et at ". THE
',I · , '
8. D. New York.
b,rokeo¥t-in a puilding near, a bulkhead" within 4() 01',50 feet of which lay the' Wrkentine J ohtt SWan. Two tugs, coming'up, were requested by the only person on th6.ll:mp to tow,iller Illto the stream. which was one of the tugs. reo IIlainingby bel', as bel' anchor dragged sOIUewhat. Before the tugs b.ad hauledthe vessel out,'the city fire hoat 'arrived. Events proved that tbe fire traveled away frolQ s\1ip,and that tb.Elre was nO for haUling herillto the stream. , Held, that at the time the 86rvice was begun there was such reasonab,le apprehension of danger as made it proper to' remove the ship; that the service, ,was a salvage service, though otsJIl.all merit; and $125 was awardell to $75 to the otb.er, costs i>eing refused to one tUg because she had exacted one tug,: seouiitym the sum of $5,000. ' ',. ,
OliT BULltlllUD-ApPRBHBNSIOl'l' OJ'DAlII'GBR-EXOBSSIVB , , ,
In Admiralty. Libel for salvage. ', ' GobdridhlDeady &: Goodrich, for the Henry A. Peck. Owen;Ylfay &: ,for the Quaker City. ' Wing, Bhirudy &: Putnam, for the John Swan.
BROWN, District Judge. OnJunel,1891, the barkentine JohnSwan,! loaded and ready for sea, lay on the north side of the wharfat the foot of North $ixtl'l street, Williamsburgh. Between 11 and 12 P. M. a fire broke out in the street and in a building stretching across from North Sixth to Noi'th, Seventh streets a short distance from the bulkhead at the head 6fthe slip. ,The stem of the ship was some 40 or 50 feet distant from til is 'bUlkhead. The tugs Henry A. Peck and the Quaker City in the East river, observing the fire, made their way thither. The Peck arrived first. One of her hands was sent to the Swan to ascertain if help No one was on board of her except a watcllman, , 'who -roused, he asked that the ship be towed out. The QuakerCity had by that time arrived; both tugs got out hawsers to the ship "iln'd towed'her Otlt iIi the stream, where she was anchored. The Peck, finding that the anchor dragged some, remained by her; the Quaker City left for other employment. The claimants contend that the vessel was in no danger, and that the service was of no value. The witnesses for the Peck affirm that smoke and sparks were about the vessel. The claimants contend that this is a gross misrepresentation; their testimony is, that at least from half an hour after the tugs arrived, when their witnesses were on the scene, the wind was setting up river and on shore, so as to carry any fire sparks away from the ship. The fire extended two blocks to the northward; and not at all to the southward; it was hotter and fiercer at North Seventh street than at North Sixth. Some bagging and bar-
rels on the bulkhead between c;:aught fire,and were more or less consumed. A line of loaded cars, which was on the North Sixth street wharf running parli\Uelwitb the ship at a distance ofabout 35 feet from her, was not remov'Jd during the fire, and the cars were not damaged. About the time the tugs were hauling the ship out of her berth, the city fire boat Seth Low came up river, and waiting below until the ship was hauled out, then wlfn! into the slip ,alongside the North Sixth street pier as far up as the bulkhead, remained there several hours, and played upon .the fir:e until it was subdue9" her stern occupying a part of the berth in which the shiV had been before. Wbethera service iaa salvage one or not, is not to be determined by what is ascertained or judged after the event. It is enough that at the titne the service is rendereq, the vessel is in a "situation of actual apprehenSion though notofactual danger." The Raikes, 1 Hagg.Adm.246. See TM,A.la3ka, 23 Fed. Rep, 597, 607, 608, and cases there cited. ,At the tiIt:l6 this service was begun, I have no doubt that the removal of this ship was a proper and necessary act;Ilot in the sense that there was a certainty of danger or loss, but such a reasonable apprehension of danger as made it prudent to remove her. That was requested by the watchman, the only person in charge. It could not then known how fiercely th'e fire might rage, or how much it might spread along the bulkhead or the wharf.. The fire boat, it is true, appeared on the spot before the ship got out into the stream; and it is now seen that it would have been quite sufficiept had the ship been merely hauled out to the endofthewharf and made fast there. The pres,ence of the fire boat inside oCthe slip, and between the bulkhead and the ship, would have been a cQ,r:nplete protection from danger, as the captain of the Quaker City §tated. While these circumstances do not deprive the service of a salvage character, they make it one ofsmall merit. It involved no difficulty or. danger to the tugs; the service was short, except that the lay by,aBwas proper, when the anchol' was dragging. The damage to the SWllll al,ld the loss of ropes and some other' articles in the course of the seqrice, as testified to, amount to $84. Taking all these circumI ,think $125 to the Peck, .and $75 to the Quaker stances City, will.be a sufficient awal'd for the services rendered. But as the d/limants were required by the Peck to give in the grossly excessive amount of $5,000, I do not award her
LOUISVILLE A 5. B. 00. t1. ldERCHANTB'COIIPBESS A 8TOBAGB 00.
&: N. R.
Co. t1. MERCHANTS' COIIPRESS
(OircuU Court, W. D. Tenmuaee. March 25,1899.)
CQITI-DeonT FHa IN EQUITY-DISMISSAL 4J"I'BB RBIl'USAL OJ' PallLDnNABY Dro1IfClTION.
bill, the docket fee of 120 IlPOD. 1Ulal hearina is tuable for t.he I01ieitor of t.he preYalllng party.
If, after a decree refusing a preliminary Injunction, the plainti1r dismiss the
In Equity. Statement by HAMMOND, District Judge: The bill in this case, with some 20 exhibits thereto, wu filed December 3, 1891. It was simply an injunction, bill to enjoin the defendant company from violating the provisions of a certain contract claimed to exist between the parties for the compressing, storage, and insurance of cotton; the prayer of the bill being stated in various forms to meet the different stipulations of the contract. The usual process of subprena was issued the same day, requiring the defendant to appear, etc., on the first Monday in January, 1892. On the day the bill was filed the plaintiff moved for a restraining order until motion for preliminQry injunction could be heard, which was denied. It then moved fur the preliminary injunction, and a decree was entered setting down the motion for hearing and argument on Decembero, 1891, before the court, "when and where the defendant is required to be present, and show cause, if any it have or know, why such preliminary injunction should not be granted." Notice of this motion and decree was issued, which, with the subprena to answer, was served on defendant the following day. The defendant entered its appearance by its solicitors on the day fixed, when the motion for a preliminary injunction was fully-and argued by counsel here and from a distant city, and the matter taken under advisement for further consideration by the court. On December 11, 1891, the record shows that the parties again came before the court "by their respective solicitors, when the cause came on for determination upon a motion of complainant for a preliminary injunction heretofore made herein, and argued at a previous oay of the term; and the said motion, upon full consideration, is by the court hereby overruled, and the preliminary injunction denied." Afterwards, on January 19, 1892, after the day for defendant to answer, complainant moved the court for leave to dismiss the cause, "which motion is, for satismctory reasons to the court appearing, hereby granted, and this cause dismissed." Defendant did not demur to nor answer the bill, nor was a pro confe88o entered at the January rule day. In taxing the costs against complainant the clerk has included an item of $20 docket fee to defendant's solicitors, and plaintiff moves to retax by striking out this item. The other items of the taxation are conceded to be correct. Section 983 of the United States Revised Statutes prescribes what shall be deemed "costs" in the federal courts as between the parties to a suit. It is as follows: v.50F.no.6-29