<!isputes his right to recover. There is no disagreeJ:llen.t as to the terms of the contract by which he was employed to act as mate, or as to the amount already received by ,him. His testimony in), this regard is sustained by the master and aU of the other witnesses in the case, Connolly excepted. There should . ' decree in accordance with these views. be a . ..
and others' 'II.
(Di8trict Oourt, B .. D. Alabama.
1.. SJtIl?PlNG...,.,.GENER<\.L AVERAGE-c-+REPAIRS. When a vessel, disabled at sea, puts Into a port of ref.uge 'for repairs, the towage, quaraI!tine dockIng, Wharfage; surveys on the ShIp and cargo, cost ofunloadmg, storIng, and reloading cargo, and an allowance for wages of the crew, and provisions from departure f,romJthe'course of the voyage until its renewal, or so its renewal remains in' expeC)tancy, are chargeable to general
' . " ' '
Where the interests are temporarily separated, as by unloading and storing ,the cargo in order to repair tile vessel, and it is expected to, reload the cargo, and complete the voyage, then, even though by reason of unforeseen circumstances, as the inability to re'palr the vessel and make her seaworthy again, this expectation is not realized, the entire expenses of saving and protecting ,the q.ifferev,t interests, until hope of reuniting them is abandOned, are general average. 3. SAME-'-ABANDONMENT OF VOYAGE. The'cost and expenses incident to'repairs to the vessel, Incun:ed in the expectation of continuing the voyage, are not chargeable to general average, when the voyage is subsequently abandoned.
,Freight pro rata itineri8 is not earned where, from necessity. cargo is accepted before .arrival at the port of destination; accordingly there is no contributioJl on freight.,
',In ,. for general'average. The facts sufficiently appear opinion. " , ,J. L. &- T. H. Smith, for libelants Edwards and others. Smith & a'aynor, for master and crew and material-men. L. l!.F,:dth;for material-Ulen. ' Peter &; Tko8 . A. }[arr-ilton, for claimants of cargo.
TOULMIN:, 'J., When a vessel is disabled at sea, .and puts into a port Qfrefuge fOI:repail', the, ordinary expenses incurred are regarded as gen'eral A general average contribution is a division of the 10s6 or expense among those benefited, and has its foundation in equity and natural jU'8ltlce. General average expenses include the charges of entering the harPor, as pilotage, to\yage, quarantine dues, docking,
THE JOSEPH FARWELL.
surveys on the ship and cargo, cost of unloading, storing, and reloading cargo, and· an allowance for wages of the crew, and. provisions from the moment of departure from the course of the voyage until the voyage is renewed, or until it is abandoned, and the interests separated. But these expenses of the delay are general average only up to the time the con'voyage remains in expectancy. When there is no longer tinuation of any fair expectation of a continuance of the voyage, it is considered as broken up, and there are no longer any general average expenses. Where the interests are temporarily separated as a means towards an end, and it is expected to reload the cargo and complete the voyage, then, even though by reason of unforeseen circumstances this expectation is not realized, the entire expenses ofsaving the different interests, and.protecting them until the hope of reuniting them is abandoued, are general average; the general rule being that when a cargo continues under the control of the master, so that it may be taken on board for the purpose of prosecuting the voyage, the common interest remains up to the time the age is or may be resumed. If the voyage is not abandoned, and cargo,. although separated and removed from the ship,.is still under the control orthe master, and liable to be taken again on board for the purpose of being carried to its. destined port, the relations of the several ers are in .00 respect changed. The common interest remains, and ever is done for the interest must be done at the common expense. 