FEDERAL REPORTER.
the List'e'r;B.i!Hbey saw her on the ltiorning of the 3d, and by the prornprness, diligElnce, care, and ability with which they undertook the work ofsalvage;'Th!e -Lockwood was aelrol1g and well-equipped vessel, and in alIprobtibilitywould have succeeded in saving the Lister, if the storm .of the ensui):)g hight had not intervened, as is evident from the fact that the favorably for several hours before the hawsers parted, and the Lockwood was compelled by stress of weather to seek her own safety j after the loss of some of her sails, and the exposure of her mate and the two seamen to serious personal danger. To hold the respondentEl ,to. bl;l trespassers under these circum&tances might establish a dangerous 'precedent, and, should such a rule become generally prevalent, it would prevent sea-faring men in the future from making any effort to rescue distressed vessels, and thus contravene the hitherto settled policy of the law, which has always encouraged salvage services by giving to tbem the most ample rewards. The penalty of total failure in endeavoring to render a salvage service is to forieit all compensation for work and.labor, for risk of life and property, and for detention; and this has been cQnlilidered sufficient to deter strangers from interfering to save property at sea, unless they believed their interference warranted, and that they wopldbe able to render aid. To increase this penalty bya.ddil1g. to iithe .punishment of trespassers,' in a. case like the present one, where the act cOmplained of has been done in good faith. and was bl'lgunwith reasonable expectation of success, would DOt be consistent or good policy. It is unnecessary to consider the defenses of laches on the part of the libelant bringing his suit, and ofwllont of jurisdiction. A decree will be entered disJUissing the libel, with costs.
in
MILLIKEN tI.
THEe. H. NORTHAM·. York. January 9, 1889.)
. (DiBtrict Court,
D.
1.
S.
7 AND 8. The .:N·· overtaki,ng tpe tug L.· with stow. passing around Negro Point in the flood-tide. and a H. W. wind, attempted to pass'the L. to t'he left, after 8 signal of two whistles. wliich she claimed to have been a&sented to by ,8 ,replYQl two. The steamer E. C. W8S 8t the same time ·.approaching near from the opposite direction. having. the right of way on the N.'s port side· · ThE! threll.boats collided. The H:. struck the L,'s port quarter; the L.having vetlred t,Q"JIOrt"het tow struck the E. C.'s port waist. lield, (a) both to blame for vlOlatJDg InSpectors' rules 7 and 8. CQLLTBION-:-0VERTAKrNG AND PASSING VESSELS-INSPECTORS' RULES 8AME-DANGEROUSCIIANNEi."'::'HELL GATE. . ,
sufficient tor. safe navigati.on, and that the N. WIIS to blame for p;oing on faster than thidi. yeforeit·was plain' that the space and the L.'sactual course made it safeto8ttempt to pass her. : 8., 8A.ME:.-.:oCROwDING. .' . .' . . : (c) 'That th.e L. was als9 to blame forstarbollrding probably by mistake;'tllat She was b'olind in any event not to crowd upon the No's coutse,
(b) That :tbe,.place was dailgerous.'p,nd the Passage to the left of the L.not
MILLIKEN
v.
THE Co H. NORTHAM.
..
and that, if slla ha,d with two whistles, she W8.S..bound Jo. go to ,starboard if she could safely do so, there not being sumetent space for the N. to ·pass to the le.ft. . , " 4. SAME-Qus'roM. :' . ". . '., ,. (d) That the oustom, as well as inspecton' rules, required an over,taIting v.essel topaBs to the right. , '. ..
In.Admiralty. Libel for damages caused by a collision between the steamer c. H. and the tug Levering 'while rounding Negro Point, near Hell Gate. . , A.B. Stewart, for libelant. TViUiam J. .Kelly, for claimant BROWN, J, The Levering, in .approaching and going around Negro Point to tb,e, eastward, the right of way as respects the NorthalD' which was overtaking her. The Northam twice gave a signal of two and hearing, as, her witnesses claim, a reply of two frQ.lll the Levering, being previously sloweddown, she started\lp to pass the Lev, eringto the left, betweenJler and Ward's island. The witnesses for the .;Levering say that they give any signal of two ,pnly signal .of three 'The weight ,of (lvidence, signal of.tllree whistles \Vas.given when the Northam waS very near, Certliinly iiotover a length 'distant. The Levering was not more thap Ij."om 200 to4QQ feet frQm Ward's islllnd, and the steamer Elm !It .the same the eastward and had the rightQf way along the Ward's shorA. I think it certain that the under wo1,1,ld not have started up to pass between, the Levering ,and the ;Elm Oity, unless her officers ,heard, or thought they hearQ, frotQ the Leveri;nga sigilal ,of two whistles, whentheyw,ere at :,l{Jast cQnsiderably further distant than at the time when s.ignal, of whistlEll:l was; given; many witnesses testify that the. Levering did give w:I,epravious signaloftwowhistles. Eveq, however, ifthisfilignal was given by the Levering, that WOllld not,of itself, e"Northam for the subsequent collision in. a The ,Gre,e.npoir,tt",.81l!'ed. Rep. 23L Both were to blame for violating the 7 and 8. The [)entz,29 Fed. Rep. 529. ", At ,the ,time of t,he collision the boats were all very, close nellr , the shore. The Levering was hit on her port quarter theNQq;llam, and round so much that the barge on. her starboaj."d side the. Elm" Oity. The Le"ering tllen backed, passed on between the other two. , , ; ',;", , 'l'he tide was strong flood; and to the eastward of Negro Point there was a counter-eddy near the north shore. The proof, however, does not satisfy me that that eddy extends so far off from the shore as to have caused the bow of the Levering to swing to port, as all the evidence shows that it did; or that it was the Northam's blow that carried the Levering's bow so far round towards shore that her tow struck the Elm City. 0011sidering, therefore, the distance of the Levering from the Ward's island shore at the time of the Northam's second signal of two whistles, I am
