Gambar halaman
PDF
ePub

816

10 FEDERAL REPORTER, 20 SERIES

Ex parte TURNER et al.

to him. From Seattle he was brought to (District Court, S. D. California, S. D. Febru. Los Angeles by a Mrs. Fleming, for whom ary 15, 1926.)

he worked, according to his testimony giv

en before the examining board, for several No. 7665J.

months. He contends that Mrs. Fleming did 1. Habeas corpus Cm92(1)-Order of deporta. not pay him the money that was due him

tion must be sustained, if at all, on ground for his labor, which he states was at the rate acted on by immigration officers.

of $6 per day, and that he has brought suit Order of deportation must on habeas corpus be sustained, if at all, on ground on which im- to recover the same. In February, 1925, migration officers acted, though justified on

Turner received treatment for abscesses in some other ground.

his throat as a charity patient at the Gen2. Habeas corpus Om92(1)-Deportation order eral Hospital in Los Angeles. These treat

presumed regular, and sustained if supported ments were furnished from February 14, by any view of evidence.

1925, to April 10, 1925, and during that time On habeas corpus to test validity of depor: charitable relief was furnished to the wife tation order, court cannot weigh evidence, but

and children. At the time of the hearing must indulge in every presumption of regularity and sustain order, if supported by any view on May 18, 1925, public charities were still of evidence, reversing it only where arbitrarily furnishing some necessaries to Turner's famentered or without support of any evidence.

ily. He testified that about one year prior 3. Aliens Em54(9)-Deportation order held to coming to the United States he had had

supported by evidence showing likelihood that trouble with his throat, and that he had persons to be deported would become public been in a hospital in Canada at another time charges.

for two weeks undergoing an operation for Deportation order, on ground that persons to be deported at time of entry were likely to

the cure of a hernia. become public charges, held supported by eyi- On April 28, 1924, the wife and children dence respecting illness, capacity, and oppor- crossed the Canadian border and were adtunity for employment.

mitted into this country, Mrs. Turner giv

ing her destination and reason for entry as Habeas Corpus. Proceeding by Frank that she was going to join her husband at F. Turner and others to test validity of de

Los Angeles. "The wife and children were portation order of Secretary of Labor. Writ conveyed from Seattle to Los Angeles by discharged.

the same Mrs. Fleming who appears to have W. Maxwell Burke, of Los Angeles, Cal., brought Turner from Seattle south. By Turfor petitioners.

ner's testimony it also appears that he disJ. Geo. Ohannesian, of Los Angeles, Cal., puted the charge of Mrs. Fleming of $225 for the United States.

for bringing his family from Seattle to Los

Angeles and had never paid the same. It JAMES, District Judge. Frank F. Tur- reasonably appears, therefore, that in the ner and Mabel Turner, his wife, and their question of whether Mrs. Fleming owes Turthree minor children, Warren Turner, Iona ner money is involved the matter of the reaTurner, and Verna Turner, are held for sonableness of an offset existing in her favor deportation, warrant of the Secretary of for the service rendered in bringing the Labor therefor having been issued. The wife and children from Seattle. Turner adground upon which the order of deportation mitted that the traveling expenses on that was made is that the petitioners are aliens, trip for his family were covered by Mrs. and that, at the time of their entry into Fleming. The wife has no occupation oththe United States, they were persons like- er than attending to her household. The famly to become a public charge.

ily have no property except an interest in Frank Turner, the husband and father, furniture worth about $350; one-half of the entered the United States from Canada on price of the furniture only has been paid. November 22, 1923. His destination was From the early part of February, 1925, ungiven as Seattle, Wash., and the record of til May the 1st, Turner earned nothing. the Immigration Department shows that he [1] In this situation the court is asked by was admitted to remain only for a period of the petitioners to conclude that the Immitwo months. The petitioner named admits gration Department could not legally dethat the condition of temporary residence cide that, at the time of their entry into was attached to his admission into this coun- the United States, they were persons who try, but states that no written permit lim- were likely to become public charges. That iting the period to two months was issued Turner has obtained no right to reside per

