The Pacific commercial advertiser. [volume] (Honolulu, Hawaiian Islands) 1885-1921, 1906-10-16
MANCHUR|A
WINS POINTS
Cable Company Must
Show Interest in
RestOrer.

An interlocutory decision was given
by [. :. Judge Dole yesterday on the
exception to libel for salvage in the
admiralty suit of Commercial Pacific
cable &C. VS. Steamship Manchuria. 1t
was found that libelant. as charterer
of the steamship Restorer, had not al
legged an interest in the latter sufficient
to justify its claim of right to bring
suit. The exception was allowed with
leave to libelant to amend it's libel
within ten days. The syllabus states
the law thus;
I'm a libel for salvage by the char
terer of the vessel used in the salvage
services. an interest of libelant in such
vessel justifying his claim of right to
bring suit is material fact and should
be alleged
Following is portion of the courts
decision:
1.-THE libel begins with the following
words: The libel and complaint of the
Commercial Pacific Gable Company
corporation organized and existing
under and by virtue of the laws of the
within the Territory of Hawaii, the
charterer of the cable steamship Re-
storer, whereof Basil c. Combe is mas
ter, which libel is brought on behalf of
itself and of the master, officers and
crew of said c. S. Restorer, against
the steamship Manchuria,' ETC. Article
second of the libel begins as follows:
That on Monday, the 10th day of Au-
gust. A. D. 1906, the said cable steam
ship Restored being of the tonnage of
31SO tons gross. and 1884 tons net reg
lister whereof the said Commercial Pa
cific Cable Company was and still is the
charterer' etc.
The iibeiee filed its exception to the
libel on the ground that it does not
appear in and from the allegations of
said libel that said libelant has suff1-
cient interest in and to the cable ship
Restorer mentioned in said libel to en-
title it to maintain said libel against
the said steamship Manchuria.
'"The authorities recognize a distinc--
ton in charters to the eeffct that where
| by the terms of the charter-party the
entire vessel is let to the charterer
with a transfer to him of its command
and possession and consequent control
over its navigation, he will generally
| be considered as owner for the voyage
or service stipulated. But, on the other
hand, if the charter-party let only the
use of the vessel, the owner at the
| same time retaining its command and
possession, and control over it's naviga-
! ton. the charterer is regarded as a
| mere contractor for a designated SER
vice, and the duties and responsible
| ties of the owner are not changed. In
| the first case the charter-party is a
| contract for the lease of the vessel; in
! the other it is a contract for special
service to be rendered by the owner of
| the vessel'-Leary vs.. United States, 81
| U. S 607, 610; Oracle VS.. Palmer, q
| Id. sos; Reed VS.. United States, IS Id.
591, COL
| Under the allegations of this libel
| there is no aVerment that the libelant
| holds the vessel under a charter which
| gives it such control of the vessel and
| so renders it responsible for its full
| Management and it's navigation-fur-
nishing supplies and providing a crew
as would show that it is in full con-
| troll thereof as owner for the time be-
/ ing. 1t therefore does not appear that
| the libelant has a legal right to salvage
| from the allegations of salvage services
set forth.
| Counsel for the libelant claims that
| this point is sufficiently covered by the
| allegations of article Il of the libel
which ayers that libelant by reason
| of the services rendered as aforesaid
| deserves and is justly entitled to meet
and competent salvage / do not think
| that this is a sufficient averment OF
| ownership for the time being as is re
| quired by the rules of pleading.-Adm
Rule %. 1t is simply an averment that
under the allegations of the libel it Is
justly entitled to salvage, which is a
| proposition of law"
| A citation is made by Judge Dole OF
| The Cherokee" case, in which the
ownership of the tug None rch, stated
in the libel heading, was omitted from
i the allegations. and it was held;
| The ownership of the tug is ma
terial fact, and it may become of es-
sential Importance in the protection OF
the respondent in obeying the decree
OF the court in this case. 1t should
therefore be alleged in a distinct artf-
Gle (Rule 23d. ADM, so that re-
| spondent may traverse it, if he be SC
advised, or at least may require proof
of it. Even if this has not been adopt
ed as the universal rule it is better
pleading.
| Il am disposed Judge Dole con-
cludes, ito adopt the rule set forth in
the above case and allow the exception
The libeant has leave to amend its
libel and is allowed ten days in which
to do So
Ballou & Marx, proctors for libelant;
Kinney, McClanahan & Derby. proctors
for libelee-