e;.,On of,the owner, that she might earn the balance of the debt; but it is equally apart of the contract in this case, that the one-half of the bill for repairs was to be paid promptly at the end of 30 days after the completion of the repairs. Had the claimant or her owner pro hac vice performed that part of the contract,adjfferent case might have been presented from that now under consideration. But it is well settled that a maritiIPlillien is entirely consistent with a credit given for its payments, unlesss,uch lien be expressly waived. Repairs put upon a vessel under the circumsw.nces .that the repairs were put upon this vessel, raise a strong,pre$umption that they were put ,there upon the credit of the vessel, anq, not, upon the credit of the owner: and it is incuD,;1bent upon the claimant, to show by weight 'of !'lvidence thllt the lien was actually given up, inorger to rebut that presumption. The burden is upon him. Not only <1,oes he fail to show such action on the part of the libelant corporatiol1, but, when pressed for the of the claim due to it, hehimsEllfrecognizes the right of the libelant to lien, and, on that ground, to-wit, that the libelant has such lien upon the vessel for the bill, insisted that it ought to be lenitmt, and not press him into immedil1te settlement. This. plea is entirely inconsistent with the theory that the libelant corporation had surrendered its lien. The true principle is that if the labor charged for has, been performed, or the repairs. done and the qlaterial furnished, for tile vessel, no matter in what way the owner agreed to pay, if he, fails to pay according to the agreement, he who ,furnishes the materials, or performs the labor, or completes the repairs haall: right to resort to the security provided by law. I am of the opiniol1 , therefore, that in this case the libelant porporation never intende<i and, in fa,ct did not dive!;lt itself of its right to lien; that right WIlS re.servedtl) itself in' case the owner, failed to comply with the terroflof his contract, and pay one-halfofthe cost of. the repairs within 30 days, after the repl\.irs were completed. This defense cannot avail the claimant. As to the, items which go to form. the, amount of the Starin claim, I cannot'agref,l, with the contention of the counsel for the claimant, that they do not afford ground for a maritime lien. These repairs, as it appears frorn the testimony, were put upon this vessel under the supervision of Mr. Bates, and they were paid for, at his request, by the l.ibelant corporation. They constituted it lien upon the boat beforepayment,and it is settled that all advances of money made to pay off claims of such a nature, upon the credit of the vessel, as these claims were, and which constitute liens in admiralty, have the benefit of the lien, with tJ;J.e same rank as the originltl claim. The itllm of 334 meals furnished to. a portion of the crew at a hotel near Elizabethport, while the vessel WIl8 being repaired, cannot be included in this claim. Under the they afforu no basis for a lien, and must be strick.. -I out. Let ,the usual decr,ee be entered.
THE DAVE 41: MOSE.
FAHEY t1. MAYOR;
OF CITY OF
(Df.Btr1.ct c<rWrt, S. D. New York. January 29, 1892.)
WlIARVESAND WHARFINGERS-DUTY TO DREDGB.
The city is liable for injury to boats occasioned by its failnreto remove at reasonable intervals the accumulations from drains at pUblic wharves to which boats are . invited·. and at which.the city collects wharfage. It is negligence in a boatman to tie up for the night at a dock on the Harlem river at 155th street withont sounding, or inquiry as to the depth of water, or breast:ing his boat off.
Sum-DuTY OJ!' BOAT AT WHARF-SOUNDINGS-INQUIRIES.
In Admiralty. Suit by Michael Fahey against the mayor, etc., of New York city, to recover for 10S8 of canal-boat sunk at respondent's wharf. Decree for libelant. Hvland Zabriskie, for libelant. lVilliam H. Clark, Corp. Counsel, and James M. Ward, Assistant, for city. BROWN', District Judge. On the 16th of September, 1891, the libel. ant's canal.boat Dave & Mose, loaded with 275 tons of coal,moored alongside the platform dock at 155th street and the Harlem river, to which she was consigned. Her bow was headed down ri\'er and projected12 feet below the lower end of the dock, and her stern extended aboutthe same distance above the upper end. Between 1 and 2 o'clock during ,the following night as the tide went down, the forward part of the bOM caught on the bottom; and when the men on hoard were called between 1 and 2 A.M., she had a list to port, and with the help of ers could not be shoved off. The bottom being sloping and the stern of the boat free, she got a twist; and the stern, careening to port, took in water so as gradually to pull her off until she sunk. The bottom was of silt or sand, withno stones. Adjacent to the dock the water at mean low tide varied from 6 feet near the upper end of the dock to 4 feet at and below the lower end, where a drain of the surface water from Seventh avenuebrought in considerable quantities ofsHt and sand. Twenty feet out from the dock the depth of water at mean low tide was from 12 to 17 feet; 30 feet out, from 15 to 20 feet. The canal-boat was 17 feet wide. Similar boats have been accustomed to KO to the dock for several years past. Only two cases of injury from grounding are shown by the evidence; and the proof is not clear whether those damages were at the dock or above. It was not uncommon for boats coming to the dock to catch temporarily, but they were easily shoved off withoutdan;mge. The depths of water above stated are those ascertained by disk soundin.gs, that is, to the top of the soft silt or sand. Soundings by ,the rod were about a foot or a foot and a half greater near the dock, and two or three feet greater further off.