the respondents' part, under the circumstances, in winding about the wharf, as sworn to by the respondents. But as the answer, though denying negligence, did not call attention to the specific facts upon which the defense relied, the dismissal must be without costs.
THE MARY HOUGHTON
et at. v.
(District Oourt, S. D. New York. December 81, 1889.)
MARITIME LIENS-RUNNING ACCOUNT-ApPLICATION OF PAYMENTS.
The special agents of a foreign vessel made advances for the vessel's account on various oharges which were liens; also other advances, to the owners, of moneys which were not liens, but were advanced upon the credit of the freigbt moneys which were to be collected by them. as shown by the correspondence between the parties. All the debits and credits were put in one running account. Held, that the intention of the parties controls the application of payments; and that the intention here was that the freight moneys should be applied upon all lawful charges alike. and that such credits should accordingly be applied by the court to the debits chronologically, and that an attempted application by the creditor to non.jien charges. while preparing for suit, was too late.
The, vessel having been sold in prior proceedings, held, that the agents upon their libel in rem were entitled, as against the mortgagee, to claim out of the remnants and surplUS such items of their unpaid account (after applying the credits chronologically) as were liens on the ship only. excluding advances to seamen made contrary to law, and their own commissions.
In Admiralty. H. D. Hotchkiss, for libelant. Wilcox, Adams & Macklin, for mortgagee. BROWN, J. The application of payments of moneys received by a creditor, when not determined by the act of the parties at the time, should be made by the court in accordance with the common intention of the parties, where there is evidence, either express or by fair implication, of what the common intention was. This intention, when ascertainable, is controlling. I am satisfied from the correspondence and the evidence in this case that the libelants, the agents of the Mary K. Campbell in this port, in making their advances to the owners, made them upon the faith of the moneys to be collected by them on account of the Mary K. bell and her freight, and that such freight moneys 'Yere virtually pledged for these advances. All the charges, both for these advances, and for claims which were strictly maritime liens, were placed in one runnin/l: account, and the moneys which were received by the libelants were in a like manner placed on the credit side of the same general account. Upon such a transaction the credits should be applied by the court chronologically to the earliest items in the account, in so far as the charges on the debit side are lawful charges; because that, and that only, carries out the intention of the parties. In The J. F. Spencer,5 Ben. 151, there
O'ROURKE tl. PEL'K.
does not appear to have been any such intention of the parties as in the present case. And in the case of 151 Ton8 of Coal, 4 Blatchf. 368, Mr. Justice NELSON held that the application by the court of payments to items not liens" would be unobjectionable," if there had been no special application by the parties. To recover in this proceeding against the proceeds of the vessel, and as against the mortgagee, it is incumbent upon the libelant to establish a lien for the unpaid balance of the account. Applying the credits chrollQlogically upon the lawful charges in the running acconnt, as I find was the intention of the parties, the remaining items are partly liens and partly not. The amounts which were liens I make out to be $231.95. For this sum-, with interest, the libelants are entitled to a decree.
O'ROURKE "'. PECK
July 7, 1887.)
(Circuit CO'1J/rt, S. D. New YO'rk.
WIL\.RVEs-INJURY TO VESSEL-LIABILITY 011' LESSEE.
A libel in personam for the sinking of a canal-boat will lie against the occupants of a wharf under a lease which gave them general possession and control, but excepted and reserved the use of the premises for the purpose of loading and unloading coal, where the accident was caused by the dangerous condition of the bottom along-side the wharf, though libelant was coming there for the purp.Jse of unloading coal for the parties authorized to use the premises for that purpose.
In Admiralty. On appeal from district court, 29 Fed. Rep. 223. Libel in personam by Patrick O'Rourke against Joshua S. Peck and others, for the sinking of libelant's canal-boat. Respondents appeal from a decree for libelant. Edward D. McCarthy, for libelant. Flanagan & Hamlin, for respondents.
WALLACE, J. The defendants were in possession. as lessees and occupants, of the wharf at which the libelant's boat capsized; and it is conceded that the accident resulted from the unsafe and dangp.rous condition of the bottom of the river alongside the wharf, and without negligence on the part of the libelant. The general proposition is not disputed that the owner or person having the possession and control of such structure is liable in damages to those coming to it, using due care, at his invitation or inducement, express or implied, on any business to be transacted with or permitted by him, for all injury occasioned by the unsafe condition of the structure or the access to it, which is known to him, and not to them, and which he has negligently suffered to exist. But it is insisted for the defe9dants that they are not liable to the libelant, because he was not at their wharf with his boat upon their invitation, but was there, at most, by a permission which was no more than
bare acquiescence upon their part, and therefore they did not owe him any duty in reference to the condition of the premises. The defendants' lease excepted and reserved from the premises demised the use of the premises for,the purpose of loading or unloading coal, and the right to use the premises for the loading and unloading of coal was in the Consumers' Coal Company at the time of the accident to the libelant's boat, and had been for some time previously. At the time of the accident the wharf was by the defendants for loading and unloading building materials, aud by the Consumers' Coal Company for loading and unloading coal. The libelant came there with his boat to unload coal for the Consumers' Coal Company. As the libelant came to the wharf upon the express invitation of the Consumers' Coal Company, the case, upon the facts proved, would be clear against that company, if it, instead of the present defendants, had been sued. But it seems equally clear that the defendants, as occupants of the Wharf, having the general possession and control, were under an obligation to keep the premises in a reasonably safe condition for the use of aU persons who might lawfuBy resort there: and any person lawfully going there for the transaction of business to which the premises were appropriated had a right to assume, as against the defendants and lill other persons in occupancy and control, that the structure itself, and the access to it, were in a reasonably safe condition. Upon this ground, and not because of the covenant in the defendants' lease to keep the premises in repair, the decree of the district court is affirmed.
JLEARY '0. OCEANIC STEAM NAV.
(Circuit Oourt, S. D. New York. December 23, 1889.)
WHARFINGERS-DUTY TO REPAIR.
In an action to charge the defendant for negligently allowing a wharf to get out of repair, the fact that the door and fastening were in good repair when the defendant the right to collect wharfage and cranage does not relieve the defendant froin its duty to keep the wharf in a safe coudition. , .
Motion for aNew Trial. Herman H. Shook, for plaintiff. Wheeler &- Cort,is, for defendant. Before LACOMBE and WHEELER, JJ.
OURIAM. There was sufficient in the evidence to warrnnt the jury in finding that the door or its fastendng was in a condition of disrepair for a 'period long enough to justify the of nf''.T,ligence. The fact, which was quite dearly shown, that the door and fastening were in good repair when the defendant assigned tp the Spanish-American Company the right to collect wharfage andcranage at the piel" did not relieve the defendant from its duty to keep the whad in safe condition.