The Akutan

NETERER, District Judge (after stating the facts as above). It is urged by the libelant that the exceptions in the answer be treated as an exceptive allegation challenging the sufficiency of the libel, and that the court at this time determine the sufficiency of the libel to support the relief prayed. It is strongly urged by the libelant that, under the holding of Justice Washington in The Seneca, 21 Fed. Cas. 1081, No. 12,670, Story on Partnership (6th Ed.) § 435, and under the Ordinance of France of 1681, approved by Justice Washington in The Seneca, supra, a sale may be decreed. Story on Partnership (6th Ed.) § 435, at pages 676, 677, says: “The law of Scotland gives a right as it should seem in all cases to the dissenting partners to offer their shares for sale to the other owners at a particular price, and if this offer is not accepted, then to require a judicial sale to be made of the ship, and the proceeds to be divided among them. ” It it apparent that the libelant has not brought himself within the provisions of this law of Scotland, even if it has application, because he has not offered his interest for • sale at a particular price, or agreed to buy at that particular price the other equal interest. He merely says that the respondent declines to fix a price. Justice Washington in The Seneca, supra, says: “From the * * * pleadings and the new evidence * * * I find it to be that of joint 'owners of a vessel, having equal interest in her, each willing and desirous to employ her in navigation, but upon his own terms, and neither willing to do so upon any other.” In Head v. Amoskeag Mfg. Co., 113 U. S. 9, at page 23, 5 S. Ct. 441, 447 (28 L. Ed. 889) Justice Gray, for the court, says: “If the part owners are equally divided in opinion upon the manner of employing the ship, then, according to the general maritime law, recognized and applied by Mr. Justice Washington, the ship may be ordered to be sold and the proceeds distributed among them [citing The Seneca].” Judge Betts, in Burr v. The St. Thomas, 4 Fed. Cas. 823, at page 824, No. 2,195, says: “The fundamental facts to be ascertained, however, are equality of interests and the disagreement of the parties as to the employment of their vessel. To that end the answer was required in this case, that it might be determined by the pleadings or the proofs upon any issue they should raise, whether these particulars attended this case.” This court in the Ellenora (D. C.) 252 F. 209, at page 210, said: “The power of the court does not rest in the right of a party to sell the vessel, but is an essential part and function inherently resting in the court, for the purpose of extricating the vessel from a condition which deprives commerce of an instrumentality in carrying forward the necessities of the people.” [268] There is no statement of disagreement as to operation; there is no allegation of interference with or objection to the operation of the vessel by the libelant in any manner which he may elect. The only statement of fact is the temperament of the respondent with relation to his quarreling disposition with the crew and business contacts, but this is not pressed upon the libelant, as the respondent has nothing to do with the operation, and it does not interfere with the libelant’s operation.. And this statement must be discounted in view of the inference that respondent has been operating another vessel in like service for two years, presumably successfully. Respondent does nothing which, deprives commerce of the use of the vessel as'an instrumentality in carrying forward the public necessities. There is no disagreement alleged as to voyage, zone of operation, business in which it is to be employed, but merely the refusal to sell, and there is no “give or take” offer submitted, which seems to be the requirement of the laws oil Scotland relied upon. I do not think that the libel states an action within the admiralty jurisdiction, and the libel is not aided by the petition for sale.