author: BYERS, District Judge.

text:
    THE WILLIAM V. O’DRISCOLL. THE PHILADELPHIA. THE KEVIN MORAN. NEW YORK TRAP ROCK CORPORATION v. DANIEL ROE TOWING & TRANSPORTATION CO., Inc., et al. THE MORAN NO. 20. THE DANIEL R. ROE. MORAN BROS. CONTRACTING CO., Inc., v. DANIEL ROE TOWING & TRANSPORTATION CO., Inc.
    Nos. 11447, 12131.
    District Court, E. D. New York.
    March 23, 1931.
    Frederick W. Park, of New York City, for libelant New York Trap Rock Corporation.
    Macklin, Brown, Lenahan & Speer, of New York City, for libelant Moran Bros. Contracting Co., Inc., and claimant Moran Towing & Transportation Co., Inc.
    Barry, Wainwright, Thacher & Symmers, of New York City, for claimant Daniel Roe Towing & Transportation Co., Inc.
   BYERS, District Judge.

On May 8,1929, at about 3 :00 A. M., the scow O’Driseoll, being in tow to the tug Philadelphia, was in collision with the sepw Moran No. 20 off the 46th street pier (Manhattan) in the East River, giving rise to the admiralty eauses herein discussed.

The Philadelphia tow contained five light barges, in tandem, there being two in the second tier, and alongside the Philadelphia, to her port, was the helper tug Daniel R. Roe. The Philadelphia had out two hawsers to the tow, of 120 feet, and the Roe whs made fast to the Philadelphia. The tow was made up at Riker’s Island, bound for the Battery, and the O’Driseoll was the fourth and last element.

The tow was headed down stream and, when about 200 feet off the 47th street pier, the O’Driscoll was struck by the Moran No. 20 in tow to the tug Kevin Moran, whieh had the former on her starboard side, stem first, being headed up stream, but close to the Manhattan shore.

The air was clear, with a northwest wind blowing, and the tide was ebb.

The owner of the O’Driseoll has libeled the Philadelphia, owned by the respondent Daniel Roe Towing & Transportation Co., Inc.; and Moran Bros. Contracting Co., Inc., owning the Moran No. 20, has libeled the tugs Philadelphia and Daniel R. Roe.

The Daniel Roe Towing & Transportation Co., Inc., has impleaded the Kevin Moran under the 56th Admiralty Rule (28 USCA § 723), and seeks relief under its libel against that vessel.

The causes have been tried together, and will be disposed of in one decree.

•The Moran tow was made up at the Arbuekle pier, in Brooklyn, early in the morning, probably around two o’clock, and started for the bulkhead at 72nd street, Manhattan side; a course was laid for 39th street, on the Manhattan side of the East River, the intention being to proceed up stream on that side to avoid the force of the ebb tide. The New York side having been reached, the tow proceeded within 25 or 30 feet of the bulkhead, until the 45th street pier was approaehed, to pass which it was necessary to head toward midstream, and to continue in sueh a course, to clear the 46th street and 47th street piers, which are much longer than the former.

At this time, the Lehigh Valley tug Cornell was in the act of breaking around the north side of the 47th street pier, a ten-ear float, about 200 feet in length, which was headed diagonally into the slip, and was about to be straightened out and headed directly inshore and made fast. At the time of or immediately prior to the collision, that float projected about 100 feet out into, the stream.

The Philadelphia and her tow were about 100 feet offshore of the end of that ear float as it so projected, as the first-named tow came down stream. There- was a northwest wind blowing of about twenty miles, which tended to incline the tow to its own port side, although it was substantially straight in line.

The Kevin Moran had to pass up stream outside of the ear float, but inside of the Philadelphia and her tow; she blew a two-whistle signal for a starboard to starboard passing, but it is impossible to state when; finding herself being forced offshore by the ebb tide which affected her port bow quarter, and the northwest wind, she was unable to hold a definite up-stream course, but veered toward midstream; she straightened away, but not in time to avoid contact between the scow which she had alongside and the last boat in the Philadelphia tow — the O’Driseoll.

The navigating officers of both the Philadelphia and the Moran tug testify that each observed the other when the latter was about at 39th street, headed up stream, and the former was above 50th street, headed down stream, and the starboard passing was the obvious maneuver to govern the situation. The Philadelphia did not alter her course, because there seemed no necessity for so doing.

It is found that the fault lay with the Moran tug, for this reason:

As the latter approached the 46th street pier, insufficient attention was paid to the Lehigh Valley ear float, and the time that would be required by it to enter entirely into the slip on the north of the 47th street pier was underestimated. The captain of the Kevin Moran first says that he did not notice the car float, which is not accepted; and then, that he paid no attention to it, because he knew it would be out of the way when he reached the pier around which it was being broken.

In that estimate, he proved to be mistaken, whereby he was forced to maintain a heading toward midstream for a longer time than he anticipated, and he could not straighten away soon enough to swing his tow clear of the Philadelphia’s. The ebb tide and the northwest wind, which forced him offshore, undoubtedly played their part in rendering his navigation difficult. When he was south of the 45th street pier, he was in practically slack water, which was his reason for being on that side of the river, and, if he had stopped his way at that point until the ear float was safely berthed, the collision would not have occurred.

The Kevin Moran was on the wrong side of the channel, and hence its fault is to be presumed; The H. L. Bond (D. C.) 46 F. (2d) 345; The Black Diamond (C. C. A.) 273 F. 811.

If it should be thought that the Kevin Moran was not at fault for having been on the west side of the channel under the existing conditions' (The Wrestler [C. C. A.] 232 F. 448; The Madison [C. C. A.] 250 F. 850, cited by the proctors for the Moran), it is none the less clear that the Kevin Moran was at fault for failing to navigate so as to delay in rounding the 46th street and 47thi street piers until the Lehigh Valley car float, was entirely out of the channel. It seems clear that this could have been accomplished, had the navigator in charge of the Kevin Moran recognized the obvious requirements of the situation with which he was confronted as he made out into the channel from his position • close to the shore at the bulkhead south of the 45th street pier.

The libel in the first cause is sustained against the Kevin Moran, with costs, and dismissed against the Philadelphia and the Daniel Roe Towing & Transportation Co., Inc., without costs; in the second cause, the libel against the Philadelphia and: the Daniel R. Roe is dismissed with costs.

Settle decree on notice.

If the foregoing be deemed an insufficient compliance with Admiralty Rule 46% (28 USCA § 723), findings and conclusions may be settled on notice.


source: Caselaw Access Project

author: HAZEL, District Judge.

license: Public Domain

text:
    REPUBLIC METALWARE CO., Inc., v. WEED & CO., Inc.
    District Court, W. D. New York.
    Aug. 15, 1930.
    J. William Ellis, of Buffalo, N. Y., for plaintiff.
    Parker & Prochnow, of Buffalo, N. Y. (Charles W. Parker, of Buffalo, N. Y., of counsel), and Wilkinson, Huxley, Byron & Knight, of Chicago, Ill. (Henry M. Huxley, of Chicago., Ill., of counsel), for defendant.
   HAZEL, District Judge.

In this action it is alleged that the Gustav C. Ullrich patent, No. 1,699,459, for sprinkling can, dated January 15, 1929, is infringed by the can manufactured and sold by defendant, which is adapted for like purposes.

The defenses are noninfringement, invalidity, and aggregation of known elements and noneo-operative functions.

Plaintiff’s sprinkling container has a dual function, i. e., the spraying of garden shrubbery by means of a perforated dome-shaped sprinkling-head attached to the nozzle of the can, and conversion of the can to a deliverance through the nozzle of a solid stream of water into automobile radiators or other vessels. The specification states that in constructing the conical spout, the object was to permit it and the nozzle to which it is permanently joined, on tilting the. can forward, to “readily enter the filling neck of an automobile radiator or the like without danger of its displacement while emptying the contents of the can.” In order to hold the spout and discharge nozzle in position while functioning to fill the radiator, the nozzle is curved outwardly into an approximate hook-shape, to allow supplying the water into the filling neck of the radiator at a convenient angle, and when the can is brought to a horizontal position, completely discharging its contents. The lower part of the shank of the nozzle is threaded on the outside to receive a detachable sprinkler-head (also threaded) with its removable, perforated top which is used for spraying. The sprinHer-head is in two pieces. The cap is screwed to the howl which in turn is screwed to the shank of the nozzle. The spout and nozzle are joined together at a circular flange upon which the sprinkler-head abuts when it is screwed into position to the spout over the nozzle. In describing the hook-shaped or angular nozzle and its downward extension into the filling neck of the radiator, the specification states that by such construction it is firmly held in position without slipping, and splashing of the water over the hood of the car is prevented, and a reliable fulcrum or bearing for the container during its tilting for discharging its contents is provided. The arrangement of the parts obviously makes it unnecessary to use different cans for effecting different purposes. The nozzle is described as hook-shaped, or as having a hook-shape, while in claim 2 it is referred to as substantially hook-shaped, and this prompts plaintiff’s contention that the patentee did not restrict himself to the specific form of the nozzle; and that other shaped nozzles performing the same function are within its terms. Although the extent of the curve on the nozzle is not specified, Fig. 2 of the drawing is indicative of it. The simplicity of the device is plainly apparent on reading the claims and scanning the drawings. The two descriptive claims in issue, which are for a combination of elements, read as follows:

