vol. 45. state ,bas taken ¢ustody under .. at;.. ;and this court UllQer itsPl'0900dil1g ''rhe property, been of attachment, it is in custody l!tate court. The right tQ hold it is a question to ,be determined by the (ll:Hlrtlinder whose,proc¢$5itwlis There is no authority in this COtH'tt<> interfere with it.:, .'llaylor V" Chn'Yl, 20 How, 583, quoted 8l1daffirmed, in CoveU v. Heyman, 111 U'. S. 177, 4 Sup. Ct. Rep. 355. for the: present, this cO\1rt can proceed no further.· ]3ut the liens set in ,this cour,t are :maritime liens, which cannot be. adjudicated or Pltl!sed Upon in tl),e state court. Over these liens the jurisdiction of this W\lrtis excll.lsive. They will be protectedjnthis court. LeUhe Cf!.USeS retained ,until the. state, court :hasolidered the saJe, or in any other IllQde .releases' its custody QLthetQg." ,See The OUw:1' J()J'dan, 2 'Curt.
.. 1 )
' : ' .
: '(OirCUit CoUrtiE. D: I1>Ui6tana.Fei>nfary91, 1891:) '
Loss. : " . ,d" ; founditimpossibleto stop. They t,herefore. acting' a,ceo,rdi,ng fA)' t,h, aii', ,best'J,u"dgm,,ent, allOW,ed, ,t,he8,team-boat to sink , , 'in 'and ,apan,doned !ler. The' ow.per infOrmed; lthe-, insurance company, prolllisedto,go and take charge of thebpaf::, l>p.t to 510 BOUl1til '8he!hiid become a total wreck. 'l1eUl, that the insurance'company was lillobl." tor ·· " ,; ,),',1 ,,;. ",'.'/ I ; , "
0> ' . ' :. : ,'" "
0.; B. for J. R·. !JfU;ly,ufi#hfor
,,';;. '". ,
,P canie 'on ,tobe,hea.rd Up«;lO and evithe QOurt,finQ.s.tbe followingfactsin the case: , ' dence, 1. Thatlibe1l;lnt is i!o created and elltisting ullder and by virtue,oOhe Iltatutes . ,' 2. Th,at, respondent,Wlls. ,Jpng prio);. t<> the year 1888, and still is,a b,ody by, the statutes of the state of Kentucky,havingtqe right tocl!o,rry .on tl;le: business of inl!urance in the state of condWQu thatit would appoint an attorney within Mid state itssaigpusiness,and to accept ,service of process in 'Or ,pJ;oCliledings QOrPIllenced' against it in the 'courts of said state; and that; (JowpJyingwithlthat conditipn"WilliamM.Railey Was duly witbin; said state.8,.nd still is respondapPQinted respopdent1fj sa,id attorney. T,bllt on,. the 5th day, 1888, at the city QfNew Qrlean!!, r,espondent,.1;>y ita COlltracted with libelantjQ insure for libelallt,$7,OOO .Qn the .hull, tackle, apparel. furniture, and appurtenances of thesteaIU-boat Nl;1tchez, against the perilS of rivers" fire \lud jettlJlQD_ forA period of one ,y,ear then
. ne:;t.ensqing; and, as evidence of that contract, respondent made and
the pollcy .of insurance: set out in the record. . 3. That Q1'1;; the:81st day of December, A. D.· 18SS, the said .steamboat, being:in thepal't 'ofNew Orleans, was properly manned, officered, a. voyage in her then regular trade and business beand tween the said port oiNew Orleans and Vicksburg and the Bends on the Mississippi river. 4·. That said steam-boat, at the time last mentioned,commenced her said voyage, and continued on it until between the hours of 1 and 2 o'clock in theworning of the 1st day of January, 1889; and, while she was navigated:with reasonable prudence and care in said river, off a point known as ('Wiley's Plantation," she ran ona mud lump.in said river, and her: head remained fast upon it for some time, and, in consequence thereof, her butts were sprung, and her seams were opened, and she made water very rll-pidly. That her officers and crew· were of opinion fuel and freight well forward that, by mOVing sOme- of the on herrbow,her bu,tts would .apringback to place, and her seams would closeup,aDd.she could proceed on her voyage without danger. That the said fueland freight Were· moved to her bow, and, with assistance rendered by the steam-boat Sunbeam, tbe Natchez was pulled off said mud lump, and proceeded to her then next landing; to-wit, Ben Lomond, at w:bich landing. she arrived about 4 o'clock in the morning, above. stated·. But, instead of closing ber butts antlseams, as her officers expected, she made more water; and; on landing at Ben Lomond, so large a quantity of water had accumulated in her hold that she was. in· danger of going down in deep water at that place, so that her officers and crew deemed it prudent to oross the river. to Lake Proviput off passengers and light freight; with a view to dence, ground; the steamer in shallow water in that viCinity., if: found necessary. That, pursuing that intelition, said steam-boat was navigated from Ben Lomond to Lake Providence, where her passengers and,light things were landed. That in crossing f,rom,BenLomond to Lake Providence very large quantities of water ran into her hold t causing her to roll from side to side in a dangerous manner, notwithstanding all her pnmps and syphons were. kept steadily at work. From Lake .Providence the said steam-boat was at once navigated to a bar in said river,known as "Stack where she was groundeu in water, the depth whereof then was as·foUows: On her port side,six feet; on her starboard side, six and a balf feet, or thereabouta. That the saidsteam-boat1being grounded, J'Elsteddha.sanrly bottom from <stem to stern, where she· could haveremained, and Blight have been ,subsequently rescued: from destructiolJ, but (01' events hereinafter stated. That, under all the eireumatances, .grounding the steamer on Stack island was the most prudent.course that could have been adopted for. the·benefit of all persons 'That:said stel1m-boat was well ,supplied with pumps and syphon!, meauswithin herself to throw out great quan.. :titles OLWAWJI;) and :thataUber pumps and s1phons were used
:NEW ORLEANS'& N. PltT. & NAV. CO.t/.LOUISVILLE UNDERWRITERS.
