lH actually saw wilsthe sight-feed which Abstardam patented, and not the sight-feed of Gates! which he says he invented previously. but we do not :find described in, his patent. .To my 'mind it is 8i cirCl;lJIlstance of some weight, notwithstanding his explanation, that Absterdam should not have described this improvement in his patent., Upon this record I havestillsomeidoubtswhether Absterdamwas the first inventor, and under thesecircumstB.noes itis clearly my dutyt() sustain the Gates bill should be dismissed as to the Seibert patent, ,and suspatent. tained: as first and se90nd claims of the Gates patelltj alld it is so ordered.·.
THEPAOLAR.l Z:tIGI.ER v.THE PAOLA (Oircuit OO'U'J't,B. IJ.LouiBiana.
R.
June 17, 1887.)
1.
MARITrnE'LIENI:l-WHAT CONTRACTS GIVE :RzSE TO.
Maritime liens are 8t:riciijurilJ, and do not ltrise on all contracts made by the owners' to result in profit to the ship. The testis to be applied to the subject, , and nQtto tbl! objllCt., It is the subject-matter of .the contract .which must be maritime. Itn4notthe;IDllrll o1)ject,-the slJip. ' No maritime1illn eJi:ists for the eompressing of cotton, when the compressing was performed inland, .aildbeforeali.y contract of affreightment; binding on 'the ship, was made.
2. BAYE":"CoMPRESSING COTTON.
Admiralty Appeal. . . ,., " . 'B. ]i'lfank iJimaS and L O. 'Nixon, Jr., for libelant. E. H."Farrar, and E. B. for claini.ant. PARDEE, 'J. Compressing cotton' for shi pm ent by vessel onailroad is land demandofthe. libelant in this casEds,c in effect, to establish a maritime lien far the compressing of cotton, when the compressingwfls performed inland, and before anycontl'act ofltffreightment, binding on the'snip, was made. The statement ofthecase shows that there conipressing. But. the libelant says that in the port can be nO of New Orleans. the custom 'and tisage was and is that billf1 of lading of cotton are made; and rates, are' fixed, with reference '00, the delivery to uncompressed cotton, and that when compressed cotton is the ahip delivered':'OO,' a ship the shfP, repays the cost of cempressing. Concede contract such ll, custori:l, a,.nd it can have no greater effect than an to the same purport between the ,master and the shipper. Such an express corltracFwould be, in substance, an agreemeht to nniken rebate on freight'of'cgmptessed and t?e freight IS earned,' or, ll1' other words, 'the ShIp, 111 conSIderatIOn of'frelght to be earned. agrees'tO pay down a cash amount.' ., Marititd0'liensare stricti juris, (see ..vandewater v. Mills, 19 How. 82,) .. ';',,. ,
of
lReported byJosephP. Hornor, Esq.,oftlieNew.Orleans Bar.
115 and do not arise on all contracts made by the owners to result in profit begiyen. It is only where the conto the ship. Many tract to result in benefit to the ship is a maritime contract that a lien on the ship arises. Whether a contract is or nota- matitime contract depends on its subject-matter, i. e., whether it provides for maritime servtransactions, or maritime casualties. Intmrance Go.v. Dunnam; 11 Wall. 1. Inthl:lpresent the, contract to the obtaining of a cargo, and IS to be performed before the voyage is commenced, and without reference to the result. A policy of insurance on a ship is a maritime contract, (Intmrance Co. v. Dttnham, supra,) but no lien results fora premium, (The John T. Moore, 3"Wo'Otls, 61.) " There is no lien for :cdmmissions On advances, nor for obtaining freights. ,The J. a. WiUwm8, 15 Fed., Rep. 558. In ;Ferria v. Jewett, 2 Fed. Rep. 111, a lien was denied a shipping broker for services in obtaining a crew., A shippibgb1llJkerhas no lien for services in procuring,a charter-party. The Thames,1O Fed. Rep. 848. The services of a solicitor of freight are not maritime in character; and create no lien:on the vessel. The (Jrystal Stream, 25 Fed. Rep. 57:5. In The 'Thames, BROWN say's: between preliminary services 'leading to a maritime contract,alia'such contracts themselves,have beenafftrmed in this count'ry from the first, and not yet departed' from. It furilishes, a distinctioJ:!. capable of somewhat easy application. If it be broktlll down, I do not perceive any oth\lr dividing line for excluding from the admiralty many other sorts qf claims which have a reference more or less near or remote to navigation and commerce. " If4pe broker of a charter-party be admitted, the insurance bl)Oker must fOllOW the drayman, all others who ices having reference to a v.oyage either in contempl'ation or executoo. " ' And so the responsibilities of the ship on lLCcotintof cargo must be held to commence with the delivery ofthe,;goods to the ship, and be confined to the transportation to' and safe delivery of. the goods at the port of delivery, and to the performance of such maritimeservic6s as may lawfully be agreed upon. If charges and expenses necessary to the ship; and to the conduct of its business, but preliminary to the contract of affreightment, are admitted as maritime liens, there will be no end to: the business that may be drawn to the admiralty. Compressing, ginning, baling, and perhaps picking cotton may each ripen into a lien on the ship that ,eventually contracts :to carry the cdtton froni the country. The principle on which the decisions rest as'to lien or no lien is "that the test is to be applied to the subject, and not to the object; that is to say, it is the subject-matter {)f the contract which must be maritime, and,npt the mere object,-the :ship." See 21 Law ,Reg. (N. S.) 1. Lelandv. Medora, 2Woodb. &M..'109. The subject of the libelant's contract under the custom claimed was not the carrying of the cotton, but was preliminary thereto, and was not a maritime contract, and no lien arises. The exception will be maintained, and the libel dismissed, with costs.
