THE CRYSTAL STREAM. 1
MALLORY t1. THE CRYSTAL STREAM.
(District Oourt, 8. D. Nw York.
November 18, 1885.)
:MARITIME LmN-FREIGHT AGENT--SERVICES.
The services of an agent employed by a charterer to solicit freight are not directly connected with the navigation of the ship, nor do they, like a stevedore's services, aid her in discharging any maritime obligation. and hence are not distinctly maritime, but of that preliminary character which does not raise a lien on the vessel. .
SAME-STATEMENT OF CASE.
The owners· of the steamer C. chartered her to B., who was to pay all expenses of navigation. H. employed libelant to solicit freight. The boat being subsequently returned to her owners, and libelant unpaid, this suit was brought by him against the steamer for the value of his services. Held, that the services were not maritime in character, and created no lien on the vessel.
In AdmiraJty. Hyland etZabriskie, for libelant. Alexander et Ash, for claimant. BROWN, J. The libelant Bues for $42.50 wages for servi(les rendered to the steamer Crystal Stream from May 2 to May 19, 1885. The steamer had been chartered a few days before by Capt. Hinman to run as a passenger and freight boat between New York and Derby, Connecticut, the captain to pay all the expenses of navigation. The libelant was employed by Capt. Hinman to solicit freight for the boat, on an agreement to pay him at the rate of $15 per week and board. The libelant's duties were chiefly to canvass among the merchants of New York and induce them to send freight by this steamer. Once or twice, under the captain's direction, he went to Connecticut by the steamer to obtain similar orders from merchants there. He also sold some tickets for a special excursion. On these trips he slept on the steamer, but not at other times. When the steamer was in New York he took his meals on board of her. He took no part in the navigation of the steamer, and had no duties on board. On the twentieth of May, the business not being successful and the liabilities of the boat not being paid, she was surrendered by Capt. Hinman to the owners, and the charter was canceled. The owners paid the liens of the seamen; but they defend against the claim of the libelant, on the ground that his services were not maritime, and constitute no lien upon the ship. As the claimants did not employ the libelant, and were under no personal responsiblity for the expenses of the navigation of the steamer while under the charter to Capt. Hinman, this action cannot be sustained unless the libelant's services were maritime, 80 as to be a lien upon the ship·
· Reported by R. D. and Edward G. Benedict. Esqs., of the New York bar.
The case is not distinguishable in principle from The Thames, 10 Fed. Rep. 84R, in which this court decided that the services of a bro. ker in procuring a charter for the ship were not maritime, but of that preliminary character which does not raise a lien upon the vessel. A ship broker, in procuring a contract of affreightment, procures a writ· ten contract for the shipment of an entire cargo. The libelant in this case was employed to procure from different merchants such parts of a cargo as he could induce them to send. The libelant's serv· ices were not directly connected with the navigation of the ship, nor did they directly enable her to earn freight j he merely induced mer· chants to send goods to the ship. All the maritime services of the ship, and all her maritime duties and obligations, began after the goods had been thus sent to the ship, and after the libelant's services had ended. This court sustains the lien of a stevedore, on the ground that in the service of the ship he assists her in discharging a maritime obligation. The Hattie M. Bain, 20 Fed. Rep. 389, and cases there cited. So, in the case of The Onore, 6 Ben. 564, a cooper's services in putting ca!go on board the ship into deliverable condi. tion were held maritime, because it was the duty of the ship to de. liver the cargo in good landing order. Here the libelant's services did not enable the ship to discharge any maritime duty that she owed, and they were wholly preliminary to the maritime contract of the ship for the transportation of the cargo that he procured. In procuring merchants to send cargo by this steamer, the libelant doubtless rendered a service to the business of the ship. rrhese services, though beneficial to Capt. Hinman, were not .essentially different from those of other agents or clerks who might be employed in a per· manent office on shore for the transaction of other necessary parts of the freight business. I cannot regard such services as maritime, and the libel is therefore dismissed.
LIPPINCOTT". SHAW CARRIAGE CO.
SHAW CARRIAGE Co.
«(JiJrcuit OOU7't, D. Indiana. November 21, 1885.)
BANKING CORPORATION-LoAN-GOOD FAITH.
Where a loan of money is made by a bank, in the usual course of business, to a corporation, it will not be invalidated by the fact that the president of such corporation and one of the directors thereof is also a state officer and a defaulter, and the officer of the bank negotiating the loan is one of his bondsmen, and has knowledge of the fact that the corporation is negotiating such loan to repay to such president moneys advanced by such president to enable him to settle his account with the state. . Where a corporation fails to comply with the statutory requirements as to the payment of capital stock, making annual reports, etc., that fact will not invalidate a loan made in good faith, in the usual course of business, to such corporation.
2. SAME-STATUTORY REQUIREMENTS-EFFECT ON BONA FIDE LOAN.
An insolvent corporation, like an insolvent individual, may give preference to one creditor over another by paying or securing his claim. But prefereuces given in such a manner as to be of special advantage to the directors or managing agents of such corporation will be set aside.
SAME-DIRECTORS-To ADVANTAGE OF.
SAME-CHATTEL MORTGAGE-VALIDITY OF.
The fact that a chattel mortgage includes property recently purchased on credit, in the usual course of business, will not render the mortgage void.
Where a mortgage is set aside because of invalidity, and the mortgagees held to account, this will not invalidate or affect the priority of judgments and levies taken on notes the mortgage was given to secure.
SEVERAL MORTGAGES ANNULLED FOR CON-
SAME - STATUTES CONSTRUED STUCTIVE FRAUD.
Under Indiana statutes a judgment at law upon a mortgage debt cannot be executed upon the mortgaged property, whether real or personal, even after decree annulling the mortgage for fraud. But if several mortgages upon different properties made by a debtor to preferred creditors are declared illegal, (though not made with fraudulent intent,) a separate judgment theretofore taken upon any of the mortgage debts may be enforced against any property of the debtor not mortgaged to secure that particular debt.
GRANTEES IN ILLEGAL
". SAME - CREDITOR'S BILL - DISTRffiUTION OF FUND MORTGAGES PERMITTED TO SHARE.
When preferential mortgages are set aside at suit of creditors for reasons not involvin&, a charge of fraudulent intent or moral turpitude, the mortgagees will be permitted to share pall'i passu in the fund made out of the mortgaged property.
9. PARTNERSIIIP-JUDGMENT OR DECREE-ESTOPPEL By-PARTIES.
A decree of foreclosure against members of a partnership as such-all the known members not being parties to the suit-does not bind the firm.
An intervening creditor, whose claim was filed and sent to the master to report upon, and such creditor had been made party to a foreclosure proceeding and had suffered judgment to go against him by default, will be estopped to deny the validity of the mortgage; and, the proof having been duly made before the master, the court will allow an answer showing the fact to be filed after the filing of the master's report.
In Equity. Exceptions to master's report. Horace Speed and Harrison, Hines & Miller, for plaintiffs. Claypool & Ketcham, for defendants.