Moore v. Lincoln Park And Steamboat Consolidated Co.
| Decision Date | 11 July 1900 |
| Docket Number | 400,395,415,416 |
| Citation | 196 Pa. 519,46 A. 857 |
| Parties | Moore v. Lincoln Park and Steamboat Consolidated Company |
| Court | Pennsylvania Supreme Court |
Argued January 26, 1900 [Copyrighted Material Omitted] [Copyrighted Material Omitted]
Appeals, Nos. 395, 400, 415 and 416, January T., 1899, by George McGowan and Bernard Gilpin, Receivers, Morris and Mathis, Equitable Trust Company and Pains Pyro-Spectacle Company, from decree of C.P. No. 4, Phila. Co., June T., 1896, No. 1180, on exceptions to auditor's report in case of Hugh C. Moore v. Lincoln Park and Steamboat Consolidated Company. Affirmed.
Exceptions to report of Horn R. Kneass, Esq., auditor.
The facts appear by the opinion of ARNOLD, P.J., which was as follows:
The Lincoln Park and Steamboat Consolidated Company was incorporated January 15, 1891, under the laws of the state of New Jersey, its principal office and place of business being at Lincoln park, Greenwich township, Gloucester county, New Jersey. Lincoln park is located in the United States customs collection district of Bridgeton, New Jersey. The company was registered in Pennsylvania, and had an office in Philadelphia. Its business was the establishment of a park and pleasure grounds, and the owning, leasing and running of steamboats to carry passengers from Philadelphia to the park on the Delaware river in New Jersey.
On July 21, 1896, the Pains Pyro-Spectacle Company issued a writ of foreign attachment out of this court against the Lincoln Park and Steamboat Consolidated Company, by virtue of which the sheriff attached the steamboats Chauncey Vibbard and Georgeanna, on which judgment for $7,573.30 was entered on February 15, 1897. In the mean time, to wit: on July 24, 1896, a bill was filed in this court by Hugh C. Moore against the Lincoln Park and Steamboat Consolidated Company, alleging the insolvency of the said company and praying for the appointment of receivers, whereupon this court, the same day, July 24, 1896, issued an injunction against the officers of the company, restraining them from further continuing the business of the company or interfering with its property, and appointed George McGowan and Bernard Gilpin receivers of the property, real and personal of the said company. An ancillary receivership was appointed in the state of New Jersey consisting of Messrs. McGowan and Gilpin, with a resident of the state of New Jersey, as required by the laws of the state. Upon the appointment of the receivers they took the steamboats out of the custody of the sheriff, and proceeded to operate them during the summer season, carrying on the business of the Lincoln Park and Steamboat Consolidated Company the same as before the attachment and receivership. No order of court was made authorizing the receivers to do this, but it appears to have been done on some agreement between them and the sheriff. After the summer season had closed, to wit: on October 17, 1896, the sheriff presented his petition to the court alleging that the steamboats were chargeable and perishable, and asking for an order to sell the boats. The auditor reports on page 54 of his report that "there was considerable trouble in procuring the consent of the sheriff to the receivers selling the boats" all of which was unnecessary as the sheriff was the proper party to make the sale. After considerable delay and very large expenses had been incurred, the Georgeanna was sold for $8,300, and the Vibbard for $6,300, making a total of $14,600, out of which was deducted the auctioneer's bill for advertising and commissions amounting to $1,270.23, thus leaving a balance of $13,329.77, for distribution amongst the creditors.
An auditor having been appointed to distribute the fund, various creditors appeared before him, among them being the Equitable Trust Company, trustee for bondholders under two mortgages, one for $70,000 and the other for $49,500, upon all the property, real and personal of the Lincoln Park and Steamboat Consolidated Company. Claims were also presented for certain maritime liens for repairs to the boats, seamen's wages and supplies, as well as the claim of the plaintiff in the foreign attachment before mentioned.
In the distribution of the fund of $14,600 the auditor has allowed to the auctioneers for commissions, advertising, etc., $1,270.23; to the sheriff, for his costs in the foreign attachment suit, $506; to the receivers, $1,000 each; to their counsel, $500 each; for stenographic notes of testimony, $529.60; for auditor's fee, $1,500; to the bondsmen of the receivers, $100; to the counsel for the Lincoln Park and Steamboat Consolidated Company for defending it in certain suits, $251, and sundry other items, amounting altogether to $10,584.96, leaving a balance for distribution of $4,015.04, out of which he awarded to the seamen $2,100.82, leaving a balance of $1,914.22, which he awarded to the Pains Pyro-Spectacle Company, the plaintiff in the attachment suit before referred to.
