BOLTEN
THE JAMES L. PENDERGAST.
717
I allow the libelant $750 for one-half the damages, unless a reference be desired, which either party may take, if wished. The costs are also divided. My decision was arrived at before the application by the libelant to take the additional deposition, and has not been influenced by it.
BOLTEN 'V. THE JAMES
L.
PENDERGAST.
(Diaf!rict Oourt, S. D. New York. March 31, 1887.)
1.
BOTTOllRy:-cNoTE FOR SupPLIEs-MORTGAGE.
A note given by the master in a foreign port by the owner's authority for necessary supplies, pledging the vessel for the payment 10 days .after completionof lier voyage, is a valid bottomry lien, and outranks a pnor mortgage.
'
2.
The vessel having bElen libeled at Boston to enforce the bottomry. and being custody of the marshal, was and that suit discontinued, upon a wrItten agreemellt between the p,artles that she should go to New York to take in cargo, and that the existing lien for bottomry should remain in full , ,force, to be enforced in the di-strict court of New York or New Jersey, by libel or otherwise, on arrival, ,and that the owner should pay all court, expenses in Boston on arrival, to be secured as part of the lien. Held, upon 1ltJe arrival ,of the vessel in, New York, under the agreement, that the libelant had a valid maritime lieufor the amount due on the bottomry note, as well as court expenses in Boston; excluding, however, additional counsel fees. SAME-NEW CHARTER-RE"ARREST-MARSHAL'S AUTHORITy-LOADING WHILE IN CUSTODy-DELAy-DAMAGES.
SAME-.ARREsT-RELEASE:UNDE,R AGREEMENT-LIEN CONTINUED.
8.
The defendant, upon the above agreement, insisting that, before settling the bottomry claim, he had an option to send the vessel to Bayonne, New Jersey, to load under a charter which did not nanie the particular place of loading, held inconsistent with the written agreement; that loading without the charterer's knowledge of the lien. and of the agreement for enforcing- it, could not proceed without bad faith to the cbarterer, before a neWtlrTest by the marshal; that the marshal had no authority to permit loading without notice after arrest; and that the owner's rlamages, through delay in not load· ing under the charter after the re-arrest, were through his own delay in settling for the lien, or releasing the vessel nnder stipulation, and that there was no cause of action or offset against the bottomry creditor therefor.
,In. Admiralty. Jas. K. HiU, Wing & Sltoudy, and H. Putnam, for libelant. Whitehead, Parker & Dexter, for claimants. BROWN, J. The libel in the above cause was filed to recover the sum ()f $1,592.50, upon a draft drawn and negotiated to the libelant by th3 master of the James L. Pendergast at Hamburg, May 7,1886, for £325, payable 10 days after arrival at Boston, Massachusetts, at the office of the consignees. The last clause of the draft is as follows: "Value re.()eived, for the. necessary use and outfit for the said vessel, and for the payment of which I hold my vessel, owners, and freight responsible." no doubt that the draft. drawn tQ obtain necesThe prQofs saries for the ship at Hamburg, and in form and substance by the authority of Mr. Pendergast, who was the equitable and managing owner.
FEDERAL BEPORTEB.
dt became, therefore, a lien by bottomry upon the vessel. Force v, Pride 'of the Ocean, 3 Fed, Rep. 162;, The Giulio, 27 Fed. Rep. 318, 319, Upon the arrival of the vessel at Boston, she was arrested by the mare' shalunder a libel to enforce, this demand., The managing owner being in New York, and desiring that she should load here, after several interviews with Tobias & Co" the agents of the libelant in New York, made an arrangement by which she might be b,rought here, which, so far as respects :Mr. Pendergast's obligations and their conditions, was embodied in the following letter:, , "MeSSTS. C. Tobias &: Co,-GENT.: As a favor and convenience to me, I request you to discontinue your action in the district court of Massachusetts against bark Jas, L, I>endergast, for the collection of a draft of £325, It is important that the vessel comeherf;l to New York to take in cargo, and, in consideration of your consent to such removal, I agree that all lien you or your correspondents now have against said vessel shall remain in full force, andconsebt that you may enforCe your claim in the district court of New York or New Jersey, by libel orbtherWise, on the arrival of the vessel.l agree also that aUeourt expense3 in Boston will be paid here, on arrival of vessel, and secured as part of said lien on said vessel. , , ' , "JAB,F. }>ENDJj:RGAST, "New ,York, July 28, 1886.. Agent for Owners and Mortgagee." ,Thereupon the libelant discOntinued the suit in Boston, released the vessel from custody, filed the libel in the present cause inthis district on J\lly 30th, two days after the de)ivery of the abo"e letter, procured a ,special deputy-marshal to be appointed, who went to Boston,and sailed on board the bark