10 F.(20) 817 manently in this country is admitted, and time of his entry, predisposed to physical it seems not to be denied but that the im- infirmity, and that, when suffering from ailmigration officers, under the provisions of ments, he will likely be incapacitated from section 14 of the Immigration Act of 1924 performing any work or earning support (Comp. St. Supp. 1925, § 428934g), might for himself and family, and that he would, at any time require that he be taken into in such case, became a charge upon the pubcustody and deported. However that may lic. The fact that he may work at intermitbe, the order for deportation here made is tent periods is no assurance that he will earn for another cause, and must be sustained, if or save sufficient to provide necessities at all at all, upon that ground alone. Throumoul- times for himself, or his wife and children. opolou v. U. S., 3 F.(20) 803 (C. C. A. 1st). It must be said, I think, on the record made

I [2] On habeas corpus, where the validity of before the Immigration Department, that the an order of deportation is sought to be test- finding upon which the deportation warrant ed, that order will be viewed as attended by was issued is sustained by substantial evievery presumption of regularity, and the dence. The wife is not shown to have propcourt cannot weigh the evidence to determine erty or any means of earning a livelihood. on which side of the issue the greater weight She is dependent upon the husband for suprests. The rule is that if, under any view of port, as are the three children. the evidence, it may be said that some proof It is ordered that the writ issued herein was made which will support the finding be discharged, and that the petitioners surof the immigration officers, the order of render themselves at the Immigration Office deportation may not be interfered with. It in the federal building in the city of Los is only where the order of deportation is ar- Angeles for deportation. bitrarily made, and that means, in a case like this, where it is made without the support of any evidence whatsoever on the issue of fact determined in the order, that the courts will act to stay its execution. Lewis v. Frick, 34 S. Ct. 488, 233 U. S. 291, 58

THE MUSKEGON. L. Ed. 967; Zakonaite v. Wolf, 33 S. Ct. 31, 226 U. S. 272, 57 L. Ed. 218; Kwock

(District Court, S. D. New York. November 5,

1924.) Jan Fat v. White, 40 S. Ct. 566, 253 U. S. 454, 64 L. Ed. 1010; Bilokumsky v. Tod, 1. Shipping C 106—Ship held to have ratified 44 S. Ct. 54, 263 U. S. 149, 68 L. Ed. 221;

and adopted bills of lading signed by company

for which charterer contracted to carry goods. Chryssikos v. Commissioner, 3 F.(20) 372 (C. C. A. 20); U. S. v. Curran, 4 F.(20) manifest, without issuing other bills of lading,

Ship sailing with cargo, after master filed 356 (C. C. A. 3d).

held to have ratified and adopted bills signed by [3] In order to justify the contention made company for which charterers had contracted by the petitioner Frank Turner, it needs to to transport goods. be said that, taking all of his personal his- 2. Shipping Om 131-Ship held liable for duplitory respecting his illnesses, and capacity cate freight charges collected and expenses and opportunity for employment, there was of watching, storage, etc. no ground to conclude that it was within rea- Ship, refusing to deliver cargo to consignees sonable probability, at the time of said pe- paid to company contracting with charterer for

until payment of freight, which had been pretitioner's entry into the United States, he carriage of goods, held liable for amounts colmight become a public charge. He is a lected and reasonable, erpenses of watching, man possessed of no property from which storage, etc. he can derive an income. The fact that he 3. Shipping Cw123—Ship, carrying turpentine had, before his entry into the United States, on deck, held liable for barrels washed oversuffered from an ailment of the throat, and board and damaged turpentine. that he required hospital treatment in Los Ship, carrying turpentine on deck, held liaAngeles for a similar diseased condition; ble for barrels washed overboard in heavy the fact that he had before coming to the weather, and for damaged turpentine, where all

bills of lading were clean, United States been operated on for herniaall furnish satisfactory evidence to the point 4. Evidence @mw407 (2)—Shipping m 106-Bill that the man at the time of his entry was

of lading prima facie evidence of delivery to

ship, but may be contradicted or explained. not physically sound or strong. It is ap

Bill of lading is prima facie evidence of deparent, then, from the record of admitted livery of goods to ship, but may be contradicted facts, that said petitioner is, and was at the or explained.

