·
,taa THE NUGARA.t
GLADWISH
and others
'11. THE
NIAGARA.
GREASON' and
others
'11. SAME.
(DiatrictOourt;S,.D. Nf/IJ) York. April 6, 1887.)
In Admiralty. Alexander « Ash, for libelants. Peter S. Carter. for Winslow and others. BROWN, J. The Niagara is a domestic vessel, against which libels have been filed in the above causes to recover for supplies furnished, the libelants claiming a lien therefor under the state law of 1886, c. 88, § 2. The claimant contends that no. recovery can be had, because section 2 of that act provides that" in all cases such debt shall cease to bea lien upon such ship or vessel unless the person having such lien shall, within 30 days after said debt was contracted, cause to be filed in the county clerk's office a specification of the items of the debt," etc. The libel in the first cause above named was filed on the tenth of January, 1887; in the second case, on the twelfth of January, 1887. The vessel was arrested by the marshal on the tenth of January, and was sold on the thirty-first. 'l'he clause in the state law above qnoted is a substitute for the provisions of the act of 1862, c. 482, § 2, which declared that the debt should cease to be a lien upon the vessel's leaving port, unless the party having the lien should, "within 12 days after her departure," cause such specifications to be filed, etc. Under that act, it was held that the filing of specifications before the departure was not a compliance with the act; and, unless they were filed within 12 days after the departure, a subsequent arrest of the vessel could not be sustained. Squire8 v. Abbott, 61 N. Y. 530; King v. Greenway, 71 N. Y. 413. But it was also held that, where the vessel was arrested and gave bonds for herrelease within 12 days after such departure, the filing of specifications was not necessary, because the bond given superseded any further need ofspecifiations. Sheppard v. Steele,43 N. Y. 52; Onderdonk v. Voorhis, 2 Rob. (N. Y.) 24.
lReported by Edward G. Benedict, Esq., of the New York bar.
FEDERAL REPORTER.
A part of the supplies in these cases was furnished during the month of December, upon an understanding that the bill therefor was to be rendered at the end of the month; and a part was. furnished in the first above suit in the month of January, prior to the filing of the libel. Before the expiration of the pO days in which to specifications, as regards the latter debt at least, the vessel had been sold by tlie marshal in this cause, and, as in the case last cited, there was no ,longer any question concerning a lien upon the vessel. That terminated upon her sale by the marshal within the 30 days. This lien, under the state law,'was clearly ,valid up, to the The proceeds are in court for distribution. The state law has, no, reference to distribution of the proceeds of salabythiscou'rt.' Filing any specificatiol1!!inthe county clerk's office after the sale of tb.e vessel would J?e manifestly useless, and wholly outsid,e of,t4e ,purpose of the stll-tlt,;!i:ct. " , Whether in any casethefilingl;l'fspecifications can be deemed necessary to the preservation of the Hen after the vessel has been rightly libeled, and is in the custody of the court, and so continues until sqld, seems to be very questionable. The presumptive purpose of filing specifications, namely, to give notice other parties who may be interested in the vessel, would seem to befriHilledby the filing of the libel and the custody of the marshal. I am not, however, required to pass upon that question: Irithis case the vessel, haVing been sold while the lien was valid under the state law upon 'any construction of that law, the proceeds of that sale now in court sh{)uld be distributed according to the liens upon her at the time the respective libels therefor were filed. Decree:J1lay:be entered accordingly.
THE NIOBE.
(Distriot (Jourt, 8. D. Georgia, E. D. April 5, 1887.) COLLISION""",,,VESSELS AT PmRs-MuTUAL FAULT.
(8yllabu8 bytlte Oourt.)