1filld these principles well settled by the authorities, and by them I must be guided in reaching my conclusions in this case. And there is another principle equally as well settled, and that is that when expensesare incurred for the benefit of the ship alone, or for the whole or a part of the cargo only, they must be borne by the thing for whose benefit they were incurred. See 1 Pritch. Adm. Dig. 80, and notes; Padelford v. Boardman, 4 Mass. 548; The Star of Hope, 9 Wall. 203; Hobson v. Lord, 92U. S. 397; McAndrews v. Thatcher,3 Wall. 367; Nelson v. Bel" mont, 21 N. Y. 36; The Mary, 1 Spr. 17; Williams v. Suffolk Ins. 00.,3 Sum. 510. The schooner Joseph Farwell, being on a voyage from Laguna, Mexico, to the port. of New York, in the United States, with a cargo of sundries on board consigned to certain mercantile firms in New York, encountered avery severe storm, by which she and her cargo was so.damaged and injured that she could not complete her voyage without supplies and repairs. Under these circumstances, and with the hope of benefit to the vessel, her freight and cargo, the master bore away to the port of Mobile to refit the vessel, and to procure the necessary repairs for her to enable her to perform the intended voyage, and to safely carry the cargo to its place of destination. The vessel bore away on the eleventh day of October, 1886, and arrived in the port of Mobile on the fifteenth of that month, where, upon inspection and survey, it was found necessary to unload and care for the cargo, and to dock the vessel, that she might receive the necessary repairs. The vessel ann cargo wereinsured, and this was known to the master. He hoped that temporary repairs on the vess.el would enable him to proceed on and complete !,lis
,,,,ith the Cargo iIi safety; but the surveyors found and reported that it could'not be'done; that the vessel was not seaworthy; and that general repairs Were necessary to make 'her so. The community of extraordinary peril commenced with the accident to the vessel, but the question is, when 'did it terminate? Owing to circumstances which seem to have been unavoidable, therfl was considerable delay in getting the vessel docked and in a condition to have the repairs made on her, and from the reports made by the surveyors it was apparent that the extent of repairS required would consume much time, and'would cost a large sum of Inoney,-greatly more than the value of the vessel,' In·this view of the case, I was at'first inclined to hold that the only,expenses chargeable to general average were such as were incurred from the time of the departure from the course of the voyage to the time when the surveys and report were' made, on the principle, as I find it laid'down in the books, that when an accident happens to a ship, and she is disabled, and puts into a port of refuge for repairs, if the repairs would last nearly as long or cost almost as much as building another vessel, the master should charter another vessel, and tranship the.cargo. 1 Pritch. Adm. Dig. 626; 1 Pars. Ship. & Adm. 235, 336. Ordinarily, when a ship is disabled, the master has the right to hold onto the e&rgo while repairing the ship; but there is a limit to this right. The question is one of reasonable delay. The master has a right to retain the cargo if ·he can refit his own ship in a reasonable time. But where the vessel cannot be refitted in a reasonable time, and other transportation' is accessible, the master has no right to hold on to the cargo, and;repair. McGaw v. Ocean Ins; Co., 23 Pick.. 405; Clark v. Massachw8ettB, F.1c M. Ins. Cb., 2 Pick. 105; Phil. Ins; § 1142. But, on furtber consideration of this case, my conclusion 'is that the liability of general averagecontinued untiltbe voyage can be fairly considereda8 having broken up, and this was when there was no longer any reaSonable expecta.tion of its being continued. The cargo was liable to contribute for any general average or expenses incurred as long as it was "at risk." Physical destruction or direct phJTsical injury to the cargo was not tbe only risk to which it was exposed. Its value depended, at least is supposed to have depended,in some degree, upon the successful pros.. ecution oithe voyage. Until that was hroken up, the cargo, althougH it was sepa.rated from the ship, and put in a place of present safety, was not so completelyseparatedfromtbe ship and from the whole adventure as to leave no community ofinterest remaining. It was not entirely dig.. connected with the enterprise, and it must be regarded as still "at risk;" and liable to contribute, ifit'wasstill under the control of the master, and liahle, to be taken again on ,board for the purpose- of being carried to its destil1edport. McAndrew9v. Thatcher, S'Wall. 347; Nelson v; Belmont,' 21 Y. 36. I presume that there is not a doubt entertained that if the master had been successful .in 'having theriecessary repairs made in a reasonable time, and had resumed his voyage, and safely delivered the cargo in the port· of destination, the whole expense of the delay in tbe voyage would
TilE .J;OSEPH: FARWELL.