The claims, although many in number, may be grouped into classes, and treated as such. The first and principal exception is to the allowances to the receivers, it being alleged that they are mere intruders, who took the boats out of the hands of the sheriff for the purpose of carrying on the business of the park during the summer season, without any authority of law whatever. We are of the opinion that the exceptions to the allowance of any sum to the receivers, or to their counsel, or bondsmen, should be sustained, under the principle laid down in the late case of Lane v. The Washington Hotel Company, 190 Pa. 230, in which it was decided that even when receivers are authorized to carry on a business and sell the property of the company of which they are receivers, they cannot diminish the fund due to the creditors who are secured by liens by retaining an allowance for receivers' commissions and counsel fees.
At the time the present case was before the auditor the case of Lane v. The Washington Hotel Company had not been decided, and therefore the auditor had not the advantage which the opinion in that case would have given him in passing upon the propriety of allowing the claims of the receivers in this case. However, with that authority before us, which we welcome not only as a guide, but as the application of a wise, just and sensible principle of law, we sustain the exceptions and disallow all claims of the receivers and counsel, referring them for their compensation to the fund which they received in New Jersey from the sale of the property there, and the use of the boats.
The next and important question is upon the claim of the Equitable Trust Company. The steamboats Chauncey Vibbard and Georgeanna belonged to the Lincoln Park and Steamboat Consolidated Company, a corporation whose residence was in the state of New Jersey, and Bridgeton, the port of entry in the collection district in which the residence of the Lincoln Park and Steamboat Consolidated Company was located, is the place where those steamboats should have been enrolled: The Thomas Fletcher, 24 Fed. Repr. 375. Instead of that they were enrolled in the custom house at Philadelphia, and the mortgage of said boats was also recorded there. It is a well settled principle of United States maritime law that a vessel must be enrolled or registered in the home port of its owner. Where there are several owners the vessel may be enrolled in the home port of the ship's husband or managing owner. It is contended that inasmuch as George McGowan, the president of the Lincoln Park and Steamboat Consolidated Company, resided in Philadelphia, his residence justified the company in enrolling and registering the boats in the custom house at Philadelphia, where they were previously enrolled. But the fallacy of that argument consists in this, that Mr. McGowan is not a part owner of the boats, he was merely a shareholder in the company which owns the boats. Mr McGowan had no individual interest whatever in the boats as boats. He had shares of stock in a company, which company was the sole owner of the boats, and as that company resided in the collection district of Bridgeton, New Jersey, the steamboats should have been enrolled there in order to give a lien for any mortgages thereon. Without elaborating upon the law on this subject it is sufficient for us to refer to the case of Johnson v. Merrill, 122 Mass. 153, where the law has been fully considered and decided by Chief Justice GRAY. See also on this point the cases of White's Bank v. Smith, 7 Wallace, 646, The Augustine Kobbe, 37 Fed. Repr. 696, and The John T. Moore, 3 Woods, 61. The claim of the Equitable Trust Company is like that on a mortgage of real estate recorded in the wrong county. It acquires no lien, having been recorded in the wrong county.
Nor can the claim be sustained as a merely temporary enrollment of the vessels. They were enrolled February 27, 1893, on the oath of George McGowan, president of the Lincoln Park and Steamboat Consolidated Company. The company became insolvent in July, 1896, and the steamboats were levied upon in July, 1896. This enrollment of more than two years cannot be considered a temporary enrollment. Besides this, a temporary enrollment will not support a mortgage. We sustain the auditor in rejecting the claim of the Equitable Trust Company as trustee and mortgagee and relegate it to the list of general creditors.
The next question involves the claims upon certain alleged maritime liens. An interlocutory order was made with the consent of all the parties on May 29, 1899, for the payment of the auditor, the stenographer, the prothonotary, the printing of the auditor's reports, and some minor expenses, amounting altogether to $2,174.15. By the same order certain claims of seamen's wages and towing...
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