had become deteriorated by reason of its having become mixed with the tar with which the barrels were coated. This damage the libelant now seeks to recover of the steamer: The demand for a delivery of the glycerine in Halifax, accompanied with a tender of payment of full freight, together with all incidental expenses, and an average bond, is testified to by the consignee who made the tender,. and by the agent of the ship, through whom it was made. Against this testimony there is nothing, and I see no reason upon which to reject the evidence. The fact being found that the vessel, in October, put into lIalifax, a port of distress, in need of repairs, that were not to be completed until the following February; that the consignee of the merchandise offered to take it in Halifax, and pay all the freig;ht provided for in the pill of lading, together with all the expenses incident thereto, and to sign an average bond; and that the Ship-owner, without a reasonable excuse refused to make such delivery, but, on .the contrary, held the goods in the ship until her arrival at the port of New York,the liability of the ship for all damages caused to the libelant by reason of the detention Beems clear. Let a decree be entered in favor of the libelant, with a reference to ascertain the amount of his damages·
.THE SYLVAN STREAM.
(District Oourt, N. D. NewYO'1'k. June .12,1888.)
LIENS-UNDER STATE LAws -FOR SUPPLIEs-:AmIIRALTY-JURI8DIOTION. , :, '.8 Rev. St. N. Y (7th Ed.) 2404-2410, as amended by Laws 1l:l86, p. 170, pro'viding for a lien upon ships and vessels for supplies furnished them in their ,.' h,ome port, though invalid for the purpose of conferring jurisdiction to en. force the contract by proceedings.in rem in the state courts, create a lien which , will be recognized and enforced in admiralty. a SAME-SUPPLIES-':RUNNING ACCOUNT. . Under 8 Rev. St. N. Y. (7th Ed.) 2404-2410, as amended byLaws 1886, p. 170, providing for a lien on vessels for supplies furnished them, the lien will attach, although the demand be for a running account. 8. BAME-SALE TO STEWARD. " .' Where supplies were sold to the uniformed and certificated steward of a vessel, with the knowledge and conseI\t of the master, and in one instance to the master himself, the owners of the vessel cannot escape liability therefor on the ground that they had a ,contract with a firm. of caterers to feed the passengers; the vendor having no notice thereof. .. " ENTRIES. Where it appeared, irrespective of a book of account, that certain goods entered therein as sold were delivered; that certain entries were taken down from the lips of the purchaser, and known by him to state the tranllac· tion correctly; and that the goods were placed in the vendor's wagon in, the .usual Ci)urse of, business for delivery to the purchaser.-although the book is .notcompetent evidence of items not proven, there is evidence of a sale and delivery of goods, and the quantity may be established by reference to a com· missioner.
Libel for supplies furnished a vessel.
T;QE SYLVAN' STREAM.
HoraceG. Pierce, .£orlibelant. Willwm N. CogsweU, for respondent.
COXE, J. The libelant seeks to recover for supplies furnished, during J"une audJuly, 1887 ,to the steam-vessel Sylvan Stream, in her home port,by virtue of the provisions of the statutes of this state providing for a lien in such circumstances. SRev. St. N.Y. (7th Ed.) 2404-2410<; Amend. Laws 1886, p. 170. The defenses are-First, that this statute is unconstitutional; second, that, if valid, it is not applicable to a running a.ccount; third, that the libelant's contract was not with the boat, and did not create a lien; and, fourth, that the evidence is insufficient to establish a sale and delivery of the goods. !tis now well settled that the .sections of the act in question which attempt to confer jurisdicti<>n upon the state courts to enforce a maritime contract by proceedings in rem are uqconstitutional and void. The Moses Taylor, 4 Wall. 411; TheHine v. Trevor, Id.555; In re Josephine, 39 N. Y. 19; Brookman v. Hamill, 43 N. Y.554; Vosev. Cockcr0ft, 44N. Y. 415; The Edith, 94 U. S. 518., On the the other hand, it is with equal certainty established that the sections of the statute which, in maritime contracts, created a lien, are valid, and cau be enforced in the admiralty. The decision in The Edith, 11 Blatchf. 451, relied upon by the respondent, was overruled in The John Farron, 14 ]31atchf. 24, upon the authority of The Lottawa?1na, 21 Wall. 558. Since that time it has been the constant and uniform practice of the admiralty courts to recognize and enforce liens in maritime contracts created by state legislation. Among many reported cases see the following, which arose under the statutes of New York: The Delos DeWolf, 3 Fed. Rep. 236; The Julia L. Sherwood, 14 Fed. Rep. 590; The Ella B., 26 Fed. Rep.' 111; The Alanson Sumner, 28 Fed. Rep. 670; The Grapeshot, 22 Fed. Rep. 123; The Arctic, Id. 126. And the following under similar statutes in other states: The Burnside, 3 Fed. Rep. 228; The Guiding Star, 18 Fed. Rep. 263; The Canary No.2, 22 Fed. Rep. 532; The Howard, 29 Fed. Rep. 604; The Helen Brown, 28 Fed. Rep. 111; The Venture, 26 Fed. 285; The Huron, 29 Fed 183; The Kate Hinchman, 7 Biss. 238. The proposition that the libelant's debt was made up of items extending over a period of two months, and that the statute does not apply to a running account, cannot be maintained. The Grapeshot, supra. The goods were sold upon the order of the uniformed and certificated steward of the Sylvan Stream, with the knowledge and consent of the master. In one instance they were ordered and delivered to the master himself. The charges were all made to the boat in the libelant's daybook, and a pass-book was kept with the boat, which was delivered to and retained by the steward. The fact that the owners had a contract with a firm of caterers to feed passengers and crew during the season of 1887 is of no importance, because the fact was wholly unknown to the libelant. He could not have intended to give credit to the firm, for he had never heard of them; nor to the owners, because he did not know who the owners were. It seems entirely clear that credit was given to the vessel, and to her alone. The libelant furnished the supplies upon
