CHISIlOLM V. TilE
CHISIlOLM 11. THE
(OVrcuit Courl. S. D. Nt/W York. July 20,1887.)
The ljbelant, a United States citizen, made a contract with P., also a citizen, to act lis master of the bark J. L. P. P. was the real owner of the bark, , although she was built in Quebec, carried the and was registered in the name of a British subject; and he was in possessIon as owner under a , mortgage and' irrevocable power of attorney. The libelant did not know the J. L.' P. was 'of British regillter until a fortnight after the contract was made. Held, that the libelant dealt with P. as owner, and tha,t, as between the par, ties, the bark WIlS an American vessel, and that therefore libelant did not'ac, quire a lieD for wages under the merchant shipping act of 1854, § 191, which could be enforced in rem; reversing decision of district court. See The J. L. Pendergaat, 29 Fed. ReP. 127. ,
OF MASTER-FOREIGN VESSEL.
James Parker, for appellants. a. a. Burlingame, for appellee.
WALLACE, J. The libelant sues in rem to recover a balance of wages due him as master of the bark Pendergast, claiming a lien by the British "Merchant Shipping Act" of1854 (section 191) upon the theory that the bark was a British vessel. The district court decreed in his favor, and the owners of the bark have appealed. The libelant, who is a citizen of this country, made a contract, at the city of New York, to act as mllster of the bark, with J. L. Pendergast, who was also a citizen of this country residing at New York city. Pendergast was the real owner ofthe bark; the vessel having been built for him, and paid for by him, at Quebec. She was registered at that port in the name of James G. Ross as owner, and carried the British flag; but Ross had transferred her by bill of sale to one Adey, a British subject, who was in the employment of Pendergast, and Adey had executed a mortgage for her full value to Pendergast, with an irrevocable power of attorney, vesting in the latter power to sell and absolute control of the vessel. Pendergast was in possession as the real owner. The libelant testifies that when he made the contract with Pendergast he supposed Pendergast to be acting as agent for Ross, the registered owner. The district judge gave credit to this testimony, and the decree of the district court proceeded upon the assumption that it was true. The evidence taken in this court shows that this testimony was untrue. and that the libelant did not know who was the owner of the bark until July 31, 1884, when he went to the British consul to have himself indorsed as master on the ship's register, and then for the first time saw the register, and saw by it that Ross was the owner. He had made the contract to serve as master with Pendergast over a fortnight before this. It is wholly improbable that he supposed Mr. Pendergast, whose name the vessel bore, was the agent for an unknown owner. The case must be decided upon the theory that he dealt with Pendergast as owner. Although the bark was registered as a British vessel, and carried the
flag, the libelant was not misled by this prima Jacie evidence or ber nationality, but dealt withP.endergast as owner, at Pendergast's place of residence, supposing him to be the owner. As to the libelant, the bark was an American, and not a British, vessel. TMAlice Tainter, 14 BIatchf. 41; The Plymouth Rock, 13 Blatchf. 505. The contract having been mad!34ere, and being one for services to be performed. on a. vessel which, as between the contracting parties, was an American vessel, has only those incidents which exist by the general maritime law as recognized in this country, and not those which are created by the law of Great Britain. Consequently the contract d.id not imply a lien upon the ship for .the master's wages. The decree of the district court is reversed, and the libel is dismissed, with costs of this court and of the district court.
LAnNaKY ". SUPREME LoDGE KNIGHTS OF HO!fOR.
(Oircuit Oourt, S. D. New York. August 20,1887.)
REMOVAL OF CAUSEs-JURISDICTIONAL AMOUNT.
An action for the recovery of $2,000, with interest, was commenced in the state court in December, 1886. On May 8, 1887, it was removed to the circuit conrt on petition of the defendant, and there tried. resulting in a verdict. June 21.1887, in favor of the plaintiff. Defendant moved to remand on the ground that the amount in controversy did not eXC6ed, exclusive of interest ana costs, the sum of $2,000. Held, that under the amendatory removal act of March 8, 1887, limiting the right to removal in actions of this kind to cases where the amount in dispute exceeds $2,000, excIU$ive of interest and costs, tae circuit court had no jurisdiction of the CRuse, dad it should be remanded.
On Motion to Remand. f.Jha8. Steckler, for Lazensky. Morris Goodlw.rt, for Supreme Lodge.
LACOMBE, J. This action was originally brought in the city court of the city of New York, and was for the recovery of $2,000, with interest. Summons was served in December, 1886. On May 3, 1887, the cause was, on petition of defendant, removed into this court, where it was tried June 21, 1887, and judgment rendered for the plaintiff. The defendant now moves to remand said cause for the reason that the amount in controversy does not exceed, exclusive of intereat and coBt8, the sum of $2,000. At the time application for removal of the cause was made, the amendatory act of 1887 (approved March 3d) was in force. Since the passage of that act actions of this kind may not be removed from the state courts except where the amount in dispute exceelk $2,000, exclusive of interest and costs. No jurisdiction to remove and dispose of controversies pending in the state courts (except as provided in the act) is conferred on the 9ircuit courts. Inasmuch as there is in this case no mere irregularity, but a failure to show jurisdiction of the subject-matter, the motion to remand is granted. .
FISK ". HENARIE
and others, Ex'ra,
(Oircuit Oourt, D. Oregon. October 26, 1887.)
REMOVA.L 0l1' CAUSES-LOCAL PREJUDICE-AFl1'IDAVIT.
The provision in section 2 of the act of 1887, (24 St. 558,) authorizing the court to examine into the truth of an affidavit for removal of a case from a state court, on account of prejudice or local influence, applies only to cases removed before the passage of said act on the application of the plaintiff; and otherwise than this, such affidavit being not a matter of Jurisdiction, but only a condition imposed of the party seeking the removal, It cannot be questioned or contradicted; nor is it necessary that the affiant should statb thtt grounds of his belief.