Erastus Cornelius Benedict.

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

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of heavy freight, and from eight to twelve passengers, who were to be accom-
modated in the manner aforesaid ; also, to furnish a full return cargo of live
oak timber. Second — To pay to the said Walter Carpenter, or his agent, for
the charter or freight of said vessel, duiing the voyage aforesaid, for each pas-
senger, the sum of ten dollars; for the outward freight, nothing; and for the
return cargo, the sums particularly mentioned in the said charter party; and it
was further understood and expressly agi-eed in and by tljc said charter party,
that said vessel should be ready to receive said outward freight, the fourth day
of January, 1841, and should sail on such voyage the seventh day of January,
1841, and that the said charter should commence the fourth day of January,
1841; and that said Walter Carpenter should have the privilege of filling with
freight, for his own special benefit, such part of said vessel as might not be re-
quired by the libellant, on her outward voyage, provided there should be no
detention on that account; and that on the signing of the said charter party,
the libellant should pay the passage money aforesaid, and should advance a
further sum, in all amounting to three hundred and fifty dollars; and to the
true and faithful performance of the said charter party, the said Walter Car-
penter and the libellant, each to the other, bound themselves and their heira,
executors, administrators, and assigns, and also the said vessel, her freight,
tackle, and appurtenances, and the merchandise to be laden on board, in the
penal sum of one thousand dollars.

Second. That at and immediately after the making of the said charter party,
the libellant provided and furnished to the said vessel, for her said outward
voyage, one hundred bai'rels more or less of heavy freight, the same not con-

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546 APPENDIX.

sisting of lime nor of other extra hazardous articles, and also ten passengers, to
be accommodated in the manner provided by said charter party, and paid to
the said Walter Carpenter for each of the said passengers the sum of ten dol-
lars, the same being in advance for their passage money; and did also advance
to the said Walter Carpenter the further sum of two hundred and fifty dollars
an account of the said charter party, and to be deducted from the amount of
freight money, on the return of the said Walter Carpenter to New York, making
in all the sum of three hundred and fifty dollai*s, as required by the said charter
party.

Third. That the libellant has well and tiuly performed and kept all the cove-
nants and undei'takings on his part, in the said charter party to be performed
and kept; but neither the said Walter Carpenter, nor the said vessel, has well
and truly performed and kept tlie covenants and undertakings on the part of
tlie said Walter Carpenter and of the said vessel, according to the said charter
party, to be performed and kept.

Fourth, That after tlie libellant had provided and furnished the said freight
and passengers for the outward voyage aforesaid, and had paid and advanced
the said sums of money, as hereinbefore mentioned, the said Walter Carpenter
did not, nor did the said vessel, sail on the said voyage, on the seventh day of
January, 1841, nor with reasonable dispatch, but, without any just or reason-
able cause, delayed and remained in the port of New York until the nineteenth
day of January, 1841, to the great injury and risk of loss of the libellant

Fifth, That the said Walter Carpenter, under pretence that a part of said ves-
sel was not required by the libellant on her outward voyage, took on board, for his
own special benefit, a large quantity of goods and merchandise other than those
provided and furnished by the libellant; and the whole of the said vessel, with
the exception of the cabin and the necessary room for the accommodation of
the crew, and of the sails, cables, and provisions, was not at the sole use and
disposal of the libellant during the voyage aforesaid.

Sixth, That the said Walter Carpenter detained the said vessel for the purpose
of taking on board of the said vessel, for his own special benefit on her outward
passage, goods and merchandise other than those provided and furnished by
the libellant; and by so taking on board of the said vessel for his own special
benefit, goods and merchandise other than those provided and furnished by the
libellant, impeded her voyage and subjected the vessel to the difficulties which
afterwards occurred.

Seventh, And the libellant further alleges and propounds, that Atachapala
^ay, in the said charter party mentioned, otherwise called Atchafalaya Bay, is
situate on the coast of the State of Louisiana, and the said vessel ought to have
performed her voyage thither from the port of New York in a period of time
not exceeding thirty days from her departure; but that the said Walter Car-
penter and the said vessel left the port of New York on the nineteenth day of
January, 1841 ; and on the fifth day of March, 1841, the said vessel put into tlie
port of Savannah, not having performed one half of her said outward voyage.

