. (1910), 139 N. Y. A. D. 632; Crosby vs. Cowen & Co. (1910), 141 N. Y. A. D. 369. There is accordingly no possibility under the facts pleaded of joint liability here and consequently the separable controversy between the plaintiff, a citizen of New York, and the Transmarine Corporation, a New Jersey corporation, entitled the latter to remove the whole action to this Court. Judicial Code, Sec. 28; Barney vs. Latham (1880), 103 U. S. 205; Geer vs. Mathieson Alkali Works (1903), 190 U. S. 428; Venner vs. Southern Pacific Co. (1922), 279 Fed. 832. The motion to remand is denied. SCHOONER ANNA R. HEIDRITTER. 08. SCHOONER ANNA R. HEIDRITTER. United States District Court, District of Massachusetts, April 3, 1923. MARITIME LIENS-ADVANCES ON CREDIT OF SHIP SUPPLIES AND NECESSARIES-MONEY USED FOR OTHER PURPOSES. 1. Where shipbrokers made advances to the captain of a vessel with whose owners they had never had dealings and about whose credit they made no inquiry, such advances were made solely on credit of the vessel. 2. A lien arises against a vessel for advances used to pay off the crew and meet other necessary expenses. 3. Where advances were made to a vessel on the representation of the Captain that the money was to be used for necessaries, but it is not shown that the money was so used, no lien arises against the vessel. EDWARD S. DODGE, Boston, and BURLINGHAM, VEEDER, MASTEN & FEAREY, New York, for Libellant. HARRINGTON, BIGHAM & ENGLAR, New York, and BLODGETT, JONES, BURNHAM & BINGHAM, Boston, for Petitioner, Heidritter Lumber Co. ARTHUR S. JONES, for Petitioner, L. K. Thurlow, et al. PETERS, D. J.: This matter was heard on the petition of Crowell & Thurlow to intervene for their interest in the sum of money realized from the sale of this schooner by order of Court and now deposited in the registry. To this and other claims against the vessel, or the proceeds of its sale, aggregating something more than the amount realized, the owners make no defense. Other claimants defend this petition. I find the following facts pertinent to the issue: Crowell & Thurlow are shipbrokers and ship agents of Boston. They were not the general agents of this vessel, nor did they act in that capacity. They had no funds of the owners in their hands, nor had they previously any business with the owners concerning this vessel. The schooner in question arrived at the port of Boston from Africa with a load of mahogany in April, 1920. The captain came to the office of the petitioners, introduced himself, and asked if he could get money to "disburse the vessel, pay off crew, etc." An 1923 A. M. C. employee of the petitioners called by telephone the office of the owners of the vessel in New York and inquired whether it was desired that money should be advanced the captain for the purpose mentioned. The reply was in the affirmative. Up to this time the petitioners had not heard of the owners of the vessel and knew nothing and made no inquiry about their credit nor had they any information as to any funds the owners might have in Boston. The petitioners advanced money to the captain and upon his request, as follows: April 15, $6,355.99, To captain. April 20, April 14, 42.10, Navigation fees paid. 56.00, Inward pilotage paid. 7.15, Telephone calls to New York. Following this, or about the same time, petitioners also performed some slight services for the vessel, entering her at the Custom House, seeing that she was discharged and ordering a few supplies. It does not appear that any charge was made for this. A few other bills were also presented against the schooner but were not paid. On April 20, she was seized by the marshal. An employee of the petitioners testified that six or seven thousand dollars was not thought to be an unusual sum for a vessel to require upon her arrival from Africa. The records of the shipping commissioner, produced at the trial, showed that the seamen of the Heidritter were paid off at Boston after the voyage from Africa and mutual releases signed on April 15, 1920, the amount received by the seamen being $4,855.99. I am satisfied that the advancements were made solely on the credit of the vessel. The three small items were paid directly and there is no question about the application of the money. A question is raised as to the application of the $6,855.99 advanced to the captain; but it was asked for and advanced for the principal purpose of paying off the crew. At the time it was advanced the petitioners called up the owners in New York and asked if the money should be advanced for that purpose. On the same day $4,855.99 (the exact sum advanced the captain that day less $1,500.) was paid the crew in full for their wages, and, while the nonproduction of the captain as a witness is criticised, I think |