be no presumption here of an implied undertaking that they would keep the boiler in repair after its delivery to and acceptance by the respondent. The libelants sue in rem to ,enforce a lien, for repairs. The cross-libel is for damages growing out of another and former transaction between th6 parties. . claim of tIle libelant and theeounter-claim of the respondent are only indireCtly connected with each other, and the remedy of the latter is at cQInmoillaw. .' In his answer the respondent pleads the damages as a set-off to the libelants'demand. But this defense cannot be sustained in the present case, on th\'l principle, well both at law and in equity, that uilliquidated damages cailllotpe of a'set-:off. To authorize a set-:off the must bebeiween 1he parties in their own right, and must be of the same kind, or ,quality,and be clearly.ascertained or liquidated. must be certain aad determinate del>tB. Duncan v.liyrm, 3 Johns·. Gh,.,3fj9j., Howe v. Sum. And by the civil law it waB,i;leqessarythat the dept of ,claim, to, be' cpmpensated, should be certaip., 'aPd determJnate, and actually due, and'in the same right and of the that on o9ther aide. Story,Eq. Jur. § 144:1." In 22, Fed. the libel,was for materials made to ,I!. steam-tug. In that case the respondent admitte4 tbe libelant's claim, ,filed a cross-libel and set' up a counter-derilan4 f()r services, Dot;maritime in thei,r nature, theretofore rendered to the libelants. rhe set-:off, being for a fixed and ,ascertained amount, , allowed; but the cross-libel, for ,was dismissed. In the CR$e at bar, for the reasons stated, neither be sustained, and the exceptions !)lust be allowed. ,, :, , ,
(District Oourt, E. D. New York. July 2,1686.)
) ., -· ' ' -, !
1.CARRIEW\":"OF PASSENGERS-FALL FROM GANG-PLtiliK OF STEAMER- GANGWAY W'ITJj:OUT ROPES OR BATTlllNS -VESSEL'S LIABU.I'l'Y FOR Loss OF LIFE.
Libelant's husband, a passenger on the steam-ship Australia, while returning to the :wpaJ;ffrom the steamer prior t.o her departure, fell from the gangplank"and'was drowned. , The evidence indicated that the gangway was a singHl harrow, plank, withOut battens or ropes. Suit being brought by libelant under,thestatute of the state ofNew York to recover '5,000 for the death of her, hl111ban4, held, that the owners of the steam-ship were negligent inllot maintaining a. safer and ,libelant was entitled to recover the amoul1t o'f the damage, WhICh was fixed at $2,500.· , , A paBJle1:l,ger on board a vessel; before her departure from the wharf, has the right to 'go ashore to buy tobacco, and it is the vessel's duty to provide 8 safe Dl;6An&.of passage from t:he steamer to the pier. "
, I.,. '.
8.B.AME-Rl'Gm' OF PA.8SENGERWRlilTl11m FROM VESSEL TO PIER-DUTY OF VESSEIJ,roFROVIDB SAFE MEANS OF PASSAGE. .
&Wyllys Benedict, Esqs., olthe New York bar.
HREBRIK v; CARR.
Alexander Call1cron,for libelant. Ullo, Ruebsa!flJ,enet IIubbe, for claimant.
