supplies on the credit qf the vessel. In so doing, he would not only be running a great risk as to the payment by the Or her owner, but would be committing a virtual fraud upon an old customer and acquaintance. I am disposed to think that these. considerations have sufficient weight to which side the trembling balance in which the testimony is to be 'weighed should incline. But if not,.then the case must be decided by applying the rule that he on whom it rests to establish a certain state of facts, must do so by a preponderance of proofs. The rule is peculiarly aJ?plicable in this case. The supplies were furnished to the vessel for her use and on her credit. They were ordered by the master appointed by the owner. In such cases the law of this state confers a lien. He who would displace it by setting up a private agreement between himself. which the master was deprived of the authority and a third party, to create liens on the'vessel, should show by clear proofs that explicit and unequivocal notice of the facts was given to persons dealing with for .0. long time previthe boat; and especially to those who oUBly been in the habit of supplying her on her credit and that of her owners. It can'.1ot be said that clear proofs of such a notice have been furnished in this case. It may be added that by this decision no practical injustice is done. H the security taken by the owner is adequate, it is more equitable to compel him to look to it for his indemnity, than to deprive the supply-men of all remedy except a fruitless suit in personam against insolvent charterers. A dacree must be entered for the a.mounts claimed in the libels, with the deductions admitted at the hearing.
(Distrz'ct Court, S. D. New York.
Ii and 23,1882.)
LIMITATION' OF LIABILITy-VEBBEL-POSSESSION OJ' SHEJUFF t1'NDEB A:rrAca. MENT-SURRENDEU TO 'rRUSTEE.
In an action begun in a state court against the owners of a vessel, an attachment against the propel'tyof some of them as non-residents was issued, and their shares in the vessel were attached by the sheriff. The cause was then removed by the defendants to the United States circuit court. The owners then began proceedings in the United States district court to limit their liability nnder
"Reported by R. D. & Wyllys Benedict
Rev, St. H 4283-4285, and took the steps rllquired by lawt() transfer the vessel and freight to a trustee appointed by thll cpurt, and.to stay alJ prpoeedings and suits against them; but the vessel remained. in the possession of the sheriff. On a motion by the owners for an ordet directing. the· defendants in the limited.liahility proceeding!l, 'who were plaintiffs: in the state,CQurt suit, to order the sheriff to surrender the vessel to the trustee, held, that tbeposscsby, the marshal or trustee is Dot necessary for the purposes sion ofthe limited-liability proceedings, where dIe court has acquired jurisdiction to grant the relief prayed for' : and that me directiou asked for was unnecessary and proper at such a' stage of the proceedings.
2. SAME-8ALE of,PnOPERTY TO PREVENT DESTRUCTION.
Thereafterl tbetfUlltee, by petitioh,showed the the VlJssel, if COIl)pelled to remain in,cllgtody until the termination of the Iitiga tion, was l!kely to be eaten up by custody fees,' and her value greatly impai;red, if not substan. tially destroyell,andasked to be allowed to sell the vessel free from any claim of the attaching creditors; thc attachment to be transferred to the proceeds (If the sale, and to tOl\t end that the attaching creditors be directed to co-operate in effecting by surrender of the vessel to him. Held, that the court had the power to direct the sale proposed; that such a sale, if made at that time, would produce no injury to the rights of the ·def.endants, and require no pres. entdetermination of !juestions thatsho,uld be determined at final hearing; and held, that in thiB ClLSe a saie was necessary to preserve the property from destructio'n.and the application of the tru$Lee must be granted.
