Erastus Cornelius Benedict.

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

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John Schimmel and William Bliss, composing the firm of Boulton, Bliss & Dal-
lett, have lately appealed to the United States Circuit Court of Appeals for the
Second Circuit, from a decree lately rendered by the District Court of the
United States for the Southern District of New York, awarding said Israel J.
Merritt and Israel J. Merritt, Jr., as salvors, the sum of thirty-three thousand
five hundred dollars for their salvage services to the said steamship Venezuela,
her tackle, etc., and her cargo, and have filed the security required by law:

Therefore, you are hereby cited to appear before the United States Circuit
Court of Appeals for the Second Circuit, at the city of New York, on the 28th
day of June next, to do and receive what may appertain to justice to be done
in the premises.

Given under my hand, at the city of New York, on the 81 st day of May, in
the year one thousand eight hundred and ninety-two, and of the Independence
of the United States the one hundred and sixteenth.

E. HbNBY LACOliBB,

Judge of the United States Circuit Court of Appeals.

Service of foregoing citation is hereby admitted this 1st day of June, 1892.

Benedict <& Benedict,

Proctors for Libellants.



No. 231. — Clebk's cebtificatb to apostles.

United States qf America, Southern District cf New Tark.

Robebt Sinqlehxtbst et al, Libellants,

vs.

La Compaqnie Genebale Tbansatlantiqub,

Respondent.

I, Samuel H. Lyman, Clerk of the District Court of the United States of
America for the Southern District of New York, do hereby certify that the
foregoing is a correct transcript of the record of the District Court in the above



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PBAOTIGAL FOBMS. 688

entitled cause, made up pursuant to Rule No. 52 in Admiralty of the United
States Supreme Court.

In testimony whereof. I have caused the seal of the said court to be hereunto

affixed, at the city of New York, in the Southern District of New York, this

day of October, in the year of our Lord one tliousand eight liundred and

ninety-one, and of the Independence of the said United States the one hundred

and sixteenth.

Sami«. H. Lyman,
[seal] Clerk.

No. 232.— KOTICB OF APPEABANOB IN THE APPEIXATE COUBT.

United States Circuit Court of Appeals for the Second Circuit.

A. B. and C. D.,

Libellants and Appellants,

vs.

The Baio Extra, heb tackle, etc.

E. F., Claimant and Appellee.

The clerk will enter my appearance for the above named claimant and
appellee.

L. M.

{This must be signed by a member of the Bar qf this Court, Individual^ and not
firm names must be signed.)



No. 233.— Notice op motion fob mandate.
United Staten Circuit Court qf Appeals for the Second Circuit.

A. B. AND C. D.,

Libellants and Appellants,

vs.

The Brig Extra, heb Tackle, ETa
£. F., Claimant and Appellee.
Gentlemen: — Please take notice that we shall present the proposed order and
mandate, of which a copy is herewith served upon you, to this court, for the set-
tlement thereof on the 27th day of April, 1893, at the opening of the court, or as
soon thereafter as counsel can be heard. *
Dated New York, April 25, 1893. Yours, etc.,

A. & B.,
Proctors for Claimant and Appellee.
To C. & D.,

Libellant*s Proctoi-s.



No. 234. — Obdeb fob Mandate.

At a stated term of the United States Circuit Court of Appeals for the Second
Circuit held at the Court Boom in the Federal Building in the City of New York
on the 27th day of April, 1893,—

Present:— Hon. William J. Wallace,
Hon. E. Henry Lacombe,
Hon. Nathaniel Shipman,

Circuit Judges.



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634 APPENDIX

A. B. AKD C. D.,

Libellants and Appellants,

vs.

The Bbig Extra, her Tackle, etc.
£. F., Claimant and Appellee.

This cause having come on to be heard on the appeal of the claimant herein
from a final decree of the District Court of the United States for the Southern
District of New York, entered Apiil 20, 1892, and having been argued and sub-
mitted, and due deliberation having been had, now on motion of A. and B., ap-
pellee^s proctora, it is ordered, adjudged and decreed that the said decree of tiie
said District Court be and the same is hereby affirmed, with interest and cost^
and tliat a mandate issue from this court to said District Court herein in the
form hereto attached.



