Van Brunt v. Corbin.

CATHERINE VAN BRUNT 23. AUSTIN CORBIN AND OTHERS.

A suit in which the plaintiff is a citizen of New York, and three of the defendants are citizens of New York, and one defendant is a citizen of Ohio, and one defendant is a citizen of Indiana, and none of the parties are nominal parties, cannot be removed into this Court, under the Act of March 3d, 1875, (18 U. S. Stat. at Large, 470.)

(Before BENEDICT, J., Eastern District of New York, June 13th, 1878.)

BENEDICT, J. This is a motion to remand this cause to the State Court, whence it has been removed by filing a petition and bond, by virtue of the provisions of the Act of March 3d, 1875, (18 U. S. Stat. at Large, 470.) The suit is an action of ejectment. The plaintiff is a citizen of the State of New York. Of the five defendants, three are citizens of the State of New York, one is a citizen of the State of Ohio, and the other is a citizen of the State of Indiana. None of the parties are nominal parties. All of the defendants joined in the petition for removal, and the whole suit is sought to be transferred to this Court.

The right to retain this cause in this Court is sought to be upheld upon the authority of a decision made by Mr. Justice Bradley, in Girardey v. Moore, (5 Central Law Journal, 78,) where it was determined by that eminent judge, that, under the Act of March 3d, 1875, the right of removing a cause from the State Court to the Circuit Court of the United States, exists in all cases where there are substantial parties, citizens of different States, on opposite sides of the cause, although there are parties on opposite sides who are citizens of the same State. I am prevented from adopting this view of the statute, by a decision of the Circuit Judge of this Circuit, in Petterson v. Chapman, (13 Blatchf. C. C. R., 395,) where it was held, that, to authorize a removal under the Act of March 3d, 1875, each individual plaintiff must have a different State citizenship from that of each individual defendant. This decision now furnishes the law for this Circuit, and, in accordance with such authority, it must be

The Mary Eveline.

held, in this case, that, inasmuch as here there is but one controversy, to which all the parties in the suit are substantial parties, and where some of the defendants are citizens of the same State with the plaintiff, the suit is not one in which there is a controversy between citizens of different States, within the meaning of the Act of March 3d, 1875.

This conclusion renders it unnecessary to consider the other grounds of objection to the proceedings. The motion to remand is granted.

Andrew G. Cropsey, for the plaintiff.

Alfred C. Chapin, for the defendants.

THE MARY EVELINE.

Where, in a suit in Admiralty, for a loss by a collision, items of damage are allowed as for a total loss, interest is to be allowed at 6 per cent., from the date of the loss, and not at 7 per cent.

Where an allowance is made for the full value of a vessel sunk and lost by a collision, as for a total loss, the expense of raising the vessel, to ascertain the extent of the loss, is a proper charge.

(Before HUNT, J., Southern District of New York, June 13th, 1878.)

HUNT, J. After listening to the arguments of the counsel for the respective parties, I have carefully perused the testimony presented to the Commissioner to whom it was referred to ascertain the damages sustained by the libellants by reason of the collision set forth in the libel. As the result of my examination, I overrule absolutely all of the exceptions to the report of the said Commissioner, except the tenth exception. The tenth exception is, that "the Commissioner reports interest on such erroneous findings at seven per cent., when he should not have reported any interest, or not to exceed six per cent., on the amount of the damage, when properly found."

VOL XIV.-32

The Mary Eveline.

The items allowed by the Commissioner amount, in the whole, to $4,454 75, and, with one exception, are as for a total loss. The item forming the exception consists of "cost of raising the vessel, $1,000," which is for money expended. This item is immediately followed by a credit of $550, "cash from sale of the sloop," which, it is proven, was deducted from the $1,000. This makes the exception so trifling that we are justified in looking at the whole allowance of $4,454 75 as one for a total loss. Upon this aggregate the Commissioner allowed, as interest, the sum of $1,484 35, being at the rate of seven per cent. from the date of the collision and loss to the date of his report.