BtilNEDICT, J. The libelant's action is to recover of the owner of the steam-ship Australia for the death of her husband, who, while passing from the steamer to the pier, fell from the gang-plank, and was drowned. The decedent and the libelant, then husband and. wife,had taken passage in that steamer, and, in pursuance of notice tha.t she would sail early in the morning, went on board her the evening before. After they had been on board some little tilne the husband left thEj wife to go ashore, as she says, to buy some tobacco. While passing down the plank from .the gangway to the pier he fell ()if the plank into the water, sank, and never rose again. She now brings this action, by virtue of a statute of the state of New York, to recover $5,000 of the defendant, upon the ground that the gaIlgas a means of egress from the steamer to the pier plank fotmed an improper and unsafe passage-way. . case presents, at the outset, an issue as to the character of from which the decedent fell. The libelant asserts the that it was a single narrow plank, laid from the to the pier, or ropes. The defendant has called witnesses who without say tbatthe passage-way from the gangway to the pier was formed by placing a cargo-skid, six feet wide, from the steamer to the pier, and npon this a proper gang-plank, two or three feet 'wide, with battens on it,:and having on one side a rope fastened to iron stanchions four feet high. Upon this question my conclusion is that no such passage-way as is described by the defendant's witnesses was in position at the gangway at the time the decedent fell. The testimony of the libelant, whose appearance and manner is in her favor, and who, with her husband, passed np the passage when she went on board the steamer, is positive to the effect that the passage was a single narrow plank; and she is greatly confirmed by the testimony of disinteresteltpersons, who saw and measured the single plank found from the gangway, the next day lifter the accident. It is incredible that those in charge of the steamer, after a man had been drowned by falling off the gang-plank, and beforetlle arrival of these witnesses.the next day,removed a proper gang-plank, such as the officers of the steamer say was there, and placed in its stead the single plank found when the libelant's witnesses visited the steamer. Such a gang"plankas the defendant's witnesses describe, upon Ii. <largo-skid, may have been there at some time. At the time of the accident the taking of cargo on that,side of the ship had been finished, and the last of the cargo was coming in on the other side, and such a passage-way as the>defendant's witnesses describe may have been in position when the decedent fell, while the ship was working on that side. If so, it had been removed when the work on that side of the shipwa.sfinished.
What has been said disposes of another issue of fact made in the case by the assertion on the part of the. defendants that the decedent was intoxicated; forthe witnesses who testify to the intoxication are those whose testimony as to the cargo-skid I have felt obliged to reI ject. The next question is on'e of law. In behalf of the defendant, it is said that if the decedent, as his wife says, attempted to go ashore to get tobacco, he placed himself outside his contract as a passenger, and the defenda.nt was under no, obligation to provide him a means of egress fr9FPthe steamer, for such a purpose. To this I cannot assent. In my opinion, the decedent,. when on board as a passenger, had the right to go ashore when he did, and it was. the duty of the defendant to provide a safe means" of passage from the steamer to the pier. The lJ.eCessity on the part of.a passenger, who has taken his position as a, vassenger, to return,to the piEilI," is a common incident of is constantly done to, :ijnd lost baggage, to speak to a friend, and'may be done to purchase tobacco by anyone addicted.to the use of tha,t weed. From tQis necessity arises the obligation on the part of the ship to keep and maintain for the passenger's use, at all proper times, a safe passage-way from the steamer to the pier. This duty was not in this iristance discharged, and for that reason the defendant is liable in damages, which damages the libelant, by virtue of the statute of the state of New York, is entitled to recover. As to the amount of such damages, I am of the opinion that $2,500 will be proper. For that sum, with costs, the libelant may have a decree.
(District (Jourt, D, MassachuaettB,
November 27, 1886.)
1, ADMffiAl;.Ty--JURISDICTION-PRINCIPAl;. AND AGENT,-SUIT FOR POSSESSION OF
A suit for possession will lie in the admiralty at the instance of the real owner of 8 vessel, whose agent has, by fraud or mistake, secured the insertion of his own name as part owner in the bill of sale. A court of admiralty is not bound to treat as a trust a title obtained by fraud or mistake, or one which the holder is estopped from setting up as against the party seeking relief. Vendees of the agent, buying with notice, stand in the shoes of the vendor.
ESTOPPEL-PRINCIPAl;. AND AGENT-TlTloE TO VESSEL.
An agent who, by fraud or mistake, obtains the insertion of his own name as part owner of a vessel in the bill of sale, will be estopped from setting up this title as against his principal, in a suit for possession, if the latter is, in point of fact, the real owner. '
E,. P. Carver and H. Dunham, for libelant.
Action in rem for possession.
by Theodore M. Etting, Esq., of the Philadelphia bar.