Eighth, That the course and conduct of the said Walter Carpenter, and the
management of the said vessel was such, that all the said passengers, furnished
by the libellant as aforesaid, either left the said vessel at Savannah for good
cause, or were discharged by the said Walter Carpenter, who made no ojBfer of
carrying them forward on the said voyage, whereby the libellant was deprived



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PRACTICAL FORMS. 547

of all the gains and advantages which he should, and ought, and would have
obtained from the carriage of the said passengers.

Ninth, That on the arrival of the said vessel at Savannah, and between the
fifth and eleventh of March, 1841, the said Walter Carpenter caused a large part
of tlie goods and merchandise so supplied and put on board of said vessel by the
libellant, to be sold, and received the proceeds thereof, but has not rendered
any account thereof to the libellant, nor paid for tlie same; which goods and
ifterchandise so sold were of the value to the libellant of at least four hundred
dollars.

Tenth. Tliat the said Walter Carpenter, on or about the fifth day of April,
1841, caused other parts of the goods and merchandise so supplied and put on
board of said vessel by the libellant, to be shipped from Savannah to Samuel W.
Dewey, of New York, the agent of said Walter Carpenter, but directed said
agent not to deliver the same to the libellant, except upon the payment of freight,
whereby the libellant is required to pay a large sum as freight, in order to ob-
tain possession of said goods.

Eleventh. That on the arrival of said vessel at Savannah as aforesaid, the said
Walter Carpenter refused to proceed on the said voyage, before January, 1842,
and wholly broke up the said voyage ; nor did he offer to proceed before that
time, nor to carry said passengers or freight; nor did the libellant accept said
goods at that port; nor did the said Walter Carpenter eara any part of the
freight, either for the said passengers or the said goods supplied by the lil>ellant,
nor become entitled to the same; but became and is liable to refund the sum so
paid by the libellant as aforesaid, and also became liable to pay for the said
goods so shipped by the libellant, and also the said sum of one thousand dollars
mentioned and stipulated in the said charter party.

Twe^th, That the said vessel having brought on a cargo from Savannah to
Baltimore, and taken in a cargo at Baltimore, for New York, arrived in the port
of New York, on the nineteenth day of May instant, and neither tlie said Walter
Carpenter, nor any one on his behalf, nor in behalf of the said vessel, has paid
to the libellant any part of the said sum of three hundred and fifty dollars, nor
the said sum of one thousand dollars, or any part thereof, nor any sum whatever
on account of the said charter party, or the damages for the violation thereof,
nor on account of tlie sale and conversion of the articles belonging to the libel-
lant, nor returned said articles to the libellant, nor in any way afforded him any
satisfaction in the premises.

Thirteenth. That all and singular the premises are true, and within the ad-
miralty and maritime juilsdiction of the United States and of this Honorable
Court

Wlierefore the libellant prays that process in due form of law, according to
tlie course of this Honoi*able Court in cases of admiralty and maritime jurisdio-
tion, may issue against the said schooner, William Seymour, her tackle, apparel,
and furniture, and that the said Walter Carpenter, and all other persons having
or pretending to have any interest in the said vessel, may be cited to appear
and answer Uie matters aforesaid, and that this Honorable Court will be pleased
to decree to the libellant such sum for damages for the violation of said charter
party as may be just against the said Walter Carpenter and the said vessel,
with costs, and that the said vessel may be condemned and sold to pay the same,



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548 APPENDIX.

and that the libellant may have such other and further relief in the premises a
in law and justice he may be entitled to receive.

Chables B. Moobb, Proctor for Libellant.

D. £. Wheeler, Advocate.



No. 100. — Jurat by libellant' s pboctor.

Southern District of New York, ««.

Charles B. Moore, of the city of New York, proctor for the libellant in the
foregoing libel, being duly sworn, says — That the said libellant, as deponent is
informed and believes, resides in the District of Columbia, and is now absent
from the State of New York and more than 100 miles from the city of New
York, having been in the State of Louisiana when last heard from. That the
matters set forth in the foregoing libel are derived principally from original
documents; that deponent has read the said libel, and knows the contents there-
of, and that the matters therein stated are true to the best of the knowledge,
information, and belief of tliis deponent.