for this port, andarrested her under ,the process in this cause as came jurisdiction, Some time after the arrest in this district, the surviving .partners of E, D. :Morgan & Co., 'mortgagees bf the'vesselunder 8: mortgage dated January 3, 1873, intervened for their: interests, anli prQcured a release of the vessel upon the ;uBual stipulation;', The originnlanswer, in effect, stated that the sum of $10,000 was due upon their mortgage, and contested any lien in behalf "of the libelant, and denied that the claim in suit a prior lien to their own, an(l averred that the vessel was worth much 1esB than the mortgage debt. By an amendment to their answer, it was averred that the agreement in respect to the removal of the vessel to this district was that said vessel was to he 'taken from Bostoll New Jersey, to ta}{e in cargo under a charter already made, and that the libelant's claim should be paid out of an advance to be made by the charterers; that the libelant, upon arrival at New York, refused to permit the vessel to proceed to .Bayonne, as agreed, but seized and detained her within this jurisdiction. The evidence does not sustain the averments ef the ainended answer .to the extentclail11ed. There was no agreement that the vessel should go to Bayonne, or that the libelant's claim should be paid out of the expected ad vance. The entire chai'ter money wasih fact but little in excess of the claims in 'Buit, The proof establishes no agreement beyond the propositions contained in" the letter above quoted, which the libelant, through' his agent, at 011ce accepted,alld actedupoJi. The evidence does ,show, however, that the charter 01 the bark, had been made six
BOLTEN 'V. THE JAMES L. PENDERGAST.
719
days before, gave the 'charterers, .accordingto the custom of the port of New York,a right to load her about the' waters of New York or at Perth Amboy or Bayonne, New Jersey. But whentbe letter was signed by Mr. Pendergast and accepted and acted upon by the libelant, none of the parties knew to which ofthese places the charterers would wish the bark to be sent. The proceedings on the part of the libelant have been in exact accord. ance with the provisions of Mr. Pendergast's letter. 'rhe complaint now made of the libelant, in effect, is that, after the vessel had arrived, and was in the custody of themarshal,he did not permit her to go to Bayonne, in the district of New Jersey, to load, before the settlement -of the libelant's claims; arelse that he did not forbear to arrest her, -either here or in the New Jersey district, until after she had gone to Bayonne, and secured an advance from the charterer. There is nothing in the agreement, however, and nothing in the circumstances from which it could be rightly inferred, or upon which Ml'. Pendergast had any right to suppose, that the vessel was to be loaded, and the advance obtained ,from the charterer, some definite arrangement was effected for the ilettlementof the libelant's claims. No such arrangement was even proposedrexcElpt a partial and insufficient arrangement to go to Bayonne and load. Without some arrangement to which both the libelant and the charterer Wele parties, the loading could not go .on consistently.with the. provisions of the agreement, nor in the II10de now contended for by therespondent,without a species of fraud upon the charterer. No such .;arrangement is provided for in the agreement, and none was made afterwards. Tbe marshal has no authority to permit a vessel to be incumbered by unnecessary additional charges and liens while she is in his possession. The Aline, 1 'Wm .. Rob. 112, 122; Muir v. The, IJriik, 4 Ben. 252; The Rep. 123-125; TM O.L. Bayliss, 25 Fed. ReP. 862; The Young AmeriCa. pOIlt, 789. A lien for the completion. of the '..charter wOUld arise the moment cargo was loaded under the charter, while ,she could not sail unless the. claim in suit were settled. It is not contended that any advanc.e of the charter mo.ney coul!i be secured until the vessel was loaded, wholly or in .part. And it is not of -olear common sense, but the testimony. shows, that the terer .would;not knowingly load a vessel, much make any AAVll,uces she Was inthecmltody of the:marsb,al upon aliellnj:larly equaling the whole charter money,unless some ID()de of settlemept .gatisfactory to the charterer were agreed on that would not involve either d.elay in sailing, or loss to him. It would be a fraud upon the charterer. on the one hand, to conceal from him the marshal's custody and possession while taking the charterer's cargo on board, and obtaining an advance thereon; and it would be equally a virtual fraud upon him for the partied, by agreement, to send the vessel to be loaded by him, and to get an advance thereon, with the intent to libel and arrest her as soon as the .advance on the loaded cargo should be obtained. The latter procedure, ADoreover, would involve no little delay on the libelant's part in enfore-
720
FEDERAL REPORTER.
