A statute constitutional in part only will be upheld as to what is constitutional, if it can be separated from the unconstitutional provisions. Presser v. Illinois, 116 U. S. 252, 6 Sup. Ct. 580, 29 L. Ed. 615. I am of the opinion that the weight of authority is substantially in favor of upholding the constitutionality of this law, except so far as section 8 is concerned. The demurrers, therefore, will be overruled, except the demurrer of the defendants Bernstein and Horowitz to that part of the indictment which charges a violation of section 8 of the law, in which respect the demurrer of these two defendants is sustained. THE SILVER SHELL. (District Court, E. D. New York. November 19, 1918.) 1. SEAMEN 10-PROVISIONS-BURDEN OF PROOF. The burden is on the owner of a vessel to show that it was properly provisioned. Under Rev. St. §§ 4612, 4568 (Comp. St. §§ 8357, 8392), the owner of a vessel is not liable for poor cooking, where good food was provided, or for the substitution of wholesome equivalents for provisions which could not be obtained in foreign ports. On a libel by seamen who claimed one dollar per day for a period of 75 days because of the failure of the ship to provide food fit to eat and in sufficient quantities, evidence held insufficient to show that the vessel was at fault. 4. SEAMEN 26-EXTRA WORK-RIGHT TO RECOVER. On a libel by seamen for reasonable compensation for extra work while the crew was short, evidence held insufficient to show that the seamen who filed the libel were compelled to do extra work. 5. SEAMEN 33-WITHHOLDING OF Wages-WHAT CONSTITUTES. Where there was an actual controversy between seamen and the owner as to the owner's failure to furnish required food and as to the seamen's claim for extra compensation, the captain had the lawful right to have the questions adjudicated by the court, and his refusal to pay the sums demanded by all seamen was not a wrongful withholding of wages. 6. SEAMEN 33-WITHHOLDING OF WAGES-WHAT CONSTITUTES. Where the seamen's claim for additional compensation for extra work and for compensation for insufficient food was submitted to the shipping commissioner of a port and decided in favor of the captain of the vessel, that in itself established captain was making a bona fide contention, and the seamen could not recover on the theory that the withholding of the amounts claimed was withholding of wages. In Admiralty. Libel by Axel Hansen and others against the steamship Silver Shell, etc. Libel dismissed. Silas B. Axtell, of New York City, for libelants. Kirlin, Woolsey & Hickox, of New York City, for claimant. GARVIN, District Judge. Various members of the crew of the steamship Silver Shell have brought this libel to recover upon four alleged causes of action: For other cases see same topic & KEY-NUMBER in all Key-Numbered Digests & Indexes (1) Each libelant claims $1 per day for a period of 75 days because of the alleged failure of the ship to provide food fit to eat and sufficient in quantity pursuant to provisions of section 4612 of the United States Revised Statutes (Comp. St. § 8392), and, by amendment of the libel at the trial, of section 4568 of said statutes (Comp. St. § 8357). (2) The libelants Axel Hansen, Alberts, Van Der Lee, Vantol, Olsen, Alec Hansen, Johansen, Leno, Helstrom, Zeilon, and Sjosmand claim for overtime which they allege they have earned. (3) The libelants Fugelseth, Helstrom, and Leno claim such compensation as is reasonable for extra work required of them during a period of 24 days while the ship was en route from Sabang to Port Said, because for that period the boat had only three instead of seven able-bodied seamen as required by law. (4) All libelants who have not been discharged and paid all of their wages claim waiting, time at the rate of two days' pay for every day until settlement of their claim for wages, overtime, etc., has been effected. With respect to the first and second causes of action, various members of the crew testified. Taking their testimony as a whole, and even without considering the testimony offered by the respondent, it is far from satisfying. Thirteen libelants are named. Eight verified the libel. One, Vantol, who did not verify, repudiated his having been named as a libelant, and testified that he had no claim, although the libel sets up a claim in his behalf for eight hours' overtime. John Gallagher, not joined in the action originally, testified, making a claim for bad food and overtime. Two signatures of men appear in the verification of the libel. They do not appear in the libel, and one of them, Peter Vesser, testified that he had authorized no one to bring an action in his behalf. This is not calculated to impress the court with the good faith of the claims advanced, or with the reliability of those who testify in their behalf. [1-3] So far as the first cause of action is concerned, it is