FEDERaL REPORTER.

'nisapparent thli.tthe :wages'ofthel;leamen t 8,fJ'61mmecl,were due and owing, unless they werElpaidfrom the moneys on bottomry at' Pensacola; ,and. if they:were paid from those mone,sl' then" it' was a' fact" which, the libelant could and 'should have shown ·by e""idence. ,'It is propsr, to 'notice that the ,advance of moneys on' bottdnuy'bonas. and the application ofthe same to ,the necessities of theship,'isionly established by,the evidence of the captain, and that onlyhiaigeneral way, and without:naming a single creditor, or giving a single 'voucher. There isinoll'eaeon that the master's undisputed evidence should be taken in. the one' cn,se, and wholly rejected in the other. Thedooree to be entered,wnlconforrn to the opinion of Judge BIt... LINGS' on all the questions diMusseli by him, and with this opinion' on the claim. of 'Cosulich & Co. for moneys lidvanced to pay wages.

,THE"THOMAS METNILJ,E. 1

/

,WINDMULLER8t

ala v.

THE THOMAS MELVILLE.

LEVY' ,et ,all v.'

«()ircJit Oourt, S. D.

New

York.

March

16, 1888.)

1.

ADMIRALTY-Al'PEAL-REVIEW., '

The, Qf t,he COl'lr.t In refusing to consider damage to a cargo of prunes 1rom coal·dust, because not properly pleaded, is subject to review on appeal to thfil circuit court "

aSAME-'-AMENDMENT ON ApPEAL,

The libel to recover for damage tl) 8 shipment of, prunes charged an unsafe and condition of the vessel, so that her decks leaked, and also want of'j>roper care, insufficient dunnage, and Improper stowage. The main 'damage was caused by sea water, but, some of the cases had been penetrated This last element of damage was not referred to in the libel. , by , It came up. hQwever, in dealing wit)l insurers, and, some few questions were asked about it in libelant's depositions, but itwas,not insisted upon until the trial. more/than three years aftl'rthe arrival of the ship. and long after respondent's depositions hadbeen COncluded. and the goods had been sold and taken away beyond the reach of examination. Held, that libelant was not entitled to file a new dr amended libel in the circuit court on appeal, under rules of the circuit court, Southern district of New York, No. 131, providing for the exhibitJon,withoutieave, of "new allegations," etc. Rules or the circuit court, Southern district of New York, No. 130, provides that if the, ;a,p,P,elleeshall ha,ve a,D,y caus,e to Show,w,hy newallegati,ons, (filed without leave, under rule No. 131) or proofs should not be offered, or new relief prayed on the appeal, he shan give four daYIl' notice thereof, '*. * * and such cause shall be shown within the first two days of the term; otherwise the appeal shall be allowed according to -its terms." Held. that the circuit the rule to strike the" new allegation II " from the court h!1d ,I?qwq on motion. ' , ,
I . ",

8.

SAME-S'l'RUUNG NEW ALLEGATIOlQ"S FROM THE FILES.

AppelU from district court.

I

A1Ilrming 8111'00, Rep. 486.

;

'.1

TJ;tE

MELVII.LE.