On May 31, 1882, an action was begun in the New York supreme court, the county of 'New York being designated as the place of trial, by Messrs. Watjen, Toel & Co., of the city of New York, against the owners of the bark Mendota, to' recover $14,892.57 on the following state of facts: The plaintiffs alleged that in December, 1881, they opened a credit in London with J. Henry Schroeder & Co., ba.nkers, in favor of Alejandro Maderna &00., merchants at Buenos Ayres and Montevideo, to the extent of £50,000, available against shipments of wool to be made to the plaintiffs at New York, and Schroeder & Co. engaged to accept drafts drawn on them by Maderna & Co. on presentation with bills of lading; that in February, 1882, Madema & Co. shipped on the Mendota at Montevideo 208 bales of wool, whereupon the master' of the bark, at thel'equest of Maderna & Co., signed bills of lading whereby it appeared that 290 bales had been shipped; that upon reo ceiving the bills oflading Maderna & Co. drew under the said credIt upon Schroeder & Co. for £10,000, and sold the bill of exchange and bills of lading to the, London & River Plate Bank, (Limited;) that Maderna. & Co; did. not ship the 82 ba,les, and soon after failed in business and became irresponsible, and that the plaintiffs, in order to mentioned in: the bill of lading procure the shipment of the8? which had not been shipped, satisfied 'the vendor's lien on them and
paid other charges, in all to the amollnt sued for, and the 82 bales were thereupon shipped and brought to New York and delivered to the plaintiffs; that the bill of exchange was negotiated by Maderna & Co., as stated, and afterwards paid by Schroeder & Co., who were reimbursed by the plaintiffs. Upon an affidavit containing substantially the above allegations, an attachment was issued to the sheriff of Kings county against the property of the defendants, u.s non-residents, and the bark Mendota was attached, with the exception of the interest of one of the owners of the vessel, E. A. Houghton, who was a resident of the state of New York. The attachment was afterwards set aside as to the interest 01 A. A. Whittemore, the master of the bark, he also being a resident of New York state. On the twenty-first of July the defendants removed the cause to the United States circuit courUor the southern district of New York, the }"aintiffs being citizens of a foreign state. , Thereupon the owners of the hark began proceedings in the United States district court for the southern district of New York, for the limitation of their liability as such owners, under sections 4:283, 4:284:, and 4:285 of the Revil:led Statutes. Samuel H. Lyman was appointed trustee in those proceedings, and the owners thereupon paid into his hands the pending freight, and executed It bill of sale of the vessel to him. Upon a certificate to that effect made by the trustee, the court made an order that a monitionissue against the firm of Watjen, Toel & Co., and the firm of G. Amsinck & Co., who also had a similar claim, as to which the owners oIthe vessel sought to limit their liability; and the court also made an order restraining the prosecution of all suits against the owners in respect to any such claims, and especiallv the suit begun in the state court by Watjen, Toel & Co. An order was also made that Watjen, Toel & Co. show cause why they should not direct the sheriff to surrender the vessel to the trustee. This motion was not argued until the fourth of October, owing to the illness of Judge BROWN, and then it was heard by BENEDICT, D. J., sitting in the southern district, and during this time the vessel remained in the possession of the sheriff. . The following is the opinion on that motion. Benedict, 'l'aft J: Benedict, for the owners of the Mendota. and for the trustees. Jas. K. Hill, Wing rt Shoudy, for respondents.
BENEDICT, D. J. The libelants' motion for an order directing the defendants to surrender to the trustee appointed herein the libelants' vessel, the bark Mendota, now held by the sheriff of Kings county by virtue of an attachment against the propElrty of the libelants, procured to be issued in an action brought by the defendants against these libelants in a state court, cannot be granted unless this court is prepared to determine in a summary manner, upon a motion, that the liability sought to be enforced by the defendant in the action in -the state court is one ,from which the libelants can be freed by means of this proceeding, and prepared in like manner'to determine that the institution of this proceeding has the lega't' effect to terminate finally the action in the state court, and deprive the sheriff all right to detain the vessel. These two questions are, so far as known, new, and' they are of importance. I am unable to see any necessity for their determination in the method proposed. This court, by the appearanoo of ;the defendants, the assigmfiellt<of the libelants' interest in the vessel to the trustee appointed by this court, and the possession of the freight by such trustee, has acquh:ed jurisdiction to grant the relief prayed for by the libelants: The pos- . session of the vessel by the marshal or the trustee is not necessary for the purposes of such a proceeding. The suit can proceed to a hearing under such circumstauces as well with the v8sselinthe possession of the sheriff as with the marshal in possession. When, at such a hearing, the libelants shall have established their right to the relief prayed for, and shall have procured a formal judgment that the action in the state court no longer exists, then it may be proper to insert in the decree a direction that the vessel be surrendered by the defendants to the trustee. At the present time such a direction appears to me to be unnecessary and improper. The motion is accordingly denied.