10 F.(20)-52

5. Shipping Om 132(5)—Ship held liable for kegon. The causes of action alleged in the

shortage of steel rails which bill of lading libels come generally under four heads: showed were delivered to it. Ship held liable for shortage of scrap steel

(1) Damages sustained by the libelants rails, which bill of lading and manifest showed by reason of the alleged wrongful failure were delivered to it, where testimony did not and refusal of the steamship Muskegon to preclude possibility that rails, if not on board deliver cargo at Genoa to the consignees in at place of destination when consignees were so informed, had been unloaded, and ship did accordance with certain bills of lading until not produce master or any one present during

a duplicate freight had been paid under proloading or unloading, nor any record contradict- test. The damages claimed are the amount ing bill.

of the duplicate freight and the expenses the 6. Shipping w128—Ship held not liable for de- libelants allege they were put to at Genoa by cay of codfish shipped in summer.

reason of the wrongful refusal of the MusShip held not liable, under bill of lading, for kegon to deliver the cargo as above stated, decay of codfish shipped in summer, in absence including, in some instances, losses to the of proof of good condition when delivered to libelants occasioned by delay. it; recital in bill of lading, "In apparent good order and condition," not necessarily meaning

(2) Actual shortages of cargo from the that cases contained sound codfish properly bill of lading quantity. cured for sea voyage in summer.

(3) Damages and loss to the cargo. 7. Shipping on 131-Ship held not liable to (4) Certain miscellaneous damages caus

shipper for loss by depreciation of lire on pay- ed by the failure of the Muskegon to fullfil ment of purchase price two years after ar.

its contractual obligations. rival at Italian port.

Ship arriving in Italian port on June 18, 1919, and refusing to deliver cargo to con:

Facts. signees named in bills of lading until payment

On April 22, 1919, the Foreign Transport of duplicate freight charges, held not liable to shipper for loss by depreciation of lire in June, & Mercantile Corporation, as agent for the 1921, when purchase price was paid; such owners of the Muskegon, chartered her to the loss being too remote.

Caravel Steamship Lines, Inc., hereinafter 8. Payment Em 12(5)—Shipper held entitled to referred to as the Caravel Company, for a

recover stated amount of Italian lire for du. single voyage from New York to Genoa, plicate freight paid at exchange rate exist. Italy, at agreed rate of freight. The charter ing when decree was entered.

Shipper obligated in stated amount of Ital- party contained the following provisions: ian lire, payable in Italy, for duplicate freight

“(1) That the said steamship [shall] paid to procure delivery of cargo to consignee load a full and complete cargo of lawful mernamed in bill of lading, held entitled to recover chandise [and] shall therewith proceed as such amount from ship at rate of exchange ex

ordered on the signing of the bills of lading isting at time of entry of decree.

to Genoa, Italy, or so near thereto as she 9. Payment 12(5)-Rate of exchange ap- may safely get and there

deliver plied in computing freight claims against ship the cargo as customary

in accordstated. Rate of exchange applied in computing

ance with the bills of lading." freight claims arising from ship's breach of “(13) The steamer shall be consigned to contract by refusal to deliver to consignees un. the charterer's agent at the port of discharge til payment of duplicate freight is rate prevail- and shall employ their broker to attend the ing at time of breach.

ship's business free of commission." Consolidated Libels by the Lucas E. Thereafter the Caravel Company placed Moore Stave Company and by G. Jaris & the steamship Muskegon on berth to load Co. and others, against the steamship Muske- cargo. Prior to April 22, 1919, when the gon. Decrees for all libelants except the charter was signed, an agreement was entered last-named company, and dismissing its into between the Caravel Company and the claim.

Inter-Allied Shipping Company, hereinafter Kirlin, Woolsey, Campbell, Hickox & referred to as the Inter-Allied Company, Keating, of New York City (Cletus Keating, whereby the Caravel Company agreed, if it of New York City, of counsel), for libelants. could charter the steamship Muskegon, to

Barry, Wainwright, Thacher & Symmers, transport on the said Muskegon from New of New York City (Earle Farwell and John York to Genoa certain merchandise collected C. Prizer, both of New York City, of coun

by the said Inter-Allied Company, in considsel), for claimants.

eration of said Inter-Allied Company paying

said Caravel Company a certain portion of GODDARD, District Judge. In admi- the freight collected on the said merchandise. ralty. Action in rem against steamship Mus- Some of the cargo.covered by the Inter-Al

