Mengel Box Co. v. Joest , 127 Miss. 461 ( 1921 )

.Andekson., J.,

delivered the opinion of the court.

(After stating the facts as above). The appellee-refused to deliver the barge to the appellant because the latter declined to pay the salvage charges demanded by him amounting to three liuudrecl and sixty dollars. Appellee’s contention is that he has a right to the possession oí the barge as security for his salvage charges which he claims are reasonable; that under the law he lias a lien or charge against the barge for his services and expenses in bringing it in from the river and tying it up in a place of safety, and for the purpose of enforcing this lien he has the right under the law to the possession of the vessel.

There is no such lien or charge given by-the common law carrying with it the right of possession in the salvor for its enforcement; nor is there under our statute (chapter 120, Laws of 1908; Hemingway’s Code, sections 7305 to 7314, inclusive), unless the vessel saved be a derelict, for in section 1 of the statute (Hemingway’s Code, section 7305) the right of the salvor to compensation and possession for its enforcement is expressly limited to derelicts, and that is also true of the maritime law. But under our statute as well as the maritime law, undoubtedly, the sal-vor of a derelict vessel has a lien or charge against such vessel for his services, and the right of exclusive possession for its enforcement. It is to be presumed that the legislature used the term “derelict” in the statute in its well-understood sense as defined in admiralty law. Therefore either under our statute or the maritime law the controlling question in this case is whether at the time appel-lee came into possession of the barge involved such barge was a derelict. In view of the conclusion reached by the court, it becomes unnecessary to decide, as will develop later in this opinion, whether chapter 120, Laws of 1908 (Hemingway’s Code, sections 7305 to 7314, inclusive), is violative of section 2, art. 3, Constitution of the United States, which provides, among other things, that the judicial power of the federal government shall extend “to all cases of admiralty and maritime jurisdiction.”

A derelict is a vessel forsaken, found upon the seas or other navigable waters without any person in command; a vessel that has been abandoned by master and creAV, without hope of recovery. A mere quitting of the vessel for tlie purpose of securing assistance from shore and with the intention of returning to her again is not such an abandonment as would cause the vessel to be a derelict in the sense of the maritime law. If the vessel is found deserted or abandoned whether from accident or necessity, or voluntarily, it is a derelict. It is an abandonment by master and crew without hope of recovery, not a temporary abandonment. The Hyderabad (D. C.) 11 Fed. 749, and 24 R. C. L. 537.

In the case of The Island City, 1 Black, 128, 17 L. Ed. 70, the supreme court of the United States held that to constitute a vessel a derelict the abandonment must have been final without any hope of recovery ór intention of returning; that, if the crew left the vessel temporarily with the intention of returning after obtaining assistance, it would not be such an abandonment as to cause the vessel to be a derelict. To the same effect see Merrill v. Fisher, 204 Mass. 600, 91 N. E. 132, 134 Am. St. Rep. 706, 17 Ann Cas. 937. The fact alone that the vessel is in marine peril, and that the master and crew are absent, does not constitute a derelict.

Under the evidence in this case from the very time this barge was driven from its moorings at Hickman until it was recovered, although it had no crew on board, the appellant knew it was floating down the Mississippi river and kept up with it, knew from reports about where it was at different times, and had used and was using at the time it was brought in by the appellee every means in its power to recover it. Six barges exactly like it which were swept from their moorings at the same time were all recovered. There was no abandonment of any of them by the appellant. On the contrary, from the beginning until, all of them had been recovered the appellant was hotfoot after them; and at the very time the appellee secured the barge in question the manager of the appellant company was at Greenville on a government boat with its searchlight thrown out across the river keeping a constant Avatch for this very barge. We conclude, therefore, that the barge in question, under the maritime law as well as under our statute, was not a derelict at the time appellee acquired possession of it.

Under the maritime law, as well as under the express provision of our statute, it is clear that only the salvor of a derelict has the right of exclusive possession for the purpose of enforcing his claim for salvage, and that this remedy is not given to the salvor of a vessel on the ground alone that it was in marine peril when saved. 24 R. C. L. 537; 35 Oyc. 773. Therefore appellee was not entitled to the possession of the barge as against appellant.

To so hold under the facts of this case is not invading the jurisdiction of the admiralty courts, which under section 2, art. 3 of the Constitution, and 36 Stat. L. 1091, 4 Fed. Stat. Ann. 1005 (U. S. Comp. St. section 991), enacted in pursuance thereof is invested in the district courts of the United States and is exclusive. This is a replevin suit involving alone the right to the possession of the barge in question. The subject-matter of the suit is not one of admiralty jurisdiction. This identical question was involved in Merrill v. Fisher, supra, which was an action of replevin for a yacht or sloop in which the defendant undertook to justify his right to possession by showing that the vessel was captured by him as a derelict, and therefore he was entitled to hold possession of it to enforce a lien for his services enforceable only in a court of admiralty. The court held that the courts of common law would not enforce the lien, but Avould recognize such lien and the right of possession arising therefrom, and would protect the lien to the extent of leaving the vessel in possession of the defendant. We think the reasoning of the case is sound, and that the principle referred to would not in the least trench upon the maritime jurisdiction of the admiralty courts.

This is not a direct proceeding by either of the parties to enforce an admiralty claim. The maritime law is only a sidelight which happens under the facts of the case to be determinative of the right of possession.

Appellee is left to his remedy for any salvage claim he may have, either by a proceeding against the barge in the proper admiralty court- or' a suit in personam in a court of common law.

Reversed, and judgment here for appellant.