asageneral adventure.. Butthe suggestion is made that the cargo was separated from the ship,and that after this nothing was done for the common benefit of ship anq cargo. It is ans",ered that the cargo was unloaded for the purpose of repairing the vessel, to enable her to prosecute her voyage to its termination with the cargo, and thereby save .thewhole adventure; that.itwas still under the control of the master, and liable to betaken .on board again. If this was so, the transaction was not necessarily divested of its character as an act for benefit of the ship and cargo until the voy.age was abandoned, or is considered as having broken up. The complete separation of the ship and cargo does dissolve the community 'of interest, and puts an end to any further general charges. The Ann D. Richardson, Abb· .i\qm.501.. . Such became complete in this case when the voyage was '1>1'9ken up and abandop.ed,and·,' in my opinion, that )Vas when the. owner failed .t(traise the money tq complete the repairs, left the vessel and Q}8Ster in this port without and returned toNew York. Up to this time .the, master had some reaSOn to believe that the voyage might be iewas present, giving his personal attention to. the of money and supplies had been furpished matter. Considerable the enable him to refit hiE\ vessel, and continue his:voyage, and I think .the circumstances. /3how ,he believed', had; up to: that to believe, the repairs could be completed and the vessel de,spatchedillashort Wylie, & Co.refused,to ad. gave up and left, I thlrik ,all vance. 8ijy, more money, and the reasQpaple en,ded. . It should have ended' then. 'This was , on ,the of December, 1886... Though large sum hll..d . . expended,the repairs on .the vessel were not complete, and they · for want of fUl).d,s. In less than a month thereafter the ves-,;Scland.. cliorgo were libeled for expenses incUl?-"ed lind adv,anced , -on their account. ,. . . · The evidence is satisfactory that the master acteCl throughout in good , ,(aith, and tb,ere is no ground.to believe he was wanting -ergyor nautical skill; b,ut my opinion is, he, ill some respects, showed a great want of good judgment, and acted very injudiciously, in regard · 'to the interests of both ship and cargo. If he ;had iwtedwisely, and with fl,d:ue regard to the. interests of all cOJ;lcerned, he would have tra.nshipped the cargo as SOOl1ll:S he found the of the vessel w:as such as to entail greatexpens.e and. delay in repairing her; .thus. saving extraordiJ;laryexpenses to ,the owners of. the cargo, and at the .same time .earning freight for the the ship. Then, again, he'. would not · have disch,arged a part of on arrival in the port of and .employed other men to take their places at much larger wages, and, that, too, when it appears by his shipping articles the term' of service of the had not expired and would not expire for three months. Besides this, the evidence fails to satisfy me of the necessity of a full crew during the time the vessel was on the ways, and actually undergoing repairs there. The master, I know, has a large discretion in these matters, but
he is bound, in acting as agent for ship and cargo, to consult, so far as he can, the true interests of both. His acts as agent in the matters referred to were not, in my judgment, reasonably judicious, and were 110t for the best interests of all concerned. The expenses incurred by him must have been necessary and reasonable, for suchon!y are general averagecharges. After the cargo is in safety, the benefit it may derive from being carried in the ship to its place of destination is not a ground for making it contribute towards the cost of repairing the ship, nor of placing her in a position in which she can be repaired.' 1 Pritch. Adm. Dig. 9,2, a:D.d note, Lown. Av. (3d Ed.) 3. The cast of the repairsoll the vessel is not chargeable in this case to generill average, nor are the expenses incident to such repairs so chargeable; and there is no freight that can be made liable tocontribute tel ihe 'generalaverage expenses. ,The'delivery of the ca.rgo atth:e port of'destination'is a condition precedent to the right to freight. The Ann D. Richa'rckon,Abb., Adm. 499; IPritch. Adm. Dig. 581, and note, 146; Scottv.1;ibby, 2 Johns. 