,
176
REPORTER.
TUESAGINAW. (Di8trict Oourt, B. D. Michigan. October 19, 1885.) I '
A libel for a balance of an account between a wharfinger and a steam-boat, most of the items of which account were not maritime, was held not to be maintainable.' ; (Syllabu8 by the Oourt.)
MAlUTIME LmN-W:lUnFJNGER-AcoOUNT.
On. Exceptions to Libel. The Hbelaverred that)Jibelant was the owner of. a ,wharf at Port Hope, one of the regular stopping places ef the steamer; ,that it was customary ,for the Saginaw to delivel1 her <consignments for that port. 'lpon this wharf, subject to her claim for freight and advance charges, which were , collected. bye the libelant, and credited to the steamer; that the steamer, upon the other hand, was charged with such collections for freigbt and advance were paid over,with dockage, and als? for merchandise, (salt and hay,) which libelant ,was accustomed to turn over to the steamer, to be disposed of at the lower ports by her <;>fficers, and accounted' 'fori and that there was' a.balance due libelants upon this account of $146.20; ,for wh,ich he clalllleda lien. ,; JWrrtes J. Atkinson, for libelant.' George E. Haliday, for claimant. BROWN, J.\This libel is for the balance of an between a wharfinger anda and 'is clearly not maintainable. The items of libelant's claim are (1) for freight collected for the steamer, and paid over to her, for which there is clearly no lien, even if more were paid than was due; (2) for wharfage; and (3) for merchandise delivered to the steamer, to he disposed of and the proceeds credited to the libelant. The last item I held not to be a lien in The Nf!/Wl Hampshire, 21 Fed. Rep. 924. Perhaps the items for wharfage might be a lien under the state law, if the suit were for a wharfage alone; but, if it be for a balance of a run,ning account, the fact that some of the items are maritime in their character will not confer jurisdiction upon this court. Tho Gold Hunter, 17 How. 477. The cases wherein a court of admiralty.will take jurisdiction of ac,counts are weH stated by Judge WARE in Tho .mrch, 3 Ware, 28, 34. ,. If all libelant's items were a lien upon the vessel, IlInd the credits could , be treated as so much payment upon account, I would .entertaio jurisdictidn; but where it is apparent from the pleading that the suit is in reality to settle an account, and to recover a balance due, the libel will 'notbesllstained.· ,
WIJr,LIAMS
V. MORRISON.
171
WILLIAMS and others v. MORRISON and others. (Oirc'Uit Go'Urt; E. D. Mi88ou'l'i, E. D. Septembe;r 22,1887.) 1. ,I
An action of replevin wfisbrought in a state court to recover a quantity of paving .stone alleged to have' been wrongfully taken: from plaintiff's quarry, .; the property was seized by the sheriff. Pending this action, the defend. ant. brought suit in the United States circuit court for the recovery of the . property so seized, together with other stone that had been quarried subsequent to the seizure. Held, that the United States. court had no power to deter;.minethe rights.ofthe parties to the property seized, I,lnder process of the state coUrt, .as the same question was before the state court; and that if, through the '. fQu.It of Pl.aintiff, the other ;pr.operty sought to be recovered had become so '; mi;xed ,with th"t seized by the slleriff tb,at the two lots could not be distinguished, none of the property could be recovered.! 2. LICENSE-REVOCATION-0R,ALLIPENSE TO QUARRY STONE-POSSESSION STONE' AFTER LICENSE REVOKED. ' OF
COURTS-CONFLIC'I.' OF STATE AND FEDERAL JURISDICTION-REPLEVIN-CON' ;FUSION OF GOODS.
.. An.oral.license to ta\l:e out stone from a quarfY for a tllrm of years is·sub· ject to, revocation at any time, upon notice to the licenaee, and he is not enti· tIed to possession of the stpne taken out subsequent thereto. ,." )
Cha'8. A. Da'lJ'l:g, Goo. A. OastMnan, and a. D.' Yancey, for plaintiffs. M. E8te8 and Dinning k Byrnes, for defendants· . THAYER, J., (charging jury.) The case that you were engaged in trying all pf yesterday is what is known as an action of replevin. The action involves the question whether the plaintiffs in this case or the defendants were entitled t.o the possession of 8,000 or more granite paving on April 23, 1886, when this suit was brought. It is not denied that tpll defendants were in possession of the granite blocks in question when thi;g suit was brought; and it ,is not denied that they were taken by tpe United States marshal. under an order of delivery in this case, from the possession of the defendants, and that they were delivered to the plaintiffs, and are now in, plaintiffs' possession. The question which you will have to determine is whether the plaintiffs shan retain in whole or in part the granite blocks so .delivered to them by the marshal. or shall in whole or in pa.rt restore them to the defendants. That is the general question to be settled, and the settlement of it depends upon the question who was the owner of those granite blocks on April 23, , 1886, when this suit was brol,lght? Now,the facts which plaintiffs rely upon to I!lupport their title are, in substance, as follows: rr:hey claim tha:t in November or December, 1885, Mr. Lorenz, acting in behalfof hiIpself and Morrison, gave them verbal permission to take immediate possession of the granite quarry and work iUor two years, paying therefor $1. 50 per 1,000 Jor all granite blocks taken out ready for shipment. On the other the defendants deny 1 As. to the principles wbieb in cases of conflict between courts of concurrent jurisdiction,'see Senior v. Pier;e, 31 Fed. Rep. 625; Melvin v. Robinson, Id.634j Kohl: v. Ryan, Id: 636:
v.32F.no.3-12