DE COLANGE". TaE CHATEAU MARGAUX.
sengers in excess of the stated in his certificate could be sustained upon proof that he had no certificate authorizing him to carry any passengers whatever, and that he therefore could not have carried passengers in excess of any number" stated" in the certificate ofinspection? If the language of the section had been, "a greater number of passengers than allowed by law," it might with more plausibility have been applied to the facts alleged in this case. the language is "a greater number of passengers than is stated in the certificate of inspection." It seems clear t therefore, that some number must be stated before the number actually carried can be deemed to be in excess of it. My opinion, therefore, is that the libel is properly brought under section 4499, which subjects toa penalty of $500 all steamers "navigated without complying with the terms of this tiUe, for which sum the vessel navigated shall be liable, and may be seized and proceeded against in any district court of the UQited States having of the offense." A direct and primary liability of the vessel for the penalty imposed is thus created, and the seizure and proceeding in rem are expressly authorized by the statute. I do not feel called upon, nor hardly at liberty, to consider the very important question raised at the bar as to the constitutional right of congress to require the inspection of steamers, or in any way regulate the USe of ves'sels employed on the navigable waters of the United States, but not engaged in foreign or interstate commerce. The validity of the laws regulating the use, equipment, and navigation of vessels used on the navigable waters of the United States, as well as those engaged in foreign or interstate commerce, has lOng and almost universally been acquiesced in. They are in their, object and. effect salutary, and, in some' particulars, indispensable, to the safety of the foreign and interstate commerce, which congress has the unquestioned right to regulate, and the effect of a decis!onadverse to their validity would be so momentous and far-reaching, that'I consider it to be my duty, as district judge Of the United States, to assume tileir'coristitutionali'ty, and to leave the question of their validity, in whi>le or in part, under the constitution, to be passed upon by a higher. tribunal. ..
THE CHATEAU MARGAUX. 1
Oourt, S. IJ. New York.
December it!, 1888.)
Libelant purchased a passage ticket on steamer Chateau Margaux from New York to Bordeaux. The ticket, like the company's prospectus, expressly stated that the passage would be direct. After the sale of the ticket, the steamer tQok cargo forBantander, Spain, and sailed direct for that port, without noticLe to libelant. and was consequently six days longer in reaching Bordeaux. proved no special damage arising frQm the delay, except loss,of time and the annoyance incident thereto. Held, on suit brought to recover damages' for the delay, that the deviation was a breach of the contract. and that libelant shoulci the amount of passage money paid.
IReported by Edward G. Benedict, Esq., of the New York bar.
158 In ,,:p'bel. forlllipi*ges for deyiation of vessel, Newell Marttn, for , ", , ' Wing, Shoudy & Putnam, for claimants. '
, . '," ',,' ,i ", .. '
J.'Thelibelant,a gentleman of 70 years ,of age, with his wife, and twp children bEitween4and 12 years old, purchased clainiants ort the 12th of April, 1886·, a ticket for himself and family for a passage frorp. New York to Bordeaux on board the !ste,amer Chateau Margame. Theticket expressly stated that the voyage was to be direct; and the company stated the same thing,emphasizing the shortness,and directness of their route, as inducements for invalids to travel by , The vessel sailed the 24thof April.