true the burden is upon the owner to show that the ship was properly provisioned. The Emma F. Angell (D. C.) 217 Fed. 311; The Elizabeth Frith, Fed. Cas. No. 4,361. But in view of the fact that various libelants (Fuglseth, p. 12; Leno, p. 34; Van Der Lee, p. 12) testified, either that substitutes were given when the food specified ran short, or else that it was improperly cooked, and having in mind that the claimant's testimony is to the effect that the real trouble was with poor cooking, that every effort had been made to engage a competent cook, and that whenever there was a shortage of certain articles of food (for which proper substitutes were not supplied) such as pickles, molasses, and beans, it was in those parts of the world where they could not be obtained, although the master attempted to secure them in every port at which the boat touched, it seems to me that the owner has sustained the burden of proof. "The language of the statute, 'bad in quality or unfit for use,' clearly contemplates something more than poor cooking or seasoning of good food." The Edward R. West (D. C.) 212 Fed. 287. "But in ports, where the specific articles of provisions cannot be obtained, it would be unreasonable to suppose that the spirit and intention of the law do not permit equivalents, of other good and wholesome esculents, to be substituted and supplied, in place of provisions damaged or consumed. "The owner or master is to take the best precautions to procure good and wholesome enumerated articles, which is often difficult in foreign ports." Mariners v. Washington, Fed. Cas. No. 9,086. [4] The third cause of action, a claim by three of the libelants for reasonable compensation for extra work which they claim was required of them for 24 days while the ship was going from Sabang to Port Said (the crew being four able-bodied seamen short) has not been established. The testimony offered by the claimant establishes to the satisfaction of the court that the four men from the crew who were discharged at Sabang were not only discharged for cause but could not have remained on the boat longer without endangering its safety. They were intoxicated and disorderly; the ship was loaded with gasoline, and there was danger of an explosion if they were allowed to come aboard. The captain made every effort to obtain seamen to take the places of those discharged and, when unsuccessful, after consultation with the consul at Columbo, made an arrangement with the gun crew of the boat, by which the gun crew did the work of the discharged men, and the court believes that the three seamen involved in this cause of action were not compelled to do extra work as they claim. [5] As to the fourth cause of action, I am of the opinion that there is reasonable ground for holding that there was an actual controversy between the libelants and the owner. The captain, therefore, had a lawful right to have the questions adjudicated by the court, and his refusal to pay the sums demanded by the libelants, under those conditions, would not be a wrongful withholding of wages without sufficient cause. The Amazon (D. C.) 144 Fed. 153; The Sadie C. Sumner (D. C.) 142 Fed. 611; The George W. Wells (D. C.) 118 Fed. 761; The Alice B. Phillips (D. C.) 106 Fed. 956. [6] The matters in controversy were submitted to the shipping commissioner in New York and were decided in favor of the captain. This of itself established that the captain was making a bona fide contention that the amounts claimed were not due. The Alice B. Phillips. The libel is dismissed. THE HELEN B. MORAN. (District Court, E. D. New York. December 13, 1918.) 1. TOWAGE 15(2)-INJURY TO SCOW-EVIDENCE. Where a scow, in charge of a tug in harbor waters, was injured by striking on the spiles of a bridge, and if the tug had kept in the middle of the channel there would have been 20 feet of clear water on either side, and the same scow had previously passed under the bridge without injury, such facts are sufficient to raise an inference of negligence and support a recovery against the tug. For other cases see same topic & KEY-NUMBER in all Key-Numbered Digests & Indexes 2. TOWAGE 15(2)—INJURY TO SCOw-BURDEN OF PROOF. Where there was considerable clearance, and a scow, which was part of a tow and ordinarily should have passed safely under a bridge struck on the spiles on one side, the claimant of the tug, which was libeled, had the burden of proving it was exercising due care in navigation. In Admiralty. Libel by Nicholas J. Hughes against the steam tug Helen B. Moran, etc. Decree for libelant. Hyland & Zabriskie, of New York City, for libelant. GARVIN, District Judge. A libel has been filed against the tug Helen B. Moran to recover damages sustained by the scow K. C. Lang on April 22, 1917. On that day the tug took a tow of five boats from Brooklyn to Flushing. The Lang was loaded with city ashes, and was