An application was thereafter made by the trustee for leave to sell the vessel. The grounds of this application sufficientlv appear in the following opinion:
BENEDICT, D. J. In this proceeding, which is instituted by the libelants for the purpos,e of obtaining a limitation of their liability as owners of the bark Mendota, the trustee appointed by the court now applies to this court to direct that the vessel be sold as perishable. The situation of the vessel is as follows: On the twenty-second day
362 of July, 1882, the libel, was filed, ')\nd a monition is:sued to. the marshal to cite alldadmonish to appear and answer herein. Thereafter a trQstee was appointed by this court, in pursuance onhe statute and the general rules, to whom all their illterest in the vessel and her the libelants freight. The trustee obtainedppssession of the, freight, and the defendants have appeared in the action, but the vessel has been withheld from the trustee's possession by the sheriff of the county of Kings, by virtue of an attachment procured. to be issued by the abovenamed defendants in an action law commenced in a state court, which action since been remo.ved to the circuit court of this district. The action at law" instituted by these attaching creditors, is to enforce against the libelants, in this pl"oceeding, a liability from which relief is sought by means of this proceeding, and all further proceedings in that actio.nhave been stayed by the order of this court, issued as required by general admiralty rule No. 54. The attaching creditors, having bee:J;l made parties defendant in this proceeding and appef!.red therein, contest the right of the libelants to a limitation of tl!.eir liability, and claim to .be entitled to be allowed to proceed to collect their demllnd by means of their action at law.. The questions which are thus presented to this court are novel, and are likely to invol,ve protracted litigation in this Il,nd the appellate courts. The vessel has !ltlread.y been detained since July ll1st in the custody of 8h6riff,. and, 'if compelled to remain in custody until the terminais likely to be eaten up by custody fees and her tion of the if not substantially'destroyed. To avoid this value greatly destruction of property, the trustee appointed in ,this proceeding now a.pplies to this court, by petition, for an that the vessel be sold by him, free from any claim of the attaching creditors by virtue of their attachment, and that their claim under that attachment be transferred to the proceeds of such sale, and, to that end, that the attaching creditors be directed to the vessel to the trustee. that, in my opih.ion, should be granted, for thE) This petition following reasons:' , . Inasmuch as all further proceedings in the action at law have been stayed, l.ts·xequired bylaw, no sale ofthevessel Gau be effected is to be saved, by any order in that action, If,therefore, the it must be by o7:'der, qf . court·. ,Tlw questioIl, then.. is, whether this court }:las power to grant such an or,der aB iB here, for. The a.ttlltchipgcreditors, obBerved,
-ant in this proceeding, .and having appeared '8, transfer 01 the vessel to a. trustee appointed, by this court having been du1r made, and the trustee having acquired possession of the freight, the jU'l'isdiCtiotl of theeourl to grant the· relief·- prayed for in the libel is compiete, whether the proceeding is eonsidered to be :a proceeding in ,'em or in personam, or both. The possession of the vessel is not as, for innecessary to give jt1risdietiou in· cases of this stance, where the vessel has been sunk in the sea. Having acquired jurisdiction of the attaching creditors by their appeat-ance in this proceeding, the courthaspo;ver, by its final decree, to declare the liahility of the libelants to these creditors to be limited to the value of the vessel and her freight j and, also, to direct these creditors, parties defendant, to relinquish their attachment and surrender the vessel to the trustee,' in order that she be converted into .money, and her value distributed, as required by the statute. If suoh may be the final decree of this court, the power to make the order prayed for cannot be denied. The greater includes the less. The question controlling here, therewre, is whether the power to make the order ·prayed for clJ,n be properly exercised at this stage of the controversy. Having 'the power, it must be the duty of the court to exercise it 'in a case like this, where a failure so to do will result in'the destmction of the vessel, and so render vain. not only this proceeding, but the action !lit law as well j provided no substan'tial right of the attaching creditors will be affected thereby. It has been impossible for the attaching creditors to 1?oint out how injury can come to them by such a sale as proposed. If the vessel be sold in the manner proposed, it will still be open to the attaching creditors to dispute at the finalhea.ring the right of the libelants to a limitation ,of their liability, and also toa8'8ert their· right to the proceeds of the vessel by virtue of the for the proceeds of the sale are to be held subject to any right acquired under the attachment; and neither of these questions is now passed The money realized by such a sale will be under the direct control of this court, and therefore available to the attaching creditors in case they succeed in their contentionhere.;No prejudice to the action at law:,will result by reason of such sale, for, the lihelants having appeared in that action, jurisdiction will not be lost by the sale of the vessel, and that action can proceed to judgment, if, by final decree herein, it is determined that the libelants are not entitled to be relieved from the liability .sought to be enforced there j and in that event, the proceeds of the vessel can, if desired, be transferred to the credit of the action at law.
