ftDERAL REPOll.TER,
vol. 44.
CROSSAN V. WOOD"
(Dlstrtct Ooti,Tt, S. D. New York. November 19,1890.)
WHuns
In a suit against a wharfinger for damages alleged to have been occasioned to a vessel at the wharf by reason of obstruotions under the water, the fact of the existence of such obstructions, and that the damage was occasioned by them, must be clearly proved before the ship-owner can recover.
AND WHARFINGERs-CONCEALED· OBSTRUCTIONS-LIABILITY, TO VESSEL.
In Admiralty. Suit against a wharfinger for damage occasioned to libelant's vessel by reason of alleged obstructions at wharf. Wilcox, Adams &: Macklin, for libelant. R. H. Underhill, for respondent. BROWN, J. On the night of July 21, 1888, the libelant's canal-boat Cora Bell was lying alongside the respondent's coal dock in an arm of Gowanus canal. She was damaged, as the libelant contends, by being caught at the bows, as the tide went down, upon some obstruction consisting of rocks or timbers under the water at the upper end of respondent's dock. The boat had been made fast at high tide early in the evening by three lines, with about three feet slack, as stated by the captain of the boat. The tide fell about five feet. At about 2 o'clock at night, the boat was found to have a list to starboard. The bowline was broken, and the hows somewhat elevated, as the captain says, while the other lines held fast. When the tide rose again, she righted, but leaked badly, and, after the coal was discharged, upon survey, was pronounced so badly sprung and twisted as to be practically of no value. The boat was an old one. 'fhere were heavy piles driven about 10 feet apart in front of the wharf to serve as fenders. Immediately adjacent to the wharf, there was some accumulation of coal dropped in the discharge of vese:;els, and it was usual for boats to breast off from the fenders a foot or two in lying up. The great weight of evidence is to the effect that there were no obstructions at the bow such as the libelant contends were there. The bottom was soft mud, with the exception of a little coal immediately adjacent to the wharf, and vessels of the same draught as the Cora Bell, or of greater draught, were in the habit oflying there, discharging at all times of tide without injury. In all the cases where the dock-oWl:ler has been held liable for obstructions, the primary fact of the existence of the obstructions alleged, and that the damage arose from that cause, has been clearly proved. Manhattan Tmnsp. Co. v. Mayor, elc., 37 Fed. Rep. 160; Smith v. Havemeyer, 32 Fed. Rep. 844, affirmed, 36 Fed. Rep. 927. I cannot find that this has been established in the present case, and, that wanting, no decree can be given for the libelant. The breakinl{ of the bowline is of itself sufficient evidence that sufficient slack was not given in tying up for the night; and, as the other two lines held, that would
lReported by Edward G. Benedict, Esq., of the New York bar.
ROSTRON '0. THE WATER WITCH.
95
seem to account for the list and the consequent injury through the twist and strain resulting to so old a boat. See Nelwn v. Chemical Works, 7 Ben. 87. The libel is dismissed.
ROSTRON
et al.lI.
THE WATER WITCH.
(OtrcuU Court, S. D. New L ADMmALTY-MONITION-DEJ!'AULT.
York.
November 15, 1800.)
B.
Wbere a libel bas been filed. against a vessd, and on the return-day of the monition tile owner of the vessel did not appear, and his default was duly entered in the cause, such default amounts to a formal admission by him of the truth of the .allegations of the libel, and a lien in favor of the libelants attaches to the proceeds of the vessel, which has been sold in the mean time under a decree in a prior suit for seamen's wages. In a contest between the administrator of the owner and libelants, in a suit to recover the amount of a bottomry bond, wbo, by the owner's default, have acquired a lien on the proceeds of the vessel sold in another suit, a letter of the owner, denying the right of t,he master to execute a bond "for so large an amount," is an admission that the master was justified in executing a bottomry bond, and the burden is on the administrator to show that it was for a larger sum than was required by the necessities of the vessel. . Where proctors. who filed a libel 30 years before, apply for the proceeds of .the vessel deposited in the registry of the district court, assuming to act under their original authority, and it is sbown that the sole survivor of the libelants, When last beard from, several years before, was an old man, and "very much of a fioater, " somewhere in Brazil, the proceeds will not be paid over without a further application. by whioh it may be shown that there is some person in existence wbo is legally entitled to receive them. OJ!' VESSEL-PAYMENT OIl' PROCEEDS TO PROCTORS.
SHIPPING-BoTTOMRY BONDS-AUTHORITY OJ!' MASTER.
8.
In Admiralty. Hyland & Zabriskie, for appellants. S. Hanford, for appellee. W ALJ.ACE,J. The question in this case is whether the libelants or Prince, who is administrator of the estate of the former owner of the vessel, is entitled to the sum of 8888.20, deposited in the registry of the district court, arising from a condemnation and sale of the vessel, under a decree in rem at the suit of one Taggert for seamen's wages. In 1859, the libelants filed a libel against the vessel to recover the amount of a bottomry bond, which set forth the bond, and that it was duly executed by the master of the brig at Pernambuco. A monition was duly issued and published, and the vessel was attached; and, upon the return-day of the process, the owner of the vessel did not appear, and his default was duly entered in the minute-book by the clerk of the district court. Within a few days subsequently, the vessel waR sold under the decree in the suit by Taggert, and December 31, 1859, the proceeds of the sale were deposited in the registry. The balance, after payment of Taggert's claim, remained in the registry, and is the money now in controversy. The owner of the vessel died 13 years agoj and in Januar,}', 1889, Prince,