Lopez y Ros v. New York & P. R. Steamship Co.

of Rhode Island, the suit being one by personal representatives for the negligent killing of the deceased by running over his sailboat with one of their steamboats in a bay of that state.

Therefore, from the examination we have made of the authorities, we feel that both reason and principle, as well as the weight of authority, are with plaintiffs, and the motion to disaniss will be overruled, and it is so ordered.

HUGH R. HEALY

v.

219,399 FEET OF DRESSED YELLOW PINE LUMBER.

Mayaguez, Admiralty, No. 182.

1. Whether or not a lien for freight charges has been waived by the shipowner is a question of fact, to be shown by proof as to the intention of the parties.

2. A statement that "the freight is payable on delivery" of the cargo is not evidence of a waiver of the lien.

Opinion filed March 8, 1907.

Messrs. Horton & Cornwell, for libellant.

F. H. Dexter, Esq., for claimant.

RODEY, Judge, delivered the following opinion:

This is a libel in admiralty filed by Mr. Healy against

Healy v. 219,399 ft. Dressed Yellow Pine Lumber.

219,399 feet of dressed yellow pine lumber. The facts are that libellant is the owner of the brig "Gabriel," and the New York & Porto Rico Steamship Company, acting as his agents, entered into a contract on the 15th of May, 1906, with Chas. S. Hirsch & Company of New York, that the boat should go from New York to Jacksonville, Florida, and take on a load of lumber and bring it to Aguadilla, Porto Rico, which it did. The contract or charter party is made out on a printed blank filled in with typewriter, and sets out that the agents of the boat (for the owner, of course) are to receive $8 per thousand feet for the lumber carried, and that the freight is payable on proper delivery of the cargo at the port of discharge. The charterers are also to pay all port charges, lighterage, pilotage, consul fees, etc.

Upon the signing of the contract, a commission of 5 per cent on the cargo and demurrage accrued under its terms, half to the New York & Porto Rico Steamship Company and half to A. H. Bull & Company. It is not stated why this is so, but it is immaterial.

When the boat arrived at Aguadilla with the load of lumber, the master proceeded to deliver it to the consignees, Sanders, Philippi, & Company, of that place, but, there being no warehouse, pier, or other place to unload it on or in, it was at once carried to the warehouse of said firm, some distance from the wharf, and was measured there as it was being delivered. At the end of the measuring, a dispute arose as to its quantity or about the freight, so that the consignees refused to pay the whole sum demanded ($2,272.39) and paid only $1,982.80, leaving a balance of $289.59.

The fourth paragraph of the libel states: "That the said cargo has been fully delivered and redelivered by the con

Healy v. 219,399 ft. Dressed Yellow Pine Lumber.

signees, Sanders, Philippi, & Company, at Aguadilla, Porto Rico." It would appear, therefore, that it is claimed the real fact in the case, which libellant expects to prove, is that, immediately upon the consignees, as agents for Hirsch & Company, failing to pay the freight in full, he promptly notified them that he held his lien on the lumber for the same; at any rate, the libel was immediately filed, and the writ issued against the lumber, a forthcoming or other proper bond representing it, being immediately given, and it is now on file. Hirsch & Company at once thereafter came in, and filed exceptions to the libel, claiming the lumber themselves as owners, on the ground that, under the contract of freightage or charter party, the owner of the boat had agreed to trust them for the freight, and not make any claim of lien in the premises; and further, that under the allegations of the libel it appeared that the lumber had been completely delivered and carried away from the wharf, and that such fact is evidence that all liens thereon had been waived.

We have examined this charter party or contract of freightage, and cannot agree with this contention of Hirsch & Company, because, as stated, the freight is payable at the port of delivery on discharge of the cargo. Therefore we feel that it does not come within the rule cited in support of this contention, as settled by the case of Raymond v. Tyson, 17 How. 53, 15 L. ed. 47. In that case, the fact that the freight was payable somewhere else than at the port of delivery induced the court to hold that the lien had been waived; but, even as to that holding, there was a very strong dissenting opinion.

As showing that the lien was not waived, we have examined the following cases: Re 600 Tons of Iron Ore, 9 Fed. 595; The Alaska, 23 Fed. 597; Costello v. 734,700 Laths, 44 Fed.

II. PORTO RICO.-26.

Healy v. 219,399 ft. Dressed Yellow Pine Lumber.

105; Cuff v. 95 Tons of Coal, 46 Fed. 670; and McBrier v. A Cargo of Hard Coal, 69 Fed. 469.

From all of these cases, the question of whether or not a lien is waived is, it seems, to be gathered from the proofs and the freightage contract, and is always largely a question of the intent of the parties as shown by the proofs.

In this case, libellant says he expects to prove that there was no place to put the freight on the beach at Aguadilla, to protect it from thieves or the weather, and that of necessity it had to be hauled directly to the warehouse of the consignees in order to measure it; and that he never for a moment either intended to, or in fact did, release his lien, which, under admiralty practice, it is conceded he is entitled to for his freight charges.

The exceptions will therefore be overruled and the parties will go to trial on the issue joined by the replication, which is already on file, and it is so ordered.

ENRIQUE PONSA PARÉS

v.

J. REYNES & COMPANY.

San Juan, Equity, No. 334.

1. Failure of a party to produce proof in its control produces a presumption against it.

2. A possessory title which does not antedate the attachment under which the property was sold is not prior to the conveyance to the purchaser in attachment.

Parés v. J. Reynes & Co.

3. The court will not presume that a landowner was cited in proceedings for a possessory title when all the facts in the case rebut such a presumption.

4. A party with a better title under an unregistered conveyance is not barred by a possessory title in less than twenty years.

5. Fraud in the procuring of a possessory title is sufficient, of itself, to confer jurisdiction upon a court of equity.

6. Parties are estopped from denying their former acts and declarations. 7. Uncertainty as to the effect of a remedy at law, and the certainty of a multiplicity of suits, are grounds for the exercise of equitable jurisdiction.

8. An action to annul a possessory title for fraud, to correct or cancel the entries on the books of the registrar of property, to recover the land, and for an accounting, is not multifarious, and may be brought on the equity side of the docket.

9. Subsequent purchasers claiming under one who obtained a possessory title by fraud are bound by his acts.

10. Purchasers having prior actual notice of facts adverse to the title of their grantor are not innocent purchasers without notice.

11. A fraudulent possessory title and the conveyances thereunder are clouds upon the title, and will be removed by an order directed to the registrar of property.

12. Under the law "in force in Porto Rico, a possessory title, before the time has elapsed to entitle its possessor to a dominion title (and before that is done) has no final effect as to a better title, either in favor of the person to whom it is issued or his assigns, and is simply notice to the world that the person in whose favor it is issued is holding adverse possession of the premises."

13. Such a title has no effect as against a person who should have been cited, but who was not.

Opinion filed March 8, 1907.

Messrs. Hartzell & Rodriguez and Rafael Guillermety, Esq., solicitors for plaintiff.

NOTE.--Presumption against a party from failure to produce evidence, see note to Cartier v. Troy Lumber Co. 14 L.R.A. 470.