Erastus Cornelius Benedict.

The American admiralty, its jurisdiction and practice, with practical forms and directions online

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on the next day of jurisdiction thereafter, then and there to interpose a claim
for the same, and to make their allep'ations in that behalf. And what you
shall have done in the premises do you then and there make return thereof, to-
gether with this writ

Witness, tlie Honorable Samuel R. Betts, Judge of the said court, at the city
of New York, in the Southern District of New York, this 16th day of September,
in the year of our Lord one Uiousand eight hundred and twenty-nine, and of
our independence the fifty-sixth.

Fred. J. Betts, Clerk.
Isaac A. Jounson, Proctor for Libellant.



No. 5. — Notice for publication containing the substance of the libel.
United States qf America^ Southern District of New York, ss.
Whereas a libel has been filed in tlie District Court of the United States for
the Southern District of New York, on the sixteenth day of September, 1829,



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484 APPENDIX.

by Peter Harmony, owner, and Eliphalet Kingsbury, master of the brig Mer-
ced, libellants, against the ship Waterloo, her tackle, apparel, and furniture, and
cargo, alleging, in substance, that on the twenty-seventh day of August last,
said Eliphalet Eingsbuiy, being on a voyage from Havana to Cadiz in the said
brig Merced, discovered and boarded the British ship Waterloo, of London, with
twelve feet of water in her hold, totally dismasted and entirely abandoned by
her captain and crew ; that he found no papers on boai*d of her, but that she had
a full cargo of rum, sugar, and other West India produce on board; that he
thereupon took the said ship in tow, and brought her into the port of New York
on the twelftli day of September instant, her crew being almost worn out with
fatigue, and that they are entitled to a reasonable share of said ship and cai^o
for the salvage thereof: And praying process against said ship and cargo, and
reasonable and proper salvage, and that the said ship, her tackle, apparel, and
furniture, and cargo, may be condemned and sold to pay such salvage, with
costs, charges, and expenses :

Now, thei-efore, in purauance of the monition under the seal of the said court
to me directed and delivered, I do hereby give public notice to all persons
claiming the said ship, her tackle, apparel, and furniture, and cargo, or in any
manner interested therein, that they be and appear before the said District
Court to be held at the city of New York in and for the Southern District of New
York, on the first Tuesday of October next, at eleven o'clock in the forenoon
of that day, (provided the same shall be a day of jurisdiction, otherwise, on the
next day of jurisdiction thereafter,) then and there to interpose their claims,
and to make their allegations in that behalf.

Dated the 16th day of September, 1829.

Thomas Mobbis, U. S. Marshal.

Isaac A. Joknsox, Proctor for Libellants.



No. 6. — The marshal's return to the foregoing writ.
In obedience to the within monition, I attached the vessel and cargo therein
described, on the sixteenth day of September last, and I have given due notice
to all persons claiming the same, that this court will, on the fifth day of October
instant (if that day should be a day of jurisdiction, if not, on the next day of
jurisdiction thereafter), proceed to the trial and condemnation thereof, should
no claim be interposed for the same.
Dated October 5, 1829.

Thomas Morris, U. S. Marshal.



No. 7.— Proclamation on the return of process in rem.
Hear ye I hear ye ! Peter Harmony and Eliphalet Kingsbury against the ship
Waterloo, her tackle, apparel, and furniture, and cargo. All persons who have
any thing to say why the ship Waterloo, her tackle, apparel, and fui-niture, and
cargo, should not be condemned and sold to answer the prayer of the libellants
in this cause, come forward and make your allegations in that behalf.



No. 8. — Order of the court on the return of mesne process in rem.

{Caption as in Form No. 176.)
The marshal having returned, upon the monition in this cause, tliat he had
attached the said ship, her tackle, etc., and cargo, and had given due notice to



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PUACTICAL FORMS. 485

all persons claiming the same, that this court would, on this day, proceed to the
trial and condemnation thereof should no claim be interposed for the same: Now
— On motion of Isaac A. Johnson, proctor for the libellants, proclamation was
made for all persons having anything to say why the said vessel and her cargo
should not be condemned and sold to answer the prayer of the libellants, to
appear: And on like motion, ordered that the defaults of all persons who have
not already filed their claims be entered, and that said vessel, her tackle, etc.,
and cargo be condemned to pay the demands of libellants.



No. 9. — Claim by tuk agents op fobeign undebwriters to vessel and

CARGO, IN CASE OF SALVAGE OF A FOREIGN SHIP.