the order of one who appeared to be the agent of the boat, with the approbation of the master, and the apparent approbation of the owners. If the facts were otherwise than as they appeared to be. the owners, and not the libelant, should suffer the consequences. If Gaffney was not the steward of the Sylvan Stream, he !lhould not have been permitted to advertise himself as such to the public. It is too late, after permitting the libelant to be misled by appearances, which would have deceived the most cautious deale!', to turn him over for payment to a worthless and absconding partnership because of a secret agreement existing between such partnership and the owners of the boat. The libelant's day· book cannot properly be received in evidence in its entirety as a book of account to establish the truth of charges therein made. Gould v. Conway, 59 Barb. 355; Vosburgh v. Thayer, 12 Johns. 461; bes v. Waters, 30 Hun, 297, and cases cited. In every case where there has been a long course of dealing between parties it is well-nigh impossible to prove by the positive recollection of a witness the delivery of every item in a long account. It is so here; but delivery of several of the items were proved irrespective of the book. In other instances the entries were shown t() be original entries taken down by the witness from the lips of the purchaser, or in his presence, and known by him at the time to correctly state the transaction. It was also proved that the goods were placed in libelant's wagon in the usual course of bUAiness for dellvery to the steamboat. In a large majority of instances the memoranda found in the book are competent as having been made contemporaneously with the order, by a witness who knew them to correctly state the facts. Guy v. Mead, 22 N. Y. 462. There was no complaint that the articles charged were 'not received, and there is no pretense on the part of the respondent that they were not all delivered on board the boat. It follows that the libelant is entitled to recover; the exact amount, however, it is not easy to determine upon the evidence now before the court, as many of the memoranda in the day-book are not properly verified. There should be a decree for the libelant, with costs, and, unless the parties can agree, a reference to compute the amount.
THE CITY OF TRURO.
OF TRURO. I
(Di8WOict (lourt, 8. D. New York. June 5, 1888.)
COLLISION-BETWEEN STEAM AND SAIL-GENERAL REsPONSmILITY.
Where upon the whole case there is no decisive evidence of fault on the part of the sailing vessel, the steamer must answer for the collision, if it was not inevitable.
2. SAME-FAILURE OF STEAMER TO AVOID SAILING VESSEL. The schooner W. M. was sailing eastward by night through Long Island
sound, when she perceived, some miles distant, and nearly ahead, the lights of the steamer City of T. The steam-ship, sailing nearly due west, struck the schooner, and sank her. The testimony from the schooner was positive that she no change of course. The steamer alleged that the schooner altered her course,' and showed four changes in her colored lights, and that this brought about the collision. Held, that the schooner's lights were either not seen in time by the steamer, or were neglected after being seen, and that the cause of the collision was the failure of the steamer to shape her course sea· sonably. so as to go on either side of the schooner with safety.
In Admiralty. R. D. Benedict, for libelants. Sidney ChUbb, for ,claimants.
BROWN, J. On the 6th of February, 1888, at about 90'clock P. M., while the libelant's schooner William Mackay was sailing eastward in Long Island" sound, a little to the westward of the Race, she came in collision with the steam-ship City of Truro, going west, and sank in a few minutes afterwards. This libel was filed for the loss of the schooner and cargo. The weather was good; the night clear, but dark, and good for seeing lights. The proper course of the schooner was east. Her witnesses testify that that was the course on which she was sailing, and which she maintained without change until the collision. The wind was about N. N. W., i. e., about two points abaft the beam. She had all sails set, and was going at the rate of about four miles per hour. The steamer's course was about due west. Before the collision her wheel was put hard a-starboard, and at the time of collision she had swung from two to three points to the southward. The schooner's bowsprit struck the steamer on her starboard side, about 30 or 40 feet from her stem, and was broken near the cap, and then her stem struck the steamer further aft, and was more or less carried away. Her master and three other men had barely time to escape in a small boat before the schooner sank. The libel charges fault upon the steamer in that, being to the northward of the schooner's course, she improperly undertook to cross the latter's bows, and did not keep out of her way, as she was bound to do. The faults charged upon the schooner are that she was improperly steered, and did not keep her proper course; that she showed four times a change
Reported by:Edward G. Benedict, Esq., of the New York bar.