Erastus Cornelius Benedict.

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

. (page 59 of 80)
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with costs, and that he may have such other relief as in law and justice he may
be entitled to receive.

Burr & Benedict, Proctors.
E. BuKB, Advocate.
{Verification as in No, 1.)



No. 105. — A LIBEL IN REM BY A MASTER AGAINST HIS VESSEL, FOR ADVANCES
TO PAY CHARGES AND LIENS UPON HER.

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 Herman Schultze, master of the schooner Oscar Jones, against
the said schooner, her tackle, apparel, and furniture, and against all persons in-
tervening for their interest, in a cause of conti*act, civil and maritime, alleges
as follows:



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PRACTICAL FORMS. 653

First, That in the month of July, 1848, Mr. F. C. Costanze, of New Orleans,
the then owner of said schooner, employed the libellant to take charge of the
said vessel, as master, on a voyage she was then about to make, and other voy-
ages in search of freight.

Second, That accoi-dingly on or about the first day of July aforesaid, the li-
bellant went on board said vessel as master, and on the sixteenth of July afore-
said sailed from New Orleans to Tarragona, thence- to London, thence to
Newcastle-upon-Tyne, thence to Gibraltar, thence to Malaga, thence back to
Gibraltar again, and thence to the port of New York, where he safely arrived
on or about the twenty-eighth day of April last.

Third, That during the voyages aforesaid, he was obliged, at various times,
to make large advances to and for the said vessel, to enable her to proceed on
her voyage and earn freight, and paid various carpenter^s bills for repairs, and
bought provisions, tackle, apparel, and furniture, for the said vessel, and paid
large sums to the seamen employed on board thereof for their wages, and made
other advances more particularly set forth in the schedule hereto annexed,
amounting, in the whole, to the sum of one thousand nine hundred and nineteen
dollars and fifty-two cents.

Fourth. That the said advances were necessary to enable the said schooner
to prosecute her intended voyage, and earn freight, and were made in ports and
places where the vessel did not belong, and where the owner did not reside,
and were made on the credit of the said vessel, as well as of the owner thereof,
and were to pay charges and demands which were at the time a lien on said
vessel; and by the payment thereof, he became in law subrogated in place of
the parties to whom he made such payments, and became entitled to hold, and
prosecute, and enforce the lien of said demands for his own i*eimburseraent.

Fifth. That there is now due the libellant, from the said vessel, the sum of
four hundred and seventeen dollars and eighty-five cents, for his said advances
over and above all just deductions, and the said schooner is now in the port of
New York.

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

Wherefore the libellant prays that process in due form of law, according to
the course and practice of this H(morable Court in cases of admiralty and
maritime jurisdiction, may issue against the said schooner, her tackle, apparel,
and furniture, and that all persons having any interest therein may be cited to
appear and answer upon oath, all and singular the matters aforesaid, and that
this Honoi-able Court would be pleased to decree the payment of the amount
due to the libellant in the premises, with costs, and that the said vessel may be
condemned and sold to pay the same, and that the libellant may have such other
relief as in law and justice he may be entitled to receive.

C. L. Benedict, Proctor for Libellant.
E. C. Benedict, Advocate.
{Verification as in No, 1.)

SCHEDULE.

Payments and advances hy Herman Schultzej master of the schooner Oscar Jones,

for and on account of said vessel and owners.
3 bbls. potatoes in Mississippi, . . . . . . $ 7 50

Discharging cargo in Tarragona, . . . . . . 30 50



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554



APPENDIX.



Paid charges and consular fees, .

Carpenter's bills,

Block and hulk for heaving down,

Galley and forecastle scuttle,

Blacksmith's bill,

Tinsmith's bill,

I^abor for heaving down, .

Warps and running ropes,

I*aid ship-chandler.

Do. do., ....

Paints, oil, varnish, rosin, and sulphur,

300 lbs. salt meat.

Stevedore's bill,

1 basket raisins.

Etc., etc.





$112 54


.


. 186 6t»




12 80


,


. 26 80




7 00


.


9 40




16 00


.


. 12 00




172 00


.


