Guttner v. Pacific Steam Whaling Co.

• Decision Date: 29 August 1899
• Docket Number: 11,730.
• Citation: 96 F. 617
• Parties: GUTTNER et al. v. PACIFIC STEAM WHALING CO.
• Court: U.S. District Court — Northern District of California

96 F. 617

GUTTNER et al. v. PACIFIC STEAM WHALING CO.

No. 11,730.

United States District Court, N.D. California.

August 29, 1899

D. T Sullivan, for libelants.

Page McCutchen & Eells, for respondent.

DE HAVEN, District Judge.

This is an action for a marine trespass and conversion. The libel charges that in the month of October, 1897, one Leavitt master of the whaling bark Newport, owned by the defendant took by force from the bark Navarch, then on the high seas certain provisions, ship's gear, whaling gear, tools, and other articles of which the libelants were then lawfully possessed as of their own property. The defendant, in its answer, admits the taking of certain provisions at the time and place stated in the libel, but denies that the libelants, or any of them, were lawfully possessed of the property so taken, and also puts in issue the allegation of the libel that any provisions, stores, or other articles of personal property were taken by force and against the will and consent of the libelants; and for a separate defense it is alleged that it was necessary for the master of the bark Newport to take the provisions mentioned in the libel for the use of the crews of the Newport and other whaling vessels ice-bound in the Arctic Ocean at that time, and for the preservation of human life.

1. The facts of the case may be very briefly stated as follows: The libelants were seamen on board the steam whaling bark Navarch, and on August 5, 1897, that vessel was ice-bound in the Arctic Ocean, and, though staunch and strong, was then abandoned by her master and all of her crew, it being thought that she was in the Northwest current, and such action necessary for the safety of those on board. They were unable to make land, and, after being five days upon the ice, returned to the ship, and there remained four days, when her master and all of the crew except the libelants and three other persons again abandoned her, and started for the United States steamer Bear, then in sight, and only a few miles distant. The libelants refused to leave the Navarch at this time, for the reason that in their opinion it was more dangerous to go upon the ice than to remain; and it is possible they may have thought, or some of them, at least, that, if the vessel was finally saved, they would be entitled to compensation as salvors if they continued with her. None of them, however, knew anything about navigation, nor were they ever called upon to exercise any skill as navigators, as the Navarch drifted with the ice until the latter part of September, when she was sighted about 12 miles from Point Tangent by the Newport and the Fearless. These last-named vessels were lying ice-bound in a position of safety, about one-quarter of a mile from shore, and out of the current. They were only provisioned for six weeks, and therefore in need of additional supplies to subsist their crews until they could be released from the ice the following summer; and when the Navarch was sighted an officer from each, and a number of natives with sleds, were at once sent out to her, for the purpose of obtaining such stores and provisions as could be spared, and also to assist her crew in coming to the vessels in shore, if they desired to do so. This party succeeded in reaching the Navarch, and the sleds were, with the consent of the libelants, loaded with supplies, all of which were lost upon the return trip on the ice; and the masters of the Newport and Fearless then determined to bring in all of the stores remaining upon the Navarch. This action was deemed necessary to them, because their vessels did not have sufficient provisions for the winter, and also because the Navarch was in a position of extreme peril and already abandoned by her master and most of the crew. In order to bring in the provisions, it was necessary to secure the assistance of natives with their sleds, and, for the purpose of inducing them to assist in this work, the natives were told that they might keep for themselves all of the whaling gear, sails, and tools which they might save from the Navarch. This was satisfactory to them; and under the direction of the two officers, one from the Newport and one from the Fearless, they proceeded with sleds to the Navarch, and brought in all of her provisions, some whaling gear, a number of sails, and other articles. The provisions were placed on board the Newport, and less than one-half was retained by Capt. Leavitt for the use of that vessel, and the remainder divided between the Fearless and the steamer Jennie. The other articles were taken by the natives, with the exception of one hawser and two lengths of hose, which were retained on the Newport, and a steam pump and two sails, purchased by the master of the Fearless from one of the crew of the Navarch, who is not a libelant. The provisions divided between the Newport, Fearless, and Jennie were of the value of $871, and it is claimed by the libelants that the whaling gear and other articles kept by the natives were of the value of $2,900, or thereabouts. Whether this property was taken from the Navarch with the consent of the libelants will be considered in another part of this opinion.

2. It will be seen from the facts stated that the stores and other property taken from the Navarch belonged to the owners of that vessel. The libelants were, however, in lawful possession of the property at the time it was taken, and had the right to so continue as against every one except the true owner. The possession thus had was not the possession of servants, merely, and is sufficient to entitle the libelants to maintain this action as against the defendant, who has not shown a better title, if, in fact, the property was taken from them against their will and consent. Jefferies v Railway Co., 5 El.& Bl. 802; Wheeler v. Lawson, 103 N.Y. 40, 8 N.E. 360; Stowell v. Otis, 71 N.Y. 36. In the case last cited it was said: 'The peace and good order of society require that persons thus in possession of property, even without any title, should be enabled to protect such possession by appropriate remedies against mere naked wrongdoers. ' As already stated, the present case falls within this rule, if the property mentioned in the libel was taken by the master of the Newport from the libelants against their consent. Upon this question of fact the evidence is sharply conflicting, and it is not deemed necessary to attempt in this opinion any analysis of the testimony of the different witnesses, or to do more than state the conclusion reached upon this point. I think it sufficiently appears from the evidence that the libelants were not willing to let the stores on the Navarch be taken from their possession, except upon condition of receiving a written acknowledgment to the effect that payment therefor should be made to whomsoever might thereafter be shown to be entitled to the property or its proceeds. They made a request for such a writing, and it was not given. In view of the fact that the provisions were necessary to supply those on board the imprisoned whaling ships with food during the...