United Slates District Court for the Southern District qf New York,

In Admiralty.

To the Honorable Samuel R. Betts, Judge of the District Court of the United

States for the Southern District of New York.

The answer and claim of Henry Barclay and George Barclay, of the city of
New York, merchants intervening for the interest of their principals, to the libel
of Peter Harmony and Eliphalet Kingsbury, alleges as follows:

First, That these defendants admit, that on the twenty-seventh day of August
last past, the said Eliphalet Kingsbury was the master of the brig Merced, of
New York, and that he was then in the said brig on a voyage from Havana, in
Cuba, to Cadiz, in Spain; but whether he then discovered a ship dismasted and
apparently deserted, and whether he then hauled up for her and boarded her,
and whether he found the said ship with twelve feet water in her hold, and to-
tally dismasted and entirely abandoned by her captain and crew, and whetlier
the said ship proved to be the British ship Waterloo, of London, and whether
the said Eliplialet Kingsbury found any papers in the said ship or not, these re-
spondents know not, and therefore can neither admit nor deny, but leave the
Same to be proved by the said libellants.

Second. That they admit it to be true, that the said Eliphalet Kingsbiu-y ar-
rived at the port of New York, on the twelfth day of September, in the year of
our Lord one thousand eight hundred and twenty-nine, and tliat he had the ship
Waterloo, of London, in tow, and that the said ship had a full cargo of rum,
sugar, and other West Indian produce on board, and that said ship, when so
brought in, was dismasted and disabled, but whether the crew of the said brig
Merced were or were not almost worn out with fatigue, in pumping out the said
ship, and with other work done on board of her, these respondents know not,
and therefore leave the same to be proved by the said libellants.

Third, That, by a commission, dated the second day of July, in the year of our
Lord one thousand eight hundred and seventeen, and signed by Joseph Maryat,
chairman, and John Bennet, junior, secretary of the committee for managing
the affairs of the underwriters, at Lloyd's, in London, in that part of the United
Kingdom of Great Britain and Ireland called England, these respondents were
appointed to act as agents for the subscribers at Lloyd's, at the port of New
York, and Custom-house district, subject to the instructions in the said com-
mission mentioned: and tliat, by the said instructions, they are, amongst other
things, directed, ** When salvage or remuneration is claimed, for assistance ren-
dered to vessels, to attend the meeting of the commissioners, magistrates, or
otlier i>ersons legally authorized to determine the amount, in order to rebut any



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I



486 APPENDIX.

exaggerated statements on the part of the salvors, by the evidence of the master
and crew: *' and they are likewise authorized and empowered by the said com-
mission to attend to the interests of the subscribers to Lloyd's in general; as by
the said commission now in the possession of these respondents, will more fully
and at large appear, and to which, for greater certainty, these respondents pray
leave to refer.

Fourth, That they are likewise the agents for the underwriters at Liverpool,
in that part of the United Kingdom of Great Britain and Ireland called England;
and for the underwriters in Glasgow, in that part of the United Kingdom of
Great Britain and Ireland, called Scotland, under two several commissions with
the like authority and instructions as mentioned in the said commissions, from
the underwriters, at Lloyd's, in London, aforesaid, as by the said several com-
missions from the underwiiters at Liverpool, and from the underwriters at
Glasgow, reference being thereunto had, will more fully and at large appear, and
to which, for greater certainty, these respondents pray leave to refer.

Fifth. That they have no doubt that the said ship Waterloo, or her cargo, or
both, or some part thereof, were or was insured at some or one of the said places,
by some or all of the underwriters therein, and they have no doubt but that the
said vessel, or her cargo, or both, or some part thereof, have or hath been aban-
doned by the persons interested therein, to the said underwriters, or some or
one of them ; and that the right of ownership in the said ship and cargo, or
both, or some part thei*eof, hath accrued to the said underwiiters or some, or
one of them ; but tliese respondents cannot speak on this point with absolute
certainty, but only to the best of their belief, inasmuch as a sufficient time hath
not elapsed since the twelfth day of September, eighteen hundred and twenty-
nine, when the said ship was as aforesaid brought into the said port of New
York, to communicate the circumstance to the said several insurers or any of
them, and to hear from the said several underwriters, or any of them, on the
same subject.