“1. A sprinkling can, comprising a cylindrical body having a spout extending therefrom, a nozzle applied to the discharge end of the- spout for delivering a solid stream of fluid, the shank of said nozzle having an external screw thread thereon and the portion thereof forwardly of the screw thread being curved outwardly, and a perforated sprinkler-head detachably connected to the threaded-shank of the nozzle, the curved portion of the latter extending into said sprinkler-head with its cutler and discharging laterally into the head below the perforations thereof.”
“2. A sprinkling can, comprising a cylindrical body having a spout extending therefrom, the discharge end of the spout terminating in an attaching flange, the shank of said nozzle having an external screw thread thereon and the remaining portion thereof forwardly of the screw thread being substantially hook-shaped and forming a fulcrum for the" ean in tilting it to discharge its contents, and a perforated sprinkler-head detachably connected to the threaded-shank of the nozzle, the hook-shaped portion of the latter extending into said sprinkler-head and at the lower side thereof, below the perforations of the head.”

The file wrapper shows that the original claims 2 and 3 were rejected by the Patent Office on either the German patent to Kuster or the Austrian patent to Wosnitza; the Examiner stating that in view of such prior patents, there was no invention in the adaptation of a screw thread for engaging the sprinkler-head, as such an alteration was merely a matter of mechanical skill. The Examiner further stated in effect that extending the hook-shaped nozzle, regardless of its length, into the sprinkler-head did not introduce a new function.

In each of the patents cited by the Examiner is shown a curved spout at its outer end which is frictionally attached to a sprinkler-head. Upon removing the sprinkler-head, a solid stream of water may be delivered, upon inserting the curved spout in the orifice of a radiator. Following the action of the Patent Office, the patentee amended the claims by inserting in relation to the nozzle the words “forwardly of the screw thread” to differentiate plaintiff’s specific device from the references. But the Examiner remained unyielding, saying that his former objection, that it made no difference that the • outwardly curved nozzle extended to the sprinkler-head forwardly of the screw thread, had not been met, and he again rejected the application. Another amendment was filed providing for extending the curved part of, the nozzle into the sprinkler-head “with its outlet discharging laterally into the head below the perforations thereof,” and with this limitation the claims were allowed and the patent issued. In explaining the phrase “discharging laterally into the head below the perforations,” the applicant pointed out to the Examiner that by his adaptation the curved nozzle allowed the water to- first flow, into the lower part of the head or chamber below the perforations. “The head,” he, said, “acting as a sump for receiving the water before its discharge in a direction axially of the spout.”

The question therefore arises whether there is co-operative action between the form of the nozzle in emitting the water below the perforations and pooling in the bowl before its discharge. The applicant’s acquiescence in the rejection of broader claims constituted an admission that the original claims were unpatentable, and one of the questions presented for decision is whether the combination of elements produces co-operative action between the curved end of the spout when the sprinkler-head is screwed in position for sprinkling, or whether the result follows from an aggregation of parts when the sprinkler is used.

It is fully appreciated that, notwithstanding the rejection of the original claims/ the final grant of the patent gave the device a prima facie rating of patentability. But, as we know, the decision was not conclusive and the attacks of invalidity are open to inquiry and examination. Aside from1 the defenses of noninfringement due to the' asserted narrowness of the claims in issue,; the defense that no patentable result eventuated from the changes and modifications over the prior art manifestly, challenges attention. It seems to me that the structural changes constitute a carrying forward by mere mechanical skill or aggregation of known elements without cooperative functions. Water-sprinkling containers^ as distinguished from pouring water directly from a spout or nozzle, are extremely old; afld improvements in such devices for diversified uses, even possessing the specific functions of' plaintiff’s patent, were likewise apparent as appears by the prior foreign patents cited in the file wrapper and those relied upon here. The prior patents to Mee, Baker, the watering can of the National Stamping Company (Defendant’s Exhibits F, G, and 9), though of somewhat different construction, supported the original view of unpatentability entertained by the Patent Office; and I think" that the assembled elements, even with plaintiff’s curved nozzle located forward of the • screw-thread, and streaming the water later-(' ally to the perforations in the sprinkler-head, '■ did not disclose invention.

In the Baker patent, No. 453,530, of Juné 9, 1891, is shown a combination of elements by which the container is usable for sprinkling through a dome-like, perforated head in appearance similar to plaintiff’s, and also for converting the can for pouring water into a receptacle from the threaded spout upon taking off the large head F, the device also having a smaller head E for spraying disinfectants. Plaintiff’s criticism of the device is that the screw' threads extend to the extreme outer end of the spout and not forward of a hook-shaped nozzle for forming a fulcrum. The patent, however, clearly shows that there was no novelty at the date of the invention in suit in alternately using the water can as a spraying medium, and, on removing the head, for delivering solid streams from the bent spout. That there were no automobiles in 1891 and the can not used for filling radiators, when the prior art patents were granted, does not seem to me of special importance in considering the questions here presented.

The Mee patent, No. 291,375, for can-nozzle was neither, it is true, designed for a garden sprinkler nor an automobile filler. It was an oil can having an angular nozzle and screw threaded cap and threaded F-Gr to which the cap was screwed when not in use. If desired, it obviously was usable for filling radiators with water, as well as for sprinkling purposes, upon screwing an ordinary sprinkler rose onto the threaded portion, as shown in Fig. 2.

The Foss patent shows a can for sprinkling or pouring a solid stream of water. It has a removable cap and a straight spout for inserting directly into the sprinkler-head in the shape of a nozzle. I think it is obvious that the sprinkler-head could have been made with threaded connections to the spout, and the end of the nozzle inclined at an angle with the head by a skilled mechanic. Plaintiff stresses the specific, hook-shaped nozzle of the patent in suit as a distinguishing feature from all the prior devices, but in spraying it makes no difference whether the nozzle is hook-shaped or straight — although in pouring water into the radiator such nozzle obviously has an advantageous function as a fulcrum. But filling a receptacle or vessel by using a curved or angular nozzle attached to the spout is shown in the patents to Kuster, Wosnitza, Mee, and Baker, as well as in defendant’s Exhibit K, shown in illustrations in its 1920 catalogue; and that plaintiff’s nozzle had a different pitch or curve for supplying a fulcrum in a specific way does not, in my opinion, import patentability, inasmuch as the shorter, angular, or projecting, nozzles in prior structures possessed a similar function.

Plaintiff contends' for a broad construction of the claims and presents the argument that discharging the stream laterally for sprinkling purposes below the perforations should include defendant’s device, which, it is said, has a hook-shaped nozzle. I do not agree with this view, inasmuch as I think that the plaintiff’s definite curving outward of the nozzle was to impart a fulcrum to prevent slipping at the radiator opening, and not as a means of effecting cooperation between the head and the nozzle. Defendant’s nozzle has a “cylindrical extension somewhat in the direction of the spout,” as the witness McNulty testified, without having any curved portion and without discharging the stream laterally into the sprinkler-head; and the stream is directed into the perforations of the perforated cap and not laterally into the head below the perforations. In filling defendant’s radiator the sprinkler rose is removed, the nozzle being somewhat similar to the end of the spout in the Baker can, and resting on the end during the pouring at the radiator opening. Plaintiff’s manner of discharging the water into the head does not strictly constitute a cooperation between the nozzle and the head, for I indine to the view, as testified by McNulty, that it makes no difference in the sprinkling action whether in fact a nozzle is used, since pouring the water directly into the sprayer and keeping it full by pouring, as in Exhibit H, for example, would produce the effect.

If I am right in this view, the curved nozzle is without function except as a fulcrum in filling the radiator, an element found in prior structures; and screwing the head onto the nozzle which, together with the head, separately performed known functions, did not involve invention because the result was not the product of the combination. Hailes v. Van Wormer, 20 Wall. 353, 22 L. Ed. 241. It was an aggregate of parts, each part separately performing its anticipated funetion. Double Pointed Tack Co. v. Two Rivers Mfg. Co., 109 U. S. 117, 3 S. Ct. 105, 27 L. Ed. 877; Gas Machinery Co. v. United Gas Imp. Co. (C. C. A.) 228 F. 684; Marvel Equipment Co. v. Merit Oil Equipment Co. (D. C.) 29 F.(2d) 308. I have considered plaintiff’s reliance on the case of Reckendorfer v. Faber, 92 U. S. 357, 23 L. Ed. 719, and particularly the example there given of the stem-winding watch. There, however, the double effect resulted from the combination of the stem holding the watch and the key which wound it. Both instrumentalities were imperatively essential in combination to achieve the result. Without both elements working together, the watch would have been inoperative. Not so here — for here the nozzle did one thing and the sprinkler another without aid from one to the other. Entertaining this view, without doubt in relation thereto, the commercial success of plaintiff’s container is without controlling effect. Boston Pencil Pointer Co. v. Automatic Pencil Sharpener Co. (C. C. A.) 276 F. 910.

