,DNI'1'ED STATESf1. GlJESL

687

UNITED STATES 11. GUESS.

(D1.Btriot Oourt, E. D. Lo'UitHana. December 28,189L)
8SIPPI;r;ra RBGULATIO;r;rS-INlIPBCTION-PASSBNGBRS.

Where the wife and neighbors of a tug-owner go upon the tug during a trial trip, merely to witness the test of her machinery, they are not passengers, within the meaning ot the statute requiring passenger boats to be inspected and licensed; and the owner is not liable to the fine imposed by Rev. St. U. s. 54499, for navigating any vesseloontrary to the shipping regulations.

In Admiralty. Libel of information against O. M:' Guess to recover a penalty for carrying passengers on It steam-tug not inspected or licensed to carry passengers. Libel dismissed. . Wm. Grant, U. S. Atty. E. Sabourin, for defendant. BILLINGS, J. This case is submitted on the libel of information, and the answer and the affidavits and depositions taken under a commissioJl. The suit is for a penalty of $500 for a violation of the Revised Statutes, in this: That the steam-tug of the defendant, the Black Prince"Being an American vessel propl'Jll'd by steam, and not being a public vessel of the I1nIted states, or of any otber country, and not being a ferry-boat or a boat propelled in whole or in part by steam fOl' navigating canals, was engaged in naVigating waters of the United 8tates which are common,highways of commerce, and open to general and competitive navigation, in that,. while navigaling as aforesaid, she did carry as passengers, not haVing then and tbere been inspected and licensed as R passenger steam-boat, and not having a certificate from any board of localinspl.'ctors of steam-vessels of approval of said vessel and her equipments,as proper fOl' .such service, contrary to the form of the statute. It

It is to be seen that the gravamen of the charge in the information is that the defendant, as owner, had violated the statute, in that, while navigating his vessel, he had carried passengers upon a. without a certificate of inspection. The only point presented is whether the steam-tug did carry passengers. The proofs adduced by thA libelant's depositions, and by the answer of the defendant and his affidavits, contain no conflict of evidence. They all show that the steam-tug Black Prince, in the summer of 1890, had to be laid up for extensive repairs; that after they were made and completed, solely with a view "to test the machinery, and to ascertain if it worked satisfactorily," the defend'ant, the owner of the boat, raised steam, and steamed down the Bayou Teche, fl'om New Iberia to Jeanerette and back, a distance of 10 mileseacb way; that the time occupied in going and returning was about fourhollrs; that theper80ns described in the information as passengers were the Wife and neighbors of the owner, who had no purpose in being on board,excapt to accompany the owner in his effort to see the pltlred machinery. There is no .proof that there was any' commercial purpose -intended or accomplished, or any transportation as travelers; in

J'El)ERAL REPORTER,

vol. 48.

this movement, either on the part of the owner or the guests who are charged in the information to be passengers. The language of the libel conforms to that of the statute, (Rev. St. § 4499,) and ayers or charges that the Black Prince, being, "was navigated;" the language of the statute being, "if any vessel, propelled in whole or in part by steam, be navigated." Cauld it be said that this steam-tug,' making this four-hour trip, ,landing nowhere, having no commercial communication with any point, except that of starting, and no purpose in the movement save to test the machinery of the boat, was being navigated so as to include her within the rules of navigation which are made by congress under thepower to regulate the interstate and foreign Qommerce? ,It, seems to me the whole movement of vessels ,and people 6nboard iIi its' object preventS these persons from being considered passengers, within the meaning o(the law·. The case ()fHartranft v. Du Pont, 118 U. S. 223, 6 Sup. Ct. Rep. 1188, is relied upon by the United States. But the Repauno in thaf case had been used by the plaintiff to transport himself, his superintendent, and sometimes nine 1Vorkmen' ;t()'ltndfrom place of Work. 'The transportation in that case was"astruly within the sphere of commerce, and the navigating WM as truly'commercial navigation, as if the persons conveyed had been carried fOT-hire by a cOmmon:carrier. But in Transportation Line v. Owper, 99.U.8. 78, the supreme court, witbout giving any reason, held that a canal-boat laden with coal for transportation, having on board the master with his'family, is not a barge carrying passengers, within1themeaning of, section 4492; Rev. St., which requires such a tow of a steazner, to be,provided with "fire-buckets, axes, lire-preservers, and yawls." The case most nearly resembling this is, PM Joshua Levine88,9 Ben. 339, in which it was held that a voyage,. from City Island toNew .York, ,made bya vessel just constructed, to enable her to be inspected, is not a violation of'the navigagon la;ws. In Gibbons v. pgden, 9 Wheat. 1, the court assert the su- ' prema apthority of congress under the constitution to. regulate foreign commerce, and that c.ommerce includes navigation. The object of this statute, whioh(volume 3, p. 488) is entitled" An act regpasslilnger ships and is to put into Jorce the provision o{ the constitution authorizing congress to regulate commerce. The statutE1begins and ends with its 'object; and since this movement ofthe Black Prince was,.merely for the testipg of,her machinery, occupying four hours, without any corpme!'Cial object,and the persons on board were the wife aQd neighbor:\li of the owner, ,who, .without landing, were carried to and ftP., and With no object except as witnesses of the state of his vessel's machinery" the use of the vessel is not such navilration as bringa it and penalties of title 52, c.2, Rev.?t., which ,are-eWlctment of the statute above referred to. ,It IS rather a USe ,to ready for pavigation under the. statute. It may be. said ,]Day open to the vlOlatloij qf the statute·. ,. The (0 ,this is. that the true and ,proper way to enforce a statqte not its meaning, but, by a firm application of its term!l, pro-

