622
FEDERAL REPORTER,
vol. 38.
that iIi civile,Ruses in admiralty the rules of practice of the district court for that district !tre adopted as rules of practice in the circuit court; and by rule 21 ofth'6 rul'escii this court it is provided that in civil causes in admiralty the ttrlesof the district' court for the Southern district of New York are adopted aerules of practice in this court. The proposed order to show cause catmotbegranted, nor can the motion covered by it' be entertained.
HARRI8t?.T;HE RUBY.
(Diatrict, O()1Wt,,:p.
April 6, 1889.) . '" '.'
. ' At 'a'sale in admiralty proceedings. advertised to take place at the front . ,: entrance to the custom-house. the officer stood in the open door of the front " elltl\ance part ,of the time, so\tp.at persons inside 'the hallway. and outside the buildingl cQuld hear him qry the ,sale. Many. if not all. the persons at the .) .. 'sal,e Were in the hail. The froil'li (foor was closed'partof the time. About 80 persons attended. and tbel'e' were ,several bids commencing at $800. the high, est bid below the value Qfthe property. Hela, that these facts did not ,shOw the,82/,le to have been irregular, so as to require it to be set' aside. ' : ' " 'I.' BY PROCTOR., ," The sale having been llIade to the proctor of the libelant. tbe fact that it was for less than the value of ,tna property is not su:fIlcient to req\lire that h be set aside on libelant's "
1.
In'Admiralty.
On motion to set aside sale·. W. H. McDcmald, for the motion. John IVe8;, opposed.' ',;
., i NELSON, J; A petition arid ,aMompanying Ilffidl'lvits are med by George J!arrls,)ibelont, to set aside Ii Bille of the steamer Ruby, made in adtniraIty The boat was sold under the adtniralty rules, on ,theallplication of the same and other parties interested. The sale ';(rasddly advertised, and the time designated waS February 14, 1889, at :10 A.M:; and'the place fixed "at the front entratice of the United States in: the city ofSt. Paul." The bont was knocked down to for the sum of $600, he being bidder,. About"SO attended the sale, and there were BEl,veral bids commencing at $300., The officer who acted as auctioneer 'stbod10 the open door-way at the front entrance part of the time, so that inside of the hallwa)7tllld dn the outsirleof the building could hear him cry the !lale; and manybfthepersons; if the sale, were'in 'tlle 'hallway··,., dodr leading to the street was BomethriesClosed;but. :Was npt shut qy the officer having charge of the salE\. Ample opporttinity'wl1s givenfol' competition of bidders by crying oUt
THE RUBY.
bids and delay before closing the sale. The petitioner charges (1) fraud in the sale, and collusion between the mar,shal. the purchaser and the government inspector of steiwi-boaiS, lmd that 'the purchase price was not paid over;. (2) il)adequacy of prici3 for whicp the vessel sold; (3) that the sale was 'not made at the place designated in the notice, but at a secluded phtce inside of the custom-house; (4}tbat thepurcMl!er WllS l.beattorney of the libelant, who applied to have the boats6ld, and oould'not buy. The charges of fraud and collusion areabandon¢d,' and on th:ehel¢llg it appeared that the purchase price was paid over." While courts will give stability to j udioialsales, and at the same tiJrte, as fat aspbssible, protect theri'ghts of the owner,of property anq 'other 'parties price. is not alone suffioient to set;aside a sale, unless it is so great as to be evidence of fraud or unfairness. If the officer who made the sale depllrted from .hi$ dqty, :which: Diay ,prove injurious to the rights of the owner, and ,fpe ,purchase price is inadequate, a resale would be ordered. The law,however,is,\that the officer did his duty, and sold the boat according to the notice, and e.vid.. .... ..?f. ;tY"t.o ,. . clear a C01,1r, wip jale.: sqldformuch less ,tqap. 5 :is; .fn the sale:,; p"lac;e; ders, atid ltwasa publ}c place·. The 1U ,cry'mg . ,p . ... qt.h .. a.rti.as