C. T. Russell, Jr., for claimants.
NELSON, J. This was a cause of possession. The libelant, Allen Cameron, bought of T. L. Mayo & Co., in August, 1885, the fishing sloop Daisy, paid the agreed price, and took from them a writing acknowledging the receipt of the money in full payment, and promising to give a bill of sale ata subsequent date. He on the same day received from the vendors delivery and possession of the sloop, at South Boston. Cameron afterwards sent one James Howard to Mayo &, Co. to receive the promised bill of sale. Howard went as directed, but took from Mayo & Co. a bill of sale made out to himself and Cameron jointly, conveying to· each of them one·half of the sloop, and had it at the Cameron's purchase was made at the-request of Howard, and it was agreed between them that Howard should employ the sloop in fishing, and divide the profits with Cameron. Howard continued to use the sloop in his business of fishing until'July, 1886, when he conveyed the half standing in his name to oQe ,Fallon,and on Septeril1;>er 24 j 1886, Fallpnconveyed it to the respondent, Michael Bradshaw. The respondent denies t4e jurisdiction of tbecourt to decree possession to Cameron, and insists that his only remedy is in a court of equity. Whether the bill of sale was given in the joint names ()f the parties, through a mistake of Mayo & Co., or, as the libelant maintains, was procured in that form by the fraudulent representations of Howard, is immaterial to the question. It was not made in that form with the knowledge or consent of Cameron, the real purchaser. He had a right to expect a conveyance to himself alone, and supposed he had one nntil he learned to the contrary, about the time of tllesale to Fallon. The property in the vessel undoubtedly passed to him on its delivery, before the bill of sale was made ; and though perhaps Howard acquired, by the conveyance, a title which he might have transferred to a purchaser without notice of Cameron's interest, he certainly got none as against his employer, Cameron. It does not lie in,Howard's mouth to set up a title obtained either through his own fra,ud, or by a mere mistake of third parties, against the real owner, for whom he was acting as a mere servant or agent. In the case of The Taranto, 1 Spr. 170, Judge SPRAGUE decreed possession to the owners against an agent, where the title had been taken in the agent's name with the owner's consent; and in the eli.se of The Fannie, 8 Ben. 429, before Judge BENEDICT, the libelant recovered. though the record title was in the name of the respondent. Neither Fallon nor Bradshaw got, by their conveyances, any better title than Howard had. It is apparent from the. evidence that they both bought with notice of Cameron's claim, and that their connection with the transaction was merely to assist Howard in defrauding Cameron. Though a court of admiralty has not the jurisdiction of a court of equity, to enforce direct trusts relating to real or personal
property, it is not bound to treat as a trust a title obtained by fraud, or mistake, or one which the holder is estopped to set up against the patty seeking relief. The libelant is entitled to a decree for the possession of the vessel. Ordered accordingly.
THE AMlllRlOAN EAGLE. l
THE S. ]}. BA:aooCK.
STEAM-SHIP Co. v. THlilAMERlOAN EA.GL11J and another.
(DiBt1'ict Oowrt, E. D.N8iJJ York. July 2; 1886.)
COLLISION TuG AND Tow AND STEAMER - TuG CLOSE TO LINE 011' PIERS....,. STEA:Mlm MOVING OUT-mABILnY 011' TUG TO AVOID /;TEAHER.
Where the tug A., with a· tow astern, was coming down the North river, in the vicinity of Pier 1, and about 175 yards from the line' of the piers, and saw another tug ahead moving e.,steamer out from that pier, but was unable to avoid collision wiill her, it was held that a: tug with a tow is bound, in this locality, to be under'such control as to be able, by stopping. to avoid a steamer seen to be moving out from a pier haIfa mile, ahead, and that the A. was consequently solely responsible for the collision.
In Admiralty. Wheeler It Oortis, for the Atlas Steam-ship OllrpenterltMosher, ·for the American Eagle. Hill, Wing It S!wudy, for the Babcock. BENEDICT, J". The collision which gave rise to this action was, in nty opinion, caused, by thefa:ult of the tug American Eagle, and not by any fault on theparf of the injured vessel, or on,the part of the tug engaged in moving that vessel out from Pier 1, North river. The fault of the American Eagle was in coming down the river with two barges lashed side by side, uporia hawser about 250 feet in length, in such 8'conditionof wind and tide, and at such speed, that she could not by stopping avoid an object ahead and distant half a mile. It is plain that if the tug had stopped when sbe saw the steamer moving out of the pier, no collision would have occurred. It was her duty, running by the pier as close as she was, to avoid a steamer so situated. Atllg in this localiuy,' undertaking to pass down the liver with a towas'tern, 175 yards off the pier, is bound to be under such 'control as will enable her to ,stop in time to avoid collision with a steamer seen to be moving out from along-side a pier. The necessity forsnch ability is made plain by the C'Ontention, on the part of the American Eagle, that she could not avoid the. steamer by porting,
by R. D. & Wyllys Benedict, Esqs., of the New York bar.