TBEMONARCB. THE MONARCH. l THE· CHEROKEE. YOUNG, Owner, etc., ". THE CHEROKEE
Diatrict Oourt, D. 80'Uth Oarolina. February 24, 1887.}
1·. ADMIRALTY-PRACTICE-MoTION TO REDUCE STIPULATION. If a vessel and carl!\"o are attached upon the allowance of a libel for salvage wherein no amount IS named, and if a release of the property attached is subof the parties, a motion to sequently effected, out of court, and by reduce the amount of the stipulation glven in advance of a hearing of the cause upon its merits, made after the vessel and cargo are no longer within the jurisdiction, will be denied; but, if a stipulation be executed under an order of court, or under section 941 of the Revised Statutes, the rule is otherwise. B. SAME-MoTION IN ADVANCE OF HEARING. Where the parties themselves have agreed upon the. amount of stipulation to be given to effect the release of preperty attached by order of court, a motion to reduce the amount so determined, in advance of a hearing of the cause uponits merits, will be denied.
In Admiralty. to reduce stipulation. Bryan & Bryan, for claimant. . Mitchell & Smith, for libelant. SIMONTON, J. This is a libel for salvage. The steam-ship Cherokee, loaded with a cargo of cotton, cotton and woolen goods, turpentine, and lumber, had just left her dock in the port of Charleston, when it was discovered that she was on fire in her lower hold aft. She had proceeded on her voyage about 600 feet 'from her dock at the time the fire was observed. She stopped at once, and in a very short time returned to the wharf. She was taken in charge of the city fire department, which had been summoned to her wharf. The fire was thus extinguished. The Monarch, a powerful steam-tug with complete fire apparatus, as soon as the fire was discovered, had been sent to the assistance of the steam-ship. The tug went out to her while she was in the stream, and accompanied her to the dock. The tug had put her hose into the steam-ship, and had pumped water into her. As soon as the fire department took charge, the hose of th& tug was ordered to be taken out of the steam-ship, and after some demur the order was obeyed. Some parley occurred between the owner of the tug and the agent of the steam-ship as to the amount of compensation to be paid to the former. The result was the libel for salvage. The steamship and her cargo were attached under process from this court. The judge was absent holding his court in the Western district. Negotiation was conducted .looking to the amount of the stipulation. No Bum was demanded in the libel. At first the libelant required a
by Theodore M. Etting, Esq., of the Philadelphia bar.
bond for $40,000. Subsequently he reduced his demand for bond to $20,000. The claimant rejected the' proposition for the $20,000 bond as extravagant and extortionate. But the steam-ship was ready for sea. She was obliged to fill her schedule time. Her detention was accompanied by heavy daily expense. An application to the judge involved delay of several days. The bond for $20,000 waR finally given under strong protest. It was a bond without surety. Upon the execution of the bond the libelant released his lien on the vessel and cargo. The amount of this bond was not fixed by any officer of this court, nor was it executed under the provisions of section 941 of the Revised Statutes; nor were the sureties approved by the collector of the port. It was prepared, and the amount was fixed, between the parties thernselves,-one demanding it as the condition for the release of the ship and for the cargo, the other remonstrating, protesting, and finally consenting solely in order to save the time andexpenee which would have been occasioned by an application to the judge, who was in a remote part of his district. The motion is now made to reduoo the amount of this bond. Had thEl stipulation been executed under an order emanating from thifl court, binding on the parties, libelant and respondent, or under the section of the Revised Statutes, I would feel no hesitation in looking into the amount demanded, and in reducing it if the facts justified me in so doing. The City of Hartford, 11 Fed: Rep. 89. But in the present case the bond is the result of the act of the parties, and was insisted upon by the libelant as the sole condition of the immediate release of the steamship and of her cargo. Without such consent she could not have left the port. Reluctantly and under protest the claimant finally yielded and gave the bond. This was done to gain It present advantage,-the speedy departure of the yessel, and time and money saved. Upon this, and this alone, the libelant l'ele,ased his lien on the cargo and the ship. He accepted this bond in lieu of both. This being the act of the parties, accompanied by the release of present advantage on the one part, and the gain of present advantage on the other, I cannot interfere with it. If, when the case comes up on its merits, it shall appear that the libelant took advantage of his opportunity to oppress and harass the respondent by an abuse of the process of the court, he can and he will be punished for it. If his claim has merit, his conduct will enter as an element in fixing his reward. If his claim has no merit, and is simply vexatious, the respondent will have It remedy. But, as the case now stands, without any opportunity-indeed, without any right-to form or to express any opinion as to the ultimate result, I cannot interfere with a stipula- ' tion entered into by concurrence of parties and out of court. The motion is dismissed.
THE JOHN B. DILLON.
THE JAMES A. GARFIELD. L'BOMMEDIEU v. THE JOHN H. DILLON and another.
STARACE 11. SAME.
(Districe (Joure, 8. D. New York. February 28, 1887.)
CoLLISION-TuGS AND Tows-EAST RIVER-BEND IN STREAM-CONTRARY NALs:-WRONGFUL PElUlISTENCE IN COURSE-STATE STATUTES.
Two tugs, with tows along-side, were navigating in the East river. and approaching the bend at Corlear's Hook; the D. going up with the flood-tide, the G. coming down. The state law required them to navigate in mid river. Both were considerably on the New York side, the G. a little nearer than the D. They exchanged contrary signals twice. and each steered to the westward, and persisted in doing so until a collision happened between their tows. Held, both liable; the D., first, for improperly assuming that the G., because her green light was seen across the bend on the D.'s port bow, wasintending to cross to starboard; second, for not stopping and backing sooner; the G. for not stopping in time; and both for persistent steering to the westward.
In Admiralty. Goo. A. Black, for libelants. Jas. W. 08borne, for the John H. Dillon. Edward H. Hobb8, for the James A. Garfield.
BROWN, J. Just after dusk on the seventeenth of November, 1885 t as the steam-tug John H. Dillon, with three boats in tow along-side, tWG upon her sw.rboard side, and one upon her port side, was going up the East river with the flood-tide, the outer boat on her starboard side came in collision off Corlear's Hook with the San Pedro. which was coming down the strearl1 on the port side of the tug Garfield. The collision was near the marble yard at the point of the Hook. Each tug claimed that, when they were a quarter of a mile apart, she herself was within about 300 feet of the New York shore, and that the other was about in mid river. The Garfield, when above the Hook, saw the Dillon's red light below the Hook, gave one whistle, and ported; while the Dillon, about the same time seeing the Garfield's green light above the Hook, gave two whistles, and starboarded. The Garfield again blew one whistle, and again got au answer of two; and both continued sheering towards the New York shore. The Dillon's witnesses testified that they heard nG responses to their two signals. The testimony of the disinterested witness, Deakin. who passed the two vessels about the very time they came in collision, and went between them and the New York shore, shows that the nearness of the shore at that time was much exaggerated by the Garfield's witnesses, and that the collision was from 200 to 300 feet at least off the maTble yard.