The opinion of the court was delivered by: BYERS
The libel states a cause petitory and for possession, namely: That the libelant in the month of October, 1939, "became and now is the true and lawful owner of the Gas-Screw Mì "Amable" (Registry No. 10 P 499) and entitled to possession thereof".
That the latter is wrongfully withheld by respondent upon an alleged claim of title based upon a pretended sale which was unauthorized by the libelant.
The respondent filed claim, and an answer denying the ownership as alleged and the wrongful possession on its part, and pleads purchase on the 6th of October, 1939, and the filing of a bill of sale on or about the 7th of October from the registered owner who was the vendor, and that thereafter registration was procured in the name of the respondent, and that "the libelant at no time during October, 1939, and up to the present, filed any bill of sale of said vessel or caused said vessel to be registered in its name".
Also, that the respondent acquired title from one Anthony Pisano, from whom the libelant claims ownership, and that he is subject to the jurisdiction of this court, and can be made a party to this cause, but has not been.
The trial brought to light the following circumstances:
On October 7, 1939, Anthony Pisano signed a document entitled "Order", addressed to the libelant, which contained Piosano's name and his address as 29-30 Brockmeyer Drive, Massapequa, Long Island, for one 1940 model 22' Semi-shelter Sea Skiff, the engine and equipment being described, and the name given as Amibila II, as to which the estimated delivery date is April 1, 1940, "afloat at Massapequa, L. I., at purchaser's risk and expense".
Then appears the following:
"Price Even exchange for the purchas-
er's 22' Wheeler sedan cruiser
"Terms Said used boat to be turned over
to Wheeler Shipyard, Inc., on
signing this order."
Following the above are printed paragraphs having to do with final payments, guarantees on the part of the Shipyard, defects, authorization for repairs, deferred payments, deposits, conditional sales contracts, and:
"(14) Title to the boat hereby ordered shall not pass to the purchaser until payment in full has been made."
"(17) With the delivery of any boat traded-in or accepted as part payment, all necessary documents to transfer and convey full title thereto, free and clear of all encumbrances, will be executed and delivered to the Shipyard. The model and description of any boat set forth in this order as a trade-in on account of purchase price shall be furnished and guaranteed by the undersigned purchaser." (Italics supplied.)
The order bears the purchaser's signature -- Anthony Pisano -- and the acceptance by an officer of the libelant. That document constitutes, with the following, libelant's Exhibit 1: Small data card (in duplicate) of the Department of Commerce, Bureau of Marine Inspection and Navigation, signed by Anthony Pisano, undated and not sworn and subscribed to, the blank being entitled Cat. No. 1512.
These had to do with the new boat contracted for, and did not affect the legal complexion of the order.
The trade-in boat described in the foregoing document was never physically delivered to the libelant -- which is the reason for this litigation.
The testimony shows that the "Certificate of Award" entitled "Title 46 U.S.C. § 288, 46 U.S.C.A. § 288) Cat. No. 1513 of the Department of Commerce, containing the number 10 P 499 awarded on July 14, 1936, applied to the vessel called the Amable owned by Anthony Pisano, of the same address as stated in libelant's Exhibit 1.
On the reverse side, in the portion of the blank headed "Bill of Sale", it appears that, in consideration of the sum of one dollar, Anthony Pisano, owner of the vessel above described, did thereby "sell and transfer all of" his "right, title and interest" therein to Chatfield's Marine Sales & Service, Inc., of Freeport; the signature is "Mr. Anthony Pisano", of the same address, above the words "Subscribed and sworn to before me, an officer authorized to ...