15 F. 285 | S.D.N.Y. | 1883
This libel was filed as “a cause of possession, civil and maritime,” against a cargo of mineral phosphate on board the bark Busy, and against James C. Jewitt. The ninth allegation asserts that “all and singular the premises in tlie libel contained are within the admiralty and maritime jurisdiction of the court.” The respondent, Jewitt, has answered separately, and in general terms has denied the jurisdiction of the court. Some testimony has been taken in the cause, but no previous exception to the libel, for want of jurisdiction, was taken. A motion is now made to dismiss the libel for want of jurisdiction, as respects Jewitt, or, if that be denied, that a further stipulation for costs be required.
The libel alleges that in the year 3877 the libelant and his partner fitted out an expedition from New York, to search for guano islands, and for that purpose dispatched the schooner Peter Mitchell with George R. Field as supercargo; that on June 22d Constable island was sighted, six miles from the port of Cayenne, and that they landed on the island on that day, hoisted the American flag, and claimed to take possession in the name oí the United States for the benefit of the libelant and his partner; that pursuant to section
The separate answer of Jewitt, in its general denial, denies the averment of jurisdiction. It sets up many other matters not necessary to be referred to here, other than to state that it denies all the material allegations of the libel, and disclaims any interest in the cargo.
It is objected by the libelant that no specific exception having been taken to the jurisdiction of the court before answer, it cannot now be heard upon motion before the trial. I have no doubt that it is competent for the court in its discretion to entertain such a motion before the trial, based upon an entire want of jurisdiction over the subject-matter of the libel, (2 Conkl. Adm. 229; Cutler v. Rae, 7 How. 729, 731; Marshall v. Pierrez, 9 Ben. 391; U. S. v. Nourse, 6 Pet. 470; The Monte A, 12 Fed. Rep. 331;) and where, as in this case, it appears from the pleadings that the testimony concerning other facts put in issue would probably be voluminous, and difficult and expensive to procure, the question of the jurisdiction of the court ought to- be passed upon early in the cause. Especially is this the case where, as appears upon the evidence before the court, the libelant is. insolvent, and the security filed is insufficient for the respondent’s probable expenses in case of a decision in his favor.
The libel is very meager and insufficient in its averments respecting the respondent Jewitt, and any connection between him and the cargo.
I have quoted from the libel all that it contains on this subject. There is no allegation that the cargo was in his possession or control when the libel was filed; or that it was claimed by him; or that it
The basis of such actions is a legal title to the property in the libelant. In suits for possession in admiralty the court does not fake cognizance * of merely equitable titles, or equitable rights, as against the legal owner. The Amelia, 6 Bon. 475; Kynoch v. The Ives, Newb. 205; The Perseverance, 1 Blatchf. & 'JEL 385.
Where the libelant is in fact the legal owner, he may enforce his legal right in this court in a jietitory suit against those who have by wrong dispossessed him of his property and undertaken to transfer it to others. Thurber v. The Fannie, 8 Ben. 429; 528 Pieces, 2 Low. 323. But in this case the libelant never had any legal title to this cargo. The solo foundation of his claim thereto, as respects Jewitt, is through a “concession” from the French government, which concession, it is assumed, was fraudulently procured by Jewitt in his own name. The legal title to any guano which Jewitt removed under such a concossion would be in him. If the libelant should establish the fact that Jewitt was employed by him as alleged, he would at most prove a breach of trust. That would not make the libelant the legal grantee of the “concession” from the French government, nor would it change the legal title in this cargo from Jewitt to the libelant, although a court of equity might upon such proofs adjudge Jewitt to be a trustee for the libelant, and either compel him to account for the proceeds of the “concession,” orto transfer it to the libelant, if the terms of the concession from the French government permitted such a transfer.
The very basis of the action, therefore, is to declare and enforce an equitable trust against Jewitt for the benefit of the libelant; and it is well settled that a court of admiralty has no jurisdiction to de
In the case of Andrews v. The Essex, etc., 3 Mason, 6, 16, Story, J., says:
“ Courts of admiralty have no general jurisdiction to administer relief as courts of equity. They cannot entertain an original bill or libel for specific performance, or to correct a mistake, or to grant relief against a fraud.”
As a petitory suit to enforce a merely equitable title the libel must, therefore, be dismissed for want of jurisdiction.
But, in addition to the above ground, a still further want of jurisdiction would exist in this case from the fact that the contract or employment alleged in the libel between the libelant and Jewitt is not a maritime contract; at most, it was an employment or contract to procure from France a “concession,” which may be assumed to be a license to take guano.
The libel contains no description whatever of the nature of such a • concession. The “concession” or license itself would not be a maritime contract; and much less would the services of Jewitt in merely procuring such a concession or license be a maritime service. The removal of the guano from the island to other ports, though authorized under the concession, would nevertheless be an independent act. The concession itself would not necessarily involve any particular voyage as a part of the contract, nor compel any maritime act on the part of the libelant. He might never remove guano himself, but simply authorize others to remove it. The concession, therefore, and the employment of Jewitt to procure it, having no reference to any particular voyage, or to any direct maritime acts, belong to that class of contracts or transactions which are regarded as not maritime in themselves, but merely preliminary contracts, of which the admiralty does not entertain jurisdiction. Story, J., Andrews v. Essex, etc., supra; The Perseverance, Blatchf. & H. 385, 387, supra; The Thames, 10 Fed. Rep. 848.
In both aspects, therefore, the subject-matter is not within the jurisdiction of the court, and the libel should be dismissed, but in such cases without costs. The McDonald, 4 Blatchf. 477; Abbey v. The Stevens, 22 How. (N. Y.) 78; Mayor v. Cooper, 6 Wall. 247; Hornthall v. The Collector, 9 Wall. 560.
See The C. C. Trowbridge, 14 Fed. Rep. 874.