Chas. B. Moobk.
Sworn to this 20th day of May, 1841,
before me,

Geoboe W. Morton, U. S. Commissioner.



No. 101. — A libel in bem by a seaman, on a whai.ino contract for ins

8HABE OF THE VOYAGE, AND THE EXPENSES OF HIS CUBE, BEING INJUBED IN
THE SEBVICE OF THE SHIP.

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

States for the Southern District of New York.

The libel of George W. Stotesbury, late a seaman on board the ship Atlantic,
whereof Thomas Wilcox now is, or late was, master, against the said ship, her
tackle, apparel, and furniture, in a cause of wages, civil and maritime. And
thereupon the said libellant alleges as follows:

First. That some time in the month of July, one thousand eight hundred and
forty-five, the said ship Atlantic, then lying in the port of New London, and
destined on a three-years whaling voyage to the North- West Coast, the then
master, William Beck, by himself or his agent, hired thi^ libellant as a green
hand on board the said ship for the voyage aforesaid, on the two hundred and
twenty-fifth lay or share of what should be taken, as wages, and tliis libellant
signed the sliipping articles, wherein the contract is fully set forth, and which
he prays may be produced by the said master, as this Honorable Court shall
direct.

Second. That on or about the fourth day of August, one thousand eight hun-
dred and forty-five, this libellant went on board and into the service of the said
vessel as a green hand, and the said ship, with the libellant on board, proceeded
on her intended voyage, and cruised about the Western Islands and other places
for the period of about seven months, when the said ship had arrived at Maui,
in the Sandwich Islands.

Third, That as the said ship was going out of the harbor at Maui, on or about
the sixteenth day of March, one thousand eight hundred and forty-eight, tlie
libellant engaged in the service of said vessel, while doing his duty and obey-



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PRACTICAL FORMS. 649

ing the commands of the master, fell from the main topsail yard, and was so
severely injured that he was taken ashore to the hospital, where he remained
confined to his bed for the space of twenty-one months, or thereabouts.

Fourth, That while this libellantwas so confined in the hospital the said ship
went to the North- West, and cruised thereabouts until the month of November,
one thousand eight hundred and forty-seven, when she started for home, and
on her way touched at Maui on or about the twentieth day of the said month,
and took this libellant on board, and then proceeded directly to the port of New
London, where she arrived on or about the twentieth day of April last, and has
since come to this port, where she now is.

Fifth, That during the said voyage the said ship took a cargo of oil and bono
of great value, being, as the libellant is informed and believes, four thousand
seven hundred barrels of right whale, between forty and fifty barrels of sperm,
and forty-seven thousand pounds of bone; and the libellant claims to be entitled
to demand and have of and from the said ship, her master and owners, his share
or lay of the said cargo, being the two hundred and twenty-fifth part thereof,
worth, as this libellant verily believes, the sum of three hundred dollars and
upwards, which the master and owners of the said ship have hitherto refused
and still refuse to pay, to the great damage of the libellant.

Sixth, That by reason of the injuiies so i-eceived in the service of the said
vessel, as above stated, the libellant has lost the use of one of his legs, and one
of his arms is rendered almost useless, and by reason thereof he has been put to
great expense already for medical advice, and before he can be restored must
undergo an operation involving fui*ther expense to a large amount, and he
claims to be entitled to demand and have of tKe said ship his reasonable ex-
penses already incurred, and hereafter to be incurred, in and about his cure,
and his reasonable support since his said injury, and till he shall be cured.

Seventh, That all and singular the premises are true, and within the admiral-
ty and maritime jurisdiction of this Honorable Court, in verification whereof,
if denied, the libellant craves leave to refer to the depositions and other proofs
to be by him exhibited in this cause.

Wherefore the libellant prays that process in due form of law, according to
the course of this Honorable Court in cases of admiralty and maritime jurisdic-
tion, may issue against the said vessel, her tackle, apparel, and furniture, and
that all persons having or pretending to have any right, title or interest therein,
may be cited to appear and to answer all and singular the matters hereinbefore
set forth, and that this Honorable Court would be pleased to decree the pay-
ment of the wages aforesaid, with costs, and that the libellant may have such
other relief in the premises as in law and justice he may be entitled to receive.