ing his lien; whereas the written agreement provides expressly that the libelant may proceed by libel or otherwise, "on the arrival of the vessel;" that is, immediately on her arrival here, and without any delay. There was in fact no way for the owners of the ve..,sel to proceed consistently with the agreement, or without a virtual fraud on the charterer, except by the immediate settlement or arrangement of the libelant's claim, upon the arrival of the bark in New York, and before taking any cargo on board. It is clear that the libelant had no motive or intent to engage in any such irregular proceedings.Mr; Pendergast's intent, I think, was only to get the vessel here,.and then to arrangefot her release through the aid of the charter and the expected advance, insorrieproper way. The agreement with the libelant did not provide for this subsequent ment, but only to bring the vessel here, subject to the liens on her. After she arrived, instead ofarl'anging for her release, Mr. Pendergast to load,without a further demanded that she should be"sent to arrangement of any kind. This was not in accordance with the ment, nor was it practicable without irregularity or virtual.fraud. There 'Was nothing to pl'eventthe immediate release oithe vessel on her arrival here, upon stipulation in this'court,as was afterwards effected. She could ,then have proceeded to Bayonne at once to load under the charter. This is the natural import of the agreement, and the only construction legally practicable. There was no legal' damage to the respondents, except such as arose from theirown delay. The provisions and conditions now sought t6 be ingrafted upon the written agreement byparol evidence are not only indefinite and irregular, but wholly incompatible with the terms and legal effect of the agreement. The new contract for the continuance of the lien having been' therefore observed by ,the libelant, and being a maritime contract upon good ';consideration" must be enforced according to its clear purport; even though the original lien were held to have expired on the discontinuance and release of the vessel from custody at Boston, which,undet the circumstances, is doubtful. The Wm. Mltrtdgh, 17 Fed. Rep. 259; 264j The Jack Jewett, 2 Ben. 353; The Thales, 3 Ben. 327,10 Blatchf.:203; The Nahor, 9 Fed. Rep. 213. The libelant is therefore entitled to the amoun't of the draft, and interest. together with such marshal'sfeeaand court expenses in Boston as were taxable upon the discontinuance of the suit there; also $47 paid for seallien'a wages, with $4.10 port charges, with the costs ofthia action; but excluding other counsel fees in Boaton.
SIMONSON V. JORDON.
721
, SmONSON '11. JORDON.
(Oircui' Oour',B. D. New York. May 9, 1887.) REMOVAL OF CAUSES-PETITION-1'nIE FOR FILING.
Section 3 of the removal act of March 3, 1887, requires the petition for reo moval be filed at the time the defendant was required by the laws of the state, or the rules of the state court, to answer the complaint. In this case the defendant's time to answer would have expired March 2d. but, by stiPul,ation, the time was extended to March 80th. The petition for removal was not filed .till April 8th. Held;, tl:lat,the act applied to the action, although it wall pending at the time of enactment, and that, since the lltatutory time for answering could be extended by stipulation, as was done, defendant lost his right to remove by his failure to file his petition before March30th.
Evarts, Choate &: for plaintiff. Stern &: Myer8, for defendant. , This'is a to remand upon the ground that the petitioh for reD).oval' was not' filed at the time the defendant was "required, by the laws ofthestateor the rUle of the state court, to answer to the complaint,"as pr6videdby,seetiotl 30ftheremoval act of March 3, 'The action was coinnietl<;ed iIi the state court, February 10, 1887.' The defendant's time to answer would have expired March 2d, but, by stipulation, the time to answer was extended until March 30th. The petition and bond for removal were not filed until April 8th. It is insisted, in opposition' to'themotion, that the time to answer had expired when the new was passed, and that the act should not be construed, retroactively,to apply to a pending action, which it was too late to remove, because such a construction would deprive the defendant of the right to remove his action. Even such a consequence would be one of interpretation, and not of might follow, the powerto restrict or to abrogate such a right. Insurance Co. v. Ritchie, 5 Wall. 541; .Ex parte Mc(htdle, 7 Wall. 506; U. S. v. Tynen, 11 Wall. 88. But the new act did not destroy the right of the defendant to remove his case to this court. By the rUles of practice of the state court, he was not required to answer until the expiration of the time allowed by the stipulation made in the action. Although, ordinlirily, a defendant must answer within 20 days, this time may be extended by the court for good cause shown, or by consent of parties. When so extended, the ordinary time to answer is enlarged, and, as so enlarged, is the time within which the defendant is required to answer. If the defendant had filed his petition for removal at the time of answering the plaintiff's complaint, or at anytime between March 3d and that tirne, he would have complied with the act. The motion to remand is granted. v.80F.no.10-46