My conclusion is that the presumption of validity arising from the issuance of the patent has been successfully overcome; that the structural changes in plaintiff’s sprinkling can over the prior' art, and the asserted beneficial advantages eventuated through the exercise of mere mechanical skill rather than through the inventive faculties; and also that the claims in issue are invalid, in that they disclose an aggregate of elements without patentable co-operation between them, as distinguished from a new combination producing a new and useful result. It is therefore deemed unnecessary to treat of the asserted scope of the claims, or defendant’s denial of infringement.

A decree dismissing the bill may be entered with costs.


author: INCH, District Judge.

text:
    THE TENBERGEN. AMTORG TRADING CORPORATION v. POTTER TRANSP. CO., Inc.
    District Court, E. D. New York.
    Nov. 28, 1930.
    Foley & Martin, of New York City, for libelant.
    Kirlin, Campbell, Hickox, Keating & McGrann, of New York City, for the Tenbergen and Furness, Withy & Co., Limited.
    Patrick J. Dobson, of New York City, for Potter Transportation Co., Inc.
   INCH, District Judge.

Libelant brings this suit in admiralty to enforce an alleged maritime lien against the steamship Tenbergen.

Her owner and claimant, Furness, Withy & Company, Limited, has duly answered and by petition has duly impleaded the Potter Transportation Company, Inc., which company, in turn, has duly fil(ed its answers.

Exceptions were first filed by claimant to the libel on the following grounds; That the suit is for a breach of contract between the libelant and the said Potter Company and does not allege a breach of any contract with the steamship nor any cause of action against her and that the alleged cause of action does not constitute a maritime lien against the steamship.

A hearing on these exceptions took place before Judge. Moseowitz, who overruled the same with permission to claimant to answer. No opinion was apparently rendered.

The claimant thereupon duly answered and petitioned in the Potter Company as aforesaid.

The ease came on for trial on an agreed statement of facts. No other proof was offered. The only facts that therefore can be found by the court and on which its decision can rest are those found in this stipulation.

The controversy arises over the question of certain port charges and harbor dues assessed on the ship at the port of Batoum, Russia, by the Batoum Port Authority.

Under certain circumstances port charges have been held to constitute a maritime lien against a vessel. The Aina (D. C.) 40 F. 269; The Emily Souder, 84 U. S. (17 Wall.) 666, 21 L. Ed. 683.

This suit is a suit in rem. It is not on contract and should be distinguished from such cases as, The Christianssand Shipping Co. v. Marshall (C. C. A.) 31 F.(2d) 686, The Skomvaer (C. C. A.) 297 F. 746, and Wilkens v. Trafikaktiebolaget (C. C. A.) 10 F. (2d) 129, and many similar eases.

In their arguments and briefs counsel for libelant and for the Potter Company argue that the ship was libeled for these port charges and harbor dues, that a maritime lien exists, and that the prior decision of this court overruling the exceptions of claimant disposed of any contention that the libel did not show a maritime lien in favor of libelant.

Counsel for claimant, however, insists that the court is confined, for its decision, within the limits of the stipulated facts. That these facts do not show the right of libelant to have a maritime lien or to have any cause of action against the ship.

In a sense both of these contentions are correct.

All that was before the court on the motion' was whether the libel, on its face, sufficiently set forth a cause of action, requiring an answer and a trial? It was not a determination of the merits of the controversy. It was in the nature of a demurrer. The City of Atlanta (D. C.) 17 F.(2d) 311-314.

The allegations of the libel differ materially from the facts now stipulated.

By its libel libelant alleged, among other things, that libelant, by agreement with the Potter Company, charterer of the Tenbergen, for due consideration, became possessed of the right to the cargo space on the vessel, and delivered cargo to- the vessel which was carried to Batoum, Russia. That upon arrival the said steamer "refused to pay the port charges and harbor dues assessed against the steamer by the Russian government. That said charges and dues were proper charges and should have been paid by the steamer. That libelant demanded that the steamer pay same and the steamer refused. That it thereupon became necessary for libelant to pay same for the reason that delivery of the cargo so shipped by libelant could not be made until said charges had been so paid and therefore libelant did pay, under protest, these charges.

There was no answer at that time before the learned judge hearing the exceptions.

It has been said that: “The great weight of authority establishes the rule that one who advances money to discharge liens gets a lien of equal dignity with the one discharged.” In re Minnie and Emma (D. C.) 21 F.(2d) 991, 992.

This was not such a libel as in The Dixie (C. C. A.) 249 F. 46.

On the trial, however, the stipulated facta indicate a very different state of affairs from that alleged in this libel of libelant’s.

Among other things, it is conceded that these port charges and dues were paid by others than libelant without any demand on the master or owners of the steamship. That no protest of any kind was made to the master or owner of the steamer as to the latter not paying same. That on the contrary Derutra (Odessa), acting for and representing the libelant, the Potter Company, and claimant, “paid all port charges and harbor dues, collecting from the consignees the-port charges and harbor dues.” That at a port subsequent to Batoum, inward harbor dues was likewise paid by the consignee and at another port subsequent to Batoum, outward harbor dues had been paid by the consignee. That about a year afterwards the consignees protested to libelant as to the payment by them of port charges and harbor dues at Batoum. That thereupon libelant, voluntarily, reimbursed these consignees and now seeks to impose a maritime lien on the ship for this voluntary payment.

Neither Derutra nor any consignee is a party to this suit.

The libelant is, in the contractual sense, a stranger to the transaction, although so far as this suit in rem is concerned this is not important. It had no contract, with the owners of the vessel. The claimant had chartered it to the Potter Company under a Derutra Form of Charter No. 200. (A photostatic and true copy thereof being that annexed to claimant’s answer.) Libelant had subehartered from the Potter Company the cargo space of the steamship.

The burden of proof here rests upon libelant to prove, by a preponderance of evidence, in fair accordance with the allegations of its libel, that the ship was solely liable for these port charges and harbor dues and refused and neglected to pay same, and that thereupon libelant paid same relying solely on the credit and security of the ship, and is therefore entitled to a maritime lieu against the ship.

“The maritime ‘privilege’ or lien is adopted from the civil law, and imports a tacit hypothecation of the subject of it. * * * It is therefore ‘strieti juris,’ and cannot be extended by construction, analogy, or inference.” Vandewater v. Mills, 60 U. S. (19 How.) 82, 89, 15 L. Ed. 554; The Poznan (C. C. A.) 9 F.(2d) 838-842.

However, “it is not necessary to the existence of the hypothecation that there should be in terms any express pledge of the vessel, or any stipulation that the credit shall be given on her account. The presumption arises that such is the fact from the necessities of the vessel, and the position of the parties considered with reference to the motives which generally govern the conduct of individuals. Moneys are not usually loaned to strangers, residents of distant and foreign countries, without security, and it would be a violent presumption to suppose that any such course was adopted when ample security in the vessel was lying before the parties. The presumption, therefore, that advances in such cases are made upon the credit of the vessel is not repelled by any loose and uncertain testimony as to the suppositions or understandings of one of the parties. It can be repelled only by clear and satisfactory proof that the master was in possession of funds applicable to the expenses, or of a Credit of his own or of the owners of his vessel, upon which funds could be raised by the exercise of reasonable diligence, and that the possession of such funds or credit was known to the party making the advances, or could readily have been ascertained by proper inquiry.’’ The Emily Souder, 84 U. S. (17 Wall.) 666, 671, 21 L. Ed. 683. (Italics mine.)

Where the evidence is conflicting as to whether libelant relied on the credit of claim-' ant or upon the vessel, the court has left this presumption to rule. The Minnie and Emma (D. C.) 21 F.(2d) 991, 992.

On the other hand, it has been said: “If the credit was solely on the security of the vessel, it is hardly possible she would have been allowed to depart without settlement or that bills for her account would be paid after she was gone, especially when there was no probability of her return.” The Owego (D. C.) 292 F. 403, 408.

Bearing in mind that this is a suit in rem and that I am confined to the stipulated facts and any fair and reasonable inference that can be drawn therefrom, it is my opinion that libelant cannot here rely upon an alleged presumption that its subsequent payment to the consignees was solely made upon the credit of the steamer and its becoming security. There is no proof that the payment by Derutra or the consignees was made on such credit. All the stipulated facts dearly rebut any such presumption.

