Johnson v. Martin ( 1890 )

Woods, C. J.,

delivered the opinion of the court.

We find ourselves unable to agree with counsel for appellant touching the title of appellees to the ship and cargo.

The act of the legislature of the State of Louisiana, approved March 6, 1869, which was condemned by the supreme court of the United States in Foster v. Master and Wardens, 94 U. S. 246, because of its conflict with sec. 8, art. 1, constitution of the United States, was not, in our opinion, substantially re-enacted by the act of the legislature of Louisiana, approved March 16, 1877, as supposed by counsel. On the contrary, as we think, the last named act was adopted subsequent to the decision in above case, and, as appears to us, was framed to meet the views of the court in that case. The act of 1869, made it unlawful for any person other than the wardens of the port of New Orleans, to make any survey of the hatches of vessels coming into that port, or to make any survey of damaged goods coming on board of such vessels, or to give certificates or orders for sale of such damaged goods at auction, or to do any other act prescribed by law for said wardens to do, and provides a penalty of one hundred dollars to be paid to said wardens in each instance, by any person, other than said wardens, doing any of the forbidden acts. This was held by the supreme court of the United States, to be a regulation of both foreign and inter-state commerce, and therefore unconstitutional.

The act of March 16, 1877, contains no such provisions, but, as has been already said by us, was apparently framed to meet the objections of the court to the former statute. In this act, the wardens are to inspect and survey and certify when called upon by the master of the vessel. The master is not obliged to call upon the wardens to act, nor is any other person forbidden to do any of the acts which the wardens may do, upon request of ship-masters.

The transcript from the records in the office of the wardens of the port of New Orleans was properly admitted in evidence. Under the 2d section of the act of 1877, the wardens are required to cause to be made in books kept for that purpose, an' entry of all their surveys, etc., and certified copies of such entries under the official signature of either of the wardens, are made admissible in evidence without further proof. By section 1622, code of 1880, of Mississippi, copies of records required by the laws of other states to be kept and recorded, are, when certified by the clerk in whose office the records are kept under his seal of office, made admissible in evidence in the courts of this state. The wardens of the port of New Orleans are the makers and keepers of the records in their office, and by the spirit of our statute, if not by its very letter, transcripts from the records in their office properly certified, are entitled to be received as any other copies of foreign records.

Whatever may be the proper construction of the Louisiana statute which we are considering, and whatever dignity attaches to the records of the office of wardens of the port created by the act, we are unable to see any real ground for appellant’s contention as to the bill of sale of the ship and cargo by Homes, the auctioneer. We are unable to see why the bill of sale made by authority of the recognized agents of the owners of the vessel was not competent evidence to show title in appellees, even if the port wardens had never made a survey or certificate. It must be true that the authorized agents of the owners of the vessel could sell, and convey the property, and make a good title to the same. That there was a sale of this character, at any rate, and payment of the purchase price by appellees, and acquiescence in the transaction by the owners of the vessel, is not to be disputed on the record before us. The bill of sale was properly admitted and was competent evidence of title in appellees to the vessel and car-go.

The remaining question raised by the assignment of error is, “ did the sale of the ship and her cargo vest title in the purchasers to the ship and cargo, that portion which had been cast overboard to lighten ship, and was at hand on the beach of Chandeleur Island, as well as that remaining in the vessel, or only this latter part ?”

This inquiry we need not answer, for without undertaking to settle this vexed question, it may confidently be declared ihat the verdict of the jury and the judgment of the court may be safely affirmed before this inquiry can be said to demand solution at our hands.

All the timber in controversy here was found on Chandeleur beacb, and was carried away by appellant after he or his tug-master had been duly notified of the rights of appellees in the premises, and without the semblance of a pretext of right on, the part of the trespasser. This timber, thus wrongfully taken, the jury was warranted from the evidence of John "Walsh, in believing was not only a part of the cargo of the stranded ship, but was actually a part of the cargo which was cast out and overboard by the employés of appellees in their efforts to lighten the vessel preparatory to pumping out and raising her, after they had taken possession of the ship and cargo.

We do not forget that there was evidence showing that the timber was on the beach before the sale of the vessel to appellees, but the jury had the right to accept the clear and reasonable and consistent statement of Walsh, and did so properly, as we strongly incline to think.

That the judgment is eminently just, we entertain no sort of doubt, and no possible injury can result to appellant by an affirmance, since his only claim to the wrecked vessel’s cargo, which had been cast ashore, arose out of his unprecedented and unwarranted possession of it for a short time.

Affirmed.