Tunis G. Bergen, for libellant. Samuel B. Caldwell, for claimant. BENEDICT, D. J. The exception to the libel is not well taken. Upon the facts stated in the libel a lien upon the canal-boat was created by virtue of the statute of the state where the materialsw re supplied. It was not necessary to aver that a specification of the claim has been filed. The filing of a specification is only necessary in case the vessel leaves the port, and by this libel it does not appear that the vessel ever left the port. The libellant is entitled to a decree, upon the exceptlOns, for the amount claimed, with leave to the claimant to answer on payment . of costs.
(otrcuit Oourt, E. D. MtcMgan.
August 13, 1881.)
ACT-STEAM PLEASURE YACHT. A steam pleasure yacht, running in and out of the port of Detroit, is to be treated as a barge, within the exception in section 4289, Rev:. St., and. her owners are not entitled to the benefit of the provisions for limitation of liability.
In Admiralty. Appeal by owners from a decree of the district court dismissing their petition for limitation ofliability. The contents of the petition and plea, with the testimony and opinion of District Judge Brown, are given in the report of the case in the district court, 5 FED. REP. 813. ·H. H. Swan and F. H. Canfield, for appellants. Alfred Russell, for appellees. BA:XTER, C. J. The decision of Judge Brown is COlTect.. ',rheMamie, the vessel mentioned in the pleadings, not only comes. within the spirit of the statute, (section 4289 of the Revised Statutes,) ex.cepting canal-boats, barges, and lighters from the preceding sections, limiting the liability of owners of vessels, but isa "barge" the meaning of the statute. There are other questions in the case worthy of consideration, but as a determination of them is not necessary to a decision of the case, and as my judgment would not settle them, but only add to the conflict of authorities already existing, I shall forbear to auy opinion touching the questions made. The libel will be dismissed, and a decree to that effect will be entered during my next visit to Detroit in September.
DONOVAN v. A CARGO OF Two HUNDRED AND FORTY TONS Oll' COAL.
(District Court, E. D. New York.
July 25, 1881.)
Where a cargo of coal was transported from Port Johnston, New .Jersey, to New York, an<,l, the boat being sunk at the consignees' dock after arr val, the cargo was abandoned by the consignees to the underwriters, who raised the boat 'and ordered it, with the coal, to Brooklyn for sale to S. & Co., and the master being refused payment of freight by the consignees and S. & Co., who , received it, brought suit therefor and attached the coal in Brooklyn: Held, ! that, the boat not having been abandoned, the contract of affreightment was not terminated by the abandonment of the cargo to the underwriters; alld the subsequent delivery of the coal at another dock was such a performance of the contract as entitled the master to his freight. That, under the custom of' delivery proved, the lien of the master upon the carg-o for his freight was not waived or lost by the delivery to S. & Co. without prepayment of freight, but remained in full force.
J. A. Hyland, for libellant. Ghas. D. Warner, for claimants.
BENEDIOT, D. J. The libellant is entitled to a decree for the freight remaining unpaid. When the boat sank at the dock where the coal wa,s to be delivered, the coal was abandoned to the underwriters by the consignees thereof, but the boat was not abandoned by the boatowner, nor was the possession of the boat surrendered to the party who raised the boat and the coal. By the abandonment of the coal to the underwriters the libellant's contract was not terminated, nor was his right to earn the freight by delivering the coal lost. The subsequent transportation of the coal by the libellant to another dock, designated by the underwriters, and the delivery of the coal in accordance with the direction of the underwriters, was equivalent to a delivery of the coal at the place first selected, and was a performance of the contract set forth in the bill of lading. The coal, when so delivered, was subject to a lien for the freight then unpaid, which might be lost by an unconditional delivery, but in the absence of an nncon· ditional delivery still attached to the coal in the hands of the parties who received it from the vessel. Upon the evidence, and in view of the custom proved, the delivery in this case was not unconditional, and consequently the lien for the freight remained in full force. Let a decree be entered for the amount claimed, with interest and costs.