Gambar halaman
PDF
ePub

Davis . Pendergast.

vessel was ready and in a condition to commence unloading on the 24th of December, and the agents of the respondents were duly notified on that day. She was then at anchor on the anchorage ground set apart by the port regulations for vessels lying in the harbor for a discharge of cargo. It is also shown, that, by the customs regulations, the assorted cargo could only be unloaded into the custom house from the vessel alongside, or by lighters. If discharged from the vessel into the custom house, it would be necessary for the vessel to wait her turn to come alongside. In this case, lighters were employed and paid by the vessel, as it was supposed in this way time might be saved, other vessels being ahead at the custom house. No specific charges of neglect are made against the vessel. The respondents required that their agents at Rio de Janeiro should be her consignees. This was, undoubtedly, to avoid disputes as to her diligence in discharging, and also to accommodate the respondents in receiving cargo. If, by reason of their agency for the respondents, the consignees failed in their duty to the vessel, it is not right that the respondents should be charged with the loss. It was the duty of the consignees to employ lighters for the vessel, when required. In this case, the consignees were repeatedly asked by the master to send lighters along more rapidly, and I cannot but think that the delay was caused by a scarcity of lighters, or an inability to unload them at the custom house, or, by what is, perhaps, even more likely, a desire on the part of the consignees to accommodate themselves, as the agents of the respondents, in making their deliveries to purchasers under sales effected after the vessel arrived in port. Certainly, I can see no fault on the part of the vessel. She was ready to unload, within the meaning of the charter, when she was at a place in the harbor where she could be unloaded, and had done all that was required of her in furnishing the facilities for unloading. In point of fact, she' was prevented from going alongside of the custom house for want of room, the agents of the respondents preferred to have the lumber put out on lighters, so as to facilitate their

The Fidelity.

own deliveries, and the coal, although finally put out on a wharf, was kept back by the same agents, to enable them to comply with their own contracts of sale.

Without pursuing the subject further, it is sufficient to say, that, after a careful consideration of all the evidence, I am clearly of the opinion that the detention beyond the stipulated lay days was caused solely by the default of the respondents, within the meaning of the charter, and that, as a consequence, they are liable for the stipulated demurrage, and interest from January 19th, 1867. The charter money and demurrage were payable in Rio de Janeiro. As no attempt has been made to show the legal rate of interest at that place, it may be calculated at the rate of six per cent. per annum.

A decree may be prepared in favor of the libellants, for the legal value, in dollars, of £117, and the accrued interest.

THE FIDELITY.

A steam-tug, the property of a municipal corporation invested with certain powers of local government in a city, and used exclusively by an executive department of such municipal government, as an instrument for performing duties imposed on it by law, is not liable to seizure in a suit in rem against such steam-tug, in Admiralty, in the District Court, brought to recover damages for an act of the tug, while actually engaged in public service under the orders of such department.

A stipulation filed to obtain the release of the tug is not a waiver of the question as to the original liability of the tug.

(Before WAITE, Ch. J., Southern District of New York, August 5th, 1879.)

THIS was a libel in rem, filed in the District Court, in Admiralty. That Court dismissed the libel and the claimant appealed to this Court. This Court found the following facts: "The steam-tug Fidelity, at the time of the occurrences complained of, and at the time of the commencement of this suit,

The Fidelity.

was the property of the Mayor, Aldermen and Commonalty of the city of New York, a municipal corporation of the State of New York, invested with certain powers of local government within the limits of its jurisdiction. She was used exclusively by the Department of Public Charities and Correction, one of the executive departments of the municipal government, and was one of the instruments by means of which that department was enabled to perform the duties imposed on it by law. It was public property, devoted to a specific public use in connection with the daily operations of the government. The injuries complained of occurred, and the attachment under the process issued in this action was made, within the jurisdiction of the municipality, and while the tug was actually engaged in public service under the orders of the department to which she belonged. The canalboat Herbert Phillips, owned by the libellant, was employed by the same Department of Charities and Correction to transport a cargo of coal from Hoboken, N. J., to Blackwell's Island. After her arrival at the Island she was taken by the Fidelity, under orders from the department authorities, and placed alongside of what is known as the penitentiary dock, and there made fast. On the morning of the 8th of April, 1876, the department officials, being desirous of unloading at that dock a schooner having ice on board for the use of the institutions under their charge on the Island, requested those on board the canal-boat to move her forward out of the way, so as to let the schooner take her place. This not being done, some of the penitentiary convicts, then on the dock, were directed, by the same officials, to let go her lines and move her away. This they did, and, in obedience to orders, placed her alongside an old barge lying against the sea-wall above the dock, but her bow extended a considerable distance beyond the barge, and was headed somewhat out in the stream. All this was done against the remonstrance of those on board the canal-boat. Very soon afterwards, the Fidelity came alongside, and, passing the canal-boat a line, commenced to pull her bow around. In doing so, she was driven against some ob