· A few days befo!e' sallihg' she took a quantity of cargo to at Santander, and, though notice of this fact was published in a maritime newspaper; the intended deviation was not made known to the libelant, thougp tlle company hadllis address; ,arid,he did not learn that the vessel was to go , to Santander until ,a few days out. "The steamer )Vould naturally have arrived at BortJeaux a little sooner tlian at Santander. She remained three days arthe latter place, and was three daysrnore in proceeding from Santander to Bordeaux. " The libelant Claims $2,000 special damages,for the detention and the annoyances arising from it. He, had writteQ. to' a: gentleman at Turin to meet. hini at Pa:ris on the 6th, of May on business'; who attended at the time, and, after waiting, departed fore the steamer reached Bordeaux,which was on the l2th of May. There ieh:io proof of The appointment was not kept, but no pecuniary loss therehy is deviation was, however, a breach of contract, and the libelant is entitled toreasonable compensation for the loss of Hme, and the inconvenience and annoy.ance directly and ria:t'ill'aJly arising from the violation of the contract. ' Wpen it was detern;iined to send the vessel to Santander, ,there waf! plenty of tIme .to apprise the libelant of thefact before sailing; and he would have been entltled to a rettirnOfhis passage money, had he chosen to demand tander, the master, by authority of the owners at Bordeaux, offered transportation to the libelant and his family by rail, or by one of the transatlantic steamers, which was to leave Santander the day after the libelant's arrival there, which "'QuId have saved two or three days of the delay. The libelant preferred, to remain on board his vessel, rather than suffer the inconveniences incident to such a change; and he did not telegraph or write to the person whom he expected to meet at Paris. The C<loofort, and even the pleasures, of the libelant and of his family were n;tinistered to with marked consideration by tIle master of the vessel and the proof does,not show any actual pecuniary damage. :aut the defendants had no right, contrary to their contract, to take the libelant upon a route to which he never assented. I therefore allow as d.amages the amount of the passage money paid,'viz., 8200, withinterest, for which ,a decree may be taken, with'costs.
DPTUNE STEAM'lUV.'CO. t1. SULLIVAN TIMBER
(DiBtriCi' Oourt, B.D. New York.
. AGENT OJ' CORPORATION. '
November 26, 1888.)
:BE'J)WEElir NON-REsmElirTS -
Admiralty courts have a discretion as to entertaining suits between foreign· ers; and a transaction taking place in Florida, where an:theofficers of defend· ant corporation resided. and the lipelant being an English corporation, held, that no comity or reasons of justice or of superior convenience. so far as 'appeared, demanded relief in this district, and service on a limited agent here was set aside.
! ", ' ' ; ,.: J
In Admiralty:i Motion to set aside service of process on sn alleged agent ofa Florida/corporation. ' Seward, Da COBtd &1 Guthrie; for libelant. L L. LajlinKellogg,for "defendant.
BROWN, J. Upon the language of the marshal's return, stating service only on 'Bailey; as well as qporithe affidavits of Bailey and Carlaq, I cannot·findthlit the citatiori was served up6n Carlan.. Mr. Elliott's'affidavitsnys it, hasli1ways been understood that Carlan was the defendant's 'I managing agent."The ditectory does not indicate Bailey as agent, a.nd the tmrda'ttached to the affidavit does not so represent him. I canfind service on Bailey sufficient. . 'Had CarlnnbeeIi served the question would have been mbre embarrassmg. Underthe New York' Code (secti<ln 1780) it would seem that noeotion 'WOUld Hain the 'present case in the state courts, forboth partries are the cause of action did not arise here, and ,the defendant/ hasin.O property here. ,Courts of admiralty have a discretion as to entertaining suits between foreigpers. This whole dealing being in Florida, where an the officers reside, and the libelant being an F.nglisli ciorporation,110 cotnity, orteasODS of justice orof superior convenience; are'shown 'ro' demanti relief here,when full relief is easy dictibn'where'thetransactionwl:ts had. Besides that,. I doubt if an agent whose authority. is limited· toa distirict branch of business here, represents thecOl'poration as to matters wholly outside of that branch of ness, so that,as respects the latter business ddne elsewhere, he can be held to 'be in: 8.i1ysense such a "mahaging agent" as to'mitke the corporation "found" in his person within this' state. Admirlilty RUles; 2, 8; 25. ' BeaSt;' Glairv. Oox, 106 U. B.350, 356,359, 1 Sup. Ct. Rep. 854; Hat 8we¢ 00. v. Davis, 31 Fed. Rep_ 294. '.
. , " .' , I
·. , i