I'EDERAL REPORTED.
my conclusion is that Exhibit C was not made when ;Jobnson says it was, but subsequent to Johnson's leaving the employment of the Interchangeable Tool Company, and that Moses C·.Johnson was not the first inventor of the combination described in the patent issued to the plaintiff as assignee of Johnson. There must therefore be a decree dismissing the bill, with costs.
TUB MARGARETTA. 1 GREGORY and others v. THE MARGARETTA and THOS. F. LUBY. (District (Jourt, E. D. New York. July 81, 1886.) ADMIRALTY- WREOXS-FoRCIBLE TAKING AND WRONGFUL SALE BY WRECKMASTER-ACTION TO RECOVER-NECESSARY PARTIES.
On November 8,1883. the bark Margaretta took fire, and was towed to the Kill von Kull,where she scuttled and sunk. The place where she sank was within Richmond c;:ounty, New York. Her owners sold her, as she lay, to G., the libelant, who began operations to raise her. On November 23 the person occupied in raising her received notice from Luby, the wreck-master of Riohmond county, to desist from work on the vessel, and, this notioe beIng disregarded, Luby took possession of the wreck by foroe. A statute of the state of New York authorizes wreck-masters to take possession of wreckea property within their counties, when no owners shall appear, and, if the property is perishable, to obtain an order from the county judge, and sell the wreck at auction. Luby, having taken forcible possession of the wreck, obtained an order of sale from the county judge, and sold her to the claimant, and this action was broQght by G. to recover possession. Held, that it is only of property abandoned by the. owner, and upon such abandonment, taken possession of _by the wreck-master, that a county judge has the power to direct a sale. Bere there had been no abandonment by the owners. Held, therefore, that Lubts possession was unlawful; that the order of sale wal void, and the sale Itself invalid; and that libelant was entitled to the possession of the bark. Held, a18I1, that LUby was improperly made a party to this action. .
In Admiralty. T. O. Oampbell, for libelants. Edwin G. Davis, for claimants. BENEDICT, J. This is an action for the possession of tbe bark Margaretta. .That vessel, on the eighth day of November, 1883, while being loaded with petroleum oil at a wharf in New Jersey, took fire. While on fire she was towed to.a point in the Rill von Rull, opposite Sailors' Snug Harbor, in the county of Richmond, New York, and there, in 35 feet of water, she was scuttled, and sunk some 800 feet from shore. She had on board cargo that was insured, and on November 14th the insurance company made a contract with one William E. Chapman to save the cargo on board. On NQvember 15th Chapman I
Reported by R. D. & WyIlys Benedict, Esqs., of the New,York bar.
'rHE MARGARE'rTA.
325
'took possession of the vessel for the purpose ofs!Lving the cargo. On November 15th the owners of the vessel advertised the vessel for sale, and on November 19th she was sold at public auction, as she lay, to Mstthew Gregory. On. the same day Gregory took possession of her, placed a man in a scow along-side of the vessel to take care of the same. Gregory, also, on the same day, sold one-half of his interest in the vessel to Isaac Chapman. On the !:lame day Gregory and Isaac Chapman agreed with William E. Chapman, then at the vessel with a derrick, to raise the vessel, and remove it to some proper place. On November 23d William E. Chapman, while engaged at the vessel, in pursuance of his contract, was notified by Thomas Ln by, wreckmaster of Richmond county, to desist from work on the vessel. The notice being disregarded, Luby, on November 27th, took the vessel by force from the possession of Chapman. rrhereafter, Luby, as wreck-master, the vessel having meanwhile been raised by Luby at the expense of the county of Richmond, by virtue of a statue of the state of New York, (Rev. St. pt. 1, c. 20, tit. 12,) presented to the county judge of Richmond county a petition, setting forth, among other things, that the bark had caught fire in thE) Kill von KuIl, in the state of New Jersey, and had been "towed down, abandoned, and sunk in the waters and territorial jurisdiction of the county of Richmond;" that on or about the twelfth day of November, 1883, he, by virtue of his powers as wreck-master, and pursuant to the resolutions of the board of supervisors of Richmond county, took possession of the said wreck, and had since continued in possession thereof, as wreck-master of Richmond county; that the wreck was, at the time of presenting the petition, attached to the shores of Richmond county, and in a perishable condition. Upon such petition the county judge on the same day made the order: RICHMOND COUNTY. In the Matter of the
Thomas Luby, Wreck-master of the Oounty of Riahmond.
