37 F. 159 -

DPTUNE STEAM'lUV.'CO. t1. SULLIVAN TIMBER

co. Co.

159

NEPTUNl!:,STil:AJlNAV.

t:;·,'·'!

Co. v;

SULLIVAN TnfBER

(DiBtriCi' Oourt, B.D. New York.

. AGENT OJ' CORPORATION. '

!!

'1

November 26, 1888.)

BERVICB ON

,

:BE'J)WEElir NON-REsmElirTS -

Admiralty courts have a discretion as to entertaining suits between foreign· ers; and a transaction taking place in Florida, where an:theofficers of defend· ant corporation resided. and the lipelant being an English corporation, held, that no comity or reasons of justice or of superior convenience. so far as 'appeared, demanded relief in this district, and service on a limited agent here was set aside.
! ", ' ' ; ,.: J

"

!' :

In Admiralty:i Motion to set aside service of process on sn alleged agent ofa Florida/corporation. ' Seward, Da COBtd &1 Guthrie; for libelant. L L. LajlinKellogg,for "defendant.
BROWN, J. Upon the language of the marshal's return, stating service only on 'Bailey; as well as qporithe affidavits of Bailey and Carlaq, I cannot·findthlit the citatiori was served up6n Carlan.. Mr. Elliott's'affidavitsnys it, hasli1ways been understood that Carlan was the defendant's 'I managing agent."The ditectory does not indicate Bailey as agent, a.nd the tmrda'ttached to the affidavit does not so represent him. I canfind service on Bailey sufficient. . 'Had CarlnnbeeIi served the question would have been mbre embarrassmg. Underthe New York' Code (secti<ln 1780) it would seem that noeotion 'WOUld Hain the 'present case in the state courts, forboth partries are the cause of action did not arise here, and ,the defendant/ hasin.O property here. ,Courts of admiralty have a discretion as to entertaining suits between foreigpers. This whole dealing being in Florida, where an the officers reside, and the libelant being an F.nglisli ciorporation,110 cotnity, orteasODS of justice orof superior convenience; are'shown 'ro' demanti relief here,when full relief is easy dictibn'where'thetransactionwl:ts had. Besides that,. I doubt if an agent whose authority. is limited· toa distirict branch of business here, represents thecOl'poration as to matters wholly outside of that branch of ness, so that,as respects the latter business ddne elsewhere, he can be held to 'be in: 8.i1ysense such a "mahaging agent" as to'mitke the corporation "found" in his person within this' state. Admirlilty RUles; 2, 8; 25. ' BeaSt;' Glairv. Oox, 106 U. B.350, 356,359, 1 Sup. Ct. Rep. 854; Hat 8we¢ 00. v. Davis, 31 Fed. Rep_ 294. '.
. , " .' , I

"

·. , i

-' I

"

,J; ;,

".

160

"1"

E:EDERAI,

MANHAT,TAN

'Co" Limited,

' .

tl.

MA.'YOR,etc. 1

,',

T"

(District Oourt, S. D. New York. December 11, 1888.)
WHARVES-CONCEALEDOBS'l'RUCTJON.

,!\.

gence.

A wharf-owner is liable for damage caused to a vessel by concealed obstruc: tions which might have been ascertained by the owner with reasonable dlli·

'

In Admirlllty· Libel for damages. WilcOOi, Adams & Macklin, for libelant. ,Henry Beekman, BROWN, J. The liabili ty of the owner of a wharf for damages caused to a by concealed obstructions which ,might have been ·ascertained by the owner by reasonable diligence has been declared as a: rule of law. Christian v. Van Tassel, 12 Fed. Rep. 884. The case of Bmith v. Havemeyer, 32 Fed. Rep. 844, has be\Jnrecently affirmed in the circuit court, reasserting the same doctrine. 36 Fed. Rep. 927. also, TheMoorcock, 13 Prob., .oiv. 157. '" 'l'he was moored oq,; March, 10, 1888, alopg the, bulk-head between the piers off Sixty-First and Sixty-$econd streets, East river, up. On the following morning $e was found sunk. An examination showed that two Or three of her planks were broken on tht) port side, not far from her keel, 'and the adjoining, planks ohafed and rubbed up to the bilge. This was from 15 to 20Jeet aft of the ,stem. Her oaptaip ,estimates that she moored with. her stem about 45 feet below the Sixty-Second str,eet pier., Wh!Jn fOl.},nd sunk, heNtem.lines were broken, and. her bow. swung off a considerable distanoe into deep water. Other evidenoe shows ,that she sank about 3. o'clook A. M" about the time of low water ther,e.Subsequent examination of the bottom showed It bowleJer ata point about 75 feet beJow the street pieri' aneJ froI;n 6 to 8 the bulk-head. oorresponds as nearly as tope expected with mere estimates of the position of the other probable or adequate,oause appears in of, the or for her sinJ.'ing, I must find it to have, been oaused by the bowlder above ;referredto. That was 7.3 feet below the surface at low water. The oanal-boat drew between 8 and 9 feet. Hshe had first sunk from leaking, and then slid ,down the incline against Borne bowlders in the deeper. water .outside, the wound would hlli'Ve been on the side. No, oause for her leaking before bowlder appears, tbe allegation that she was previously in leakycondi. tion not being sustained. .' '. The master of the boat had no notice of any obstruotion in that locality, though he was cautioned to from the and for that reason, as he says, moved his boat oonsiderably downward.' The obstruotion being one that was discoverable by reasonable oare on the defendant's part, the libelant, not being in fault, is entitled to a de<lree, and to an order of referenoe to compute the damages.
'Reported by Edward G. Benedict, Esq., of the New York bar.