240
forced to the conclusion that the Leyering did not keep her course, as she might and should have done; but by some mistake starboarded her wheel, as several of the witnesses for the Northam testity that they saw she did, instead of keeping it steady, or porting. Although this did not probably affect her actual position in the river but little before the collision, it was a fault, whether she had given a signal of two whistles or not. H such a signal was given by the Levering, then it became her duty to port her wheel, if there was not sufficient room already for the Northam to pass safely to port, provided the Levering could port without any danger to herself. The Dentz, 29 Fed. Rep: 525, 529. In this court the Dentz was held liable, because it was considered that the Plymouth Rock had not sufficient room, and because the Dentz, after assenting to her passing, did not aid her as she might have done. In the circuit it was considered that the Plymouth Rock did have sufficient room, and she was therefore held solely liable. See The Britannia, 34 Fed. Rep. 5,58. The Northam, however, is not, I think, free from blame in attempting to pass inside of the Levering around Negro Point on the strong flood. The place is a dangerous one. Both the tide and the north-west wind tended to set vessels upon: the rocks on the opposite side. All naturally wished to keep towards the Wind's island shore, and the tug could not safely have veered much to starboard. With the large steamer Elm City coming west, the inside of the Levering was very narrow at best. The Northam, even 'upona signal of two whistles. and an answer of two whistles, had no right to demand that the Levering should veer to starboard for the Northam's benefit, to her own danger. There was no difficulty in the Northam keeping slowed down until Negro Point and the Elm City were both passed., She ought to have waited, and not gone forward in a dangerous place at a greater speed than the Levering, until at least the opening and the actual course of the Levering gave clearly sufficient space to pass safely. She did not do so, but went in on too narrow a margin for safe navigation. The Aurania, 29 Fed. Rep. 98. " The supervisirig inspectors' rules 7 and 8 virtually forbid passing at all at this point. Ith,ad previously been always held dangerous and blamable, (The Narragart$ett, 5 Ben. 255, and cases cited;) Dnd the weight of proof shows that if a steamer is to pass there another steamer that is on the north side Of the channel, as the Levering was, she must go to starboard in accordanCe with rule 8. Both, being; therefore, to blame, the libelant is entitled to a decree for half the damages and costs, with a reference to compute the amount, if they not agreed on.
LILIENTHAL V. WAI,LACH.
LILIENTHAL V.
W ALLACH
al.
«(Ji'I'cuit Court, S. D. New York. Ja,:quary 8,1889.) Upon proceedings supplementary to execution. although a third party. having propertl of the judgment debtor which the third party claims as his own, may be pUDlshed for contempt in disposing of it, where his claim appears from the evidence to be so transparent a sham as not to constitute a 'substantial dispute" as to title. under section 2447 of the New York: Code of Procedure. yet the court will hesitate to adjudge summarily a considerable demand upon a motion for contempt; and in this case. a denial of the motion was directed. provided the claimant deposited the proceeds or gave security for the payment of whatever might be recovered in an action to be brought by the r,eceiver of the judgment debtor against him. .' (Syllabus by the Court.) ExECUTION-SUPPLEMENTARY PROCEEDINGS-CONTEMPT-SECURITY.
In Equity. Motion in supplementary proceedings to punish for con. tempt. Frank E. BlachveU, for plaintiff. Louis .O. Van DMen aud Oharles Donohue, for defendants. BROWN, J. Section 2447 of the New York Code of Procedure permits the judge upon supplementary proceedings to order a third person having property or Jl10ney of the judgment debtor to payor deliver the same to.the of the judgment debtor, unless the right to the same is "substanti81ly disputed." By a substantial dispute I understand some bona fide controversy. It cannot include a mere colorfible dispute, signed only to render the law ineffective, and to defeat the direct remedy which the proceedings supplementary to execution are designed to afford. In this case the evidence leaves no doubt that the day before the supplementary order was served on Drucklieb he had 24 cases of goods longing to the judgment debtor. On that day a bill of sale was executed and delivered, antedated to the 1st August the judgment debtor's attorney in fact, whereby this property and other property were conveyed to Drucklieb in consideration of $100. Drucklieb testifies that an additional consideration was the cancellation of an indebtedness to him for previous commissions amountilig to about $2,000. Even this exphmatioh does not make the consideration one-fifth of the valUe of the property transferred. Without going into the numerous details, the whole history of ,the transaction is such that if the court were to pass upon the evidence presented it would not hesitate to consider the alleged sale a transparent sham. It has not the appearance of even a colorable bona fide claim, on the part of Drucklieb; and in this view the court would be justified in treating the case as not one of "substantial dispute" within the meaning of section 2447. So great, however, is my reluctance to pass summarily upon a question of this kind, involving so considerable an amount, upon a motion to punish for contempt, that I shall decline to grant the motion, provided the defendant, within a time to be determined on Bettlement of the order herein, shall either deposit in court. v.37F.no.6-16