Libelant does not prove or claim any contractual relations between it and the steamship. It has entirely failed to show, as alleged in its libel, that the delivery of its cargo was in any way interfered with. It- has failed to show any request Or demand or protest of or to the master or owners of the steamship. On the contrary, it is conceded none was made. Its payment to the consignees of certain money a year after the payment by them was a purely voluntary act on its part. As has been said, it is hardly conceivable that if the ship had been considered liable for these charges and her credit solely relied upon that some request or demand would not have been- made either upon or by Derutra the agent" for all the parties or the master or the owner of the ship.

The very elements mentioned by the Supreme Court as possibly rebutting the presumption that is usually present appear in the stipulated facts:

In my opinion from the conduct of the parties and the other facts the inference is irresistible that all concerned never considered at the time that the payment of these charges was being made on the credit of the ship, but that they were made according to a then construction of a contract which they now want to correct, and that they were then considered merely proper charges incidental to the cargo and constituting an exception mentioned in clause No. 1 of the Derutra charter.

Counsel for libelant asserts that Derutra was a special agent and had a maritime lien against the vessel for its payment of the money, but there is no such claim indicated here in any way as having been made by it. And further that the consignees having repaid Derutra became subrogated to this lien. However, there is no proof that the consignees repaid Derutra relying on any such credit of the ship or ever thought of having a lien thereon.

It is therefore now urged that when, a year later, libelant voluntarily repaid the consignees or Derutra, neither of whom apparently had ever .claimed any lien upon the ship; that thereupon libelant advanced this money solely on the credit of the ship and is entitled to a maritime lien.

I cannot agree with this contention on the facts before me.

Counsel for the Potter Company contends correctly' that this is not a suit on contract, which might involve their client, as the charterer, but that it is solely in rem, based on an alleged maritime lien.

A claimant in a suit against the ship cannot defend by showing that a suit might or might not have been brought against the charterer. The Capitaine Faure (C. C. A.) 10 F.(2d) 950.

A suit should be confined to the subject of the libel and not extended to bring in matters not connected with the original controversy. McCaldin Bros. Co. v. Donald S. S. Co. (D. C.) 169 F. 992.

This is a suit in rem. It is not claimed in the libel that there was a breach of contract of any kind. The petition bringing in the Potter Company should be dismissed.

I see no reason to consider whether or not libelant had a lien arising from equitable considerations. See The Poznan (C. C. A.) 9 F.(2d) 838.

Efforts to add to stipulated facts by reference in briefs only indicate the undesirability of attempting to decide cases on stipulation.

Finding as I do that libelant has failed to sustain the burden of proof required to show the existence of a lien against the vessel, whatever the contractual rights and liabilities of the parties may have been, I dismiss the libel. . . .

Libel and petition dismissed with costs.


author: CAMPBELL, District Judge.

text:
    THE TASHMOO. FINCH v. BREILAND.
    No. 11084.
    District Court, E. D. New York.
    Dec. 13, 1930.
    Alexander, Ash & Jones, of New York City (Edward Ash and Max Taylor, both of New York City, of counsel), for libelant.
    Kirlin, Campbell, Hickox, Keating & McGrann, of New York City (William H. McGrann and Edwin S. Murphy, both of New York City, of counsel), for claimant.
   CAMPBELL, District Judge.

This suit is brought by a member of the crew of the steamship Tashmoo against her and her cargo for a salvage award.

I find the facts as follows:

At all the times hereinafter mentioned the steamship Tashmoo was a vessel of the United States, of approximately 324 feet long, 46 feet beam, and 25 feet in depth, built in the year Í919, and of the value of $65,000.

At all the times hereinafter mentioned the said vessel, including her deck cargo, was laden with approximately 1,000,000 feet of lumber, six hundred tons of copper or copper ore, oriental rugs, fruit, and other general cargo, the value of all of which was $459,-393.

On or about the 24th day of April, 1928, at San Francisco, Cal., the libelant joined the said steamship Tashmoo as an assistant steward, and signed shipping articles to serve thereon in such capacity at wages of 30 cents a month, until the said steamship .arrived at the city of New York, N. Y.

The said shipping articles contained, among others, the following provision: “And the said crew agree to conduct themselves in an orderly, faithful, honest, and sober manner, and to be at all times diligent in their respective duties, and to be obedient to the lawful commands of the said master, or of any person who shall lawfully succeed him, and of their superior officers, in everything relating to the vessel, and the stores and cargo thereof, whether on board, in boats, or on shore; and in consideration of such service to be duly performed the said master hereby agrees to pay to the said crew, as wages, the sums against their names respectively expressed, and to supply them with provisions according to the foregoing scale.”

After the steamship Tashmoo left San Francisco, Cal., en route for her voyage for the city of New York, N. Y., her engines became disabled, and the said vessel became subject to the effect of the wind and the tide and the elements, when approximately in the Gulf of Tehauntepee, off the West.Coast of Mexico. The weather was rough, and the said vessel was off her course and was being carried offshore and out of the normal passage of vessels, and was in great danger.

The Tashmoo carried only eleven passengers and, as the total number of persons on board was less than fifty, it is conceded that the vessel was not required by law to carry either a licensed wireless operator or wireless apparatus.

The said vessel did not have among the members of her crew a wireless or radio operator to send or receive messages, nor wa§ there any one on board of the said vessel, with the exception of the libelant, who was capable of so doing.

The said vessel was equipped with a radio apparatus which was not properly connected up, and which in its then condition could not be used for communication, or for the sending of distress signals.

In view of the condition and position of the vessel, it was necessary to send distress signals.

On a previous trip some one had tried to use the radio set, but they had set the equipment on fire and burned the radio shack.

One of the passengers, who had worked on the radio on the previous morning, stated to libelant that he had received quite a jolt.

At the direction of the master of the Tashmoo, the libelant left his duties as pantryman and set about connecting up the wireless apparatus.

No wiring diagram or blueprint of the radio set could be found on the vessel.

The libelant at some risk and danger to himself, and after working for two days and nights, except for a short period of time taken for sleep, connected up the radio on board the steamship Tashmoo, as a result of which, with slight help from a passenger named Shirley, sent the message whieh was received by the oil tanker Hadnot.

Had the message not been received by the Hadnot, she would not have sighted the Tashmoo, or in any event would not have seen her signals.

Some few minutes after receiving the signal the Hadnot sighted and took in tow the Tashmoo, and continued with her in tow until on or about May 10, 1928, when the Hadnot, with the Tashmoo in tow, arrived safely at Salina Cruz, in the province of Oax, republic of Mexico. *

The libelant did not continue on the voyage to New York, 'but at his request was granted a discharge by the commissioner at Balboa, and came to New York.

On the facts as found, the situation of the ship, cargo,- passengers, and crew was a most dangerous one, and the services rendered by the libélant were of value, and he incurred considerable personal risk in performing the same, hut the vessel was towed into port by the steamship Hadnot, and, if an award could be made to the libelant, it certainly would not be for any such sum as $15,000, the amount of the stipulation for value.

I do not minimize the value of the services rendered by the libelant, nor the risks he ran, hut this is not an appeal for a gratuity nor for generosity, but an attempt to obtain that which libelant claims under the law, and my determination of this issue must be based on the law.

The libelant signed shipping articles and was a seaman and member-of the crew of the steamship Tashmoo. regardless of the rating to which he was assigned. The Buena Ventura (D. C.) 243 F. 797, 799; The Georgiana (C. C. A.) 245 P. 321, 325.

Libelant was a workaway; that is, an extra man who was employed on the vessel as an accommodation to himself.

Libelant had tried to find a position on a vessel as he desired to reach New York, but no such position was available, and, in order to enable him to reach New York, he was shipped as a workaway, and assigned by the master to duty, as an assistant steward, and received in return for his services 30 cents a month, his subsistence, and his transportation to New York.

The advocates for libelant contend that, because of the small salary paid and the conditions of libelant’s employment, he may be considered for the purpose of a salvage award as a passenger, but such contention cannot be sustained; on the contrary he was a seaman, and libelant’s advocate, speaking of the libel-ant, on the trial of this suit said: “His status was fixed by the ship’s paper which is binding on everybody.”

The fact that libelant was assigned to duty as an assistant steward did not prevent the master from requiring obedience by the libelant to any lawful command.

The libelant was aboard the vessel, which he contends was in great danger as well as the li-sfes of those on board, and I agree that the situation was dangerous, and therefore whatever efforts were put forth by the libelant were for his own personal benefit and to relieve him from danger as well as to save the ship and cargo and the lives of others, and whatever services he did perform were not voluntary services, but services which he as a seaman was ordered to perform by the master of the vessel, in an emergency, when the performance of such services was of necessity required.

