1871.] Opinion of the Court--Hoffman, J. To this point Baker v. Hoag, 3 Seldens, N. Y. Rep. 555, is cited. In that case a lien was claimed under the State statute "of wrecks," on certain wool found in a canal boat which had been sunk and abandoned in the Hudson River. It was held that the statute referred exclusively to property known at common law as wrecks, i.e., to such goods as are after a shipwreck cast by the sea upon the land, and left there within some county, for they are not "wrecks" so long as they remain at sea within the jurisdiction of the admiralty. But the plaintiff's lien was sustained as a valid lien for salvage under the maritime law. The California statute is nearly identical with that of New York. The first section renounces any right of property, similar to that possessed in England by the crown, to ships, vessels, boats, goods, wares, and merchandise "cast by the sea upon the land." The subsequent sections speak merely of "wrecked property." But it is by no means clear that the term wrecked property should be taken to refer exclusively to what was known as wrecks at the common law. Anciently, all property cast after shipwreck by the sea upon the land was considered wreck, and adjudged to belong to the king. But, by the Stat. of West. 3 Edw. 1, Ch. 4, the rigor of the common law was relaxed, and it was enacted that, if a man, dog, or other animal escape alive out the ship, it shall not be wreck. But even this absurd and unjust limitation upon the owner's right to recover his property was repudiated by Lord Mansfield, who declared that the whole inquiry was a question of ownership; that the coming ashore alive of a dog or a cat was not better proof of ownership than if they had come ashore dead; and that, if no owner could be discovered, the goods belonged to the king, and not otherwise. (Hamilton et al. v. Davis, 5 Barr. 2732.) By the laws of the States of this country, the ancient rights of the crown to waifs, estrays, lost money, goods, wrecks, etc., have been generally renounced. In some of the States, the proceeds, if unreclaimed for a year, are divided between the finder and the poor of the town. In some, the expenses only of the finder are deducted; while in others, as New York and Opinion of the Court-Hoffman, J. [April, California, the proceeds of shipwrecked goods, after allowing a reasonable salvage are paid into the public treasury. It seems, therefore, most reasonable to construe the California statute as renouncing, by its first section, any sovereign rights of the people of the State to property, which, as technically wreck, might have been supposed to belong to them, as against the true owner; but in the subsequent sections, as intending to provide for the custody, preservation, and restitution to the owner, in case he appeared, or the final distribution of its proceeds, if unclaimed, of all property which, in consequence of any marine disaster, might have been lost or abandoned. And this, whether it was a wreck in the technical sense of the term, or was flotsam, jetsam, or ligan; or an anchor abandoned by a vessel in a tempest, with no buoy attached, which at common law would be neither "wreck," "flotsam," or "ligan," and perhaps not "jetsam," though contributed for like jettisoned goods in general average. But any doubt as to the construction of the statute is dispelled by the 25th section. That section provides, as we have seen, "that every person who shall take away any goods from any stranded vessel" (it may be on a rock or reef unconnected with the shore), "or any goods cast by the sea upon the land, or found in any bay or creek, and shall not deliver them within four days to the sheriff, shall be deemed guilty of a misdemeanor," etc., etc. The anchors in this case were found in this bay, and if, as the libellant asserts, he did not know to whom they belonged, it was his duty under the statute to deliver them to the sheriff to be disposed of according to law, or at least to proceed against them in this court and submit his claim for salvage to its adjudication. He had no right whatever to dispose of them at private sale without notice to any one, and with the evident intention of appropriating their entire proceeds. The jurisdiction of this court over the case either as a suit in rem against the goods salved, or in personam against the owner who has received his property is not disputed. (The Hope, 3 Rob. 215; the Trelawney, 3 Rob. 216.) But 1871.] Opinion of the Court-Hoffman, J. the court is asked to apply to this case the rigorous, but wholesome rules of the admiralty which deny to salvors, no matter how meritorious, all compensation when guilty of misconduct or bad faith. The most usual case for the application of this rule is when an embezzlement has occurred; but any misconduct, such as false representations made for the purpose of exaggerating the danger or hardship of the service, and to enchance the reward-spoliation, smuggling, an obtrusion of unnecessary services, a refusal to accept necessary or needful assistance, will be punished by a total, or partial, forfeiture of compensation. (Ware's Rep. 38, 6 Wheat. 