. 14 10




42 00


.


. 30 00




29 20





1 00



No. 106. — Libel in rem by the owneb of a steameb, against a canal boat,

FOB TOWING HEB.

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

States, for the Southern District of New York.

The libel and complaint of Reuben Smith, Jr., and Philemon H. Smith, owners
of the American vessel known as the steamboat Metamora, whereof said P. H.
Smith is master, against the canal boat W. Amott, her tackle, apparel, and fur-
niture, now in this district, and against all pei*sons lawfully intervening for their
interest, in a cause of conti'act, civil and maritime, alleges as follows:

First. That the said libellants were, and now are, the owners of the American
steamer Metamora, and that, at the instance and request of one Captain Best,
master and owner of said canal boat, the said steamer towed the said canal boat
from the port of Albany to the port of New York, between the ninth and elev-
enth days of November, 1846; and by agreement with the said Captain Best,
they were to receive for the towing the said canal boat the sum of twenty dol-
lars; and the said canal boat is now in the Southern District of New York; and
the* said libellants have demanded the said twenty doUars, and the said captain
has refused to pay the same.

Second. That all and singular the premises are true, and within the admiralty
and maritime jurisdiction of the United States and of this Honoi-able Court.

Wherefore tlie libellant prays, that process in due form of law, according to
the course of this Honorable Court, in cases of admiralty and maritime juris-
diction, may issue against said vessel, her tackle, apparel, and furniture, and
that all persons having any interest therein may be cited to appear and to an-
swer all and singular the matters hereinbefore set forth, and that this Honorable
Court would be pleased to decree the payment of said sum, with costs, and that
said canal boat may be condemned and sold to pay the same, and that the libel-
lant may have such other and further relief in the premises as in law and justice
he may be entitled to receive.

Wm. Jay Haskett, Proctor for Libellants.
R. Scott, Advocate.

(Verification as in No, 1.)



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PRACTICAL FORMS. 555

KO. 107.'A LIBEL IN PEB80NAM BY THE OWNBB OF A WHABF AND A 8TOBE,
AGAINST A MASTER FOB WHABF AGE AND STOBAGE.

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

States for the Southern District of New York.

The libel of Daniel Jones, of the city of New York, meixihant, against Asa
White, master of the ship Ajax, of Bristol, England, in a cause of contract, civil
and maritime, alleges as follows:

First, That the libellant is the owner of a wharf in the city of New York,
and is entitled to recover wharfage from all vessels lying at said wharf. That
on the tenth day of November last, the said Asa White placed the said ship Ajax
at the wharf of the libellant, where she remained for the period of ninety-one
days, for which the libel. ant is entitled to receive the sum of one hundred and
eighty-two dollars, which the said master has refused to pay.

Second. That the libellant is also the owner of a store-house in the city of
New York, and that said roaster stored in said store-house at the usual rates of
storage, the sails and rigging of the said ship while the said ship was undergo-
ing repairs, and the libellant is entitled to receive for such storage the sum of
twenty-one dollai*s, which the said master has refused to pay.

Third. 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 in due form of law, accord-
ing to the course of this Honorable Court in causes of admiralty and mari-
time jurisdiction, may issue against the said Asa White, master, as aforesaid,
and that he may be required to answer on oath this libel and the matters herein
contained, and that this Honorable Court will be pleased to decree to the libel-
lant the payment of said wharfage and said storage, amounting to two hundred
and three dollars, with interest and costs, and that he may have such other and
furtlier relief as in law and justice he may be entitled to receive.

A. B., Proctor.
C. D., Advocate.
{Verification as in No. 1.)



No. 108. — Libel against ship and ownebs, by a passengbb, fob a viola-
tion OF contbact.