Isaac Beckett and R. R. Richards, for libelants. A. H. and J. R. SaU88Y, contra. SPEER, /J. On the Pa.y of March, 1886. Ii small sloop with a batteau bottom might have been seen beating her way up the Savannah river. It was March, and its conventional wind was blowing a pitiless gale from the northwestward, and the tide was pouring its tur-
THl!:'NIOBE. '
165
bid volume down the broad reaches of the Savallnan,and, altogether, there was nothing in the weather which indicated that the sloop called the Pleasant Day should be out upon the waters, and yet there she was. She had, under the skillful pilotage of two colored mariners, threaded the sinuous and intricate waters that trend from Savannah to the neighboring port of Thunderbolt, or, more accurately, Warsaw. When the Pleasant Day came abreast the Savannah, Florida & Western wharves, whether a gust of unusual violence blew down the river, or whether she ·sought instinctively her accustomed anchorage in. the' Bilbo canal, the evidence is silent; but certain it is that she "pulled for the shore," and made fast to the wharf. The weather-beaten crew without delay betook themselves to a neighboring house of entertainment, having' first requested a]one fisherman, who, in despite of the sevetityof the weather, was angling from the wharf, io give an occasional.eye to the, Pleasant Day. About that time the Norwegian bark Niobe, in charge of two tugs, one towing her with a hawser from her bow, and the other made fast to her'starboard side, came up the riYer against the same sttess of wind and tide which had embarrassed the Pleasant Day. Further down the Niobe had heen hailed by the harbor-master, Kennedy, and the pilot in charge directed by that official to put the bark on that particular spotof the mile and a half of wharf at which the Pleasant Day was lying. The Niobe accordingly was towed upthe stream that spot, the tug ahead cast off the hawser which held her against the ttream, and the north-west wind, the downpouring tide, together with the impulse of the tug fastened alon.gside, swept the Niobe rapidly inshore. These preliminaries adjusted, it seemed to flash upon the Niobe's people that there was an inevitable collision ahead of them. There was much shouting and "running to and fro" by,the pilot and officers of the Niobe, and "Move that boat!" was the cry; but the shouting was directed at no one in particular. There,was nobody to move her. The lone fisherman was engrossed with the finny inhabitants of the Savannah,-presumably at that moment hada bite; in any event, he was pre-occupied, or in reverie, and listened with a callous and indifferent ear to the outcry o(the pilot and the Scandinavian objurgations hurled at him by the master and crew of the Niobe.' The harbor-master carne running up, but it was all too late. The Niobe dropped her anchor, but notwithstanding, swung in with full momentum against the little sloop, which disappearednnder the water; and that was the end of the Pleasant Day. The owner of the latter brings his libel to recover damages for ,her destruction. Undoubtedly, the crews of both the Pleasant Day and of the Niobe were guilty of negligence. It was in broad day; the Niobe had passed up the river in full view of the berth where the Pleasant Day was moored. It was the duty of the Niobe to see that the berth was clear. There in full view lay the sloop, apparently with no one on board. She was very perceptible. She was thirty feet in length; eight tons. The Niobe's people had no right to presume that slie could be, or would be, instantly removed; they knew the consequence of a collision, and yet they cast off the llawser from the leading tug with the full knowledge
·.166
. and .inWptipn thlri; the NiobeW1>uld swing in the berth. ThenfoshOut and SCrE!8ilD to "move the boa.t 'I· was not enough (not to drop the anchor) to. relie\Te, them from the consequences of their recklessness. If the Pleasant.Day crew had not at fault, I would give a much larger sum as damages, but theY were also negligent. They left the sloop without any one in charge, which is contrary to the harbor regulations. The1;lndertaking of the fisherman to watch her was a mere nudum pactum, and carried with it no legal obligation. She was not lying where boats of her class properly belonged; blit this does not give any right to a vessel entitled to that berth to crush into her, and sink her, when that result could be easily avoided. The Canima, 17 Fed. Rep. 271; The Southern Belle, 18 How. 584. What is the value of the .Pleasant Day is a question difficult of determination.· :ger disjecta membm were rescued from beneath the wave, but the Niobe had left her with a shattered constitution. Opinions as to her value vary pretty much anywhere from five hundred to fifty dollars, and one witness thought shewQuld be dear at any price. The truth is, the Pleasant Day was not a very valuable craft. She had. been moored for quite a while in the Bilbo canal, an artery which performs the same functions for the city of Savannah that the Cloaca Maxima did for ancient Rome, and Wll,S as a consequence not so pleasant as her name imported. All the sails and rigging Were saved. On the whole I award $150 to Wilson, the owner ofthe Pleasant Day, and decree that he pay half the costa.
THE CONTINENTAL. 1 CoNTINENTAL
INs. Co.
V. THE CONTINENTAL.
(District Oourt, E. D. New York. May 27, 1887.) CoLLIBION-STEAM.BoAT AND Tow-NIGHT-AT'l'EMPT TO OVERTAKE AND PAM.
The steam-boat C., in attempting to pass on the port side of a tow which she had overtaken, at night, in the channel between Blackwell's and Long Island, ran into a canal-boat on that side ·of the tow. The tug had previously. by whistles, assented to thesteam-boat's passing her. Held, that as it was the steam-boat's duty to have kept out of the way, and as the evidence indicated that the canal-boat had a proper light, and that the tug did not crowd over to the Blackwell's island shore. the steam-boat was in fault for the collision.
Carpenter & Mosher, for libelant. .Alfred C. Chapin, for claimant. BENEDICT; J. This action is to recover of the steam-boa.t Continental the damages caused by a· collision between that vessel and the canal-boat
In Admiralty.