On reading and filing the petition of Thomas Luby, wreck-master of the county of Richmond, verified May 7, 1884, and it appearing that a sale of the bark Margaretta, therein described as perishable, and [sic] that it would be beneficial to all concerned that the same be sold, and on motion of W. S. Hornfager, of counsel for said petitioner, ordered that the said Thomas Luby, such wreck-master, be. and he is hereby, authorized to sell at public auction, to the highest bidder. the wreck of the Margaretta; that said sale shall be held at Pelton's cove, West Brighton. village of New Brighton. Richmond county, on the twenty-second day of May. 1884. at 2 P. M. of that day. STEPHEN D. STEPHENS, County Judge. Thomas Luby, on the fifth day of June, 1884, sold the vessel to Seguin. the present claimant, for tne sum of $400. Seguin has no other title to the vessel than that derived from the sale made by the wreck-master, as above described. Upon the proofs, the libelants
326
,FEDERAL REPORTER.
are the owners of the vessel, and entitled to the 'possession thereof, unless their ownership was ·terminated by the said sale to Seguin. The proceedings of the board of supervisors in regard to this vessel do not appear to require attention. No sale of the vessel was directed by the supervisors, nor was the vessel sold by order of the supervisors. Nothing done by the supervisors can therefore affect the validity of the Qlaimants' title. That must stand or fall by the wreck-master's sale, made the authority derived from the order of the county judge above set forth. . The provisions of statute under which the wreck-master acted are found in Rev. St., pt. 1, c. 20, tit. 19. The following provisions only require notice: "Section 1. No ship, vessel, or boat, nor any goods, wares, and merchandise, that shall be cast by the sea, or any inland lake or river, upon the land, shall be deemed to belong to the people of this state, as wrecked property, but may be recovered bJ' the owner, consignee, or person having the charge thereof, at the time of the happening of the disaster by which the wreck was occasioned, upon the payment of a reasonable salvage, and necessary expenses. "Sec. 2. The sheriff, coroners, and wreck-masters of every county in which any wrecked property shall be found, when no owner. or other person entitled to the possession of such property. shall appear, shall severally have power, and it shall be their duty. to pursue all necessary measures for saving and securing such property; to take possession thereof, in whose hands soever the same may be, in the name of the people of this state; to cause the value thereof to be appraised by indifferent persons; and to keep the same in some safe place, to answer the claims of such persons as may thereafter appear entitled thereto. "Sec. 3. If the property so saved shall be in a perishable state, so as to render the sale thereof expedient, it shall be the duty of the officer in whose custody the same shall be, to apply to the county judge of the county, by a petition supported by an affidavit of the facts, for an order authorizing such sale; and if the judge to whom such application shall be made, shall be satisfied that a sale of the property would be most beneficial to the parties interested, it shall be his duty to make the order so applied for. "Sec. 4. If such order be made, the officer having custody of the property directed to be sold, shall sell the same at public auction, at the time and in the manner that shall be specified in the order; and the proceeds of such sale, deducting the expenses thereof, as the same shall be settled and allowed by the judge making the order, shall be paid to the treasurer of the county in which the property shall have been found." Upon these provisions of statute it has been argued in behalf of the libelants that the bark Margaretta was not wrecked property, within the meaning of the because, having been towed afloat to the place where she sank, and then scuttled to make her sink, in a tideway, and some 800 feet from shore, she was not "cast by the sea upon the land," within the meaning of the statute. This point may doubtless be argued, and something said against the right of the owners of ships to make their vessels a charge upon the county of Richmond by voluntarily removing them from the wharves of New Jersey, and sinking them in the waters of Richmond county. A decision upon this point is, however, unnecessary in this case, for the
THB MARGABE'rTA.
