13uch security is not filed within 10 days, the libelants oan move for the release of the vessel, if so adyised, when a proper final order can be made, according to any special circumstances that may theIibe made to appear. Upon a subsequent hearing on affidavits it appeared that the origi. nallibelant was wholly insolvent, and without other substantial assets than the claim in suit; that it could not give security, except, possibly, after consultation with and assistance from the various creditors for whose benefit the suit was promoted.· It did not appear that the. owners of the vessel or her captain could not give bonds for· at least a considerable part of the claim agains6 her, and the motion for discharge of the vessel was therefore denied. By consent, Iii stipulation on the part of the owner for the release of the vasllel was agreed to be given for the whole amount of the claim, with surety to the extent of $10,000, and thereupon a stay of the original suit to be granted till further ordered.
UTOPIA, her Engines, etc.
(District Oourt, S: D. New York.
,",OLLISION-RULE OF DAMAGES.
A German bark, hailing from Pillau, laden with a cargo of petroleum and staves, while on a voyage from New York to Rotterdam, on September 6, 1878, came into collision with a steam-ship on the Grand Banks, in the Atlantic ocean, and the bark and cargo sank. and became a total loss. Held, that the rule of damage as to the loss of the bark was her market value at the time and place of her loss; that the market value of the bark at the date of her loss, at the port of New York, the port of her departure on the voyage in question, must be accepted as the proper valuation of the bark, as no evidence of her value, either market or otherwise, at Rotterdam, hel' port of de8tinatz'on, had been presented; that it was not imperative to adopt the judgment or opinion of any one or more of the witnesses, but, weighing the whole testimony, in all its parts, the commissioner was justified in reaching a conclusion as to such value that a jury would entertain after hearing all the facts and circumstances. Held, al8o, that the Lark was entitled to recover net freight only, (The Ba1'k Heroine, 1 Ben, 226;) that there must be deducted from the gros., freight the expenses the bark would have incurred after the date of her loss if the voyage had been successfully performed, and which would have diminished by so much the gross freight; that the lost outfits of officers and crew were a proper item of damage.
In Admiralty. R. D. Benedict, for libelants. H. T. Wing, for claimants. A reference to a commissioner was ordered to ascertain and report the damages. 1 FED. REP. 892. The commissioner reported as follows: In pursuance of an order of reference, dated March 13, 1880, whereby the undersigned was directed to ascertain and compute the amount of damages sustained by the libelants, by reason of the col· lision in the pleadings mentioned,..,..... I, John A. Osborn, the undersigned commissioner, do hereby report that I have been attended by the counsel for the respective par. ties and by the witnesses, and have taken and examined the evidence, and do find as follows: On the sixth day of September, 1878, on the Grand Banks in the Atlantic ocean, while on her passage from New York to Rotterdam, the German bark Helios, laden with a cargo of petroleum and staves, came in collision with the steam-ship Utopia, and was totally lost. The damages sought to be recovered by the libelants include the value of the vessel at the time of her loss, the net freigh t, and the personal effects of the officers and seamen constituting the crew. As to the value of the Helios, as claimed by the libelants, there is the testimony of four witnesses taken under -commission, which testimony is in the form of depositions, in answer to direct and crossinterrogatories. The witness. Carl Robert Wermke values the Helios at the time of her 10RS, at Pillau and Koenigsberg, at 100,880 marks, equivalent to $24,009.44. There was no market value at Pillau and Koenigsberg. The witness Fritz Dnetz fixes her value at Pillau at 105,000 marks, at the time of the collision, equivalent to $24,990. The witness Heinrich Hoffstadt testifies that there is no market value for vessels at Pillau, and places the value oUhe Helios at 28 marks per ton, exclusive of the copper sheathing, making her value at V31,100 marks, equal to $31,201.80. The witness Gustave Benedict Fechter states there is no market price for. vessels at Pillau and Koenigsberg, and values the vessel at 104,550 marks, equal to $24,882.90. The Helios was built in 1865-6, and cost 93,000 marks, or $22,134. She was coppered in 1868, at a cost of $1,404, and was thor. oughlJ in the fall of 1876, at Pillan, at a cost of 27,U(lr