Sixth, That immediately after the said vessel and her cargo were brought into
the said port of New York, as aforesaid, they wrote to tlie said underwriters at
London, informing them of the circumstances of the case, as far as was known
to these respondents, and requesting information from the said underwriters, of
tlieir rights and interests in and to the said vessel and her cargo, or any part
thereof. That, on the sixteenth day of September, in the year of our Lord 1829,
these respondents received from Tliomas Morris, Esquire, mai-shal of the United
States for this district, a request that tliese respondents would enter the cargo
of the said ship at the custom-house at New York, and would become responsi-
ble for the payment of the duties tliat might be payable to the United States on
the cargo of the said ship. That, in pui-suance thereof, these respondents en-
tered the said cargo, and secured the duties upon the same by bond, conditioned
for the payment of tlie duties to be ascei*tained on the said cargo. That said
duties have since been ascertained, and amount to twenty-one thousand six
hundred and ninety-eight dollars and ninety-one cents, which these respondents
have thereby become liable to pay; also, ceitain foreign duties chargeable on
said ship and cargo, besides custom-house fees and expenses paid by these re-
spondents. And therefore these respondents, on behalf of the said several un-
derwriters, claim the said vessel and cargo, and pray that out of the proceeds
of the sale of the said vessel and cargo, if sold, this court may, in the first place,
order the said amount of duties secured by these respondents, and the said for-



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PRACTICAL FORMS. 487

eign duties and fees, to be paid to these respondents, and that this Honorable;
Court, after hearing proof and decreeing a reasonable salvage, should it seem
proper so to do, may further decree, that the rest, residue, and remainder of tlie
said ship and her caigo, or of the proceeds thereof, should the same be decreed
to be sold, after payment of said amount of duties and fees, and of the salvage,
may be retained in the custody of this Honoi*able Court, for such reasonable time
as may seem proper; wherein the rights and interests of the above-mentioned
underwriters may be ascei*tained; and that this Honorable Court may further
decree, that the said ship and cargo, or the proceeds thereof, or a part thereof,
as proof may be made of interest, may be delivered up to these respondents,
upon due proof being made in manner and form as tliis Honorable Court may
direct, that the said underwriters or any of them have an interest in, and a right
to receive the same or any part thereof.

Robinson & Betts, Proctors for Claimants.

Bevbbly Robinson, Advocate.
( Verification as in Fonn No. 1.)



No. 10. — Stipulation fob costs to be given by the claimant on puttino

IN A CLAIM.

DUtrict Court qf the United States for the Southern District of New York,

StIPULAUION entered INTO PURSUANT TO RULES AND PRACTICE OF THIS CoURT.

Whereas a libel was filed in this court, on the sixteenth day of September, in
the year of our Lord one thousand eight hundred and twenty-nine, by Peter
Harmony, and Eliphalet Kingsbury, against the ship Waterloo, her tackle, ap-
parel, and furniture, and cargo, for the reasons and causes in the said libel men-
tioned, and praying that the same may be condemned, and sold, to answer the
prayer of the libellants;

And whereas, also, a claim has been filed in said cause by Henry Barclay and
George Barclay, and the said claimants and James Jackson, surety, merchant,
residing at No. — St., New York, tlie pai-ties hereto, hereby consenting

that in case of default or contumacy on the part of the claimants or their surety,
execution for the sum of two hundred and fifty dollars may issue against their
goods, chattels, and lands:

Now, therefore, it is hereby stipulated and agreed, for the benefit of whom it
may concern, tliat the stipulators undersigned shall be, and are hereby boimd,
in the sum of two hundred and fifty dollars, conditioned that the claimants
above named, shall pay all costs and expenses which shall be awarded against
them by the final decree of tliis court, or, upon an appeal, by the appellate court.

Taken and acknowledged, this 5th day Henry Barclay.

of October, 1821), before me. , George Barclay.

Fred. J. Betts^ Clerk. James Jackson.



No. 11. — Justification of surety.
Southern District of New York, ss.

James Jackson, of the city of New York, party to the above stipulation, being
duly sworn, says that he resides as above set forth, and that he is worth the sum
of five hundred dollars over and above all his just debts and liabilities.

James Jackson.
Sworn to, this 5th day of October,
1329, before me.

Fred. J. Betts, Clerk.



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488 APPENDIX.

No. 12. — Claim by a foreign covbvtl fob unknown owners in a case of
SAxvAnB of a ship and cabgo of his nation.

District Court qf the United States for the Southern District qf New York.
In Admiralty.
To the Honorable Samuel R. Betts, Judge of the District Court of the United

Stiites for the Southern District of New York.