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 Elon C. Galusha, against the ship Pacific, her tackle, apparel,
and furniture, and against H. J. Xibbetts, master and part owner, and Frederick
Griffing, the other part owner of the said ship, and all persons lawfully inter-
vening for their interest in the said ship, her tackle, apparel, and furniture, in
a cause of contract, civil and maritime, alleges as follows:

First, That the said ship at the several times hereinafter stated has been and
is yet lying in this port bound on a distant voyage around Cape Horn to Cali-
fornia. And the said H. J. Tibbetts and Frederick Griffing were and are the
sole owners of the said ship, her tackle, apparel, and furniture, and are about to
sail in said ship on such voyage, and the said H. J. Tibbetts was and is the mas-
ter of said ship; and that the said owners and master employed Joseph Kissain
as their agent to obtain passengers for the said ship in such voyage, and other-
wise to act for them as their agent in respect to the said ship.



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5o6 APPEXDIX.

Second. That the libellant and other persons having seen that the saiil ship
was advertised to sail for California, and being desirous to go to that place with
dispatch, they either in person or through their agent or agents, applied to the
said Joseph Kissam for information in regard to the terms and accommodations
of the said ship, and also as to the time of her sailing from this port, where-
upon the said Joseph Kissam, so acting as agent for the ship, then and there
represented and stated to the said libellant, or his agents, that the said vessel
was of the very best class and condition, and a fast sailer, and in order that the
cabin passengers might have all the comfort desired and plenty of space for ex-
ercise and air, that the said owners engaged not to take more than fifty cabin
passengers, and that the passage money by reason thereof would be three hun-
dred dollars a passenger, instead of two hundred and fifty dollars, the usual
charge for such a voyage; whereupon the name of the libellant or his agent was
left and taken, and a refusal or option given to him to go in such vessel upon
such terms. That shortly tliereafter, the libellant or his agent again called,
whereupon the said Kissam represented to him that another party called the
** Morgan party," had taken twenty-six berths (meaning had engaged passage
for twenty-six persons), and that there were other persons speaking for the re-
mainder of the bertlis, and if the libellant and his friends desired passages they
must engage the same without delay.

Third. That the libellant or his agents after seeing the said agent, examined
the ship, found the said Tibbetts, the captain and part owner, went on boai*d the
said vessel with him, and thereupon the said captain and part owner exhibited
to the libellant or his agents, parts of the vessel between the decks, where state
rooms and sepai'ate apartments for each two passengei-s were about to be hastily
prepai'ed, the vessel having a small cabin as a freighting vessel, and thereupon
the said captain and part owner represented and stated to the libellant or his
agents, that accommodation would be prepared for fifty passengers, and that
tlie passengers should not be crowded, and he marked out and represented to
the said libellant or his agents where the said state rooms were to be, and the
size of the same, and certain spaces which were to be left between the same for
air and exercise, and represented that such state rooms were to consist of a
range of separate apartments on each side of the said vessel, each of which
was to be at least six feet square, well lighted, and ventilated, and between the
same an open space or hall was to be left for ventilation and for promenade.
That he also marked and showed the libellant or his agents, how and where the
bulkhead was to be built, separating the cabin from the steerage, and that only
fifty cabin passengei-s were to be taken, and that such passengera should have
an equal and impartial chance of drawing for berths, which were also to be
made so nearly equal in accommodation as to aflford but little, if any, choice.
And that the said master and owners would not take freight to the inconvep-
ience of the passengei*s, and that the said vessel would sail on or about the
fifth day of January, 1849, and that in consequence of the pressure of passen-
gers, it was necessary for the libellant to engage his passage without delay.

Fourth. That relying upon such representations and other like deceptive and
imfair representations, this libellant proceeded to enter his name at $300 for a
passage, and it being thereupon represented to the libellant that he must ac-
tually pay his passage money to insure his passage, that such was the custom,
and that many others had paid, the libellant or his agents, shortly afterwards,
and on or about the second day of January instant, paid to the said owners or



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PRACTICAL FORMS. 557

their agents, the sum of three hundred dollars, as and for the passage money
in advance as a cabin passenger.