. g . p J,. ,'.t.p. . m. e.·. a.qh.. fro.ntofOor'.. "R . ..a.r.,.to. .d . . 8.a1 e, : and shows b,idders.: ';Vas nqt a but mthe ,:presenceof.about ,l!s ,'bIdders Although made in I)ftbe '. sembled in'the hall, with the, front doqr t? the 'c?rQit' fpf .,set' 1 "w a sale p.ot at" ",ery. i t4e is regarded a · Freem:':Ex'ns, §Z89.' ....." " ·. ' . . , " '..:, , it .the ,tlpe potper1lllt the t() stand.. Ip. 2 >B. 407. the purchase by an attorney whowas lnstftllllei,ltalm. p,rOCUf,lqg )he good to 'f agfliPf3tthe , tice." Such 18 not the modern doctrlJ;le. ·The rule now IS that sllah the attorney, tf at a should scrtitiny" into anything which,mi,ght aife<,:t the fairness or: UiP.A, thorough ill vestigatioJ,1 in:' t¥is qase , nothing ,from the fact'that the .boat than its of th(l parties ,tItatis :Motion'to set' aSIde !mle ".. ' . >" '" ,
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'624
(FEDERAL REPORTER,
MCCREERY t1. THE JESSIE RUSSELL.
(tJiairict Court, "
n. New Jer861/.
April 9, 1889.)
CoLLISION-STEA.1\{· AND SAILING VESSEL.
Thl! lighter BarbaraiWas coming down the North river, her salls filled from the. starboard side, intending to as near the Battery as was safe, and into the East river. A tug and sloop were discovered pointing up the river and towards the New York shore. Just before the collisionthe sloop starboarded herhel1Jl togo a\;Jout, and struck .the tug, which, to .avoid damage, went ahe.ad at full speed, and struck the lighter in her starboard bow, sinking her. Tbe'lighterw9uldhave cleared the sloop. Held that, as all the lighter had to do was: to hold her course, the tug was liable for the collision.
In Admihulty. Libel for damages. Hyland Jc'Zabriskie, for libelant. ' John, 'GriJfi/Il" for respondent. , WALlis,"J, On the morning 'of 2, 1888, at about 9 o'c1ock,a Collision o<:icn'rredbetween the lighter Barbara and the tug Jessie RusselI; iti'the'North river, feet off pier 1. The lighter was' comingdown; 'the from" pier 42, b.ound for the foot of Eighty-Sixth street, East'riyer. The tide was slack, and the wind a good sailnorth-east. The sails of the lighter were filled fl'oI,n ing breeze fro1n the starboard side, her captain intending to go as near the Battery as safetyw61l1qpermit in passing round into the Eastriver. When off atug arid a sloop a little below pier 1, on a course pier 8 he pointing UP' to\yar<1sthe New York shore. ,Just before .the collision thE! tug,' in seeking for a tow. had gone. so near to the sloop that when the latter starbOll.rdedher helm to goaQout, her bowsprit scraped the starboard side of the tug which, to avoid further damage, started ahead at full speed, and had hardly cleared the sloop before she ran into thd'starboard' bow of the lighter stem on, and sank her in, a few n1inutes. : ,The positions of the vessels 8.£ter the collision show that the lighterwotild ha'ye cleared the sloop. The excuse made by the owner ·of the tug is that ifshe had not the lighter would have run down the sloop(,biit this unusual defense. if true, cannot justify the neglect of "he tug to keep away from the course of a sailing vessel, when by not doing so there wquld be danger of'collision. The proof is conclusive that thecdtirsEfonl1'e lighter was not' changed, and her captain says th,at, to his h:earil'ess to the pier just before the collision, it could not .. have been:itlteredwithout risk. The Sloop had. <ieclined. services of the tug, and, whatever might have been the imininence orihe danger to the sloop, it cannot extenuate the fault of the tug in causing the collision. The want of II special lookout stationed forward on the lighter could not have contributed to the accident, as the captain had an unobstructed view of the movements of the other vessels, and had noth. ing to do but to hold his course. Let a decree be entered for the libelant, with an order of reference to ascertain the damages.