Clearly, the order sought not only will not injure the attaching creditors, but will benefit them by preserving for them, it may be, property which otherwise 'will be destroyed. It has been said that the statute confers no power upon this court to direct such a sale, nor does it, in express terms. But such power is to be implied, because necessary to the exeroise of powers that are expressed. The supreme court of the United States, sitting in admiralty, found in the statute power to restrain the further proceeding of suits against the ship-owner, and the power to stay such proceedings must include the power to save from destruction property which otherwise the stay will destroy. .The power to sell the ship rests upon the same ground as the power to protect the owner from suits, namely, the necessity of the case. Again, it has been said,. the order asked forwill deprive ,the sheriff of his possession. But the sheriff's possession is the possession of the attaching creditors fartha sake of the atta.chment, and this attachment is saved by' the order:. pr()posed. Again, it is said, the beJeft to acquire possession of the vessel by. means of an action at law in the nature of: replevin. To such a course there maybe many objections, and it is quite certain that the institution of such a suit would not be likely to save the vessel from the destruction that threatens her. I find, therefO're, the existence in this court of the power to direct the sale proposed; that suoh a sale, if made at tbistime, will produoe no injury to the rights of the defendants, and require no present determination of questions that should be deter· miped at final hearing; and I also find that such a sale is necessary to preserve the property from destruotion. . What has been said is sufficient, I think, to. show that the present a"pplication is, substantially different from any afthe former appli. oations, andtha.t it cannot be wibhpropriety denied. And I add. that it is quite evident that if the result sought to be; obtained by means of this. application cannot be attained in proceedings of this oharactjjr, an ea.ay way is offered to render null the statute which the libelants The applioation is accordingly granted. Let the order be settled on notiee.
'lBB OITY 01' IIILWA.Um.
CITY 01' MILWAUXEB.
(District Oourt, E. D. NBU York. Novemb.er 24, 1882.)
1. CoLLll!!lOlll' ON ERIE CAlIIAL-CAlIIAL-BoAT TIED UP.
It is the duty of a canal-boat. which ties up in a canal in a fog, to select the berme hank; and the burden is upon a boat which ties up on the tow-path side to show that she took sufficient precautions to warn an approaching boat, either .by strong light or by timely hails.
PRECAUTIONS O:lI1T'fED-A!'PRoAcnma STEAM CAlIl'AL-BoAT.
Where the first of these precautions was omitted, and the evidence as to the other precaution was oontl'adictory and open to suspicion, a.nd did not show that timely and hails had been given by a can.al-boat tied up. on the tow-path side of the Erie canal to !!on approaching steam canal-boat, held, that the libel against the steam .canal-boat for damages for the ca11ision which . occurred must be dismissed.
L. R. Steg';"(liTl, (with.whom. wasE. G. Davu,) for libelant. Beebe, Wilcox It Hobbs, for claimant. . " : BENEDICT, D. J. This action is to recOVerdo,lllages cauaedpya collision, between the canal-boat E'rank: and t4esteam,ca.nal. boat; City of Milwaukee, that, oCl3urre,d the Erie callal, a.bput mile west from Canajoharie, between 4 and 5, o'clock in the morning of the. ninth of October, 1880. The.libel,avers that .the Frank Noble, while lying stern to ,the west: up on the morning being somewhat foggy,-was :rull: intoby*e, ,Qity of Milwaukee, bound eastjthattheFrank Noble at the .time bad a watch on deck, who, as the. City of approached, tw,ice to give her notice of a on the and when, was 90Aeet distant t9 her to the. outside j that the City of Milwaukee disregarded .hils upon t.he Frank Noble, striking her on the stern, two .feet from on The li1;lel tht the powJamp of the Frank Noble ,was burningattheJime, and that a strong light waac8at astern froI;U lamp in her cabin4atch,and ,the.;Frank was .easily to be seen at a oonsiderable. distance... The faults.. tbEl City of failure pay from the F,rank Noble,and keeping: up her full speed on ar The answer admits the. collision at the time andpl/l;ce stated in the avers that the morning was so foggy as libel, tion necessary. It denies that any warning was /Jiven. City Milwaukee as she al?proached the Frank Noble, that the
-Reported by R. D. & Wyllys Benedict.