10 F.(20) 817 lied bills of lading had been collected by the the freight due the owners of the Muskegon. Inter-Allied Company, for intended shipment Neither the owners of the Muskegon nor the by another steamer, and the freight collected Muskegon had any claim for freight against thereon before this arrangement was made. the cargo. Neither the Foreign Mercantile

The following merchandise, with respect & Transport Corporation nor the owner of to which Inter-Allied bills of lading were the Muskegon knew of the contract entered issued, was loaded on the steamship Muske- into between the Caravel Lines and the Intergon:

Allied Company. The steamship Muskegon Allied Machinery Company of America, and/or her owner do not claim, and never merchandise described in the libel.

claimed, any freight against any of the cargo W. P. Marseilles, merchandise described in question here; the Muskegon having been in the libel.

paid its freight before sailing from New Gaston, Williams & Wigmore, Inc., mer- York. On May 24, 1919, the steamship Muschandise described in the libel.

kegon sailed for Genoa, Italy, where in due J. Aron & Co., Inc., merchandise describ- course she arrived. ed in the libel, with the exception of 73 tons The only bills of lading ever issued were of scrap steel rails, the loading of which on those issued by the Caravel Company, Nos. the steamship Muskegon is in dispute. 1 to 21, and by the Inter-Allied Company,

G. Jaris & Co., merchandise described in Nos. 1 to 208. The steamer's agents at Genoa the libel.

were Messrs. Wax & Vitale, who were apUnited Shoe Machinery Corporation, pointed in pursuance of clause 13 of the charmerchandise described in the libel.

ter party. When the steamship Muskegon Lucas E. Moore Stave Company, mer- arrived in Genoa, instead of delivering the chandise described in the libel.

cargo to the consignees, as required by the Worthington Pump & Machinery Corpo- bills of lading, delivery was made to Messrs. ration, merchandise described in the libel. Wax & Vitale, who were also the agents of

Caldwell & Co., Inc., merchandise describ- the charterers. Wax & Vitale, the steamer's ed in the libel.

and charterer's agents at Genoa, acting under Renzo Corinaldi Cohen, merchandise de- instructions of the Caravel Company, with scribed in the libel.

the concurrence of the steamer, refused to D. Scrivanich, merchandise described in permit the consignee to receive any of their the libel.

cargo covered by the bills of lading on the Each of the libelants above named paid Inter-Allied Company until a duplicate the freight to the Inter-Allied Company and freight had been paid. In order to obtain received prepaid bills of lading for their car- delivery of the cargo, freight was therefor go, signed by the Inter-Allied Company, re- paid under protest to Messrs. Wax & Vitale quiring the cargo to be delivered to the con- by the consignees or their agents. The action signee. The goods were loaded on the Muske- of the Caravel Company in instructing Wax gon by the Caravel Company, under the & Vitale to make the libelants pay a dupliagreement they had with the Inter-Allied cate freight was not because freight had not Company, whereby they were to receive from been paid to the steamer—that freight having the Inter-Allied Company "a certain portion been prepaid at New York—but because of of the freight collected” under the Inter-Al- the fact that the Inter-Allied Company had lied bills of lading. The remainder of the failed to pay to the Caravel Company the cargo described in the libels, with the ex- agreed portion of the freight which the Inception of J. Aron & Co.'s 73 tons of scrap ter-Allied Company had collected at New rails, which is in dispute, was duly loaded on York from the shippers. It is for the failboard the Muskegon and the freight paid to ure and refusal of the steamship Muskegon the Caravel Company, who issued its bills of to deliver the cargo in accordance with the lading for the same. The Muskegon admits bills of lading to the named consignees that the Caravel Company had authority to issue the libelants bring suit. bills of lading.