152; The Boston, 1 Sum. 341; and see cases cited in Flanders on Maritime Law, pp. 346-7; and Jones on Salvage, p. 124, et seq. In the case at bar, I see not how the libellant can be acquitted of flagrant misconduct. He has committed a violation of the law of the State, which exposes him to punishment as for a misdemean He has attempted to appropriate property which he knew not to be his, and it was only when it was accidentally discovered and reclaimed by the owner that he has sought the aid of this court to obtain a compensation. A due respect for the laws of the State within which this court sits, as well as for the principles of justice and policy on which those and similar laws throughout the United States are founded, forbid the court to look with any indulgence upon so flagrant a violation of their salutary provisions. And if it be true, as suggested at the hearing, that the practice of appropriating in violation of the law, and in entire disregard of the owner's rights, anchors, chains, and other property found derelict in this harbor, is extensively pursued, an additional reason is furnished why persons so engaged should be admonished of their own duties, and taught to respect the rights of others. The libel must be dismissed. Opinion of the Court--Deady, J. [April, THE CALIFORNIA. DISTRICT COURT, DISTRICT OF OREGON. APRIL 17, 1871. 1. BILL OF LADING, EFFECT OF ADMISSION IN.-The admission in a bill of lading, "shipped in apparent good order and condition five cases of merchandise, value and contents unknown," has reference to the external condition of such cases; and it excludes the inference that the carrier thereby admits anything as to the quantity or quality of the contents of the cases at the time of delivery, beyond what is visible to the eye or apparent from handling the same. Before DEADY, District Judge. John W. Whalley and H. T. Bingham, for libellants. Joseph N. Dolph, for claimant. DEADY, J.: This suit is brought by the libellants, Philip and Louis Levin, to recover the sum of $931 damages, for the non-delivery of a case of merchandise. The libel alleges that on September 9, 1870, the libellants shipped at the port of San Francisco, on the steamship California, five cases of merchandise in good order and condition, to be delivered at the port of Portland, in like order and condition, and that one of said cases containing one bolt of sheeting, three coverlids, kid gloves, ladies' hose, neck-ties, velvet ribbon, etc., was never delivered, The claimant, the North Pacific Transportation Co., by its answer admits that the case in question was shipped on the California "in apparent good order and condition, value and contents unknown," and avers that it was duly delivered to the libellants, in like order and condition. On the hearing it appeared that the case was delivered by the vessel on the wharf at Portland, on September 13, and taken from thence in a few hours to the store of the libellants, where it was, at the suggestion of the drayman, at once opened, and found to contain nothing but a bolt of sheeting, some coverlids, ladies' hose, and empty paper boxes, whereupon it was immediately returned to the vessel. 1871.] Opinion of the Court--Deady, J. The case was about three feet by two in size, and a secondhand one, such as it was usual to pack dry goods in for carriage between San Francisco and Portland. When delivered to the libellant's drayman, at Portland, externally it was in good order and condition, except that in handling it the drayman observed that it was light, and that the contents appeared to fall from side to side, as though it was not full. The fact that it was light is not material, as it was common for like cases, containing light goods, such as bonnets and the like, to be carried on the steamers between San Francisco and Portland. The libellants gave evidence tending to prove that the articles described in the libel were purchased by one of them in San Francisco and packed in this case at the store. of Marcus Levi, and then put upon a truck to be hauled to the dock where the California was lying, and that the case was subsequently delivered to the vessel, but there was no direct evidence that the case was in the same condition as to quantity and quality of contents when it was delivered to the vessel, as when it left the store of Levi. At the time there was more freight offering for this port than the steamer could carry, and consequently there was an effort among shippers to get their freight upon the dock early. On this account it was common for drays to remain in line outside the dock with freight as long as twenty-four hours. The vessel was loaded in a day, and sailed on the morning of September 10, and it is quite probable from the evidence that the case left the store of Levi on the 7 or 8, and was not delivered upon the dock until the morning of the 9. If so, during this time it remained upon the truck in charge of the drayman. The testimony of this drayman has not been produced, nor any excuse or reason given for not doing so. Admitting that the goods were in the case when it left Levi's-which is not beyond doubt-and that they were taken out and the case nailed up again between that place and the wharf, at Portland, there is just as much reason to believe that the embezzlement or robbery took place while the case was on the truck, and before it was delivered to the ship, as afterwards. |