Furthermore, the .appliances used by libelant were all found aboard the Tashmoo, and her voyage was not ended by her being wrecked, nor was she abandoned, nor the duty of the libelant to the ship terminated before he performed the services for which he now claims a salvage award.

The relation that libelant bore to the Tashmoo prevents the making of a salvage award to him, as claims of seamen for salvage services rendered to their vessels during the voyage cannot be allowed. Coffin v. The Akbar (D. C.) 5 P. 456; The Brabo (D. C.) 33 P. 884; The C. P. Bielman (D. C.) 108 P. 878; The Comet (D. C.) 205 P. 991; The Zapora (D. C.) 205 P. 1004; The Eastern Shore (D. C.) 15 F.(2d) 82.

In the last-cited case, decided in the District of Maryland, the libelant, a member of a crew which alternately operated two ferryboats between Bock Hall and Baltimore, viz., the Baltimore and Eastern Shore, had gone .ashore to his house at the end of his work for the day, with special orders to report to the Baltimore in the morning to help make the ship ready for the repairmen and the other members of the crew being ordered to prepare the Eastern Shore for service the following morning.

While libelant was at his house that evening the Baltimore caught fire, threatening the Eastern Shore, and he responded, being among the first .to .arrive at the wharf, and assisted in moving the Eastern Shore to safety. Libelant claimed salvage award, on the ground that at the time of the fire he was a member of the crew of the Baltimore, that he was ashore, had finished his work for the day, and was not obliged to render the Eastern Shore any assistance. The court dismissed the libel on the ground that it could not be said that libelant was specifically attached to either vessel, but rather a seaman of both.

The only exceptions I have found to the rule laid down in the cases above cited are where the seaman’s duty to his ship is terminated and his contract at an end, as in the case of a wreck followed by abandonment of the vessel, The Georgiana, supra; Mason v. The Blaireau, 2 Cranch, 240, 2 L. Ed. 266; and where the services are rendered after the wreck of the vessel, The Mary Hale, Fed. Cas. No. 9213.

As hereinbefore shown, the case at bar does not come under any of these exceptions,

The Connemara, 108 U. S. 352, 2 S. Ct. 754, 27 L. Ed. 751, was a case in which a salvage award was made to a passenger on a ship under the following circumstances:

The Connemara, with a cargo consisting chiefly of cotton on board, was bound down the Mississippi under tow of the tug Joseph Cooper, Jr. She anchored one night with the towboat lashed to her side. No watch was set, and the two mates and boatswain of the ship were under the influence of liquor. Evers, the passenger, was awakened by smoke of burning cotton, and gave the alarm to the officers and crews of the ship and of the towboat.

The fire was in the poop above the main deck. Evers took part in leading the tug’s fire hose on board the vessel, and the fire was extinguished in fifteen or twenty minutes without serious risk to any of the persons engaged in the operation.

Mr. Justice Gray, writing for the Court, at page 358 of 108 U. S., 2 S. Ct. 754, 757, said: “A passenger cannot, indeed, recover salvage for every service which would support a claim by one in no wise connected with the ship. In the case of a common danger, it is the duty of every one on board the ship to give every assistance he can, by the use of all ordinary means in working and pumping the ship, to avert the danger. Yet a passenger is not, as the officers and crew are, bound to stand by the ship to the last; he may leave her at any time and seek his own safety; and for extraordinary services, and the use of extraordinary means, not furnished by the equipment of the ship herself, by which she is saved from imminent danger, he may have salvage. * * * ” This ease is not an authority in support of 'libelant’s contention, as in the ease at bar the libelant was a seaman, not a passenger, the equipment was all furnished by the ship herself, and the services were rendered by order of the master.

A number of eases have been cited on behalf of the libelant which are either not in point or clearly distinguishable from the case at bar.

The Lakme (D. C.) 93 F. 230, 232, is not a salvage ease. It holds that seamen who are directed by their master to work overtime, on Sundays and holidays, may recover additional wages, on the ground that such work was beyond their contract, there not being an emergency. This case would not be an authority in support of libelant’s claim, even if he was claiming for work overtime, as he has clearly shown the existence of an emergency.

The Two Catherines, Fed. Cas. No. 14, 288, 2 Mason, 319, 338, is clearly distinguishable from the ease at bar.

In that case Mr. Justice Story held that, under the law prevailing at that time, the wreck of the vessel deprived the seamen of their right to wages, but, if seamen return to the wreck and salve valuable property, they are entitled to recover their wages from the value of the property salved. This is certainly not an authority for a salvage award in a case like that at bar, where there was no wreck, and the alleged salvage services were performed during the voyage, under the orders of the master.

- Hobart v. Drogan, 10 Pet. 108, 9 L. Ed. 363. In this ease a brig was bound into Mobile, and her pilot discharged by the master at the customary place. She continued on her way up Mobile Bay for a time, and then came to anchor, and during the night was blown ashore in a gale. At noon the next day the master and crew abandoned her. On the morning of the next day, the master made arrangements with certain pilots of the port of Mobile to salve the vessel, and their efforts were successful.

The shipowner defended on the ground that the salvors were pilots, and by virtue of their office, incapable of becoming salvors.

The court held that libelants had a proper claim for salvage award, on the ground that none of them were at the time of the salvage service connected in any way with the vessel.

This ease is clearly not in point.

The Mary Hale, Fed. Cas. No. 9213, has been cited, supra, as an exception to the general rule. In this ease a ship laden with cotton, from New Orleans bound to Trieste, was lost on Keysal Bank. The mate with four men, at the request of the master, crossed the gulf in an open boat and brought information of the ship’s condition to the wreckers in this port, as a result of which the wreckers saved the ship’s material and 970 bales of cotton. The court allowed a small sum to the mate and the four men, on the ground that their services were extraordinary, and beyond the line of their duty, and entitled them to compensation.

This ease is distinguishable from the ease at bar, in which there was no wreck and no leaving of the ship by the libelant.

Sloane v. Udle, 6 Newfoundland Reports, 217. In this ease the salvors were not in any way connected with the vessel in distress, although apparently employed by a common owner. The distressed vessel was a fishing vessel, and it was contended by way of defense that all paid servants in the fisheries were by contract and custom bound to render salvage services to other vessels in the fisheries. The court in its opinion said that there was no evidence of any custom, and that the salvors proceeded in another, schooner to the scene of the wreck and rendered salvage services under an alleged express promise by the defendant that he would satisfy or remunerate them. An award to them was sustained.

This ease is not in point, the salvors were not members of the crew, nor were the services performed during the voyage, hut after a wreck.

Mason v. The Blaireau, 2 Crunch, 240, 2 L. Ed. 266, hereinbefore cited as an exception to the general rule. In this ease the ship and cargo were abandoned by the officers and .all of the crew with the exception of one man, Thomas Toole, who was not allowed in the first boat that left and refused. to leave in any other. While alone on the vessel he cut away the anchors and the bowsprit, got the vessel before the wind, and ¡hoisted a signal of distress, whieh was observed by the ship Firm on the next day and she brought her into port. The court allowed a salvage award to the ship Firm, her. crew, and Thomas Toole.

This case is clearly distinguishable from the case at bar, in which there was no abandonment of the ship or services rendered by libelant after such .abandonment, but services' performed by libelant during the voyage by order' of the master.

I therefore conclude as a matter of law:

That libelant was a seaman on the Tashmoo, and as such is not entitled to a salvage award against the steamship Tashmoo and her cargo, for services rendered on the voyage, on the orders of the master of the Tashmoo in connecting up the wires of the radio set, involving personal risk, and sending out an S. O. S. signal which resulted in the Had-not sighting the Tashmoo and towing her into port.

That the libel should be dismissed with costs.

A decree may be entered in favor of the steamship Tashmoo against the libelant, with costs.

Settle decree on notice, and, if it is not believed that this opinion is a sufficient compliance with Rule 46% of the General Admiralty Rules (28 USCA § 723), findings of fact and conclusions of law may be submitted.


author: NIELDS, District Judge.

text:
    THE DAISY T.
    No. 1365.
    District Court, D. Delaware.
    March 30, 1931.
    Leonard E. Wales, U. S. Atty., of Wilmington, Del., for libelant.
    P. Warren Green, of Wilmington, Del., and Louis Halle, of New York City, for claimant.
   NIELDS, District Judge.

