CHAPMAN.". i'HE ENGINES OIr THE GllEENPOINT.
ENGINES OF THE GREENPOINT.
(DiBt'l'ut OOU'I't. 8. D. NeIJJ York. May 10, 1889.)
,. An 8/P'eementto pay a salvor a specified sum if he in raising the en¥ines of a sunken steamer'within a certain time, and a larger sum if it reqUires j1. Jonger time, does n01,deprive the salvor of his right to a maritime lien. A salvage se'rvice carries with it a maritime lien on the things saved, whether the vessel.iil.foreign or domestic;, the rule as to repairs and supplies, not to be extended by analogy.
In Admiralty. Wing, Sh.oudy Putnam, ·for ljbelant· .Goodrich"Deady Goodric4, rfor claimants.
J. The steam-tug Greenpoint having been Bunk, the libelant wssemployed to raise her engines under a stipulation that he should be paid $150, besides towage, if he succeeded in raising the engines within two days; and a larger sum if it required a longer time. Having suc,.. ceeded in raising the enginesJ and not being paid, he libeled them for his:coJ;l).pensation, as for Other libels were also·filed against the engines for seamen's wages on board the tug, and also for supplies of coal. The owner did not defend; and, the engines being sold by the marshal, the proceeds paid into court are insufficient to discharge the several claims. The commissioner has allowed $215 ·for the libelant's claim, as for salvage, according to the agreement, which I find to be reasonable. The supply men, under leave to litigate the claim of Chapman, contend that his demand is no lien on the vessel, because the tug was a domestic vessel, and because the compensation was to be paid at all events, ,and, therefore, not a salvage contract, nor entitled to a maritime lien. 1. The evidence does not show that the libelant was to be paid a specifiedsumatall events, whether he succeeded in raising the engines or not. On the contrary, though the bargain was oral, it is evident that he would notbooome entitled to any compensation unless he succeeded in raising the eng\nes. Nothing short of a distinct agreement to pay the stipulated sum, whether the service be successful or not, will change the character of a salvage service into a mere ordinary contract of employment, or ,deprive it of its maritime lien. The Camanche, 8 Wall. 448, 477; Adama v. Bark Island City, 1 Cliff. 210. In the case of The Louisa Jane, 2 Low. 295, LOWELL, J., upon a careful review of the authorities, held that even an absolute contract to pay would not change the nature of the service, or prevent a maritime lien. Agreements between the parties fixing a definite sum to be paid for services of a salvage nature are treated as attempts merely to regulate the amount of compensation, not otherwise affecting the nature of the contract, or the right to a lien, if successful. Such agreements are very common, and are upheld by courts of admiralty, if
reasonable in amountj if oppressive or extortionate, they are disregarded. The Jenny Li11.d,Newb. Adin. 443ji,The A. D. Patchin, LBlatchf. 414; The Emulous, 1 Sum. 207; The Adirondack, 2 Fed. Rep. 387. 2. A salvage,service carries with it a maritime lien on the things saved, whether the vessel is foreign or domestic. The distinction between forBign and vessels,' as respects liens, established by the case of The General,Smith,4 Wheat. 438, had reference only to repairs and supplies. It was derived from the exceptional rule of the English law, in opposition to that of most, if not all, other maritime nations. It was reaffirmed in the case of The Lottawanna, 21 Wall. 558, not upon any general principle, but solely on the doctrine of stare decisis; and it is nowhere intimated that the rule as to repairs and supplies is to be extended byanalogy to other contracts. It has no application to towage, to pilotage, to charter-parties, to freights, or to damage liens. That the rule as to repairs and supplies, which early obtained a foothold in oUr maritime law, was not suited to the general necessities of this country, is sufficiently attested by· the fact that in nearly all the states liens upon domestic vessels have been provided for by statute to supply the exceptional defects of our maritime laWj a.nd the admiralty courts recognize and enforce those liens. The statutes do not cover salvage, because the maritime law uni. versally and from time immemorial has given a maritime lien for such services; and there was therefore no need of any statutory provision. 'l'he raising of sunken cargo, or of sunken vessels, their machinery and ap-; purtenaoces, is ()ne of the most common forms of salvage service. The books are full of Buch cases. By immemorial usage such services. are rendered upon the credit of the property saved, as well as of the employer also, if there is a previous contract. In the case of The LottisaJane, 8Upm, LOWELL, J., observed that he was not aware of a case in which it had been held, or even argued, that such a contract does not create a maritime lien. The majority of the numerous salvage cases in this district have arisen upon domestio,vessels. To deny the lien merely because the vessel is a domestio one would be, not only a reversal of the immemorial law, but a denial of the security always heretofore attached to services deemed to rank among the highest in merit and in privilege. The casei3 cited by counsel proceed, I think, upon the ground that in the particular circumstances the service or the contract was; not properly One of salvage. The 26 Fed. Rep. 285j The D. S. Newcomb, 12 Fed. Rep. 735; The Enright, ld. 157. The exceptions are overrUled, and the claim for Bupplies must be postponed to both the others.