Fyth, That the libellant, being a resident of Lockport, in this State, relying
upon the representations aforesaid, prepared himself at much expense for such
contemplated voyage; and after being so prepared, was in attendance in this
city at the time appointed for the departure of the said vessel, and has been
subjected to inconvenience, expense, and risk of loss, besides the loss of his time
by the delay of the said vessel; and since his arrival at this port he has ascer-
tained, and alleges to be the fact, that the said owners have broken their posi-
tive agreement with the libellant in various particulars; and that the represen-
tations aforesaid were deceptive, and calculated and intended to induce the li-
bellant and others to pay or deposit their money as aforesaid, at a high price,
and then to deprive them of the means of redress; relying upon the known
anxiety of the said libellant and others to proceed without delay, to induce them
to overlook the many variations from and neglects of the matter so represent-
ed to the libellant. That the said owners have made and fitted up in the ship
aforesaid, between decks (calling it a cabin), a number of berths and pretended
state rooms, or separate divisions, greater than the number so represented, and
have filled up therewith the entire centre part of the vessel, which was to have
been left open, preventing ventilation, and rendering them close, confined, and
imhealthy, and have engaged to take and transport in and on board of the said
vessel as cabin passengers, seventy-two persons, rendering it uncomfortable and
unsafe for the libellant to proceed in such vessel upon the said voyage. And
many of said passengers, and who are represented to have paid, or to have en-
gaged berths at three hundred dollars each, have been in pai*t permitted to
become passengers paying or engaging to pay for such passages only $275,
which circumstance of itself has contributed to crowd the vessel, and is con-
trsLTj to the engagement made with the libellant or his agent, and the said
vessel has also been over-crowded with cargo, and the passengers greatly incon-
venienced thereby.

Sixth. That the libellant or his agents, and various others of the said passen-
gers, on discovery of tlie matter, have demanded a i-eturn of the said passage
money paid by them respectively, on failure to obtain a compliance with the
representations and engagements aforesaid, but the same has been refused.
That the libellant is unwilling to go in said vessel under such circumstances,
and has sustained and will sustain damages, as he believes, beyond the amount
of said passage money, to the amount of one thousand dollars.

Seventh. That all and singular the premises are true, and within the admi-
ralty and maritime jurisdiction of the United States and of this Honorable
Court.

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 juiis-
diction, may issue against the said ship, her tackle, apparel, and furniture, and
that the said H. J. Tibbetts and Fredei*ick Griffing, and all persons claiming
any right, title, or interest in the said ship, may be cited to appear and answer
upon oath all and singular the matters aforesaid, and that the court will be
pleased to decree the return of said passage money, with interest and costs, and
payment of the diimages aforesaid; and that the libellant may have such other
and further relief as in law and justice he is entitled .to receive; and that tlie



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6.58 APPENDIX.

said ship, her tackle, apparel, and furniture, may be condemned and sold to pay
the libellanf s demands.

E. H. Owen, Proctor for Libellant.

F. B. OiTTTiNG, Advocate.
{Verification as in No. 1.)



No. 100. — A LIBEL IN REM BY A PASSENGER AGAINST A SHIP, FOB DAMAGES
IN NOT BEING SUPPLIED WITH PROVISIONS.

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

States for the Southern Distinct of New York.

The libel of Peter McDonald, of the city of New York, who prosecutes for
himself and on behalf of his wife, Alicia McDonald, and also his children, Mar-
tin McDonald, James McDonald, Alicia McDonald, Margaret MDonald, and
Catherine M* Donald, who are all infants under the age of twenty-one years,
who were late passengers on board the British vessel known as the Aberfoyle,
of Liverpool, whereof Thomas Jones was master, against the said vessel, her
tackle, apparel, and furniture, and against all persons lawfully intervening for
tlieir interest therein, in a cause of damage, civil and maritime, alleges as
follows:

