ROSTRON '0. THE WATER WITCH.
seem to account for the list and the consequent injury through the twist and strain resulting to so old a boat. See Nelwn v. Chemical Works, 7 Ben. 87. The libel is dismissed.
THE WATER WITCH.
(OtrcuU Court, S. D. New
November 15, 1800.)
Wbere a libel bas been filed. against a vessd, and on the return-day of the monition tile owner of the vessel did not appear, and his default was duly entered in the cause, such default amounts to a formal admission by him of the truth of the .allegations of the libel, and a lien in favor of the libelants attaches to the proceeds of the vessel, which has been sold in the mean time under a decree in a prior suit for seamen's wages. In a contest between the administrator of the owner and libelants, in a suit to recover the amount of a bottomry bond, wbo, by the owner's default, have acquired a lien on the proceeds of the vessel sold in another suit, a letter of the owner, denying the right of t,he master to execute a bond "for so large an amount," is an admission that the master was justified in executing a bottomry bond, and the burden is on the administrator to show that it was for a larger sum than was required by the necessities of the vessel. . Where proctors. who filed a libel 30 years before, apply for the proceeds of .the vessel deposited in the registry of the district court, assuming to act under their original authority, and it is sbown that the sole survivor of the libelants, When last beard from, several years before, was an old man, and "very much of a fioater, " somewhere in Brazil, the proceeds will not be paid over without a further application. by whioh it may be shown that there is some person in existence wbo is legally entitled to receive them.
OJ!' VESSEL-PAYMENT OIl' PROCEEDS TO PROCTORS.
SHIPPING-BoTTOMRY BONDS-AUTHORITY OJ!' MASTER.
In Admiralty. Hyland & Zabriskie, for appellants. S. Hanford, for appellee. W ALJ.ACE,J. The question in this case is whether the libelants or Prince, who is administrator of the estate of the former owner of the vessel, is entitled to the sum of 8888.20, deposited in the registry of the district court, arising from a condemnation and sale of the vessel, under a decree in rem at the suit of one Taggert for seamen's wages. In 1859, the libelants filed a libel against the vessel to recover the amount of a bottomry bond, which set forth the bond, and that it was duly executed by the master of the brig at Pernambuco. A monition was duly issued and published, and the vessel was attached; and, upon the return-day of the process, the owner of the vessel did not appear, and his default was duly entered in the minute-book by the clerk of the district court. Within a few days subsequently, the vessel waR sold under the decree in the suit by Taggert, and December 31, 1859, the proceeds of the sale were deposited in the registry. The balance, after payment of Taggert's claim, remained in the registry, and is the money now in controversy. The owner of the vessel died 13 years agoj and in Januar,}', 1889, Prince,
who had been appointed administrator of his estate, filed a petition in the district court for an order that the proceeds be paid to him. Whether the proceeds belonged to the libelants or not, it is very clear that Prince is not entitled to them. The default of the owner of the vessel to appear at the return-day of the monition was equi valent to a formal admission on his part of the truth of the matters alleged in the libel, and consequently of a lien by the libelants at that time upon the vessel, which lien of course attached to the proceeds of her sale. See Miller v. U. S., 11 Wall. 268, 301. That default has never been vacated, and the of the lien of the libelants, which is the amount of the bottomry bond, is far in excess of the proceeds in dispute. After the administrator petitioned that these proceeds be paid over to him, the proctors for the libelants applied for a decree condemning them. This was, in effect, an application by them to have the pro'ceeds paid over to them. The court made an order allowing the administrator to contest the libelants' rights to the proceeds. For the libelants the execution of the bottomry bond by the master of the ship at Pernambuco, in the presence of the United States consul, and at the same time an asof the bond to Pickeragill & Co., of New York, for collection, were proved, and also that within about a month thereafter the owner of the vessel wrote to Pickeragill & Co. denying that master had any authority to execute a bottomry bond" for so large an amount." This letter is an admission that the master was justified in executing a bottomry bond. When the execution of the bottomry bond was proved, the onU8 was cast upon the administrator to show that it was for a larger sum than was required by the necessities of the vessel. No evidence was offered by the administrator for this purpose. As between the two rival claimants for the proceeds it is entirely plain that the title to them is in the libelants. The evidence taken upon the hearing shows that all but one of the libelants are dead, and the only survivor is one Patchett; and that he ' has not been heard of in two or three years, and when last heard from was a very old man, and "a floater, very much of a floater," somewhere in Brazil. The proctors who filed the libel are assuming to act upon their original authority, conferred 30 years ago, in applying for the proceeds. Under these circumstances, the proceeds should not be paid over without a further application, by which it may be made to appear that there is some person in existence who is legally entitled to them. A decree will be entered dismissing the petition of the administrator, and refusing the application of the libelants for a final decree, with leave to renew it upon further proof.
THE ALLIANCA. THE ALUANCA.
(Circuit Court, S. D. New York.
SmpPING-LuIULITY OF VESSEL FOR TORTS-SCALDING BOILER-CLEANER.
Where the master of a steam-ship employs a contractor to clean the inside of her boilers, the ship is liable for injuries suffered by the contractor's employe, while engaged in the work, by the negligent escape of steam and hot water into the boiler, whether those in charge of the steam let it escape or it was done by some meddling" stranger in consequence of the negligent supervision of those in charge.
In Admiralty. H. Aplington, for appellant. Wm. B. Tullis, for appellee. WALLACE, J. Grube, II: minor, while at work inside one of the large boilers of the steam-ship Allianca, on August 17, 1889, was scalded by the escape of hot water and steam into the boiler, such hot water and steam coming from apparatus outside the boiler in charge and under the control of the engineer of the vessel. Grube at the time was in the employ of one Ryan, a contractor, who had been employed by the master of the steam-Ship to clean the inside of the boilers. In consequence of his injuries, Grube suffered great pain, and was confined in the hospital for three months. The district court in its decree allowed him $750 damages for his injuries. It is entirely clear that the libelant is entitled to recover, and that the sum awarded him in the court below was no more than a £liir compensation for his injuries. The master of the steamship, having employed Ryan to work inside the boiler, owed an active duty to him and his employes thus invited there to see that they were not exposed to any unnecessary hazard while there. Grube was injured by an escape of steam, which was inevitably perilous to his safety, and which would not have happened if those in charge of the steam-ship had used proper diligence in taking care of the steam apparatus under their control. It is quite immaterial whether the engineer, or any of his subordinates, let the steam escape, or whether some intermeddling stranger did so. Those in charge were bound to exercise proper supervision over the apparatus for the safety of those who might be injured by any relaxation of vigilance on their part; and if a stranger meddled with the apparatus, that circumstance implies negligent supervision by those in charge. I have no doubt, however, that the presumption is that those in charge of the steam apparatus let the steam escape, and that the burden was on the steam-ship, under the circumstances, to exonerate herself from negligence. A decree is ordered for the libelant for $750, and for the costs of the district court as taxed, with interest from the date of the decree and the costs of this court.