as

EARNSHA.W V. M'HOSE.

589

mote the attainment of the object with which it was enacted, carefully scrutinizing each case, including and excluding in and from its operation as it is manifest congress must have intended. Let, therefore, the libel be dismissed.

EARNSHAW 'D. McH08E

et al. l

(Circuit Court, E. D. Pennsylvania. November 10, 1891.)

L

.

C1UltTER·PARTY-DESPATClI MONEY.

A QQntract provided that the plaintiff should sell, and the defendants buy, fron ore l}.t. named prices, stipulated that these prices "were based on an ocean freight rate of 12s. a ton, '''all freight ·over that sum to be added to, and all freight less,tllantbat sum to be deducted from, the invoiQe .priee.. Plaintl:ffollartered a at tllat rate, agreeing with, it in the cbarter-party for £15 dispatch molley atld'£$O demurrage for·eacb day to be saved from or exceeding the numbarof days allowed for loading or unloading. UesJ?atch moneywM deducted from the amount paid for freight, which dfijfendants c).alme4 should be deducted from tbe invoice Held, in the absence of any unusual expenditure by plaintiff to secure despatch, the despatch m01;le'y was merely a dedll.lltion from tbe be,loQged.todefendan ts. ,Coinmissiou& paid by stevedores and charterers for securing tbem tlle ship's unloading was not such a deduction from the freight as belonged to defendants under the contract. . ,. Where a set-off bas been given in evidence, though inadmissible under tbe, plead, lngs at trial, it is too late, on motion W reduce verdict, to raise the point for the first time, ,.., ,

II

a.PLEADING AND,PROO_VARIANCE-OBJEOTlONS WAIVED.

, A88Umpsit by Alfred Earnshaw against Isaac McHose & Sons ,torecover on $56,000 as the agreed price of iron ore Bold and delivered by the plaintiff to defendants in accordance witheontract, which provided, inter alia: "Price to be at the rate of seven dollars and seventy-five cents ($7.75) per ton of, 2,240 pounds for the mined ore, commonly known as 'MarbeUa Lump,," and 'seven dollar's and thirty-five cents ($7.35) for the sand ore, kl)own as 'Marbella Sand,' when loaded, in cars on tpis side. F1'eight Rate. The above prices are based an ocean rate of twelve shillings per ton. All freigpt over twelve shillings to be added to the invoice as part of the price of the ore,and all freight under twelve shillings to be deducted from the invoice," i' '. ' '

At Law.

, ,To fulfill· this contract. Ea,rnshaw'cha,rtereda steam-shi p under ltphar-

ter-party which provided, inter alia, after naming 40 days to be allowed for loading and , .. Despatch woneJ at the rate, of fifteen pQuuds per day of 24 hours, for any time &aved in IQading discharging, payable by the ship to shipper at loadingport, at dischl/orgillg as charterer ml\Y .elect.
1 Reported

by MllorkWilks Collet, Esq., of the Philadelphia bJ.