327
reason that, assuming the vessel to have been wrecked property within the meaning of the statute, the wreck-master has nQt soch a possession of the vessel as the act makes necessary, to clothe the county judge with aothority to direct her sale. By section 2, above quoted, the power of the wreck-master to take possession of wrecked property is limited to a case when "no owner, or other person entitled to the possession of such property, shall appear." An abandonment by the to be shown in order to justify a taking posowner is a fact session of wrecked property by the wreck-master, and it is only of property abandoned by the owner, and, upon soch abandonment, taken possel:Jsion of by the wreck-master, that the county judge has jurisdiction to direct a sale. In the presentcaae it,has been sought to be shown that the wreckmaster acquired possession of the wreck, by putting a light on it, on or about November 12, 1883, and when no one was on board. It is by no means clear that the mere fact of absence of any person from a vessel, situated as this one was, would show such an abandonment as the statute requires; and it is very plain that Luby took no possession of the vessel until after the owners had their agents in actual custody of the vessel, and at work. When, therefore, Luby first asserted his claim to the vessel as a wreck, his claim was without foundation in law, for the property was not then abandoned property. On the contrary, the owners thereof had appeared, and were in actual custody thereof. The possession of the property afterwards acquired by Luby, through force, was unlawful, and supplied no foundation for an application to the county judge, nor did it clothe the county judge with any authority to directthe sale of the vessel. For this reason, therefore, I am of the opinion that the order of said sale· referred to was void; that the sale afterwards made by the wreckmaster was invalid; and that the claimants acquired no title thereby. In' regard to the position of Luby as a party defendant in this case, it is sufficient to say that he was improperly joined. The action is for possession. It is an action in rem: Luby was not in possession of the vessel when this suit was brought, nor did he then claim any right of possession and control over her. He had sold her to the claimant James Seguin, and Seguin alone had the possession. An action of trespass against Luby cannot be joined with an action in rem for possession. The exception to the libel, therefore, which was argued at the hearing on the minutes, must be allowed, and Luby be discharged from this action, with his costs to be taxed. As against the vessel, the libelants must have a decree awarding the possession thereof to them, and they must recover their costs.
328
FEDERAL
RE:P9RTER.
THE WILLIAM MARSHALL. OAIN
and others, Owners, etc., v. CHURCH and others. (DZ8triCt Oourt, D. Maryland. 1886.)
1.
DEMURRAGE-CONSIGNEE AND SHIPPER ONE PERSON-LIABILITy-AOTION IN PERSONAM. '
The respondents. ice-dealers In Baltimore, purchast'jd ice to be delivered' free'on board, in the Kennebec river, the sellers agreeing to procure the vessel, the respondents to pay the freight. Held, that the respondents, being both consignees and shippers, were liable in an action in pIJI'sonam for damages for unreasonable detention of the vessel upon arrival in Baltimore, before the discharging of the ice was commenced.
2. SA,ME-DISPATCHINGToo MANY VESSELS-PRINCIPAL AND AGENT.
The detention was caused by the accumulation of vessels in Baltimore consigned to respondents, and resulted from the sellers of the ice dispatching too many vessels at about the same date. Held, that the dispatching of so many vessels, even though contrary to respondents' instructions. was the act of persons acting in their behalf, and was no defense to libelants' demurrage for damages for detention.
(SyliabUB by the Oourt.)
In Admiralty. Robert H. Smith, for libelants. R. M. Venable, for respondents. MORRIS, J. This is a libel in personam to recover compensation for the detention of the schooner William Marshall in discharging a cargo of ice in the port of Baltimore. The schooner, with a cargo of 540 tons of ice, consigned to the respondents, Church, Lara & Co., sailed from the Kennebec river, August 12, 1886. She arrived in Baltimore early on the morning of the 20th, and reported to the consignees. On the 28th, discharging not having yet commenced, the master notified Church, Lara & Co. that from the 30th he woul<i expect and require compensation for delay. On September 2d discharging was commenced, and was completed in two days. The libelants claim compensation for five days' detention from August 30th to September 3d. There was no formal charter-party, and no agreement for demurrage; the only contract being that expressed in the bill of lading, which provides that the ice is to be discharged by the consignees, with the assistance of the crew. The legal implication, therefore, was that the ice was to be discharged in a reasonable time, having regard to all the circumstances proper to be considered. Bacon v. Erie r:t Western Transp. Co., 3 Fed. Rep. 344. It is not disputed that the detention was far beyond the time actually required for discharging the ice. After a voyage consuming only eight days, the schooner lay in port for 13 days before she was taken to respondents' wharf, and the discharging which was then commenced was completed in two days.
