at 12 o'clock on the 12th of July, her discharge would have been com· pleted (the 17th being Sunday) at 8 o'clock on the 20th. As she was in fact discharged at 11 o'clock on the 22d, the actual time of her deten· tion beyond the time authorized by the charter was 2 days and 3 hours, or 51 hours, instead of 67 hours, as claimed in the libel. The defendants contend that the demurrage days are to be counted for 10 hours only, making, therefore, on this construction, only 23 hours' demurrage. I cannot sustain the defendant's contention. The charter declares that the vessel shall be "on demurrage over and above the said lying days at 20/ per hour for any time expended over and above the said hours for loading and delivery." The "said hours for loading and delivery" ex· pired, as above stated, at 8 o'clock on the 20th of Jttly. The charter does not say "demurrage to be paid for the ordinary working hours expended,"but"for any time expended over and above the agreed hours." The" said lying days" referred to are the days necessary for loading or unloading, reckoned according to working hours; all after that are demurrage days. The distinction is between the contract "lying days" and the demurrage days, as Mr. Eadie, the experienced witness called by the defendant, points out. After the contract "lying days" had expired, every hour was or might be valuable to the ship. Upon the voyage every hour counts: and every day's detention, after the lay days have expired, is a loss of 24 hours to the ship in her subsequent voyage. · Nothing but a clear expression in the charter ought, therefore, to reduce the vessel's time allowance below her actual loss of 24 hours per day. The adoption in the charter of compensation by the hour, instead of by tha day, is sufficiently explained by the intent to reduce the ship's claim for detention to a more exact rule than a reckoning by days would give. Upon an allowance by the day the charterer would be obliged to pay for a whole day, though but an hour of it were consumed. Upon payment by the hour, the ship cannot claim for any part of the whole day of 24 hours beyond the hour of detention. The change in the printed form of the charter so· as to pay by the hour, is a change in the charterer's interest; and in this case he gets the benefit of it, as I think, to the full extent designed. Decree lor 51 hours at 20 shillings per hour.
(Oi1'cuCt Gourt, 8.
'V. THE RA.LEIGH.
lork. December 29,1888.)
MARrrnm LIENs-DISCHARGE BY SALE OF VESSEL.
A wrecked vessel was sold by the master, for a small sum, to one of the sur· veyors who recommended the sale, and the master appears to have contracted for employment upon the vessel. The sale was made, however, with the approval of the underwriters who had insured the vessel, and who, after a thor0\l.gh e:x:amination of the wreck, regarded it as impracticable to raise the
vessel; and advised a sale; and; before the sale the. owners made an aban· donment to the underw.riters, :s,nd .the underwriters paid insurance as for a total loss. The sale was had at ·public auction, after due notice, snd the vessel was bought by the highest Oidder at the sale. At the time of the sale it was doubtful whether the vessel was worth the cost of salvage. After a large sum was expended upon the vessel for repairs, she w8s.·libeled for supplies furnished previous to the time she was wrecked. Held, that the pre-existing .liens were discharged by thesale.of the vessel. and that the purchaser had established a valid title. notwithsts,Qoing he was one of the surveyors who recommended the sale. and the relations between the master and himself were such as to excite suspicion.
In Admiralty. On appeal from district court, 32 Fed. Rep. 633. Libels by Madgett, Ward and Wilder against the steam-ship Raleigh for-advances and supplies. Decree dismissing libels, and Ward appeals. Owen &; Gray, for claimants. Henry D. Hotchkiss, for libelant. WALLACE, J. The testimony in this case has been read with the assistance of an extremely able and thorough argument of counsel. It has been considered in view of the rule that the burden of proof is upon the purchaser of a vessel, who asserts that pre-existing liens have been divested by his purchase on a sale by the master, to show a valid title, and consequently to prove that the master was justified in making the sale by adequate necessity, and acted in entire good faith for the interest of all concerned. Abb. Shipp. 