[1] The charter party stipulated that the On May 22, 1919, Captain A. Beckman, captain should sign bills of lading or masmaster of the Muskegon, filed an official man- ter's receipts as and when presented without ifest for the steamer for the voyage in ques- prejudice or reference to the charter party. tion at the New York custom house, and The evidence that the Inter-Allied Company made oath before the deputy collector that all originally had authority to bind the ship is the cargo described above was on board the not convincing; so the vital question is: Was Muskegon. The Caravel Company paid all there an adoption and ratification of the In

[ocr errors]
[ocr errors]

ter-Allied bills of lading by sailing with car- ratification and adoption by the ship of the go on board and without issuing other bills charterer's contract with the shipper. Then of lading?

the shipper is deprived of an opportunity Many of the bills of lading were issued to retake his goods, and the goods are in the by the Caravel Company before it had char- sole possession and control of the ship. So, tered the Muskegon. The president of the too, the ship is then bound by the charterer's Foreign Transport & Mercantile Company, bill of lading, under which the freight is prerepresenting the owner of the Muskegon, tes- paid, and cannot collect further freight at tified:

destination. The Ada (D. C.) 233 F. 325. Q. Do you deny that the Muskegon car- Before sailing, the vessel owner is protected ried forward the cargo covered by the Cara- by his opportunity to refuse to carry the vel Steamship Lines under these bills of lad- goods on the terms agreed by the charterer ing? A. No, indeed.

before the voyage is commenced.” "Q. You admit that they did ? A. Yes. In The Ada (D. C.) 233 F. 325, at page

"Q. What bills of lading did they carry 327, Judge Rose states: the other cargo forward under? A. I heard “The libelant cites many authorities for afterwards that it was the Inter-Allied bills the contention that a charterer in possession of lading.

of the vessel may bind it to the cargo receiv“Q. You are satisfied that the cargo was ed on board. I do not think it necessary in carried forward under those Inter-Allied this case to go into any discussion of such bills of lading? A. I have no doubt about questions. Before the ship sailed it knew that it in the world.

the libelant had never promised to pay more This, of course, cannot be accepted as a than $1,264.59, and that it was not willing declaration of the law, but it is some indica- to pay more. It is true that it did not detion of the understanding and intention. mand that its goods be returned to it, but it

When the Muskegon sailed away with the reiterated its refusal to pay a higher price. cargo, after her master had filed her mani. Under such circumstances the ship, if it was fest with the custom house officials, and with- not willing to carry the cargo at the only rate out issuing other bills of lading, then there to which libelant ever agreed, should have was an adoption and ratification by the ship discharged it. There is nothing in the agreed of the bills of lading signed by the Inter-Al- statement of facts to show that such discharge lied Company. This, I believe, was not only would be impracticable. The ship could not the legal effect of her acts, but also that it make a contract with libelant to which libelwas the master's intention to adopt the bills ant had never consented. It follows that the of lading which had been issued by the Inter- libelant may have a decree for the amount Allied Company as the contracts under which claimed." the cargo was carried; not a thing was done In The G. A. Tomlinson (D. C.) 293 F. to indicate any other intention, and he had 51, Judge Hazel, in his opinion on page 52, reason to believe that the shippers had de- states : livered their goods to the ship and had ac- “The fact that the bills of lading were iscepted bills of lading, and relied upon their sued by the charterer, instead of by the being valid. The ship's starting on the voy- steamship, does not, in my opinion, relieve age to Genoa under these conditions had the personified ship from liability for failure some legal effect, and that was the adoption to make right delivery of the cargo. Her of the Inter-Allied bills of lading by the ship. master, at Duluth, accepted the cargo over

In The Esrom, 272 F. 266, at page 271, the rail of the ship, and it is not of material Judge Manton, speaking for the Circuit importance per se that he personally was Court of Appeals for the Second Circuit, unaware of the unloading conditions. It may said:

safely be held as a matter of law that he is “The obligations which are created one to presumed to have known that the charterer in the other, then, are that the ship is bound due course, as agent for the ship, would isnot to injure the merchandise by improper sue bills of lading for shipments of grain, stowage or rough handling, and, if she does, which after it was taken aboard became subthen there will be a liability in rem, even be- ject to maritime liens. The Poznan (D. C.) fore the voyage is begun. If the voyage is 276 F. 418; The Blandon (D. C.) 287 F. begun, the vessel must carry the goods to des- 722.tination on the terms agreed by the shipper The court then cites that part of Judge with the charterer; for when the vessel starts Manton's opinion in The Esrom wherein upon the voyage, by implication, there is a Judge Manton laid down the principle that,

« SebelumnyaLanjutkan »