The claim and answer of James C. Buchanan, His Britannic Majesty's vice-
consul in and for the city and State of New York and Eastern New Jersey, in-
tervening for the interest of the owner or owners of the British ship Waterloo
and her cargo, alleges as follows:

First That the said ship Waterloo is, as alleged in the said libel, and as Uie
said claimant believes to be true, British property; and he believes the cargo of
merchandise alleged to have been found on board of the said ship, to be in like
manner British property: — And as such vice-consul, and in behalf of such Brit-
ish owners as may be entitled to the same, he claims the same as their property.

Second, That as to the facts alleged and set forth in the said libel, the said
claimant neither admits nor denies the same, but leaves the same to be duly
proved to the satisfaction of this court.

And the said claimant prays, on behalf of the owner or owners of the said
ship Waterloo, and her aforesaid cargo, or of any other person or persons whom
the same may concern, that the said ship, her tackle, apparel, and furnitui*e,
and her cargo, aforesaid, may be sold, and out of the proceeds of the sale thei-e-
of, after the payment of all costs and charges incun-ed, that the said libellants,
having duly proved as aforesaid the facts in their said libel set foi*th, may be
allowed and paid such rate and amount of salvage, for their labor and exertions
in bringing the said ship and her aforesaid cargo into this port, as by this court
shall be deemed just and reasonable under the circumstances of the case, and
that the surplus of the said proceeds, after payment of such salvage as afore-
said, may be adjudged and decreed to be paid to the said claimant, on behalf
of the owner or owners of the said ship and her aforesaid cargo, or whomsoever
the same may concern ; or that such other order or decree may be made in re-
lation to the same as this court shall deem proper.

H. <& E. Wilkes, Procts. and Ads. for Claimants.
( Verification as in Form No. 1.)
{Stipulation for Costs^ as ante. No, 10, page 487.)



No. 13. — Claim by the u. s. attorney on behalf of the united states for

forfeiture and for duties in a case of salvage of a foreign ship and

cargo.

District Court of the United States of America for the Southern District qf

New York.

In Admiralty.

To the Honorable Samuel R. Betts, Judge of the District Court of the United

States for the Southern District of New York.

The claim of James A. Hamilton, District Attorney of tlie United States of
America for the Southern District of New York, intervening for the interest of
the said United States, in the said ship called the Waterloo, and her cargo, and



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PRACTICAL FORMS. 489

the answer of the said attorney, on behalf of the said United States, to the libel
of the said Peter Harmony, and Eliphalet Kingsbury, alleges as follows:

FirnL That the said James A. Hamilton, District Attorney of the United
States of An^rica for the Southern District of New York, claims the said ship
Waterloo, together with the cargo of tlie said ship laden on board of her, as
stated and set forth in the said libel, as forfeited to the use of the said United
States for the cause following — to wit, that the said ship Waterloo is a ship or
vessel owned wholly or in part by a subject or subjects of his Britannic majes-
ty, and said ship or vessel, after the thirtietli day of September, one thousand
eight hundred and eighteen, did come and arrive from a port or place in a col-
ony or tenitory of his Britannic majesty, to wit, from the port of Annatto Bay,
in the island of Jamaica, in the West Indies, which said port is and was, at the
time tlie said ship sailed from thence by the ordinary laws of navigation and
trade, closed against vessels owned by citizens of the United States, and that
tlie ports of the United States were, and are closed against the said ship or ves-
sel called the Waterloo, which said ship or vessel being so excluded from the
ports of tlie United States, did enter the same, to wit, the port of New York,
in the Southern District of New York aforesaid, in violation of the acts of the
Congress of the United States, in such cases made and provided. By force and
virtue of tlie acts in such case made and provided, the said ship or vessel, her
tackle, apparel, and furniture, together with the cargo on board of the said
ship or vessel, became and are forfeited to tlie use of the said United States.

Second, That if this Honorable Court shall adjudge and decree that the said
ship or vessel, with her cargo, or either, is not forfeited to the use of the United
States, for the cause aforesaid, the said ship or vessel, together with the cargo
on board of her, is liable to the payment of the duties imposed by the laws of
the United States, on the arrival of the said ship or vessel within the United
States, and on the importation of the cargo of merchandise on board of her, to
wit, rum and sugar of the growth, produce, and manufacture of some foreign
country,^ and which are subject to the payment of duties to the United States,
on being brought or imported into the United States; wlierefore the said attor-
ney, on behalf of the said United States, prays this Honorable Court to decree
the payment of the said duties to the United States according to law, if the said
ship and the cargo on board of her as aforesaid, shall be adjudged not to be for-
feited to the use of .the said United States for the cause aforesaid, and that he
may have his costs, etc. And the said attorney further insists upon and sub-
mits to this Honorable Court the rights and interest of the said United States of
America, in the premises, whatever they may be, to be decreed to them.