and employed without avail. That she had all pumps required by law to supply her boilers with water, having, in a.ddition to the doctor, a donkey-engine and pump, mainly intended to ,supply the steam-boat with water at all parts, but capable and fit and arranged, according to the evidence, for supplying the boilers with water if the regular means of such supply failed; and that all. these were used until about 10 o'clock in the day last above mentioned; and that their use was then abandoned, because large quantities of sand, drawn in with the water for her boilers, choked the valves of the pumps and rendered them useless; and it became impossible to keep steam in her boilers. When the pumps could be no longer worked, the master ordered the crew to be paid off. The first mate, with two deck-hands, stayed on the boat all that day. At 8 o'clock on the next day all left--engineers and all-on the steam-boat Sunbeam, for New Orleans, to bring out the steamer T. P. Leathers. According to the evidence in this case, in all the proceedings and movements of the master, officers, and crew of the steam-boat Natchez, from the time she struck the mud lump,iabout 1 A. M.,January 1st, until the final abandonment of the said steam-boat, the said master, officers, and crew acted in good faith, and with their best judgment. 6. That at the time said steam-boat sustained damageS, as first above mentioned,the Mississippi river was at a low stage of water, but immediately. thereafter,-that is to say, When she grounded on Stack island, -the water began rising in said river rapidly, and the rise was so rapid that withiothree days thereafter said steam- boat was almost wholly submerged. 'l'hat, in consequence of said rapid rise of water, a strong current set along-side of said steam-boat, and the gravel and sand on which she rested was washed away on her starboard side; and, in consequence thereof, said steam-boat fell over on her starboard side, her hog chains were broken,and her chimneys fell overboard, and she became, and was then, and ever since has been, a totaIloss, with benefit of salvage for account of whom it might concern. 7. That there was in the vicinity, to-wit, at Wilson's Point, 12 or 14 miles above the place where the Natchez was put on the bar, and at Vicksburg; about 75 miles below, assistance in the way of vessels, with more or less pumping appliances, that could have been called to the aid of the Natchez before she bilged"and could have rendered assistance. The master and officers of the Natchez did not know that at Wilson's Point there was any boat capable of giving assistance, nor any such boat at Vicksburg, although the master knew that at Vicksburg there Was a tug with, as he says, "a little syphon to pump out her barges," which, however, he did not believe, if obtainable, could be of any assistance. The pilot oUhe Natchez knew of the government boats lying at Wilson's Point, but it does not appear that· he knew their services could be obtained, or'tmat he communicated what knowledge he had to any of the other officers or crew of the endangered boat. The master and officera of the Natchez made no effort to procure assistance in the vicinity, but on the morning ofthe2d of January practically abandoned the Natchez to her fate,know.ing thatthe river was rising, and that the vessel must
NEW ORLEANS & N. PKT. &NAV. CO. fl. LOUISVILLg'UNDERWRITERS.