On June 20, 1930, about 6 o’clock in the afternoon, the United States Coast Guard found abandoned, adrift, and awash in the Delaware Bay within this district the gas screw motorboat Daisy T, having on board approximately one hundred and twenty-four cases of assorted intoxicating liquor. The boat and her cargo were thereupon seized- and subsequently delivered to the collector of customs of this district. The United States in this proceeding seeks a forfeiture of the vessel, and sets out in its libel five causes of forfeiture: First, that she did knowingly receive and conceal, and facilitate the transportation and concealment of, after its importation, certain intoxicating liquor of foreign origin, fit and intended for use for beverage purposes, well knowing the same to have been imported and brought.into the United States contrary to law, in violation of section 593 (b) and 594 of the Tariff Act of 1930, 19 USCA §§ 1593 (b), 1594; second, that such intoxicating liquors were removed, deposited, and concealed aboard the vessel with intent to defraud the United States of the tax due thereon, in violation of section 3450, U. S. Rev. St. (26 USCA §§ 1181, 1182); third, that, being duly licensed as a pleasure vessel in conformity with the statutes, such license containing a clause that she should not transport merchandise or carry passengers for pay, or engage in any unlawful trade, or in any way violate the revenue laws of the .United States, she did knowingly engage in the transportation of merchandise for pay, in violation of section 4214, U. S. Rev. St. (46 USCA § 103); fourth, that, being duly licensed as a pleasure vessel, under twenty tons, such license containing a clause that she should not transport merchandise or carry passengers for pay or engage in any unlawful trade, or in any way violate the revenue laws of the United States, she was found on the day of seizure trading without a license, in that she was engaged in the transportation of intoxicating liquor of foreign origin, upon which the customs duties had not been paid, but were intended to be smuggled into the United States,- in violation of section 4371, U. S. Rev. St. (46 USCA § 317); and, fifth, that being licensed as a pleasure vessel on the sworn condition that she would not, while such license was in force and effect, engage in any unlawful trade, nor in any way violate the revenue laws of the United States, but would be used and employed exclusively as a • pleasure vessel, she was employed in a trade other than that for which such license was issued, in violation of section 4377, U. S. Rev. St. (46 USCA § 325).

At the hearing on libel and answer, the United States presented evidence tending to show the facts and circumstances surrounding the seizure. The claimant offered no evidence.

Findings of Facts.

(1) That the gas screw motorboat Daisy T was discovered by the crew of a patrol boat of the United States Coast Guard afloat, adrift, abandoned, and partly submerged, with-a hole in her port side about amidships, in the Delaware Bay about two miles east of the Delaware breakwater, within the district of Delaware, and was thereupon seized.

(2) That at the time she was seized her engines were not running, and she was not in motion other than the motion caused by the ebb and flow of the waters of the bay.

(3) That there were found aboard the vessel one hundred and twenty-four sacks .eontaining bottles of assorted liquors, some of the sacks being labeled “Golden Wedding,” “Silver Dollar,” “Burnett’s White Satin,” and “C. H.,” some of these names being stenciled on the outside of the sacks, and on some there also appeared the words “Manufactured by Distillers’ Corporation, Toronto, Canada.”

(4) That no ship’s papers, including a manifest, were found aboard the vessel, nor was there found any permit for the transportation of merchandise.

(5) That no tax-paid revenue stamps were on any of the bottles of liquor found aboard the vessel.

(6) That samples of the liquor were taken and found to contain the prohibited amount of alcohol by volume, and all fit for use for beverage purposes.

(7) That her license was that of a pleasure vessel, under twenty tons, and under the terms and conditions of such license she was not allowed to transport merchandise or carry passengers for pay, or engage in any unlawful trade.

It is not necessary to consider each of the causes of forfeiture alleged, as I am of opinion that the vessel is clearly forfeitable under the fifth ground, for violation of section 4377, U. S. Rev. St. (46 USCA § 325). The material part of that section reads:

“Whenever any licensed vessel * • * is employed in any other trade than that for Which she is licensed * * * such vessel with her tackle, apparel, and furniture, and the cargo, found on board her, shall be forfeited.”

The defendant contends that there is no proof showing the vessel was engaged in any trade, and no proof of how the liquor came aboard, or when and where it was placed aboard, or the purpose of its presence. The evidence is convincing. On June 13, 1930, a United States customs agent saw the Daisy T near Atlantic City, N. J. She was boarded and found light. She was again seen on June 18, 1930, two days before her seizure, as she left Little Egg Inlet, near Atlantic City, starting out on the ocean. She was next sighted by the Coast Guard in the Delaware Bay about two miles east of the Delaware breakwater, abandoned and partly submerged, with one hundred and twenty-four sacks of assorted liquors, apparently of foreign origin, aboard, and seized. No ship’s papers, no manifest, no permit for the transportation of merchandise or intoxicating liquors, were found aboard the vessel, nor were there any tax-paid stamps on any of the bottles of liquor. It is true that the place of loading and the point of destination are both unknown. This is immaterial. The cargo certainly was put on the vessel somewhere, and it is fair to assume that it was bound somewhere. Though licensed as a pleasure vessel, her construction tends to disprove her use as such. She was equipped with two Liberty motors, capable of making a speed of forty miles an hour. She had a small roofed-over open section forward for a pilot house, but only large enough for one man to stand at the wheel. Immediately behind the pilot house there was a large hold for cargo, space for the engines, and another large hold for cargo aft. ■ There were no accommodations for passengers. These unexplained facts, I think, fully justify the finding that the vessel was not being used as a pleasure vessel in accordance with the terms and conditions of her license, but was engaged in transporting merchandise, a trade other than that for which she was licensed. The Dewdrop (C. C. A.) 30 F.(2d) 394; The Rosemary (D. C.) 23 F.(2d) 103.

The defendant urges, however, that, if the court find evidence of transportation, it became mandatory upon the United, States to proceed against the vessel under section 26 of title 2 of the National Prohibition Act (27 USCA § 40), relying on Richbourg Motor Co. v. United States, 281 U. S. 528, 50 S. Ct. 385, 74 L. Ed. 1016. There is no merit in this contention. The law is now well settled that, where acts complained of constitute violations of the revenue laws, the United States may proceed thereunder, even though such acts also constitute violations of the National Prohibition Act. Machado v. United States (C. C. A.) 16 F.(2d) 844. The Pilot (C. C. A.) 43 F.(2d) 491. Under section 4377, a vessel, if employed in any other trade than that for which she is licensed, is forfeitable. That section was not affected by section 26 of title 2 of the National Prohibition Act. United States v. One Ford Coupé, 272 U. S. 321, 47 S. Ct. 154, 71 L. Ed. 279, 47 A. L. R. 1025.

Conclusion of Law.

That the Daisy T was engaged in a trade other than that' for which she was licensed, in violation of the provisions of section 4377, U. S. Rev. St., and should be forfeited.

A decree may be submitted.


text:
    NEW YORK & PORTO RICO S. S. CO. OF NEW YORK v. LEE’S LIGHTERS, Inc.
    No. 10265.
    District Court, E. D. New York.
    Dec. 2, 1930.

      Hatch & Wolfe, of New York City (Carver W. Wolfe, of New York City, of counsel), for libelant.
    E. C. Sherwood, of New York City (Henry Bogert Clark, of New York City, of counsel), for respondent.
   CAMPBELL, District Judge.

This suit is brought in admiralty to recover money paid by the libelant in satisfaction of the judgment obtained against it in the Supreme Court, County of Kings, plus expenses arising out of an injury to one Prank Amato, occurring on February 6, 1919, on board the respondent’s lighter Alexander Lee, due to an alleged defective fall, on the lighter.

I find the following facts:

The libelant is a corporation duly organized and existing under and by virtue of the laws of the state of New York.

The respondent is, and was at all the times hereinafter mentioned, a corporation organized and existing under and by virtue of the laws of the state of New York, and engaged in the lighterage business, and having property within the Eastern District of New York, to wit, certain lighters.

On or about the 6th day of February, 1919, the .respondent, its agents, servants, and employees, contracted and agreed to and did furnish to this libelant, the said lighter Alexander Lee, its machinery and equipment and crew in consideration of certain hire, to be used in connection with the unloading of the cargo of the libelant’s vessel Coamo, then lying at Pier 35, borough of Brooklyn, city, county, and state of New York.

On or about the 26th day of February, 1919, one Frank Amato was in the employ of the-libelant as a stevedore, and while so employed, went aboard the lighter Alexander Lee, in connection with the discharging of' the steamship Coamo, for the purpose of assisting in placing on the lighter bags of sugar which were being unloaded from the deck of the steamship Coamo by the tackle of the lighter Alexander Lee and landed on said lighter.

The winch boom fall and hook which were used in lifting the cargo from the deck of the steamship Coamo and placing it on the lighter were furnished by the respondent with the lighter, and the same were being operated by an employee of the respondent.

The stowage of said lighter was laid out by her captain.

The stevedoring work was performed by employees of the libelant, and the lighter and stevedores were working under the direction of an employee of the libelant, who was in charge thereof.

The lighter had been at work discharging the steamship Coamo on February 5, 1919, and for about one and one-half hours on February 6, 1919, before the said Frank Amato was injured.

The fall furnished by the respondent with said lighter was a rusty, old, and kinky cable, in a defective, improper, unsuitable, and unsafe condition when it was delivered to the libelant, and the condition of the said fall was not caused by any act of the libelant.