First. That in the month of December, in the year one thousand eight hun-
dred and forty-six, the said vessel, whereof the said Thomas Jones was master,
being at the port of Liverpool, in England, destined on a voyage from thence
to the port of New York, the said libellants embarked on board of said vessel,
as passengers, and paid tlieir freight from the said port of Liverpool to the
said port of New York, and the agreement under which tlie said libellants em-
barked as passengers on board the said vessel was in substance as follows: —
That in consideration of the sum of twenty-two pounds sterling paid, the said
libellant and his family were to be provided with a steerage passage from Liv-
erpool to New York, in the ship Aberfoyle, with not less than ten cubic feet
for l.uggage for each adult, and that three quarts of water per day, during said
voyage, should be furnished to each adult; and that there should be furnished
to each of said libellants to be computed as adults, per week, during said voy-
age, seven pounds of bread biscuit, flour, oatmeal, or rice, or a proportionate
quantity of potatoes (five pounds of potatoes being computed as equal to one
pound of the other articles), one-half of the quantity to be biscuit, to be issued
not less often than twice a week, two children under fourteen years of age, and
over one year, being computed as one adult; and the libellants state that they
are all statute adults excepting the libellants, Ann McDonald, Maria McDonald,
Alicia McDonald, Margaret McDonald, and Catherine McDonald, who are all
over one year and under fourteen years of age.

Second. That said voyage commenced about the twenty-sixth day of Decem-
ber last and continued for about sixty-nine days, when the said vessel anived
at the said port of New York, where she now is. That shortly after the sailing
of the said Vessel, he, tlie said Thomas Jones, by himself or his agents, on the
high seas, withheld from and refused to furnish to the said libellant and his
family the said water and the said provisions so as aforesaid by the said agree-
ment to be furnished, whereby the said libellant and his family, during the
said voyage or passage us aforesaid, suffered great want, hunger, and thirst,
and starvation, to the great injury of the health and deprivation of the comfort



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PRACTICAL FonMS- 559

of the libellant and his family, and the libellant claims five hundred dollars
damages.

Third. 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 libellants pray, that process in due form of law, according to
the course of this Honorable Court in cases of admii-alty and maritime jurisdic-
tion, may issue against the said vessel, her tackle, apparel, and furniture; and
that all persons having any interest therein may be cited to appear and answer
all and singular the matters hereinbefore set forth ; and that this Honorable
Court would be pleased to decree payment of the damages aforesaid, with
costs, and that the said vessel may be condemned and sold to pay the same,
and that the libellant may have such other and further relief in the premises as
in law and justice he may be entitled to receive.

William M. Allkn, Proctor for Libellants.
Horace Dresser, Advocate.
{Verification as in No. 1.)



No. 110. — Libel in personam by a female passenger against the mas-
ter OF A vessel, for INSULT AND INDECENCY.

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 J. E., now a resident of the city and county of New York, late

a passenger on board the ship whereof I B , also of the

city of New York, now is, or late was, master and part owner, against the said
I B , In a cause of damage, civil and maritime, alleges as follows:

First. That on or about the fourth day of September, one thousand eight
hundred and forty-eight, this libellant being in the port of Liverpool, in the
United Kingdom of Great Britain and Ireland, and wishing to embark for the
United States of America, made application to the said I B , then com-
manding the American packet ship then lying In said port, for a
cabin passage to the port of New York, and thereupon engaged such passage,
paying therefor the sum of £31 lOs. for a cabin passage for herself and child,
that being the highest price for the first class of passengers.

Second. That said B told this libellant, at the time of engaging such

passage, that he was a married man, that one of his sons was to accompany
him on the voyage, and that this libellant should receive from him every
fatherly care, attention, and protection, and should be under his especial
charge.

Third. That said ship left said port of Liverpool on or about the seventh day
of said September, and on the morning of the ninth of said month, while this
libellant was asleep In the state room allotted to her (there being no key to the

door of the same), said captain B entered said state room, awoke this

libellant out of her sleep, and made Indecent and Insulting proposals to this

libellant, and upon this libellant ordering said B out of her said room,

said B threatened that if this libellant revealed to the other passengei-s

what had passed he would denounce her as a whore, and used other Indecent
and vulgar expressions to her. That this libellant afterwards, and in the courae

of about three hours after such occurrence, requested said B to provide a

key for said state room door, which he refused to do.



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660 APPENDIX.

Fourth, That for several days in succession after the last-mentioned occur-



Online LibraryErastus Cornelius BenedictThe American admiralty, its jurisdiction and practice, with practical forms and directions → online text (page 59 of 80)