James A. Hamilton, Attorney United States, etc.
{The United States does not give a stipulation for costs,)



SPECIAL MOTION— FOR INTERLOCUTORY SALE.
No. 14. — Affidavit of circumstances to move for sale of ship and cargo.
District Court of the United States for the Southern IXistrict qf New York.
Peteb Harmony and Eliphalet
Kingsbury
us.
The ship Waterloo, Ac, and Cargo. .
Southern District of New York, ss,

Peter Harmony, one of the libellants in this cause, being sworn, says — That
the ship Waterloo is now at the whai*f in the port of New York, subject to large



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490 APPENDIX.

and increasing expense for wharfage, keeper's fees, and other expenses. That
she is in a damaged condition, and requires care and repairs. Tliat a large por-
tion of her cargo is perishable, being sugar, and in a wet and damaged condi-
tion. That the only claims that have been interposed are those of the United
Sutes, for a forfeiture and for duties, of the British Consul, for the probable
rights of unknown British owners, and of the agents of the underwriters at
Lloyd's, for the contingent rights of such underwriters. That, in his opinion,
the interests of all parties concerned will be promoted by a speedy judicial sale
of said ship, her tackle, apparel, and furniture, and cargo, the proceeds of such
sale to be brought into court for the benefit of whom it may concern, subject to
the further order of the court.
Sworn Oct. 7, 1829, before me. Peteb Habmont.

Fred. J. Betts, Clerk.



No. 15. — Notice op motion on the fobegoino affidavit.
District Court cf the United States^ Southern District of New York.
Peteb Harmony and Eliphalet
Kingsbury
vs.
The ship Waterloo and Cargo.
Gentlemen: — You will please take notice that, on the libel and claims in this
cause, and on an affidavit, of which the foregoing is a copy, a motion will be
made before liis Honor, Samuel R. Betts, Judge of this coui*t, at his chambers,
No. 6 Pine street, in the city of New York, on Thursday, the 8th day of Octo-
ber, instant, at 11 o'clock in the forenoon of that day, for an order, that the ship
Waterloo and her cargo above mentioned, be sold under the direction of the mar-
shal, and the proceeds brought into court, and for such other and further order
or relief as may be just. Yours, etc.,

Isaac A. Johnson, Proctor for Libellaiits.
New York, 7th Oct, 1829.
To James A. Hamilton, Esq., Proctor for the U. S.

Robinson & Betts, Esqrs., Proctors for the Underwriters, etc.
H. & E. Wilkes, Esqrs., Proctors for the Owners.



No. 16. — Proof of service — admission."
We admit due service of the within notice.

Oct 7th, 1829.

James A. Hamilton, District Attorney.
Robinson & Betts, Pts. for H. Barclay «fe Geo. Barclay.
H. & E. Wilkes, for Bdtish ConsuL
or this :
affidavit of service of process.
Southern District of New York^ ss.

John J. Young, of the city of New York, student at law, being duly sworn,
says, that on the seventh day of October, instant, he served copies of the fore-
going affidavit and notice on James A. Hamilton, Robinson & Betts, and H. <&
E. Wilkes, Esquires, proctors for the claimants in this cause, by leaving the same
in their respective offices, with their clerks.
Sworn Oct 7th, 1829, before me. John J. Youno.

E. C. Benedict, U. S. Commissioner.



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PRACTICAL FORAIS. 491

No. 17. — Obdbb for intbblogutort sale of a ship and cabgo.
(Caption as in Form No, 176.)
Pbtbb HABMOirr and Eliphalbt

KlNGSBimY
V8,

The Srap Watebloo, heb Tackle,
&C.J and Caboo.

On reading and filing the affidavit of Peter Harmony, and the admission of
the proctors for the respective claimants, and on motion of Mr. Johnson, proc-
tor for the libellants, it is ordered, that the ship Waterloo, her tackle, apparel ,



Online LibraryErastus Cornelius BenedictThe American admiralty, its jurisdiction and practice, with practical forms and directions → online text (page 50 of 80)