Burr & Benedict, Proctors for Libellant.
Beebb, Advocate.



No. 102.— Jurat by the libellant' s PROcrroR.

Southern DUtrict of New Yorky sa,

Erastus C. Benedict, being duly sworn, says that he is one of the proctors for
the libellant, that the libellant in this cause is absent from this district, and
sick, and deponent is authorized to act for him herein, and that the foregoing
libel is true, according to his information and belief; that the source of deponent's



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550 APPENDIX.

knowledge is information derived from the libellant, which deponent verily be-
lives to be true.

£. C. Bknkdict.
Sworn July 5th, 1848, before me,

Gbobou W. Mobton, U. S. Commissioner.



No. 103. — A LIBEL BY ship's HUSBAND AGAINST THE CHABTEBBB8, FOR

DEMUBBAOE.

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

States for the Southern District of New York.

The libel of Sylvester Baxter, part owner and agent, and ship*8 husband, of
the bark Arethusa, of Barnstable, against David S. Draper and John B. Develin,
merchants composing the firm of Draper & Develin, of the city of New York, in
a cause of contract civil and maritime, alleges as follows:

First. That some time in the month of August, in the year one thousand eight
hundred and forty-seven, the said bark then being in the port of New York, the
said libellant made and concluded with the respondents a charter party, a copy
of which is hereto annexed, beainng date tlie twentieth day of August aforesaid,
by which the libellants, for and in consideration of the covenants and agreements
hereinafter mentioned, to be kept and performed by the said respondents, did
covenant and agi-ee on the freighting and chartering of the said bark unto the
said respondents, for a voyage from New York to Lisbon, Cadiz, Marseilles, or
Trieste— one only — and from the port of dischai'ge to proceed to Palmero and
load back for New York, for the charter money and on the terms and conditions
mentioned in the said charter party.

Second. That, among other things, it was therein and thereby agreed between
the libellant and the respondents, that the respondents should have fifteen lay days
in New York within which to load and dispatchrthe said bark from the port of
New York. And in case the vessel should be longer detained, the said respond-
ents agreed to pay the said libellant demurrage at the rate of thirty-five Spanish
milled dollars per day, for each and every day so detained, provided such deten-
tion should happen by default of the said respondents or their agent. And it was
further understood and agreed that the cargo should be received and delivered
alongside, within reach of the vessel's tackles. And it was therein and thereby
further underatood and agreed that the said charter, and the said fifteen days,
should commence when the said vessel was ready to receive cargo at New York,
her place of loading, and notice thereof given to the said respondent or to their
agent.

Third, That the said bark having been put in readiness to perform the afore-
said voyage, and ready to receive cargo at New York, the said libellant, on the
twenty-third day of August, one thousand eight hundred and foHy-seven, caused
notice thereof to be given to the respondents, pursuant to the terms of the said
charter party. And the said respondents commenced to furnish the cargo. But
notwithstanding such notice was duly given to the respondents, and notwitli-
standing the said bark was, from that time, at the direction and disposal of tlie
said respondents, and notwithstanding there was no fault or remissness on the
part of the libellant, the said respondents, by their own default, did not load
the said bark and give her dispatch from the port of New York within fifteen



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PRACTICAL FORMS. 551

days, but delayed her, contrary to the terms of the said charter party, until the
eleventh day of September thereafter, when she sailed, and the libellant became
thereby entitled to demand from the respondents demurrage for ^ve days, at the
rate of thirty-five Spanish milled dollars per day, amounting to the sum of one
hundred and seventy-five dollars over and above all just deductions.

Fourth. That said vessel well and faithfully performed said voyage, and the
respondents paid the charter money tlierein stipulated except said demurrage.
But notwithstanding the said respondents have been frequently requested to pay
the said sum of one hundred and seventy-five dollars, the demurrage aforesaid,
they have refused, and still refuse, so to do.

F{fth. That all and singular the premises are true, and within the admiralty
and maritime jurisdiction of the United States and of this Honorable Court.

