37 F. 125 | U.S. Circuit Court for the District of Southern New York | 1888
The testimony in this case has been read with the assistance of an extremely able and thorough argument of counsel. It has been considered in view of the rule that the burden of proof is upon the purchaser of a vessel, who asserts that pre-existing liens have been divested by his purchase on a sale by the master, to show a valid title, and consequently to prove that the master was justified in .making the sale by adequate necessity, and acted in entire good faith for the interest of all concerned. Abb. Shipp. 16; The Glasgow, 1 Swab. 145; The Australia, Id. 480; The Tilton, 5 Mason, 465; Freeman v. East India Co., 5 Barn. & Ald. 622; Stephenson v. Insurance Co., 54 Me. 55; The Sarah Ann, 13 Pet. 402; The Henry, Blatchf. & H. 465; The Amelia, 6 Wall. 18; Hartman v. Will, 4 Pa. Law J. 110. The very small sum realized by the master and paid by the purchaser, the purchase by a person who was one of the surveyors who recommended the sale, and the fiduciary gelations which supervened between the master and the purchaser immediately after the sale, and have existed ever since, are features of the transaction which give it an unfavorable coloring, and militate against its apparent integrity sufficiently to require an ample vindication. Nevertheless, the evidence justifies the conclusion that the exigencies of the situation justified the sale as the onljr means of realizing anything whatever out of the wrecked vessel, and that the master acted in entire good faith in the transaction.
It will not be profitable to enter upon an extended statement of the evidence, or of the reasons for the conclusions reached. The steamer was wrecked on the 20th of January, 1886, being driven ashore by the ice in the Chesapeake bay, about 17 miles' from the city of Baltimore. Efforts Avere made to get the vessel off, unsuccessfully, with the assistance of a powerful ice-boat." Thereafter, and on the same day, the master went to Baltimore to obtain assistance, and notified the owners by telegram, and consulted the agent of'the Boston Marine Insurance Company, underwriters on the vessel. The OAvners gave notice of abandonment to the insurers. At the suggestion of the agent of the underAvriters the master applied to Mr. Pentz, who subsequently became the purchaser
'The evidence does not authorize a, suspicion of bad faith on the part of the master up to this time in the history of the transaction, but shows that ho abandoned the project of raising the vessel, and concluded to sell her, with the acquiescence and approval of the owners and underwriters, upon the advice of competent experts, and upon his own honest judgment that she was not worth the expense of salvage and repairs. The report and recommendation of the surveyors, although of value as formal evidence, are far less valuable as exhibiting the real condition of the vessel, and the apparent impracticability of attempting to raise and repair her, than the consensus of opinion of the agents and experts of the underwriters, and of other competent judges who saw' her before she was raised, so far as this opinion can he ascertained from unprejudiced or reliable witnesses. The vessel was not advertised for sale until February 26th, when, upon consultation between the master and the underwriters, the. cargo and the vessel were advertised to be sold separately, but at the same timo and place. About that timo the underwriters paid the insurance to the owners as upon a total loss. It is probable, although there is no direct testimony to this effect, that in the mean time the master came to an understanding with Mr. Pentz, looking to his own employment. in the event of a purchase of the vessel by the latter. Mr. Pentz was the manager of a towing company and of a wrecking company, and his circumstances were such as to render it probable that he might be induced to take the chances of a speculation with the vessel. It was apparent to the master that there was no chance of inducing those interested in the vessel to incur the expense of raising, and repairing her, that his occupation was gone, and that he must seek other employment.