the 'Rolf BOyd. The ROlf; boJltld from, Havre to Sandy Hook, was saifing at. least with tti,e'winc1'onlieratarboard aide, "The Boyd',bound from New York'to llilng Kong, had the wind on her port side;'Rer contention'was that ahe was sailing olosehauled. The Rolf's witnesses asserted that the Boyd also WIlo8 " sailing fl'lle.The,B9yd 'Ii4 put her hlllmUP after " 'OOllisioll' wail in8"¢itd.ble, bu't was s'mott'OD her sun'board' siijll. Held, on the endence, that the Boyd, 1108 well 1108 the Rolf, was'salling free; and hence, under the ;> an,.'l4, 18t. at Ltrl'll,',P, Boy4 was . ' bound to'avofd,tbe Rolf, whlchhdd tll8 wind on her ItBtboard 8lae. and wu liable :ifor her, failure: so to ,do. " '7: Fe<t atlll'lD8d.. : ::
CoLLISION-SAIL VIISSELS CROSSINo-:-;gOLLISION RULli&, MT"l4.(o,) C, Olli,81, ',01;1 o!!,curre,d pn, 10,he htgh;/Ie,I,""','; C?n"110 o,lear, g. 'between
4nts., , ',." ,:
, In 'Admiralty. " Appeal District Court of the United Stat. of New: y"ork. Affirmed. ',.win!!I' Slwud'!J k Putnam, (Harrington counsel,) for "ppel.
, Butk:r,StilJ,man k H'!-£bbartl,(WilhelmusM:vnder,."of Counsel,) for
",' " ., Before WALLAOE and 4COM:B:Ei' '" Judges.
tiliacasetNul affirm the decree.
the com below iD
To J()UF. WINSLOW.
(DUtrtct Oout1, 8. D. New Y&r1c.
BtrLlUUIl,iJ)""LJ.NDiNO OUTSIDII-Rrax. . The landing of 110 heavy vessel in a strong tideway outside of a light .,essel, which , Is lawfully at 110 bulkhead, iB wh,olly at the risk of the V8Ssel80 attempting Y ,land,ancbAe ·.,bblefor any.inilU'Jl'Jihe may inflict an ,the tresllel. at reBt. &. S.uu:-TUG AND TOW-!HPROUR LANDING-W1UIN ,60'/.'.: , . ' Where 110 tug with 110 tow alongside attemptB to'land. outside another boat, and both tug tow concur in making the attempt, and 110 had landing is made throuA'h the influence of both, both are responsible for &l11, .uoh laIldlDg m&J' ocoaaioa.
In Admiralty. Libel for collision. Glryenter k MOBher, for libelant.
GoodriCh" JJear/ly Goodrich, for the tug· .Alexaryl.etJ;;4c As4, for: the BchQQner.
BROWN; District Judge., On, the 6th of April, 1891, the tug John F. Winslow to* .intoW' upon a hawser the schooner Moonlight, 1<,>aded :",.ith a-cargo- of wood"consigned to Benjamin F. Gerken, who had a wood yard. at East river. The schooner was taken to..theshort;dock at street, headed down·river against the flood tide., and a 'line temporarily made fast to the dock· from outside of ll.'briokhargethat wasuulQading.there. Being told :that he would get It Seventy-Sixth street, tbemaster requested the tug to going there,to which the tug' assented. The landing at Seventy-Sixth street. was a.. bulkhead, alongside .of which Nere already moored two boats, the libelant's barge being the outside boat,andlight. Th e line tQthe Seventy-:Filth.-street dock was cast off, and the schooner drift up stern first in theatrong .flood tide, while the tug still kept hpld.ofher, regulating and checking her movements as desired. When she- l:Jl¥i. got abreast of the boat, her stcrnway was stopped by the. ,ttlg, alld, both tug and schooner putting their wheels to port, the ·schoonerwas grad\lallyworked alongside of the libelant 1s boaland then made fast to the More·. ,The libelant claims thlltshe came alongside with a crash,causing the canal boat to spring a leak badly; so that she gradually filled with water, and before she could be rescued on the next day,,$he was swamped by the swell of a passing steamer, when, being cut lqose from the boat to which she was attached, she drifted away ,with theJideaudbeCame a total loss. The above libel was filed to re-' cover the dalDage. The evidence is of the most contradictory character. A number of the libell\Qt's witnesses who were present testify that the schooner landed against tbe.1ibelant's boat with a loud crash; one said it could be henrd' halfa.blockawayjthe captain of the schooner says she landed against the canalboat so gently., that she wou.ld not have broken.an eggshell. The landing of l!uch a schooner alongside a light canal boat in a strong tideway is evidently not free from either difficulty or danger. I think itwas wholly at the risk of the schooner and tug. The canal bOilt.was rightly wbere i;he<was. The right to land a third vessel, loaded as this schooner was, outside of a light canal boat, was certainly not anabsolute right; and the schooner, therefore, took whatever risk attended it. The great weight of testimony is that the schooner came alongside with a sufficient blow to account naturally for the leak that followed. .The wood loaded on deck projected over the schooner's rail; and when she sagged up against the canal boat, the wood, or the fenders on the side of the wood, necessarily caught the upper part of the canal boat's side, and created a far greater strain by lateral pressure against the tops of her timbers, than would have occurred in the ordinary meeting of boats side to side. The most unusual circumstance in the matter is the fact that the captain of the canal boat, who was aboard at the time, made no complaint
FEDERAL ItEPORTEB ,vol.
