684
94'/ FEDERAL REPORTER. '1/ :/ .· I
job. "ot repaIring the schooner, he,wollldbe obliged to)"ait }I>r bis p,a;r until the schooner earned the1lloliey, and that tothi,sMatliis agreed. Mathis denies that he did sba!gree, but I think his denial on for I,arn,satisfied that relates to any the understanding of ,the parties was" that the repairs should be paid froll!' the earnings of the ,as has ,their custom dealings:, It is not by this mg, when the repaIrs were ordered,anythmg waS saId'bY WhICh It ',?r' suggested that the repaIl'$' should .be lien, u-,?on the bOlLt.' Arter' being was to leave the upon her voluntary ret!lrJ;1 there, some. months afterwards, 'this libel was filed. In The, HaValina, 87 Fed.,487, Judge Butler said that, "where, repairs are made in a foreign port on the order' '6{'Dwllers,the presumption'is against the of a marlien, and the burden is on the libelant to clearly. show a con· trae!,:·l In the case of The Havanna; tile home port of the vessel was Philadelphia. The repairs were madeat Baltimore. The 'alleged lien was for a balance on repairs o"rdered by the managing owner. ",In the absence of evidence The repairs were charged to the tending to show express agreement for lien, the libel was dismissed. In the case unde'r consideration, the same state of facts exists. The record fails to disclose any evidence of express contract for lien, and ,o.:p.ly C,tl,'culllstance from' which it ,could be inferred is the refusal of the, managing owners to, pledge their personal credit for the repairs. I think such inference, however, unwarranted, in view of the evidence'relating to the agreement of the libelant to accept payment for schooner out of the #aI'n:ings as they accrued. In acdordfi:nce wftIf the principles laid down in The Havanna, 87 Fed. 487, affirmed 92 Fed. 1008, and the other cases therein cited, the . libel will be dismissed. v -=,== RICHARD et aI. v. HOGARTH et al. (District Court, D. New Jersey. :\fay 23, 1899.)
ADMIRALTY JURISDICTION-)1ARITIME CONTRACTS-SUIT FOR SERVICES IN PROCURING CHARTER. ,
A C(lurt of admiralty is without jurisdiction of a suit to recover compensation for services rel1deredin proem'ing a contract of affreightment for a vessel, the contrnct for such services not being maritime, but merely preliminary to a maritime cpntract; and it does not'become maritime becalise of a provision of. the charter party for the paYJJ1ent of the broker's commission and recitirigJpat it is due by the
This was a suit in admiralty to recover for services rendered for procuring a contract of affreightment fo.l' a vessel owned by respondents. ' Corbin&, 'Oorbin, for libelants. Kirlin, for; 1 For admiralty jurisdicti0ll as to matterscof contract, see note to The Rich· al'd "Winslow, 18 C. C. A. 347, and note to Boutin v. Hudd, 27 C.C. A. 530.
RICHARD V. HOGA,UTH.
685
KIRKPATRICK', District Judge. This libel was filed by Oscar L. Richard and others, compolling the firm of C. Richard & Co., against John Doe and Richard Roe, composing the firm of J. Hogarth & Co., to recover compensation for effecting a contract of affreightment for the steamship Folbridge, belonging to respondents. The answer' of the respondents admits the rendition of the service by the libelants, but alleges that this court h3J3 no jurisdiction over the subject matter of the libel. This objection I consider well taken, and in entire conformity with the practice and decisions of our courts. In Cox v. Murray, Fed. Cas. No. 3,304, Betts, District Judge, said: "Undertakings which are. merely personal in their character, or which are preliminary to maritime contracts, do not seem ever to have been recognized as witbin the admiralty jurisdiction."
In The Thames, 10 Fed. 848, the court recognized this distin.ction between maritime contracts and those for preliminary servic.es leading thereto, and distinctly held that a shipping broker had no lien on a vessel in admiralty for servic(.'S in procuring a charter party. Services which incidentally benefit the voyage do not thereby become maritime. They acquire that qualit;y only when the matters performed enable or aid the vessel to conduct the same. This doctrine is reaffirmed in The Crystal Stream, 25 Fed. 575, and by the circuit court of appeals for the Second circuit in The Harve,y, and Henry, 30 C. C. A. 330, 86 Fed. 656. It is insisted upon the part of the libelants that, because a clause for pa,yment of broker's compensation was inserted in the charter party, the contract for its payment thereby became maritime in its nature. Tn this view I cannot concur. The question of jur'isdiction does not depend upon the form of the contract, but the substance of the undertaking. The court regards the subject-matter. In order to give the court jurisdiction, the substance of the whole contract must be maritime. ·'It is not a sufficient foundation for admiralty jurisdiction that there are involved some ingredients of a maritime nature." Plummer v. 'Webb, Fed. Cas. No. 11,233. It is also urged that there is jurisdiction in admiralty because, by the terms of the contract, it is stipulated that "a commission is due by the vessel in signing this charter party." This stipulation, however, in my opinion, can impose no additional liability on the vessel, and can confer no jurisdiction on the court which it would not otherwise possess. Torices v. Winged Racer, Fed. Cas. No. 14,102. Let a decree be entered dismissing the libel for want of jurisdiction.