In allowing interest at the rate of seven per cent., for the damage sustained, as upon a total loss, I think the Commissioner erred. The rate in such cases is established, in Admiralty, at six per cent., and the exception under consideration is allowed, unless the libellants shall, within ten days after the entry of the order in pursuance of this opinion, file their stipulation deducting one-seventh of said interest, to wit, the sum of $212 05, from the decree to be entered in this case. If such stipulation be filed as above provided, the said tenth exception is overruled. This point is decided after a conference with Judge Blatchford, and with his concurrence and approval. (See The Aleppo, 7 Benedict, 120, 136; Lincoln v. Claflin, 7 Wall., 132, 139; Hemmenway v. Fisher, 20 Iow., 255, 259; Allen v. Mackay, 1 Sprague, 219, 225; Egbert v. B. & O. R. R. Co., 2 Benedict, 223, 225, 226.)

When the point was started, that there could be no charge for raising a vessel, where the owner was allowed its full value, as upon a total loss, I was somewhat impressed with it. But, both the authorities and the principle of the cases are clear, that, when the vessel is raised for the purpose of ascertaining the extent of the loss, although it turns out that the loss is total, the charge is a proper one. There is, in many cases, no other mode in which it can be determined, whether the loss is total or partial, and a recovery as for a total loss oftentimes could not be had without incurring the preliminary

The Woodland.

expense of raising the vessel. The value of the raised vessel, in the present case, was credited to the expense of raising her. (The America, 11 Blatchf. C. C. R., 485; The Fulcon, 19 Wall., 75; The Clyde, Swabey's Adm. R., 23; The Nebraska, 3 Benedict, 261.)

Let an order be entered in accordance with this opinion.

Richard H. Huntley, for the libellants.

Franklin A. Wilcox, for the claimants.

THE WOODLAND.

A British vessel, in distress, put into the Danish port of St. Thomas. Repairs to her were necessary. N. attended there to the business of the vessel, and, with the connivance of T., the master, made out fraudulent accounts against the vessel, and T. drew three drafts on the owners of the vessel, for over $6,000, which were expressed, on their face, to be "recoverable against the vessel, freight and cargo." F., in good faith, and without knowledge of the fraud, discounted two of the drafts. They not being paid, F. libelled the vessel and freight, in rem, at New York: Held, that the fraud of N. and T. did not invalidate the drafts in the hands of F.

Held, also, that the question of a lien on the vessel must be determined by the law of Great Britain, and that, by that law, the master had no right to create a lien on the vessel and freight by any other instrument than a bottomry bond.

(Before HUNT, J., Southern District of New York, June 13th, 1878.)

HUNT, J. In this cause I find the following facts: "The British barque Woodland, owned by the claimants, who are residents of St. John, New Brunswick, in November, 1870, while on a voyage from Montevideo to New York, with a cargo, being in distress, put into the Danish port of St. Thomas, for repairs. Repairs were necessary before she could safely proceed on her intended voyage. On December 24th, 1870, the claimants wrote a letter, from St. Johns, to Captain J. H. Titus, the master of the barque, at St. Thomas, which

The Woodland.

he received on January 11th, 1871, and, before any advances had been made by the libellants, he exhibited the same to them. This letter is set forth in the apostles. J. Niles, who carried on business under the name of J. Niles & Co., attended to the affairs of the vessel at St. Thomas, landed the cargo, and sold a portion of it, on which he received an amount sufficient to reimburse all the moneys expended, and charged commissions and insurance amounting to $6,875. As to the insurance, none was actually effected, and the commissions are on an excessive valuation. Titus, the master, approved all the bills, drew drafts on his owners for the balance, $6,106 24, which were expressed, on their face, to be recoverable against the vessel, freight and cargo.' Two of these drafts the libellants discounted, and for them this recovery is sought. The third was given by Niles to the master, upon a corrupt understanding, that it was to be his share. The two drafts have not been accepted or paid, and the libellants are the owners thereof. By the law of Great Britain, the master of a British vessel has no implied authority, even when in a foreign port, to pledge his vessel for necessaries, or create a lien thereon by any other form of hypothecation than a formal bottomry bond; and the master of this vessel had no such authority, either express or implied. The vessel and freight only were libelled in this action. The bills were received, and the money advanced upon them by the libellants, in good faith, and without knowledge of the fraudulent acts of Niles and the captain of the Woodland."

Of the facts that the bark put into St. Thomas in distress, that repairs were there made upon her, that the drafts in question were made professedly on account of such repairs, and that the libellants advanced their money upon them, without knowledge of any fraud on the part of Niles and the captain, there can be no doubt.

The bills for the repairs were made out extravagantly, fraudulently and collusively. If the drafts were made by those having authority to act as the agents of the owners of the vessel in such an emergency, and to bind them by drafts