Bftl'obtaiiied in botnoases,equity will furrlish a method t09nable pmy'to obtain a ,The onlydisadvantage to the defendant is that hetwilHose t1)eright,to insist upon a bond if his suit is in .per8anam. But this result would be wrought oy a ru1e which was not intended in such a case to secure to a defendant that right. The motion to the !order requiring a bond, and staying libela,nt's is allowed., ,'
THE: STROMA. l ,i
',,, ' ' j',
,
Oourt, S. D. New York. May 15, 1890.) TO VESSEL FROM
A wharfinger is not liable for injuries occasioned to avessel, while mooring, by 'reall!m1i:lfrecent obstructions in the water along-side the ao(lk caused by the 81nk. , !ing" ¢ a ,4redge, the circumstances are: as well known to the agents of the vesse! as, to the wharftllger, and they, and not the wharfinger, undertake to dock the Wip in a manner to avoid the apprehended obstructiolUlo' , 'i"
OFWlIAJU'INGBB.
In Adttliralty. ButZer,Btillman & H1JlJbard, for libelant. C<ntd.erl 'Br08., for respondent.
"'The 'libelant, as owner 'of the steam'ar Stroma, seeks to recover ;diiipages by the steamer while moor,ad" along-side, the respondent'spiei'at Coloa; Panama, on DecemberSl; '18SS. With the fall of the tide the steamer settled upon the point of a spindle, which was the upperen<J of a attached to a sunken: dredge., The spindle steam:er'lfi3lde as her ,to fill with water and sink. been and to the' Gourt, No case {s cited, however, in,'\Yhich aWharfillger :been held un..,. der like nor does the case seem to me to fall on ""h,i?h,wharfingers ,are held They are bound to Care and ,dihgence as to the safety of theIr ships that come to theirwhtirves on theirinvitation shall not be'damaged byunsus'pected obstructibns; and, indase of danger, to give due noticll thereof. In .the present case the dredge had in the slip,severlU 'Qefore. " Mr:Andrews, the ldcal agent of the steamer, 'saw sink., Froili the Strdrriawent along-'side at theph:ir, vesselbad beellpermitted ,by the ent tog6 '1:,6 the pier on that side of the slip. ' Work was ,prpceeding for the removal, of the dredge,.and, several. buoys had been set to' ihdicate plice of its severa] parf.l3. Mr. Andrews' was iii the' 'immediate
no
the
;
"
-j-'
·
JReported by Edward G.Benedict, Esq., of the' New York bar.
,.;
TBEBTROMA.
vicinity, and he could not have failed to observe that no had been moored on that side of the slip since the dredge sank. There is some difference in the accounts given hy him and by Mr. Abello, the respondent's agent, as to the couv,ersation, between them in reference to the Stroma's coming to the dock. There is no question, however, that the pri vilege for her to, do so was sought by Mr., Andrews, and that he proposed that she'shou:ld go to the seaward end of the dock. Mr. Abello and testifies that he first declined permission 9n account of the: that Mr. Andrewsthen proposed to go outside of the wreck, to'which Mr. ,AbellQ says he finally assented. It is not necessary to determine whether either is exact as to the precise ;Jailguage used' in this conversation; but it is, clear that each had practically the same means of knowledge, and that each had substantially the same knowledge about the place of the wreck, the buoys placed there, and the liability to danger. The case is not, therefore, one of a vessel coming to a usual wharf without notice or suspicion of danger, nor of the opening of a wharf for the public accommodation, with the implied inviv. Ma.yor, 30 Fed. tation to vessels to use it as a safe place. Rep. 456; Smith v. Havemeyer, 36 Fed. Rep. 927; The C. P. Harris, 33 Fed. Rep. 295; The Moorcock, 14 Prob. Div. 64-70. Mr. Andrews knew of the obstruction of the dredge sunk in that immediate vicinity. The permission given;, whatever the exact words used, was a permission to moor outside ,of the sunken wreck, and Mr. Andrews could not have understood it otherwise. As I have said, Mr. andrews had the same placed knoWledge as Mr. Abello where the wreck was, and of the there. It was he, not the respondent or its agents, that undertook to put the ship in position, and did so; and the risk of so placing the steamer as to be outside of 'the wreck was therefore assumed by the libelant, and not by the respondent. There was no concealment and no misrepresentation and' no negligence on the part of the respondent; nor did they have any hand in mooring the steamer where she was placed. Mr. Andrews had all the notice that was needed, or that could have been given, by the nature of the permission obtained, by having seen the dredge sink, and by the exclamations of caution given by those on the dock in reference to the buoys and the sunken dredge at the very time when the steamer was approaching and taking her position. Under such circumstances, the grounds of the wharfinger's liability fail, and the libel should therefore be dismissed, with costs.
J'EDERAr;' REPOnrnR;
vol. 42.
THE SEMINOLE. 1 FARNHAM
v.
THE SEMINOLE.
(District Oourt· .E. D. New York. May 22,1890.) 1. MA.BI'ftHE LIEN-WAIVER-LACHES.
In Admiralty. . On exceptions to libel for wages. Charles E. Le Bar-Mer; for libelant. Albert A. Wray, for claimant. BENEDICT, J. This is an action to enforce n lien upon the sharpie 'Semin()le for wages asserted to have been earned by tbe libelant, under the employment of one William Leonard, as pilot and ship-keeper from the 5th dayof July, 1889, to the 25th day,Pf January, To this JibEd theelaimant has excepted upon the ground, among others, that the claim onhe libelant is stale. Certain facts judicially known to the court seem to require a dismissal of the libel upon the ground above stated, such facts compp,lling that the libelant, by delay under the circumstances, has ",aived any lien that he may have had upon the sharpie for the services set forth in the ,Iibel. The facts referred to are as follows: The sharpie Seminole was 111 the custody of the .marshal of thisdistrict froril Jarmary 17, 1890, to March 28, 1890, in an action of pdssessioll,whefein the question arose whether one Wmiam Leonard, thislibel as owner of ,the sharpie, and employer of ope Lynch,'Yas entitled t6 the possession of the sharpie. On the. trialof the present libelant.was a witness in court, and of the controversy involved in the action, iU:id of its result, and the fact that the sharpie ":3,S in thecl,lstody of the marshal in that action. A decree was entered in the action on the 21st day of March, 1890; and on the 28th day of March, 1890, in pursuance of the decree in that action, the sharpie was delivered by the marshal to the custody of Lynch. The libelant, although now claiming to have then had a lien upon the sharpie, held his claim back until after the delivery of the sharpie to Lynch in pursuance of the decree of this court in the possessory action. But, as soon as the sharpie was so delivered, he filed this libel, and caused her to be seized again. I entertain no doubt that he should be held, by his delay under such circumstances, to lReported by Edward G. Benedict, Esq., of the New York bar.