16; The Glasgow, 1 Swab. 145; The Australia,· Id. 480; The Tilton, 5 Mason, 465; Freeman v. East India Co., 5 Barn. & AICI. 622; Stephenson v. Insurance Co., 54 Me. 55; The Sarah Ann, 13 Pet. 402; The Henry, Blatchf. & H. 465; The Amelia, 6 Wall. 18; Hartman v. WiU, 4 Pa. Law J. 110. The very small sum realized by the master and paid by the purchaser, the purchase by a person who was one of the su·rveyors who recommended the sale, and the fiduciary relations which supervened between the master and the purchaser immediatelyafter the sale, and have existed ever since, arefealures of the transaction which give it an unfavorable coloring, and militate against its apparent integrity sufficiently to require an ample vindication. Nevertheless, the evidence justifies the conclusion that the exigennies of the situation justified the sale as the only means of realizing anything whatever out of the wrecked vessel, and that the master acted in entire good faith in the transaction. It will not be profitable to enter upon an extended statement of the evidence, or of the reasons for the conclusions reached. The steamer was wrecked on the 20th of January, 1886, being driven ashore by the ice in the Chesapeake bay, about 17 miles from the city of Baltimore. Efforts were made to get the vessel off, unsuccessfullJ-t, with the assistance of a powerful ice-boat. Thereafter, and on the same day, the master went to Baltimore to obtain assistance, and notified the owners by telegram, and consulted the agent of the Boston Marine Insurance Company, underwriters on thevesseI. The owners 'gave notice of abandon.ment to the insurers. At the suggestion of the agent of the underwriters the master applied to Mr. Pentz, who subsequently became the purchaser
of the vesael, and who was agent of the Baltimore Wrecking Company, for assistance in saving the vessel. The next day the master, Mr. Penu, Capt. Freeman, (agent of the Boston Marine Insurance Company,) and others visited the steamer to examine her. As a result of the examination Mr. Pentz, on behalf.ofthe wrecking company, offered to raise her, and bring her into port, for $3,000. The master refused to accept this proposition until he had consulted, with the owners. The following day Mr. Pentz, Capt. Freeman, Capt. Hayes, surveyor for the Phrenix InCompany, (which company had reinsured the ,risk of the Boston Marine Insurance Company,) with others, again visited the steamer, and found her apparently a broken wreck. Her condition and situation were s.l1ch that Mr. Pentz withdrew the proposition for raising her, made the day b!\fore. The next day a survey was held upon the steamer by three surveyors, of whom Mr. Pentz was one and they reported that in their opinion it was impracticable to save the vessel, and recommended the master to strip and abandon her. On the next day (January 24th) Capt. Trecartin, surveyor of the Boston Marine Insurance Company, who had been sent expressly from New York to examine the steamer, visited ber, with the master and others, and came to tbe conclusion tbat she was not worth tbeexpense of raising, and recommended that everything should be taken off, and the hull and cargo sold. The master adopted tbis recommendation, and about a week after stripped tbevessel. The evidence does not authorize a suspicion of bad faith on the part of the master up to this time in tbe history of the transaction, hut shows that he abandoned the project of raising tbe vessel, and concluded to sell her, with the acquiescence and approval of the owners and underwriters, upon the advice of competent experts, and upon his own honest judgment that she was not worth the expense of salvage and repairs. The report and recommendation of the surveyors, altbough of value as formal evidence, are far less valuable as exhibiting the real condition of the sel, and the apparent impracticability of attempting to raise and 'repair her, than the conslm8U8 of opinion of the agents and experts of the writers, a)ld of other competent judges who 8aw ber before she was raised, so far as this opinion can be ascertained from unprejudiced or reliable witnesses. The vessel was not advertised for sale until February 26th, when, upon consultation between the master and the underwriters, the cargo and the vessel were advertised to be sold separately, but at the same time and place. About that time the underwriterfl paid the insurance to the owners as upon a total loss. It is probable, although there is no direct testimony to this effect, that in the mean time the master came to an understanding with Mr. Pentz, looking to his own employment in·the event of a purchase of the vessel by the latter. Mr. Pentz was the manager of a towing company and of a wrecking company, and his circumstances were such as to render it probable that he might be induced to take the chances of a speculation with the vessel. . It was apparent to the master tbat there was no chance of inducing those, interested in the vessel to incur the expense of raising and repairing, her, that his occupation was gone, and that he must seek other employment.