l>ecome a wreck unless assistance was promptly obtained and rendered; and afterwards made no effort to save the hull of the vessel from becoming a total wreck, or to dismantle her' hull to save any of the vessel's machinery. As a fact the court cannot find' from the evidence that af',sistance obtainable in the vicinity could have availed to save the Natchez, after she was beached on Stack Island bar, from total loss. 8. That notice of the disaster was sent by telegram by the steamer's master from Lake Providence to Thomas P. Leathers, libelant's general superintendent at New Orleans, which notice was received by him at his dwelling-house in New Orleans, about 8 o'clock on the morning of the said lst day of January, 1889. That one Harpham, a person usually employed by respondent to' go to and to take charge of the work and business of steam-boats in distress, being in the city of New Orleans on the said 1st day ofJanuary, 1889, called at the place of business of libel- . ant's superintendent, and there speaking with the said superintendent, Thomas P. Leathers, promised and agreed to go with all possible djspatch to the said steam-boat Natchez, and; on arriving there, to take charge of and control of the business and work of saving said steam-boat. ' That the said Leathers, at the request of the said Harpham, telegraphed to the said master- the said steam-boat to retain and keep on board. mentioned, , whatever officers and crew might 'be needed for the and tQ: be governed by the said Harpham in, saving said That letters were written by said Leathers to the master of the steam-,' boat, instructing him to obey said Harpham's directions in aU matters pertaining to said business, which letters were delivered to said Harpham in the office of respondent's said agent, for h,im to carry them to the master of said steam-boat at Lake Providence. That afterwards, on the 2d <lay of January aforesaid, said Harpham renewed his promises to go to said steam-boat for the purposes mentioned, and that said respondent's said agent, William R. Railey, was present when the said promises were made, and was cognizant of all that had' taken place between said Harpham and said Leathers. And the said Harpham parted with said J",eathers on the dayJast above mentioned, giving the said Leathers to understand that he would proceed by the then evening's train for said steam-boat for the purposes above mentioned; but, instead of. so proceeding, said Harpham neglected to proceed as he had promised to do, then in distress by respondent's secbeing ordered to another retary, J. L. Shallcross. That said respondent's agent, Railey, well knew that Harpham had beyn ordered by Shallcross not to proceed to the steam-boat Natchez, and that these directions so given by Shallcross to Harpham were never communicated to Leathers until said Shallcross arrived in New Orleans on the next Saturday. That in consequence of the representations and promises of said Harpham as aforesaid, understood to be with the consent and approval of said Railey, the libelant took no steps other than as en:umerated in these findiJ;lgs to send aid and assistance to said stranded steam-boat, or to preservEl the said 'Yreck or .any of the parts or property thereof, but considered and treated said .steam-boat as total,lyJgst, and a(!l properly abandoned to. the insur,ance ..companies represented by said Railey.
,Q.Tha.t at the making of said contract of insurance, and from thence CQntlnu.ally ,thereafter. until the ,said steam-boat .was' ,lost, as aforesaid, libelant walil interested in the said steam-boat as owner thereof to the full amo1Jalt insured 'by the respondent, and all other insurers, to-wit, $20,000. ' 10. That, if respondent is the facts of this case, for the full amount of the policy herein sued on, the said respondent is entitled to a reduction therefrom on, account Of premium note unpaid, partial heJ!etQfore ,paid, and proceeds Of sale of cabin and outfit, ill the sum ()f $.1,462.64, leaving due ou the said policy $5,537,.36, as shown by the commissioner's report in the record of this:case, which report is notcolltested. That proofs of loss under the policy were duly made and presented to the respondentonthe.22d of and the amount oflolisbecame dueaud payable March 23, 1889.
C()NCLUSIONS OF LAW.
isiiable to the libelant for the full amount Of the policy by the said company on the steam-boat infavor of libell;lI;lt,subject to the deduction mentioned in the lastfiilding of fact,' witbjnierest thereon from March 23, 1889, at 5 per cent. per annum until Haid. ' " , 2. ,That libelant should haYea,decree against the respondent company fOJ: ,with interest at 5 clllnt. from March 23, 188\:) paid, and for alJcosts oC suit.
1.', That the
BOYER'll. THE CoNNECTICUT.
New YOT1c. January 21,1891.)
., MARITTME TORTs.-DAMAGE, Jl'ROM STEAMER'II
Ontha'26th of Itl89, libelant's lighter, while lying at a pier at tbe foot of South Third street" in the East river,' 'loaded with sugar), was' Up!l6t, and her cargo lost, lItnd thil\ suit was in consequence broll:ght,against tne steam-boJlt Connecticut, libelant alleging that by the latter's nilgligent navigation, in passing too near the piers. at a high rate of speed, she created'a swell, which caused the accident. , The main defense was that the,swell which did ,the damage sued for was not made by tbeConnecticut. On the evidence it held that the careening of the lighter was callsed "by 'an extraordinary and dangerous swell made by the passing of the ConneC(ticut too, near the piers, ,at, high sp,eed, and that that vessel was in consequence liable for the dal;ll.age. . "
. . .. i '
InAdmiralty."Suit fbr:damage caul\ed by the upsetting of the lighter Vigil. ;. ' , . ,.' , Onrpenter'&M08Mr' and'B.'D.' Benedict, for the, libelant. 'Miller,' Peckha1n} &:DiXerh l for the Connecticnt.'
by ,1l:dwardG. Benedict. :Eaq./ot the