Wherefore the libellant prays that a monition or citation, according to the
course and practice of this Honoi*able Court in admiralty and maritime cases,
may issue against the said respondents, and that they be cited to appear and
answer all and singular the matters aforesaid, and that this Honorable Court
would be pleased to decree the payment of the demurrage aforesaid with costs,
and that the libellant may have such other and further relief as in law and jus-
tice he is entitled to receive.

BiTRB & Benedict, Proctors.
Beebe, Advocate.

{Verification as in No. 95.)



No. 104. — A libel by the owners op a vessel in personam against the

CONSIGNEE OF THE CARGO, FOB UNREASONABLY DETAINING THE VESSEL.

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

Southern District of New York.

The libel of James Sprague, Charles Keen, David Crowell, and Daniel Butler,
owners of the schooner John R. Watson, against J. Selby West, of said district,
coal dealer, in a cause of contract, civil and maritime, alleges as follows:

First, That in the month of December last, the said schooner lying at Phila-
delphia, and destined on a voyage to New York, Richard Jones & Co. shipped
on board the said schooner one hundred and ninety-four tons of coal, or there-
abouts, to be therein carried from Philadelphia to New York, and there deliver-
ed in like good order and condition (the dangers of the sea only excepted), to J.
Selby West, or his assigns, to whom the same belonged, he or they paying
freight for the same, at the rate of ninety cents per ton; and accordingly the
master of said schooner, at Philadelphia, on the fifteenth day of December last,
signed the usual bill of lading, a copy of which is hereto annexed.

Second. That shortly after, the said schooner set sail from Philadelphia, to
New York, with the said coal on board, and there safely arrived on or about the
nineteenth day of December; and on the next day, James Sprague, the master
of said vessel, caused a written notice to be served upon J. Selby West, the con-
signee and owner of the coal, as follows:

New York, Dec. 20th, 1848.
Sir: — ^You will please take notice, that the schooner John R. Watson, under
my command, and loaded with coal consigned to you, was ready to discharge
cargo tliis morning, of which fact you have been duly notified. And you will



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552 APPENDIX.

further take notice, that demurrage will be demanded for every day she is de-
tained.

Yours, etc.,

James Spbagve.
To J. Selby West, Esq.

Third, That the said West accepted the said cargo, and commenced to receive
the said coal, but refused to take it save in very small quantities, and at irregu-
lai* times, capriciously and vexatiously, and when urged and requested to take
the same more expeditiously, replied, that he would take it when it suited him,
and no faster, and would keep the schooner as long as he wanted to, for the cap-
tain could not help himself, and in accordance with such threat, he detained the
said schooner until the fourth day of January, instant, on which day fifty tons
of coal were still on board, and were taken out by him and his agents, and the
schooner completely discharged.

Fourth. That during the whole time the said schooner was so detained, she
was obliged to lie at the foot of Forty-second street, in the North river, that be-
ing the place designated by the bill of lading, in danger of being frozen up and
compelled to winter here, and her whole crew were detained, at the expense of
the vessel, and two extra men and a horse were kept constantly waiting on the
dock during very severe and cold weather, ready to deliver the coal whenever
the said West should take it away. And the said West was often notified by the
master of the said schooner, that said master was constantly ready to deliver
said coal, and that the expense and damage of such detention would be de-
manded of him.

Fifth, That the usual and sufficient time to discharge such a cargo of coal is
four days, and these libellants claim to be entitled to have of the said West the
damages sustained by them by reason of the unjust detention of said vessel be-
yond tliat time, which they allege amounts to the sum of two hundred and
thirty-one dollars and upwards.

Sixth, That all and singular the premises are true, and within the admiralty
and maritime jurisdiction of the United States, and of this Honorable Court.

Wherefore these libellants pray that a monition, in due form of law, ac-
cording to the course of this Honorable Court in admii-alty and maritime
cases, may issue against the said J. Selby West, and that he may be compelled
to answer upon oath, all and singular the mattei-s aforesaid, and that this Hon-
umble Court would be pleased to decree the payment of the damages aforesaid,



Online LibraryErastus Cornelius BenedictThe American admiralty, its jurisdiction and practice, with practical forms and directions → online text (page 58 of 80)