against the schooner either then. drafterwards.His ullusUl11'retioence is urged as evidence that the claim· is ill grounded or!·fictiti6us. The master, however, immediately went to the agent's office to report the difficulty. It is plain that he did not apprehend any iinmediate loss ot the boat; and he made no effort to keep the boat clear by pumping; explaining that the leak was too great to be controlled in that way. The captain had also only come aboard 'that day a few hours before, replacing the former. captain discharged. His appearance shows that he was a perSon of, little energy or effici'ency,' though sufficiently intelligent. Taking these circumstances altogether, I am inclined to think they sufficiently account for his conduct, without any impeachment of his good faith, or of the general credit of the narrative given by the libelant's witnesses. In appearance, manner, and testimony they compare favorably with the captain of the schooner. Whether the tug was or was not bound to take the schooner to SeventySixth street 'after having arrived at Seventy-Fifth is dmmaterial, since upon the schooner's request she acceded, and took charge of landing her at Seventy-Sixth street. Both were active in making the landing up to the moment the' libelant's boat was struck; both concurred in making the attempt; and the sagging against the canal boat was under tne influence of the tug and the schooner alike; both were immediate agents, and equally active in the work; and both are, therefore, equally respomible far the result. The libelant's boat Wall no doubt an old one. She was bought in April, l889, for 8350, and the repair bills since were small. She was, however, in fair condition for the class of business in which she was engaged; she waB of value to the owner, in a lawful business, and was without fault. The libelant is, th·erefore. entitled to recover his actual damage. The Granite State, 3 Wall. 310. Besides the ordinary repair bills, her depreciation Since she was purchased would be about $50 per year. Two hundred and fifty dollars would, therefore,. seem to be a fair allowance for· the boat; and for th.other items lPentioned upon the trial $150 would probably be a reasonable allowance, making $400, with interest. But, as the evidence of was not perhaps fully gone into, if either is not satisfied with this sum; 'he may have an order of reference, paying the costs thereof if a more favorable result is not secured. '
GRAPE CREEK COAL co.
FARMERS' LOAN & TRUST CO. v. GRAPE CREEK COAL CO.
(Circuit OotiJrtlS. D. nUncriB. May 7,1892.)
CoRPORATIONS-FORECLOSURE 011' MORTGAGE-RBCEIVER'S CBRTIlI'IOATBS-EQUITT RISDIOTION.
In a8uit to foreclose a mortgage on the' property of a coal mining company the court has no power, as against the objection of even 'Ii small minority of the holders of the mortgage bonds, to authorize a receiver appointed in the suit to issue certificates which shall be a first lien on the mortgaged property, in order to enable him to continue the overationof the mines.
In Equity. Bill by the Farmers' Loan & Trust Company against the Grape Creek Coal Company to foreclose a mortgage. A receiver was appointed, and he now asks leave to issue receiver's certificates. Runnell8 & Burry, for Farmers' Loan & Trust Co. W. J. Calhoun,for J. G. English, receiver. Hess & JohnsO'll, for Travellers' Ins. Co. and other objecting bondholders. GRESHAM, Oircuit Judge. The defendant, a private corporation, whose chief business is mining and selling coal, conveyed to the complainant, in trust, lands and two coal mines in Vermilion county, TIl., to secure an issue of bonds amounting to $500,000. An, installment of interest was allowed to remain due for more than six months, and this bill was filed to foreclose the trust deed. Joseph G. English, who was appointed receiver, asks for an order authorizing him to issue receiver's certificates not exceeding in all $24,000, which shall be a first lien upon the trust property. to enable him to pay taxes· now due, amounting to $3,428.64 j take up outstanding certificates amounting to $6,400, which were issued under an order of the Vermilion circuit court, in a suit to foreclose the same trust deed, and to continue the operation of the mines. The receiver represents that, with additional working capital, he could them. The holders of operate the mines ,profitably,and 75 per cent. of the bonds and the corporation join in the receiver's request. The holders of the remaining 25 per cent. resist the application. The corporation is insolvent. It is not claimed that the receiver is without means to pay taxes, and it is chiefly to enable him to continue the operation of the mines for anticipated profits that he desires authority to issue certificates. When it becomes necessary for a court of chancery to take possession of property which is the subject of litigation, by placing it in the hands of a receiver, all expenses incident to its safe-keeping and preservation are properly chargeable against it; and, if there be no income, such expenses will be paid out of the proceeds of the coryus before distribution to lien or other creditors. It does not follow, however, that beclluse property of a private corporation or a natural person may be thus protected and preserved before sale, that, in order to raise money tooperate it for profit,acourt may place a charge upon it in advance of existv.50F.no.7-31