marks, equal to $6,426. The range of prices of the foreIgn wit· nesses is from $24,009.44 to $31,201.80. If the value of the bark is· to be determined within the range of values as stated, then I must hold that this is a case where market value has no claim for consideration in the measure of damages. There was but one case cited on the part of t,he libelants to tain the rule sought to be adopted by the proof of value at Pillau or Koenigsberg. Guibert v. The George Bell, 3 FED. REP. 581. That case was decided in the Maryland district, and no similar case has beenllidjudicated in this district or circuit. If the facts in this case were similar to the facts in that one as to the chardcter of the vessel,-the special purpose for which she was there was a to adopt market value at Pillau or Koenigsberg, I might the rule of The George Bell; but I fail to see the analogy. It is well settled in this district· that the rule of damages is the market value of the vessel at the time and place of her destruction. The Baltimore, 8 Wall. 386; The Granite State, 3 WfI,ll. 313; The JJristol, 10 Blatch£. 539. The court held in the case of The Baltimore, 8 Wall.. 377, that if the vessel is of a class. which has It market value, such value is to be determined at the time of the. collision. To arrive at such Yalue,.,the doctrine laid down in the case of The Pennsylvania, 5 Ben. 253, 254, ·affords a solution of the inquiry. The Helios was a vessel engaged in general commerce, adapted to the demands of ocean traffic, and equipped to carry merchandise anywhere on the high seas.. The evidence shows that to have been her history. Proof of market value at the port of York is abundant. One or two witnesses testified that such a vessel had a market value at the ports of Hamburg and Bremen, neither of which ports was the port of departure nor destination OJ: the vessel. If the measure of damages for the loss of the' vessel in question is to be governed by the rule stated in the case of The Pennsylvania, 5 Ben. 254, then I must ascertain what her market value was in the port of New York, as no evidence of value, either market or otherwise, at Rotterdam, her port of destination, had been presented. It is difficult to form a judgment of the market value of the vessel at the port of New York $uen there is such variance of opinion by the witnesses. I do not disregard the importance of the evidence of the foreign witnesses, for it is from their description of the bark that the majorityof the witnesses in New York derive their information, npon which
they base a judgment. True, other facts and circumstances are placed along-side of the description aforesaid, which enabled some of the witnesses hera to form a conclusion j but, in the main, the character of the proof is that of expert testimony. The five witnesses called by the libelant, to give market value in New York, furnish a range of 'market prices from $12,000 to $15000. The eight witnesses called by the claimants give a range of market values from $8,280 to $10,000. To give a synopsis of the testimony of each of these New York witnesses I consider unnecessary, for it is important to read their direct and cross-examination in full to judge intelligently of the force and effect of expert testi· many, and, consequently, I shall not embody their evidence in formulating this, my report, in arriving at a conclusion as to value. r do rely upon the description of the Helios, as given by the foreign witnesses, as to her age, character of construction, her befng kept in thorough repair by her owners; also, being a profitable vessel, rating favorably, etc. Nevertheless, when such a. vessel was in the port of New York, or on the high seas, on the sixth of September, 1878, and persons who have qualifications to judge of her value, from experience in the sale of other vessels of about the same tonnage, both of American and German nationality, and from knowledge of the cost of construction at the port of New York, I am bound in a great degree by the judgment and opinions of such persons in fixing a sum of money as an indemnity to the libelants for the loss of their vessel. But, when the opinions of these several experts do not harmonize, and there is wide range of judgment, it is somewhat embarrassing to settle upon a fixed sum as the true value of the res. Following the course of the court in the case of The North Star, 15 Blatchf. 532, I do not consider it imperative to adopt the judgment or opinion of anyone of the witnesses, or any two or more, but, weighing the whole testimony, in all ita parts, I feel justified in reaching a conclusion which a jury would entertain after hearing all the facts and circumstances. I am of the opinion that a fair market value of the Helios, on the sixth day of September, 1878, at the place of collision, taking her market value in the port of New York, was $10,000. The gross freight for the voya.ge was to be $4,231.69. The libel. ants are entitled to recover net freight only. The Heroine, 1 Ben. 227.