On or about the 6th day of February, 1919, between 9:30 and 10 o’clock a. m., while the said Frank Amato was at work upon the said lighter, he sustained severe bodily injuries due to the defective, worn, improper, unsuitable, and unsafe condition of a certain fall and hook, which were part of the tackle of the lighter Alexander Lee.

Thereafter, one Vito Amato, as committee of the person and property of Frank Amato, an incompetent, brought action in the Supreme Court, Kings County, against the libelant demanding judgment in the sum of $75,000 as damages for the injuries which he received as hereinbefore recited; that after a trial before a jury a verdict was rendered against the libelant in the sum of $12,-000, in favor of said Vito Amato, as committee of the person and property of Frank Amato, an incompetent, and judgment was entered thereon for the sum of $12,000 and costs in the sum of $140.46, a total of $12,-140.46, which this libelant paid on the 31st day of October, 1924, after a unanimous affirmance of said judgment by the Appellate Division, Second Department, together with $229.73 costs on appeal.

Prior to the trial of said action, libelant gave to the respondent written notice that the case would be tried in the near' future, and notifying it to come in and defend the action, and in the event of the failure of the respondent to do so, that this libelant would hold the said respondent responsible for the costs and expenses of the action, together with any judgment this libelant was compelled to pay therein, which notice was totally disregarded by the respondent.

On the facts found, the respondent having had notice of the suit and reasonable opportunity to come in and defend, and having failed to do so, the judgment is conclusive as to the liability of the defendant in the original action. Chicago v. Robbins, 2 Black (67 U. S.) 418, 17 L. Ed. 298; Robbins v. Chicago City, 4 Wall. (71 U. S.) 657, 18 L. Ed. 427; Washington Gaslight Co. v. Dist. of Columbia, 161 U. S. 316, 16 S. Ct. 564, 40 L. Ed. 712; Oceanic Steam Navigation Co. v. Campania Transatlantica Espanola, 144 N. Y. 663, 39 N. E. 360. But the whole record may be examined to ascertain the subject-matter of the controversy and fix the scope of the thing adjudged. Russell v. Place, 94 U. S. 606, 24 L. Ed. 214; Cromwell v. County of Sac, 94 U. S. 351, 24 L. Ed. 195; Freeman on Judgments, § 273.

An examination of the record in the state court action shows as follows:

The complaint alleged that the injury “was caused solely through and by reason of the carelessness and negligence of the defendant and of the said person in its employ, entrusted by it with and exercising superintendence and vested with authority to direct, command and control the said Frank Amato * * * in the performance of his work, and by reason of a defect in the condition of the ways, works, machinery, plant and equipment of the said defendant, which had not been discovered or remedied owing to the carelessness and negligence of the said defendant, and of the person above referred to, in carelessly and negligently causing and permitting the work to be done in an unsafe and defective and improper manner; * * * in carelessly and negligently causing and directing him to work in an unsafe and dangerous place; and in otherwise failing and omitting to take proper and suitable precautions for his safety and those lawfully at work at the said place; and in otherwise carelessly and negligently failing and omitting to see to it that proper and suitable tools and appliances were furnished in the performance of the' said work for the proper carrying on of the said work * * * in carelessly and negligently failing and omitting to promulgate and enforce proper rules and regulations for the safe conduct of the said work.”

The bill of particulars stated: “Plaintiff claims that the defendant and a person in its employ entrusted by it with superintendence and with authority to direct the plaintiff in his work, were careless and negligent in knowingly and for a long time causing and permitting the work of unloading the ship and loading the lighter, to be carried on with improper and unsafe appliances, particularly an old,' worn, rusty and kinky cable, which was unsuited to the purpose for which it was intended, and plaintiff claims that by reason of the use by the defendant of the unsafe and defective cable, as above set forth, the place in which he was directed to work was rendered unsafe; and plaintiff claims that the defendant and its said superintendent carelessly, negligently and knowingly failed and omitted to see to it that the rusty, old and kinky cable was replaced so as to permit of the safe doing of the work, and plaintiff claims that the ways, works, machinery and equipment of the defendant were defective in the respects herein set forth; and plaintiff claims that the defendant should have promulgated and enforced a rule regarding that the hook attached to the end of thé fall be let loose after it had cleared those working on the deck of the lighter, and plaintiff claims that the method used by the defendant in the performance of the work and then going on was not safe and was contrary to the usual and customary method of doing the work in this respect.”

In order to ascertain what was submitted to the jury, we must look to the judge’s charge, the material portion of which stated:

“The plaintiff claims that he was engaged on the lighter in properly placing the sugar upon the lighter. He claims that by reason of a defective and imperfect wire he sustained injury. His claim is that the wire cable to which this hook was attached or connected with was old, that it was not the proper appliance for doing this work, and that by reason of a kink in the wire cable the hook was forced to jump, and by the jump this hook struck him in the face, from which he claims he sustained serious injury which finally developed into insanity.”

After reading from the second, fourth, and fifth paragraphs of the complaint, and quoting from the bill of particulars, the judge continued .to charge:

“This is the claim made against the defendant company by tbe plaintiff. His claim is that tbis cable, at tbe time of tbe unloading of tbe sugar from the ship, was an old cable, that it was caused to kink after it bad been released from the draft of sugar, and that by reason of the kinky cable it jumped, in other words, it went across the lighter unevenly, and that by reason of this kink in the wire he was struck by the hook and sustained tbe injury of which he complains.”

These were the only questions concerning the negligence of the defendant submitted to the jury in the state court action, although some evidence had been given concerning whether the method of doing tbe work was improper, considering tbe fact that the cable was in tbe condition testified to, and tbe finding of tbe jury is conclusive that tbe fall “was old, worn, rusty and kinky and was unsuited for tbe purpose for which it was intended,” when the lighter was delivered to the libelant.

Tbe contract under which tbe lighter was furnished contains no express provisions regarding its seaworthiness, but there was an implied warranty of absolute seaworthiness at tbe time tbe lighter was delivered. In re Myers Excursion & Navigation Co. (C. C. A.) 61 F. 109; Naylor & Co. v. Terminal Shipping Co. (D. C.) 237 F. 725; The Sagamore (C. C. A.) 300 F. 701, certiorari denied 266 U. S. 612, 45 S. Ct. 95, 69 L. Ed. 467; The Presque Isle (D. C.) 140 F. 202.

From tbe testimony of Thomas A. Carey and Natalie Caccio, witnesses in tbe state court action, it clearly appears that tbe fall was old and in bad condition and bad a kink in it, and from tbe testimony of Thomas J. Caulfield, an expert called to testify in that action, “The cable can become rusted and the strands wear on account of the rust, and then if it was improperly coiled, it would form a kink if there was a weight laid on it.”

It was further testified in that action by Thomas A. Carey and Jerome Carey that the weight was about eight or ten feet from tbe end of tbe wire cables.

In an attempt to prove that tbe cable and falls were in good condition, tbe respondent called tbe witness Christian Andersen, who was testifying from memory to occurrences •eleven years old; there being no evidence that be made any statement at tbe time, that the accident was called to his attention at the time, or that there was any unusual circumstance which would cause him to remember specific facts concerning his most casual inspection of the fall. While conceding to tbe witness Andersen an honest belief in the truth of bis testimony, I am convinced that be was in error.

Tbe witness did not know how long the fall had been in use, but admitted that it had been exposed to the elements during the period of its use. He did not take hold of tbe wire, but only examined it visually from tbe deck of a vessel, at least ten feet away from the fall, which was running through a block sixty-five feet above the deck of the lighter.

The witness says of the fall: “It was" not worn any so you could see it.”

As to the absence of a kink in the fall, the witness seems to base his conclusion on the statement: “I said if it had a kink it could not go through the block.”

If the witness was correct, then the stevedore Amato would never have been injured, but he was, and it was due to a kink in the fall.

The witness Andersen also disagrees with the witnesses in the state court as to the position of the weight, which he fixes at the end of the wire cable, whereas they place it at about eight or ten feet above the end of the wire cable.

Again, if the witness Andersen was correct, the accident could never have happened; but it did happen, and I therefore conclude that the testimony of the witnesses in the state court is entitled to greater weight.

The defective condition of the fall did not arise between 8 o’clock on the morning of tbe accident and tbe time of tbe accident.

Tbe libelant was negligent in allowing tbe plaintiff to work with a fall so clearly old, worn, rusty, and kinky, arid unsuited for the purposes for which it was intended; which condition, on tbe testimony of tbe witnesses in tbe state court case, must have been plainly apparent on any reasonable inspection, and tbe libelant and respondent are in pari delicto.

Tbe ease at bar' is clearly distinguishable from Tbe Lewis Luckenbach (C. C. A.) 207 F. 66, in which a stevedore was injured by reason of a defective strongback across tbe vessel’s batch, a part of the vessel’s structure, while in tbe case at bar the defect was in tbe fall, actively in use, which libelant should have inspected, at least at the time of the commencement of the work each day.