THOURON '/}. EAST TENNESSEE, V. & G.
'l1. EAST TENNESSEE,
V. & G. Ry.
«(Jircui( Oourt, E. D. Tennessee. April 27, 1889.)
REMOVAL OF CAUSES-LoCAL PREJUDICE-CITIZENSHIP OF PARTIES.
The complainants, some of whom were citizens of Pennsylvania, and The remainder aliens, on behalf of themselves and all other stockholders of the E. T·· V. & G. Ry. Co.· filed their bill in equity in 8 state court against the E. T., V. & G. Ry. Co., a corporation of Tennessee. the R. & D. R. Co.· and the R. & W. P. T. R. & W Co.· both corporations of Virginia. and the various directors of the three corporations. citizens of New York. Virginia. and Tennessee. to enjoin and restrain the E. T.· V. & G. Ry. Co. from ratifying and approving a pretended lease of their property to the R. &. D. R. Co.. and to compel the latter company to restore to the possession of the fotmer the property which had already been turned over by virtue of such lease. A motion for an injunction was made in the state court. which. after argument, was granted. Thereupon. and after the service of the injunction. one A.. G. S.· a citizen of the state of Tennessee. without the, knowledge or consent of the solicitors for the complainants. obtained an w'pal'te order making him a co-complainant in the suit.. The R. & D. R. Co.· having filed its answer, removed thl' suit to the United States circuit court on the ground that it was a suit pending in a state court, in which there was a controversy between 8 citizen of the state of Tennessee. i. e., A.. G. S.· and the petitioner, a citizen of the st&te of Virginia; that the amount of $2,000. exclusive of costs. was involved in said suit; and that by reason of local influence or prejudice the pe· titioner could not obtain justice in either the court in which the suit was brought or in any other state court to which. under the laws of Tennessee. it could be removed. The original complainants moved in the United States circuit court for an order remanding the cause. 'He&d. (1) that the cause was improperly removed to this court. and that it cannot take jurisdiction of the same; (2) that the removal of a cause from a state court on account. of prejudice or local influence. under the act of 1867, as re-enacted in subdivisionS, 6S9, Rev. St., could only be had, as settled by numerous decisions of the supreme court, when all the parties to the suit on one side are citizens of differ· ent states from those on the other; (3) that the language of the act of 1867, on which such decisions were based, having been copied into the act of 1887, the same construction must be given to the latter act; (4) that. while the original complainants were the only party plaintiffs, there was clearly no right of removal,on the part of the defendants or either of them; (5) that the joinder of A. G. S. as co-complainant. in a representative suit so brought, in no way change(1 the character, object. or purpose of the suit. and did not confer upon the defendant the R. & D. R. Co. the right to remove the suit to the federal court. Whe&an v. Railroad 00.. 85 Fed. Rep. 849, distinguished.
In Equity. On motion to remand. IngersoU & Peyton, Oharles M. Da Costa, and motion. Pope Barrow, opposed.
Dickson, for the
JACKSON, J. In October, 1888, the complainants, Nicholas Thouron, William J. Barr, and Edmund Allen, being then and now citizens of the state of Pennsylvania, in connection with C. Sligo de Pothonier and Frederick J. Burt, then and now aliens and subjects of Great Britain, on behalf of themselves and all other stockholders of the East Tennessee, Virginia & Georgia Railway Company similarly situated who might choose to come in and share in the benefit and expense of the litigation, filed their bill in the chancery court of Knox county, Tenn., at Knoxv.38F.no.9-43