THE FRED M. LAWRENCE.
THE FRED M. (Circuit Court ot Appeals, Second Circuit. No. 153.
et at May 25, 1899.)
ADMIRALTy-SUIT IN REM-PROCEDURE ON INSOLVENCY LEASE BOND.
In a suit in rem for collision, where the vessel attached had been released on stipulation, on the insolvency of claimant's sureties an order was made pursuant to a rule of court requiring the claimant to furnish additional security, and, on a failure to comply with such order, the claimant's answer was stricken out, and a decree entered pro confesso for an amount ot damages ascertained on a reference by a commissioner. Held. that the striking out of the answer and ,entry of the decree could not be deemed a punishment of the claimant for failure to obey the court's order, but wat a proper procedure to bring to an end a proceel1ing In rem in which, through the fault of the claimant, the libelant had neither the res nor security.
Appeal from the District Court of the United States for the Eastern District of New York.
On September 30, 1893, a libel in rem was filed In the district court for the Eastern district of New York against the canal boat Fred M. Lawrence by the Union Marine Insurance Company to recover damages for a collision, and the vessel was attached, whereupon Elizabeth E. Hickok filed her claim as owner, and the value of the vessel was fixed by consent at $3,400. The said Hickok, Alfred Hamilton, and Edward M. Clarkson entered into a stipulation that, In case of default or contumacy on the part of the claimant or her sureties, exe" cutlon for the agreed value, with interest thereon, might Issue against their goods, chattels, and lands, and the vessel was released. The condition of the stipulation was, in substance, that, If the stipulators should at any time upon the Interlocutory or final order or decree of the district court or appellate court, and upon notice to the proctors for the claimant, pay the money awarded by the final decree. the stipulation should be void. The claimant filed her answer on December 16, 1893. Nothing more was done in the case until April 16, 1898, when a motion was made, which was granted on June 8, 1898, that, by reason of the insolvency of the sureties, the claimant or her sureties should furnish better and sufficient security at a specified time, and, if not furnished, the answer should be deemed stricken out. This order was made by authority of rule 23 of the district court, which was made pursuant to section 913 of the Revised Statutes. Rule 23 is as follows: "In all cases of stipulations in civil and admiralty causes, any party having an interest in the SUbject-matter may at any time, on two days' notice, move the court on special cause shown for greater or better security; and ,any order made thereon may be enforced by attachment or otherwise." The order was not complied with, and on June 2"'th It was ordered that the answer should be deemed stricken out, and that the libel should be taken pro confesso against the claimant and her sureties. and should be referred to a commissioner to report the damages. Counsel for the claimant attended upon the reference and upon the commissioner's report, which found the damage to have been $3,266.39, and the interest thereon to be $970.65. A decree was entered that the libelant recover from the Fred M. Lawrence, the claimant, and the stipulators the amount thus found and costs, and that, unless the decree was satisfied within a specified time, the stipulators for costs Rnd value on the part of the owner show cause within a specified time why execution should not issue against them. From this decree the claimant and the sureties have appealed, upon the ground that the district court was without authority to order that the answer should be stricken out, or that the libel should be taken pro confesso.