The Fidelity.

struction in the river, by which a hole was broken into her and she sank. The object of the Fidelity was to remove her to a place of greater safety. The obstruction which caused the injury was not known to or observed by the Fidelity until after the accident."

Edward D. McCarthy, for the libellant.

William C. Whitney, for the claimant.

WAITE, Ch. J. It is well settled, that public property, devoted to public uses, and necessary for carrying on the operations of the Government, is not subject to seizure and sale on execution. The Supreme Court of the United States had occasion to consider that question at its last term, in Klein v. New Orleans, (99 U. S., 149.) It was there said, that "municipal corporations are the local agents of the Government enacting them, and their powers are such as belong to sovereignty. Property and revenue necessary for the exercise of these powers, become a part of the machinery of Government, and, to permit a creditor to seize and sell them to collect his debt, would be to permit him, in some degree, to destroy the Government itself." "The test in such cases is as to the necessity of the property for the due exercise of the functions of the municipality." The same rule prevails in New York, and is laid down broadly and explicitly in Darlington v. The Mayor, (31 N. Y., 164, 192,) and Leonard v. City of Brooklyn, (71 N. Y., 498, 500.) It would seem to be clear, that, if the instruments of Government cannot be seized to pay a debt after judgment, they cannot before.

It is said, however, that the maritime law gave the libellant a lien on the tug for his damages, and that, whenever there is a maritime lien, an action in rem lies, in Admiralty, for its enforcement. It seems to me that the same principle which forbids the seizure to pay a debt, forbids the lien, which can only be enforced by a seizure. Analogous questions have arisen in New York under the mechanics' lien laws,

The Fidelity.

and, in the very well considered case of Brinkerhoff v. The Board of Education, (2 Daly, 443,) the Court of Common Pleas held that such a lien could not be acquired, on the express ground that public property devoted to public uses was exempt by public necessity from seizure and sale under execution. This case, it is said, was affirmed by the Court of Appeals, under the name of Poillon v. The Mayor, (47 N. Y., 666.) In Leonard v. City of Brooklyn, (71 N. Y., 498, 501,) where a similar question arose, it was said: "If judgments in other actions cannot be enforced by the sale of public property, for the reason that public exigencies require that such property should be exempt from seizure and sale, certainly, a judgment obtained under the lien law should stand in no better position." For the reason, therefore, that the plaintiff's demand could not be "enforced as a mechanic's lien upon property held for public use by the corporate authorities of the city of Brooklyn," a demurrer to his complaint, asking a foreclosure of such a lien, was sustained.

* *

While the libellant concedes that the public vessels of the United States cannot be sued in rem, he insists that the exemption arises solely from the fact that the Government itself cannot be sued, and then argues, that, because the municipality of New York may be sued in the common law Courts, the instrumentalities of its Government, coming within the Admiralty jurisdiction, may be proceeded against according to the usages and practice of an Admiralty Court. As has already been seen, the public property of a municipal corporation cannot be seized on an execution, although the corporation may be sued to obtain a judgment on which an execution can issue. The simple right to sue, therefore, does not carry with it the right to seize all property. It follows, necessarily, that the exemption from seizure is not always the same thing as an exemption from suit.

A careful examination of the cases satisfies me that the exemption of public vessels from suits in Admiralty arises not out of a want of power to sue the public owner, but out

« SebelumnyaLanjutkan »