The bark HeEos left New York August 24, 1878, and was lost September 6,1878. It is in evidence that Rotterdam is 3,600 miles from New York, and that abo:It 1,100 miles had"heen. gone over when the collision occurred. This took. about two weeks; and the bark had 2,500 miles further to go to reach her destination. The captain, niate;and 10 sailors oonstituted her'crew, tl,ll told. Now, a:J.Io'w-ing that it would have taken four weeks to reach Rotterdam, and allowing two weeks in port for discharging.cargo and delays, I conclude as follo:ws :', ".;..;
Wages for men for one and one-ha:f months, and provisions consumed:
Captain, @ $i:lu- per montli, Mate;' @$40" " '8 sailors,@ $18" " 2 " @'$1:5;;'''' ,,(,;.. 10 men, @ .30 per day, (45 days,) 1 captain, @$1.00 " ',.. , 1 mate, '@ .50 , . . . ··
135 00 4500 2250
The schedule of port charges of the bark Kate Harding (claimant's Exhibit A-I J. A. 0.) I have ooncluded to adopt as a fair flam-pIe of expenses that woqId have been.incurred aLRotterdam by the voyage ipq,u6stion, disallowing the, items therein marked with re,d ink, as, being properly to by .libelants. , ,item, "commission lor perf()rming ship's business," at 40 cents per ton, is allowed at that r.ate for the tonnage of the Helioe, and the objeetion made to full allowance, on the ground that onehalf of the aforesaid commissions, as usually returned, is overruled, there being no evidence of custom in that respect, except upon the proof of one case.
'fhe sum total of the items allowed on said exhibit, including commissions on ship's business, the bark being 460 tons, at 40 cents, is 1,339.68 florins, equivalent in United States money, at 40 cents, - $ 535 87 The wages, cost of provisions afo'resaid, and port charges to be deducted from gross freight to ascertain the net freight. Gross freight, $4,231 69 Deduct $643.50+$535,87= 1,179 37 3,052 32
Outfit for captain, Outfit for mate, 'fen men, $75 each,
$563 00 800 00 750 00 1,61300 $10,000 00 2,661 66 12,661 66 3,052 32 812 42 ---1,613 00
Value of Helios, · Interest from September 6, 1878, to February 13,1883, Net freight, Interest from September 6,1878, to February 13,.1883, Outfits of officers and crew, Interest from September 6, 1878, to February 13, 1883,
The sum total of all the damages, including interest, is eighteen thousand five hundred and dollars and seventy-two cents, $18,568 72
All of which is respectfully submitted.
U. S. Commis<;ioner.
Dated New York, February 18, 1888.
Upon exceptions filed to this report of the commissioner, the same were argued before District Judge BROWN, (Southern District New York,) who, after taking them under advisement, overruled the exceptions and confirmed' the report of the commissioner on March 8, 1883.
I'BBKINS V. UNITED STATES ELEOTRIO LIGHT 00.
UNITED STATES V. TIERNAt.
(Oireuit Court, E. D. Mi8lOuri. September, 1881.)
OBIHINAL INFORJrlATION IN DISTRICT .COURT-REv. CIRCUIT COuRT.
ST. f 1037-REJlIT'l'EB
A criminal proceeding by information filed in the district court cannot be remitted to the circuit court under the provisiona of section 1037 of the Revised Statutes.
Motion to Remand to Distriot Coun. W. H. Bliss, for United States. Marshall et Barclay, for defendant MCCRARY, J. This is a criminal information, filed in the district court, charging the defendant with a crime against the eleotive franohises, (Rev. l::lt. § 5511,) and it is proseouted under an information and by the authority conferred by section 1022 of the Revised Statutes. It was remitted to this court from the district court under the provisions of section 1037 of the Revised Statutes, which by its terms authorizes the district court to remit to the next session of the circui\ court of the same district any indictment pending in said district court. Defendant moves to remand the case upon the ground that the statute did not authorize the district court to send it here, this not being an indictment. The motion must be sustained. We are not at liberty to presume that the term, "indictment," in section 1037 of the Revised Statutes, was intended to include an information. We cannot enlarge or change the plain meaning of the language of a oriminal statute. It must be strictly construed
PERKINS 11. UNITED STATES ELECTRIC LIGHT
(CirC1lit Oourt, S. D. New L
ENFORCING LmN FOR PuRCHASE MONEY-VACATING TRANSFER.
Equity will enforce a lien for purchase money, but it will not vacate a trans· fer because the purchase money has not been paid. The action to enforce the lien is in affirmance of the transfer, and the decree in such an action orders the property to be sold, or so much of it as may be necessary to discharge the lien.
AGREEMENT IN CONTRACT TO ARBITRATE CON'l'RACT. WHEN A BAR TO SUIT ON THE
A simple agreement inserted in a contract that the parties will refer any dispute arising thereunder to abritration, will not bar a suit at law by either