BAILEY 'IJ. SUNDBEll.<J.
or over the wharf,"":'there is no reason, as it seems to me, in the absence of custom or legislation, why the adjoining owner should be entitled to charge for what he has not furnished, upon the theory of a merely constructive use. In my judgment, the libelant is entitled to his proportion of the charge for the berth occupied by the vessel, but not to anything for the wharfage on the cargoes. \ The other question is whether the defendant, Fahey, is liable in personam for the on the vessels. The proof shows definitely with respect to some of the cargoes that by the terms of his purchase they were to be delivered to him at his wharf. free of any charge to the vessels for wharfage; and with regard to all of them the custom of the trade is proven to be that the purchaser of the cargo directs where it shall be delivered, and assumes to pay all wharlilge charges at the place provided by him. It is shown that the libelant demanded wharfage of the masters of some ot these vessels, and that defendant's agent in charge of his wharf and of the business of discharging cargoes there stated that the defendant would be responsible for whatever charges might be lawfully recovered, the masters having refused to deliver the wood without such an ing. The defendant and his agents thus received the cargoes with the distinct notice of the claim, and that the defendant would be held for it, and his agents were called upon to see that the measurements of lapping were correctly made. There can be no doubt, I think, that the whole matter was thoroughly understood, and that the defendant ceivedthe cargoes protesting that no wharfage was chargeable, but the understanding that if any wharfage was properly chargeable he waS to pay it, and that there was an implied, if not an express, contract that he would pay it. There is no question but that such an implied cC?n:' tract to pay wharfage is a maritime contract cognizable in admiralty. It is similar to the implied contract of the consignee of a cargo who receives it with notice of a claim for freight, and such implied contracts to pay freight are very frequently enforced in admiralty. Hen. Adm: 166. A decree will be signed in accordance with this opinion.
(lXst'lict Oourt, S. D. New York.
A bond to the marshal, under the act of 1847, unlike a stipulation for the value of the vessel, does not necessarily afford security to other creditors than the ligelanto in the particular suit. When such bond is given; and no legal notice to creditors is published, qumre whether the doctrine of quasi parties or privies, as to a suit U. rem, could be applied to persons other than the actual parties to the record.
FOR VALUE-BoND TO MARSHAL-NOTICE.
Where insurers had full notice of a Buit to determine the liability of a vessel for a collision, and were Virtually represen1ied in it, and abstained from formally jom.
JReported by Edward G. Benedict,Esq., of the New York bar.
lDgin.the litigation six years, and until a decision had been reached on -weal" 1l.e1d, tnat such abstention from jbining in the litigation should debar the msurers from any right to revive the same litigation de novo.
In Admiralty. On exceptions to the amended libel. port, see 43 Fed. Rep. 81. George A. Black, tor libelant. Goodrich, Deady &:- Goodrich, for respondent.
For former re-
J. After the decision of the court sustaining the plea of res interposed by the defendant to the second amended libel in the above case, (43 Fed. Rep. 81,) the libelant again amended his libel upon leave granted pursuant to rule 51 of the supreme court in admiralty, "so as to confess and avoid or add to the new matter set forth in the answer." The new matter thus pleaded in the third amended libel alleges, in brief, (1) that the defendant, Sundberg, was not master when tDe Newport was libeled in the original actioll; (2) that the original libel was for damages to the schooner John K. Shaw only; (3) that, on the day following the issuing of process in the original action, a bond to the marshal was given under the act of March 3,1847, (Rev. St. § 941,) and that the vessel on the same day was discharged from custody; (4) that no publication of the process or citation was ever made in the originalaction, nor proclamation, nor default taken on the return-day thereof; (5) that, by amendment, additional claims for personal effects \Yeresubsequently included in the -original action, and an additional bond to the marshal for $3,000, bycansent, ordered and given. The present defendant excepts to these new allegations as imma.terial and insufficient. The libelfl,nt's exceptions to the former plea admitted, for the purpose of the hearing, the truth of the matter pleaded. Among the matters so pleaded was the statement that in the former action the steam-ship bad been attached by the marshal under process, and a stipulation for value given therein. Such a stipulation is in accordance with the ancient practice of courts of admiralty, and represents the vessel by placing within the power of the court her whole value for the benefit of any who may intervene tn the original suit. The previous decision was made upon the assumption that such were the proceedings in the former suit; so that any other person damaged by the same collision could, upon intervention, have the benefit of the stipulation up to the value of the vessel. By the exceptions to the new matter, it is now admitted that no such stipulation was given, but only a bond to the marshal, under the act of 1847, which provided only for double the amount of the particular claim in suit. As the amount of such a bond is not fixed with ally reference to the amount of other claims or the value of the vessel, it cannot be deemed given for the benefit of all up to the full value of the vessel, like the ancient stipulation for value, or fully to represent the vessel; nor is there any means of compelling further security in favor of additional libelants, except upon a further arrest of the vessel, which would be impracticable when the vessel is beyond the jurisdiction. As.
the bond to the marshal does not necessarily and in effect afford any security to other creditors, and the vessel is thereupon discharged, and as no legal notice was published affecting anybody, I doubt whether the doctrine of quasi parties or privies, as to a cause in rem, could be properly applied to the insurers in this case, who were not actual parties to the former record. In Gelston v. Hoyt,3 Wheat. 246, 271, a stipulation for value was given. It is not denied, however, that the insurers had full, actual notice of the former suit. There can be little doubt that they were virtually represented in it, so far as they' desired to be repre'sented. An additional bond was voluntarily given by the vessel for 63,000 when additional claims for personal effects and new parties were brought in; and there is no reason to suppose a like additional bond would not have been given for the insurers, had they desired to have their claim secured in the same suit. Their abstention from joining in ,the cause, in a formal manner, for nearly six years, ought therefore to ,be regarded as a voluntary one, as stated in the former decision. This, without reference to the other points, ougbt, I think, for the reasons in that respect stated in the former decision, to debar the insurers in ad'miralty, after so long a period, and after the close of the former litigation" from any revival of the same litigation de novo. The other points raised seem to me immaterial, or to have been pre'viously considered. The new matter is therefore held. insufficient to sustain the libel.
tI. THE MONMOUTH
HOWARD 'U. SAME.
Court, S. D. New York. January 9,1891.)
CoLLI8ION-NEGLIGENCE-D.uu,GE FROM STEAMER'S BWELLS-LIABILl'rY.
A steamer which passes other boats at high speed, so near as to damage them by her displacement waves, is liable for such damage. The steamer M" a passenger-boat plying in the harbor of New York, whose usual speed was 20 miles an hour, passed within 1,000 feet of a fleet of about 30 canalboats in tow of tugs. The displacement waves of the M. caused the boats of the tow ,to strike against each other, whereby one was sunk and another damaged. The steamer on this occasion did not notice the tow, and did not slacken her speed. The evidence indicated that the M. was accustomed, in passing near small boats or tows, to slacken speed or sheer away. It also appeared that the present accident was probably due to inattention on the part of the officers of the steamer to tb'e tow. or to an erroneous estimate of its distance. The tugs were unable to turn the tow so as to take the waves stern on in the short time that elapsed after the M. Wa,s Been coming. No regulation required the tugs to signal, and so large a tow in broad day was a conspicuous object. Beld, that the steamer was solely liable; for the damage.
SAME-FAST STEAMER-DuTY IN PASSING OTIlER'CRAFT.
Reported by 'Edward G. Benedict, Esq., of the New York bar.