Philip Carpenter, for appellee. Before WALLACE, LACOMBE, and
94 FEDERAL REPORTER.
PER CURIAM. It is true that a deprive a defendant of the opportunity to appear, or, after a seasonable appearance, to defend, either as ,a punishment, or because, he may be deemed to have forfeited such rights by aIlY misconduct. In such case, "a sentence of a court pronounced against a party without giving bim an opportunity to be heard is not a judicial determination of his rights." Windsor v. McVeigh, 93 U. S. 274; McVeigh v. U. S. 11 Wall. 259. The power of a court, which can punish for contempt, to strike the answer of a defendant from the files and render judgment against him, because he has been guilty of an aggravatedcontempt of court, was exhaustively examined and was denied in Hovey v. Elliott, 167 U. S. ;109, 17 Sup. Ot. 841. In this case the order that the libel be taken pro confesso was not a punishment, but was an order made upon the default of the claimant and her sureties, and the decree was upon an ascertainment of damages default. This is manifest from the nature of the proceeding and of the stipulation. In a suit in admiralty in rem, the vlpssel, which is, the offending thing, is the defendant. "The distinguishing and characteristic feature of such suit is that the vessel or thing proceeded agaillst is itself seized and impleaded as the defendant. and is judged and sentenced acTaylor, 4 Wall. 411., Throughout the entire cordingly." The proceedings ,she is acting eHhe·r in c;onfo.rmity with the rules of court or is in default. 'When the vesElel, whic.h is in the custody of the, marshal,'" is permitted to be restored, to '" the claimant upon his entering'bite. a stipulation ina,sum equal to the appraised yalue of theprQperty, the stipulation ,"becomes a substitute f.or the thing itself, and, if judgment passes for the libelant, it is entered on the bond or stipulati(;m" and execution issues accordingly," and the stipulat9rsare liable for the consequenceS of a default. IJane v. Townsend! Wa,re, 289,;Fed. Cas. No. 8,054; The Nied Elwin, 1 Dod. 53. The' discharge of the vessel is so absolute that it was held, by Just,ice Nelson that the court cannot order a rearrest when she has, fairly discharged on the customary stipulation (The Union, 4 Blatch!. 90, fed. Cas. No.,,14,346;The White Squall, 4 Blatchf. 103, Fed. Cas. No. 17,570); but the English authorities are not unif()rnion this subject (The Hero, Brown & L. 447; The Freeomu, L.R. ? P. O. 594). Therefore, when the vessel has been discharged, and the stipulation becomes worthless, the libelant is remediless, unless new security can be given; and the power of the district c.ou'rt to make a rule for the relief of libelants who are in this situation cannot be properly questioned. The Virgo, 13 Blatchf. 255, Fed. Cas.}ito. 16,976; The Oity of Hartford, 11 Fed. 89. In pursuance of the rule, an order was made in this case, with the result that the inability of the Claim.ant and sureties to furnish better security was admitted and she was in default. The order for the ascertainment of damages was not a punishment, but was to enable the libelant to bring to an end a proceeding in rem in which, through the default of the claimant, it had neither res nor substitute. The undertaking of the stipulators was to answer for
THE F. W.' DEVOE..
the default of the claimant, and they are liable accordingly. Todd v. The Tulchen. 2 Jj"'ed." 600. The decree of the district court is affirmed, with co'sts.
'. THEF. W. DEVOE.
(District Court, E. D. New York.
COLLISION-NEGLIGENT NAVIGATION OF TUG
June 9, 189.9.)
Laws N. Y. 1897, c. 378, § 879, making it unlawful for vessels to obstruct navigation in the East and Xorth rivers by lying outside the piers, except at their own risk of injury from vessels entering or leaving any adjacent dock or pier, does not afIect the right of a vessel lying beyond the end of a pier to recover for an injury caused by llcollision with it of a passing' tow through the negligent navigation of the tug, which was neither entering nor leaving an adjacent dock.
This was a suit in rem to recover damages for collision. Wilcox, Adams & Green, for libelant. Peter So Carter, for claimant. ' THOMAS, District Judge., At about 7 :15 p. m. on the 5th day of August, 1898, a scow in the tow of the claimant's tug collided with the libelant's lighter, which was lying outside of two other lighters at the endo! pier 8, Brooklyn. For this no sufficient excu.se is offered, and hence the negligence of the tug is established. However, the claimant answers that the lighter was lying off the end of the pier, in violation o-f section 879, c. 378, Laws :N. Y. 1897, which pro-vides:
"It shall noibe lawful for any vessel, canalboat, barge, lighter or tug to obstruct the waters of the harbor by lying at the exterior end of wharves in the waters of the North or East rivers, except at their own risk of injury from vessels ,entering or leaving any adjacent dock or pier; and any vessel, canalboat, barge, lighter or tug so lying shall not be entitled to claim or demand damages for any injury caused by any vessel entering or leaving any adjacent pier."
It does not appear that the claimant's tug or tow was "entering or leaving any adjacent dock or pier," but that the tug had passed the lighter, and that several of the scows in the tow struck the same. The excuse of the master ofihe tug is that he had orders to go to pier 7 to pick up another scow; that in fact the order related to pier 7, New York, instead of pier 7 on the Brooklyn side; and that, to effect his mistaken purpose, it was necessary for the tug with her tow to pass near to, and along the outer end of, pier 8, to pier 7, where the scow lay. The court is disinclined to believe, from the course pursued, that' the tug had any such purpose in view. It was doing nothing that indicated a purpose to enter the slip, and the accident did not happen while it was doing any act within the meaning of the statute. 'i'he claim seems to be that a tug with a tow can navigate the riveralollg the piers, and sweep away all the vessels in its path, at the peril of the destroyed or injured shipping. Such a disreg(trd oJ safety of property will not be sanctioned by this court. Lei a decree be entered for the libelant, with costs.