B51

In Admiralty. On motion to strike amended libels. Libels to recover damages ,ttl a cargo of shipped by the libelants on board the Thomas Melville, at Trieste. The main damage was caused by sea water, but packages had coal.:4ust on the outside, which seems to have penetrated some of the cases. This latter element of damage was not referred to in either libel as a separate cause of action. Some reference was made to it in dealing with the insurers, and a few questions asked about it in libelant's depositions taken in 1883, but it was riot set up as a distinct claim until the trial, more than three years after the. arrival of the ship, long after respondent's depositions had been completed, and the goods had been sold and taken away beyond the reach of examination. The district court refused to allow the libels to be amended so as to include this cause of action. There wa!l a decree dismissing both libels with costs, and libelants took this appeal. See 81 Fed. Rep. 486. J9hn Berryand Wilcox, Ada'f1l8. &; Macklin, for appellants. E./J. for appellee. LACOMBE, J. If the district court erred in not considering the coaldust damllge as not properly pleaded, such error may be reviewed in this court upon appeal. If the appellant wishes to put himself in a better position by amending his pleading, the same reasons which induced the district court to refuse him such leave seem, upon examination of the and papers, sufficient to induce this court to deny him that relief. Ile has filed an amended, or, as he calls it, a "new" libel, without leave,under rule 131, which provides that "if new allegations are to be made .*. * * in this court, then the libelant * * *. shall exhibit in this rourt a libel, on oath, within ten days, to which the adverse party shall, in twenty days, answer on oath, subject in each case to extension; * * * and on default the court will make" a proper order for the final disposition of the case. Appellee moves to strike this libel from the files. In support of his motien he refers to rule 130, which provides that if the appellee "shall have any cause to show why new alleglltions or proofs should not be offered, or new relief prayed on tIJe he shall give four days' notice thereof, * ** and such cause· shall be shown within the first two days of the term;·. otherwise the appeal shall be allowed according to its terms." Upon the merits this COQrt is satisfied that good cause is shown against there being now presented any new allegations as to the damage from coal-dust. It is true that no lllave is asked to present new allegations, and that rule 130 does not expressly provide for striking the new libel from the files, but it w,()uld bea.senseless pracPcfl which would incumber the case on appeal with allegations which the court would not consider upon the argument. In the absence, therefore, of any authority,-and none is cited, -holding that this court may not strike. the amended or new libel .from the files, the motion is granted.

362

I'EI)JIlItAL ItEl'ORTEB.

THE ZACCARO

BROTHERS

ApAP. 1

v.

THE BROTHERS ApAP.

(District Court. E. D. NfM York. February 17. 1888.)
HAnITIME

A judgment recovered, ip, a state court against a master for thll value of supplies furni6hed a'vessel, and which remains unsatisfied. is no bar to the enforcement in admiralty of the lien upon the vessel for such supplies.

JUDGMENT IN, STATE COURT.

In Admiralty. JohnA.Ander8on, for libelant. UUO, Rueb8amen &: Hubbe,for claimants. BENEDICT, J. This is an action in rem to aga.inst a foreign vessel a lien for certain supplies furnished to the vessel in the port of New York. The furnishing of the supplies is proved, and there is no sufficient proof" to warrant the: finding that they were fnrnished on a personalcreditalone. The only question in the case arises out of the fact that prior to instituting this proceeding the libelant brought suit against the master of the vessel in a state court for these same supplies, in which action he recovered a jUdgmentagaihst the master, but of which judgment'he has been unable to obtain any satisfaction. The contention on the part of the claimant is the libelant lost his lien upon the ship by suing the master as he did. 1 cannot agree with the clainiant in this contention. Upon principle, it seems to me that in cases where a lien upon the ship arises, and also It personal liability OD. the part of the master and the owner as well, the creditor must be allowed to pursue each of these remedies in succession, until he obtains satisfa('tion of his deht. That he should be able to do this seems to me to be the reason why these several remedies are given by law. Surely the value of the rule will be largely diminished if it be held that ll. futile attempt to enforce the master's petsonalliability deprives the creditor of the benefit of the ship's liability. The case of The Bengal, 1 Swab. 468, and ,The John and Mary, rd. 471, are directly in point, and adverse to the contention of the claimant. Judge STORY has somewhere remarked to the same effect, but I cannot now find the case. No adjudged case in this country has been called to my attention, except the case of The Swallow, 1· Bond, 189, which seemshard ly in point. 'There the creditor had elected to enforce a lien given by the state law. Let the libelant have a decree for the amount of the bill, with interest snd costs.
'Reported by Edward G. Benedict, EIq.,of the New York bar.