Notwithstanding the fact that tbe libel-ant and respondent were joint tort-feasors, tbe libelant is entitled to contribution in admiralty. Erie R. R. Co. v. Erie Transportation Co., 204 U. S. 220, 220, 27 S. Ct. 246, 247, 51 L. Ed. 450, in which the Supreme Court held:

“The rule of the common law, even, that there is no contribution between wrongdoers, is subject to exception. Pollock, Torts, 7th Ed. 195, 196. Whatever its origin, the admiralty rule in this country is well known to be the other way.” The North Star, 106 U. S. 17, 1 S. Ct. 41, 27 L. Ed. 91; The Sterling (The Equator), 106 U. S. 647, 1 S. Ct. 89, 27 L. Ed. 98.

There is no statute of limitations in admiralty, but the state statute is usually followed unless the circumstances are 'such that by the lapse of time the position of the respondent was changed to its detriment, which has not been shown.

The statute did not commence to run in the case at bar until libelant was compelled to pay the judgment recovered in the state court action, on October 31, 1924, and the action at bar was commenced on April 6, 1927.

A decree may be entered in favor of the libelant against the respondent, for the sum of $7,146.88, with costs.


text:
    UNITED STATES GYPSUM TRANSP. CO. v. DAMPSKIBS AKTIESELSKABET KARMOY.
    No. 11222.
    District Court, E. D. New York.
    Dec. 10, 1930.
    Barry, Wainwright, Thacher & Symmers, of New York City (Earle Farwell, of New York City, of counsel), for libelant.
    Haight, Smith, Griffin & Deming, of New York City (Clarence Bishop Smith, of New York City, of counsel), for respondent.
   CAMPBELL, District Judge.

This is a suit for damages for alleged late delivery of a vessel under a charter party.

I find the facts to be as follows:

At all the times hereinafter mentioned, the libelant was and is a corporation organized and existing under and by -virtue of the laws of the state of New York, and has an office at 17 State street, borough of Manhattan, city of New York, and the respondent, Dampskibs Aktieselskabet Karmoy, was and is a corporation organized and existing under the laws of the kingdom of Norway; and was and is the owner and operator of the steamship Karmoy.

The said respondent, Dampskibs Aktieselskabet Karmoy, had, at the time of the commencement of this suit, goods, chattels, and credits within this district and within the jurisdiction of this court, to wit, the steamship' Karmoy, and this court has jurisdiction.

On or about the 17th day of May, 1926, the respondent, Dampskibs Aktieselskabet Karmoy, entered into a written charter party with the libelant for the charter of the steamship Karmoy, a copy of which charter is annexed to the libel herein, and among other things provided as follows:

“That the said Owners agree to let, and the said Charterers agree to hire the said Steamship from the time of delivery, for a period up to December lst/31st in Charterers option. •* * * Steamer to be placed at the disposal of the Charterers,- at Windsor JS. S. - • * . -. .....;
“14. That if required by Charterers, time not to commence before June 1st, 1926 and should Steamer not be ready for delivery on or before June 25th, 1926 Charterers or their Agents to have the option of cancelling this Charter at any time not later than the. day of Steamer’s readiness.”

In the said charter party the location of the steamship is described as “now trading.” The charter party was executed on behalf of the owner by “J. F. Whitney & Co., by Philip Stauderman, Brokers Agents. By cable authority. * * *”

The steamer Karmoy was not ready for delivery on or before June 25, 1926, and the charterer or its agent did not exercise its •option and cancel the charter.

The steamer Karmoy was delivered to the’ charterer on August 7,1926, and accepted by the charterer without objection, complaint, or reservation of a late delivery, and it was not until November 18, 1926, that the libelant wrote to said J. F. Whitney & Co., the brokers, protesting and stating it would claim damages.

The steamship Karmoy was returned by the libelant on December 2, 1926.

At the time, but before the charter was entered into, Mr. Stauderman, representing J. F. Whitney & Co., told Mr. King, secretary of the libelant, who executed the charter party on behalf of the libelant, that he did not have a ship available for delivery between the 1st and the 15th of June, but that, if he could extend his reporting date, delivery date, until June 25th, it would be absolutely sure that the Karmoy could be delivered, and the chances were it could be delivered earlier than that date.

At the same time Mr. Stauderman told Mr. King that the Karmoy was under charter to the Munson Line.

The owner used reasonable dispatch in tendering the ship.

The libelant, between June 25 and August 7, 1926, chartered other vessels at a higher rate.

We will now proceed to a consideration of the law applicable to this suit.

Libelant contends that respondent, by failing to tender the vessel between the 1st and 25th of June, 1926, committed a breach of the charter party:

First, on the ground that, although the charter party does not state in precise words that the vessel shall be at the loading port between those dates, there is an implied promise to deliver within the reporting time.

Such a construction not only would do violence to the very object sought to be accomplished by the use of the government form of time charter, that of protecting the owner, whose vessel is at the time of making under charter, from the liability which he would be under by promising delivery at any specific time, and protecting the charterer by giving him the right to cancel the charter if delivery is not made by a specified time, but would be at variance with the authorities. Sanday v. U. S. Shipping Board (D. C.) 1 F.(2d) 390, affirmed (C. C. A.) 6 F.(2d) 384, 42 A. L. R. 308, certiorari denied 269 U. S. 556, 46 S. Ct. 19, 70 L. Ed. 409. See, also, obiter remarks of Mathew and Smith, JJ., in Smith v. Dart & Son, 5 Asp. Maritime Law Cases, 360.

Libelant cites Hasler v. West India S. S. Co. (C. C. A.) 212 F. 862, as authority in support of its contention, but it seems to me to be clearly distinguishable, in that it was not a case where a charterer sued the ship for alleged late delivery, but was a ease where a shipowner, without going to the port of delivery and tendering, sued the charterer for nonperformance; and, if more be required to show that it is not an authority in support of libelant’s contention, then it will be found in Sanday v. u. S. Shipping Board, supra, 6 F.(2d) at page 385, where the court states:

“We are referred to our language in Hasler v. West India S. S. Co., supra, [212 F.] 863, looking to a contrary conclusion. The case involved nothing of the kind. The owner was suing for a breach without tender, which he asserted to have been excused by the charterer’s conduct. Plainly nothing there decided could affect the right of a charterer to sue upon a supposed promise of the owner. At most the language relied upon was obiter, and if it must be construed as including a charter in which the owner makes no promise, except so far as is to be implied from an option to cancel, it must be regarded as inadvertent.”

The charter party was a written instrument, and the conversation between Mr. King and the agent was merged in that instrument, and such conversation did not constitute a collateral agreement binding on the owner.

In any event, the conversation on the part of the agent did not amount to an agreement to deliver at a specified time, but only an expression of opinion as to the time when the ship would be available.'

The most that can be required of the owner in a case like the one at bar, where no delivery date is provided in the charter, is to tender with reasonable dispatch, and the burden of proof is on the libelant to show that the owner has not used reasonable dispatch in tendering the ship. Sunday v. U. S. Shipping Board, supra, 6 F. (2d) at page 385.

This libelant has not shown.

The 'Karmoy was under charter to the Munson Steamship Line, and this was known to the libelant when the charter in the instant suit was made, and the Karmoy was delivered to libelant by respondent with reasonable dispatch after she was redelivered to respondent, who had put forth its best efforts to effect such redelivery.

Undoubtedly libelant had the right to accept the Karmoy and also sue to recover for damages, if any, which it might have suffered by failure to deliver the vessel with reasonable dispatch, but it could also waive late delivery by not objecting promptly, Bennett v. Lingham (D. C.) 31 F. 85; and it seems to me that to wait from August 7, 1926, to November 18, 1926, is far from objecting promptly, especially when you consider that the vessel was redelivered by the libelant to the respondent on December 2, 1926.

I therefore find as conclusions of law:

The charter in the case at bar did not by its terms promise that the vessel would be delivered by any specified date, nor did it by reason of any of its provisions imply a promise by the owner to deliver the vessel on or before any specified day, nor did the agent in his conversation with the charterer’s representative enter into any oral collateral agreement to deliver the vessel by any specified day, but the most that was implied by the charter party was that the owner would use reasonable dispatch in tendering the vessel, which both parties then knew was under charter to the Munson Steamship Line.

The burden of proof that the owner did not use reasonable dispatch in delivering the vessel was on the libelant, and the libelant has not borne that burden.

The owner did use reasonable dispatch in delivering the vessel.

The charterer waived late delivery of the .vessel, if any there was, by not objecting promptly.

The- libelant has failed to show that it is entitled to any recovery against the respondent. The libel should be dismissed.

A decree may be entered dismissing the libel with costs.