the last boat in the tow. There are three bridges near Flushing, and when the tow reached the first of these bridges the tug and the first four boats apparently passed through without injury. The Lang, however, struck the spiles of the bridge on the left side, thus inflicting damage on her starboard side aft; she was being towed stern first. She had been towed through this bridge many times before without difficulty. Some considerable testimony was offered tending to prove that the Lang was in an unseaworthy condition, was unfit for use, and that she was unable to stand the ordinary wear and tear to which a scow would be subject in doing its work in and about the harbor of New York. But this was sharply contradicted, and there is insufficient evidence to charge her with being unseaworthy. [1, 2] The case is controlled by The Jonty Jenks (D. C.) 54 Fed. 1021, where it is stated, at page 1023: "If the tug had kept the middle of the cut there would have been 20 feet of clear water on either side. Failure to do this was negligence"-citing The Lady Pike, 21 Wall. 1, 22 L. Ed. 499. The channel opening where the accident occurred is shown by a map offered without objection before the case was finally submitted. At the same time the libelant offered a report of the department of plant and structures of the city of New York, showing the opening to be 60 feet wide. The boats in the tow were tandem, so there would have been 20 feet of clear water on either side, if the tug had kept the middle of the cut. Nothing appears to indicate that wind or tide conditions prevented this. The burden of proof as to this is on the claimant. The Ellen McGovern (D. C.) 27 Fed. 868. It is well settled that negligence may, under certain circumstances, be inferable. In The Mason, The Cascade, 249 Fed. 718, C. C. A. —, it is said by Judge Hough: * "In good weather and harbor waters, the tugs in broad daylight put aground a vessel having at the time no motive power of her own, and completely under the control of the tugs. ** If negligence is not inferable from such circumstances, it is difficult to imagine anything that could justify the conclusion short of a proven intent to injure another's property." For other cases see same topic & KEY-NUMBER in all Key-Numbered Digests & Indexes The fact that the boat in question had often been towed through this bridge without difficulty indicates that the accident could have been avoided. The burden of proof is on claimant to explain why such an accident happened, if the tug was using due care in navigation. The Ellen McGovern, supra. Decree for libelant, with costs. In re MARX. In re GARDNER. (District Court, N. D. California, First Division. December 16, 1918.) No. 392. SEARCHES AND SEIZURES 3-USE OF DOCUMENTS OBTAINED. Papers seized under a void search warrant, and claimed by a citizen, cannot be used against him before the grand jury in a criminal investigation as to whether his taking of such papers from the government should be made the basis of an indictment, but the warrant should be quashed and the papers restored to claimant. At Law. In the matter of search warrants to search No. 1069 Shattuck Avenue, occupied by Mrs. Ralph Marx, and No. 1130, occupied by John Endicott Gardner, at Berkeley, Alameda County. Documents seized were claimed by John Endicott Gardner. Search warrant quashed, and property ordered restored to claimant. Lyman I. Mowry, of San Francisco, Cal., for petitioner. John W. Preston, U. S. Atty., of San Francisco, Cal., for the United States. DOOLING, District Judge. On January 23, 1918, upon an affidavit now admitted to be wholly insufficient, the commissioner issued a search warrant describing certain papers in the most general terms, under which something like 1,000 documents and papers were seized and are now in the custody of the marshal. Some proof was taken before the commissioner, upon which he determined that many of the papers belonged to the United States government, whereupon he ordered practically all of the papers seized to be delivered to the commissioner of immigration at Angel Island, as being part of the records of his office. The papers have been at all times claimed by Dr. John E. Gardner as his own. They were taken from the premises of his son-in-law. The District Attorney now desires to use them before the grand jury against the claimant. The ownership of the papers is the very thing in dispute between the government and claimant. If they are his papers, no offense has been committed by him. If they do not belong to him, but to the government, he may be guilty of larceny or embezzlement in the taking of them. The question then is: May documents, seized under a void search warrant and claimed by a citizen to be his property, be used against him before the grand jury in For other cases see same topic & KEY-NUMBER in all Key-Numbered Digests & Indexes |