He owed them no duty except to see that the vessel was· sold for the best price that could be got. Under these circumstances it was natural for him tp seek to induce Mr. Pentz to purchase her with a view of ing employment himself in raising and repairing the vessel. This conduct was not necessarily inconsistent with his duty as a fiduciary, but it was close to the line of disloyalty; and if there were any fair doubt that the sale was honestly conducted, or that the vessel was sold for all she was worth, the fact that such an understanding was in the minds of the master and Mr. Pentz would justify the most unfavorable conclusion. But the sale was made at public auction to the highest bidder, upon <lompetition, after reasonable notice by puhlication in a newspaper as well calculated to give publicity as any which could have been selected. Several weeks elapsed before an attempt was made to raise the steamer. It cast about $3,100 to do so, and .about $1,300 was realized by the sale of the cargo. After the expense of raising her had been incurred, and she was brought to Baltimore, it was doubtful whether she was worth repairing; and nothing was done towards repairing her until the following October. No doubt is entertained that she produced every cent that <lould have been obtained for her by the master at the time of the sale, or at any time after he concluded to sell her, and before she was raised. Although the sum realized was insignificant, nothing at all could have been realized in any other way than by a sale. The owners and underwriters appear to have been satisfied, and apparently did not expect that anythingappreciable.would be realized, because they did not attend the sale, or make efforts to find a purchaser. They undoubtedly believed that the purchaser would only buy a chance in a lottery. This was really all he did buy, according to the great preponderance of the testimony respecting the condition and situation of the vessel at the time of the sale. It is a circumstance of some significance that the principal parties who have asserted liens against her were aware of the material facts relating to her loss and sale, and made no attempt to libel her until August, 1887, when the purchaser had expended over $10,000 in repairs. It is obvious that the survey was a mere formality, and was not intended to and did not influence the judgment of the master or the underwriters; and the fact that Mr. Pentz was one of the surveyors, under these circulllstances, is not important. The Australia, 1 Swab. 480; Pars. Mar. Ins. 147. Nor is there anything in the circumstance that he employed another to bid for him at the sale which impeaches his good faith. It is difficult to imagine what his motive was in doing this, but it is frequently done when there is no improper motive. It may be he thought that if he appeared as a bidder competition might be stimulated. If this was his· notion it was nevertheless legitimate for him to employ another to bid. In view of the conclusion that the claimant acquired a valid title under his purchase of the steamer, it is unnecessary to consider the other defenses which a,re relied upon. A decree is ord.ered dismissing the libel, with costs of the district court and of this court.
PENNSYLVANIA RY. CO. V.I!AloTIMORE & N. Y. RY. CO.
PENNSYLVANIA Ri'.. CO.
BAL'J'IMORE & N. Y. Ry. CO. et. ale
(Circuit Court, 8.. D. New YO'l'/c. December 211,1888.)
Ona complaint for obstructing navigation by a bridge over navigable wa·, tera. the court will take judicial notice of an act of congress authorizing its construct.ion by defendant. aCONSTITUTIONAL LAw- INTERSTATE C?MMERCE-NAVIGA;BLE WATERSCongress can lawfully confer upon a private corporation the capacity to :occupy navigable watere within a state. and appropriate the soil under them, upon acquiring the rig:pts of the owners, in order to construct a ,bridge over such waters for the purposes of interstate commerce. without the COnsent. and notwithstanding the protest, of the state. Following Decker v. Railroad Co., 30 Fed. Rep. 723.
NAVIGABJ,E WATERs,...,.OBeTRucTroN-BJ,UDGES-BURDEN OF PROOF. . BRIDGES.
Where the act authorizing the construction of the bridge prescribes certain details of constructioil, and requires the plans to be approved by the secretary of war, the burden. in an action for obstructing navigation, is upon defendante to show compliance with sllch provisions. In a complaint alleging special damages in consequence of the obstruction, it is not necessary to allege that the bridge was not builtin conformity with the terme of the act author, izing the structure.
In Equity. On demurrer. ;Robinson, Scribner &- Bright, for plaintiff. McFarlanq" Bourdman &- Platt, for defendants. WALLi\CE,J. This is a demurrer to a complaint, alleging, in sub., Btance, that the defendants. have erected and constructed a bridge across the Arthur Kill, a portion of Staten Island the public navigable BOU:nd, so located as to ,unnecessarily obstruct and illterrupt the navigation of the waters 'by the plaintiff, whereby the plaintiff, as a common carrier of goods and passengers, has beep subjected to special loss and ill the prosecution of its business. ,The complaint also alleges that it was practicable and feasible for the defendltnts to locate the piers of their bridge and build. their stnlCture on a pl1W which would have acbeen convenient for the defe,ndants, and, would have .afforded commodations for the purposes of the navigation of the Arthur Kill, but that, instead of doing this, they have adopted a location and plan unnecessarily obstructive of navigation, in willful disregard of the interests of the plaintiff and the public. Although it does not appear by the com· plaint that the defendants were authorized bya.n act of congress to build and maintain a bridge over the Arthur Kill, the court must take judicial notice that they were. Moreover, it is not now open to discussion that congress could lawfully confer this authority for the purposes of interstate commerce, notwithstanding the wat.ers are partly within the state of New Jersey, and that state has not consellted W, but has protested against,the erection of the bridge. That question has been adJudicated -by this court in favor of the defendants. Decker v. Rauwmd Co., 30 Fed. B;ep. 723" The act of congress prescribes various C(}riditiollS and details v.37F.no.4-9