336; A/it.irns v. Haught, 14 Tex. 243. Freight, pro rata itineri8, is not due where there has been an accept, Ilnce by the owner of the cargo from necessity. The Nathaniel Hdope:r, , 3 Sum. 543; McGaw v. Ocean Ina. 00.,23 Pick. 405,. rrhere being, then, no freighteatned, there is none to contribute. I finlithe value of the cargo to oe$10,000, and the value of the vessel in this port, before any repairs were put on her, $1,000. My judgment is that, the expenses incurred in entering this port shall be charged to genetal average. They include pilot:age, towage, quarantine dues, three surveys on the ship and carg'o, the, expense of docking the ship for the purpose of surveys, cost of unloading and storing cargo, and the wages of the crew, and provisions from the tinle of departure from the course of the voyage,on October 11, 1886, down to December 28, 1886, and the wages of the master from October 11, 1886, to January 20. 1887, when the vesselltnd cargo were taken from his by the sei2ure : of the marshal. The shipping articles show the number of the crew, and the amount 'of their respective wages. All other claims filed, and not specifically mentioned herein, are allowed as charges against the ves, sel and owners. It is ordered that it be referred to Richard Jones, the clerk of this court, as special referee and adjuster, to ascertain and report from the evidence already before the conrtthe.amounts respectively due the libelants and petitioners whose claims have heen allowed; to ascertain and report the apportionment of general average, and to adjust the same; and also toascertairi and report the amounts due by the vessel and owners alone, -all in accordanCe with the prinCivles announced and views expressed ' : in the opinion herewith submitted.
WAGNER V. DRAKE.
DRAKE and othel'S.
(Dia"brict Oourt, S. D. IO'IJ)a.
JlEDERAL COURTS-RESTRAINING PROCEEDINGS IN STATE COURTS- REMOVAL CASES.
Section 720 of the United States Revised Statutes, prohibiting a United States court from granting an injunction to stay proceedings in a state court, does nO.t apply to proceedings in a state court in a case that has been legally: remov.ed from the state court into the United States court, but in such a case the writ will not be issued if the jurisdiction of the United States court of the case removed is .doubtful. ' A preliminary injunction will not be granted by a United States court to prevent Ii. state court from enforcing its decree restraining plaintiff from sell· Ing wine and beer,and abating his saloon as a nuisance, under the state law, after the case has been removed to the United States court; as in such a case the injury to plaintiff would, not be irreparable, but one capable. of being fully compensated by damages recoverable in an action at law, in the event of the removed case being decided in his favor. .
This is a. petition for an injunction to restrain the defendants from the prosecution of certain proceedings in a civil suit originally commenced in the district court of Wapello county, Iowa, but since removed into this court, where said suit is now pending. The petition alleges subst.antially that the original suit was instituted in the state court under the recent prohibition law, for the purpose of restraining the plaintiff'by injunction from the use of' his property for the sale of wine and beer; that ·theproperty in question was erected and fitted up with proper fixtures and furniture before the enactment of the prohibition law, for the purpose of carrying on the sale of wine and beer, which was then a lawful businessj that said law provides for the seizure and destruction of the same without compensation; that said suit was duly and regularly transferred to this court, and that the record of the state court has been filed in this courtj that, notwithstanding said removal, the state court, refusing to recognize the same, has proceeded to enter a decree against the plaintiff, enjoining him from .the further use of the premises mentioned for the sale and keeping for sale of intoxicating liquors. The petition further states that said defendants, clerk, sherif!', and attorneys, as well assaid:.'Drake, who was the plaintiff in the original suit, are about to institute proceedings against the plaintiff to compel him to obey said injunction, and that unless restrained by this court they will cause the petitioner to be deprived of the use of his property, and will also have a. final decree granted by 8aid state court perpetually enjoining the said plaintiff from the further use of his said property for the purpose aforesitid,and ordering the sheriff of said county to take possession of said premises, and to remove all furniture and fixtures therefrom, and to sell the same, and close said premises for one year from and after the rendition of said decree; and further ordering that the said fixtures and furni ture lound therein shall be sold. to pay the cost of the proceeding and attorney's fees, and making the same a lien upon the said .property. The v .3b. no. 14-54