94 ·1l'EDERAL .' I',
FAIRGlUEVEef al v. MARINE' [NS. 00. OF LONDON; d(91rCUit COQrt of ,.:.",' :', ·· ' . ; ,::' , .. I,
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1899.)
No. 1;144.; 1. ADMr'h'Ax,rv t,
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Theadm!ralty courts Uf 1!he United States have<jurisdiction over suits between, foreigners, if the 'subject,mattro'; of the controversy is of a mari. tiwe nature" MId the Ship tor ;party, tll pe charged)s ",ithin the jurisdiction of' the c<iurt., It Is a tbe court, mas' dec1ine to exercise' if for some spe'c!aI reason It appears to be Inexpedient toexetcise it, but a suit by a;foreignn1arinelnslirance compan;v1 against a vessel within the juristl!c,tloiIrQlbtbe:court, based on a right claimed under a policy. of insurance issued In the United States, is one of which the court is not justified In declinllwjurlsdiction. 2. PARTli'ir TO Sun FORObLb'SION-SUIT BY bilDERWRITERS. W,beiie a marine insurll:nce company' has paid the full value of an injury to a vessel by collision caused by the fault of another vessel, so that there RI'e no .other. .cIn.lmants ,eptitled to sue fOil the tort, it is subrogated to the right of .action of the insured, and may Jj1aintaln a suit against the offending "essei in its own mime; but;' when the value of the p'roperty destroyed exceeds' We insiIranCe money paid; the suit' must be brought in the name of the Insured, ,who may recover for theenttre loss, as trustee for the InsuranceCOmP!\1l;y as to has, paid, and i:q lj.is own right as to 0
BETWlJ::triN'FOREIGNEltS.
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Appeal from the District Court of the United States forthe District of"MiI1I1esoia, ',: . .IThe 'Marine' IrUlnTlince Limited,' &'London, thi:! appellee, libeled' the Canadian steamer Arabian, 'in''the! Fifth division of the United States for: district-of MinneilOM.. .'l'helibel alleged, In SUbstance,' that tJ;1e Issued a on the Cll-uadian schooner barge )finnedosa; tlj.at, as the Minrwp.osawas.going dO,wn tlle Welland Canal, the Arabian was g\>lng upthe canal,lind WRSI'J,O negligently managed that she inflicted on: the 'M1nnedosa' damages ito the extent of $15,000 and more; that the poliet contaiD;eda clause by .the' terms, of "'hwh, in the event of loss or dampaid by,the :immrn.n<:e totlj.e 'owpers, the cln.im of the insured agamst any third party liable for the assigned, to the extent of the amount pfl:id. to the Insurance company; and that, of the $15,000 alld upwards ofda'iJil(tge; 'the' libelant had paid to the owners $8,051.20, and so by the terms of tbe :policy, and ,because ,of such payment, became subrogated and entLtlE:d to SUfi !rqtsowD name for that part of the damages which libelant had Pllid. Befllre answering the Iipel, the claimap,ts, J. B. and Hugh Fairgrieve, the appellants, of the'dominion of made protest and application to the district court to decline to entertainjtirisdictioD, because all the parties were British subjects; thesllbject-matter; the locality of the tort, and the parties being foreign· to this and all ;citizens of the same foreign jurisdiction in which the tort occurred and the property belonged. The Arabian being within the jurisdiction of the court, this application was denied, and thereupon the appellants filed their claim and answer. Article 10 of the libel reads: "Tenth. That, under the terms of said policy of insurance, and because of the payment of said sum of $8,051.20 to the said Montreal Transportation Company on account of said loss, the libelant became subrogated to the rights and claim of said Montreal Transportation Company against said steamer Arabian, and became thereby authorized and empowered to file this libel against the said steamer." The answer to this article of the libel is as follows: "(9) Your respondents deny the allegations of article tenth of the libel, and expressly deny the right, either by the terms of the contract or otherwise, of the libelant to file said libel In its own name against the said steamer Arabian. (10) Your respondents deny that by reason of the premises, by reason of the allegations in the libel, or for any reason, the libelant is entitled to recover and