No. 235,— Mandate.

United States of America^ ss.

The President of the United States of America, to the Hon-
orable the Judge of the Distiict Court of the United States for
the Southern District of New York, Greeting: Whereas, lately
[seal] in the District Court of the United States for the Southern

District of New York, before you, in a cause between Fred-
erick W. Yanderbllt, libellant and appellee, and the steam
yacht Conqueror, etc., her engines, etc., J. Sloat Fassett, claim-
ant and appellant, the decree of the said court is in the words and figures fol-
lowing, viz.:

** This cause having been heard on the pleadings and proofs of the parties, and
having been argued by the advocates for the respective parties hereto, and the
court being of the opinion that the libellant is entitled to a decree for the pos-
session of the said steam yacht Conqueror, her tackle, apparel and furniture;
and that the possession of the said yacht be restored to the libellant and that
the libellant recover from the i*espondent, J. Sloat Fassett, the damages which
he has suffered by reason of the matters set forth in the libel, together with the
costs and expenses of this suit, to be taxed, and an order having been made by
the court directing that the libellant*s damages be assessed by S. H. Lyman,
United States Commissioner, who was therein directed to report his conclusions
with the evidence to this court and that the entry of a final decree herein be
stayed till the coming in of the report; and the said commissioner having re-
ported his conclusions with the evidence to the court, whereby it appears that
the libellant^ s damages amounted to the sum of $20,854.47, and exceptions hav-
ing been filed to the said report by the respondent; and said exceptions having
been heard by this court, and the court having overruled said exceptions, except
certain thereof of the items of damages objected to in the exceptions so sus-
tained, amounting in all to the sum of $162.31, which sum the court directed
should be deducted from the amount of damages assessed by the said conunis-
sioner: Now, on moUon of Root A Clarke, proctors for the libellant, it is

** Ordered, that the sum of $162.31 be deducted from the said sum of $20,854.47,
the amount of the libellant* s damages so reported by the said commissioner, and
that the said repoi't, as so modified, be and the same is hereby in all things con-
firmed; and it is further



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PRACTICAL FORMS. 635

•* Ordered, adjudged and decreed that the libellant, Frederick W. Vanderbilt,
is entitled to and that he have and is truly given full and complete possession
and control of said steam yacht Conqueror, her tackle, apparel and furniture,
and that the said yacht, her tackle, apparel and furniture, be delivered to the
libellant; and it is further

'* Ordered, adjudged and decreed that the libellant, Frederick W. Vanderbilt,
recover from the respondent, J. Sloat Fassett the sum of $20,692.16, his damages,
together with interest on the sum of $19,646.76 from the 21st day of June, 1892,
the date of the entry of this decree, such interest amounting to the sum of $91.68,
together with the sum of $958.50, the amount of the libellant' s costs as taxed,
together amounting to the sum of $21,742.34; and it is further

** Ordered, adjudged and decreed, that unless an appeal be taken by the said
J. Sloat Fassett from this decree within the time limited and prescribed there-
for, tlie libellant*s stipulation, filed in the clerk's office of this coui*t, on the 4th
day of February, 1892, be cancelled.

[Signed] "Addison Browk."

— as by the inspection of the transcript of the record of the said Court, which
was brought into the United States Circuit Court of Appeals for the Second Cir-
cuit, by virtue of an appeal agreeably to the act of Congress in such case made
and provided, fully and at large appears;

And whereas, in the present term of October, in the year of our Lord one thoa-
sand eight hundred and ninety-two, the said cause came on to be heard before
the said United States Circuit Court of Appeals for the Second Circuit, on the
said transcript of record, and was argued by counsel :

On consideration whereof, it is now here by the court ordered, adjudged and
decreed that the said decree of the said District Court be and the same is hereby
in all things affirmed, with costs to the said Frederick W. Vanderbilt, libellant
and appellee, taxed at the sum of $75.84 by the clerk of this Court, and to be re-
covered by said appellee in said District Court.

Tou, therefore, are hereby commanded that such further proceedings be had
in said cause, as accoi*ding to right and justice, and the laws of the United States,
ought to be had, the said appeal notwithstanding.

Witness the Honorable Melville W. Fuller, Chief Justice of the Supreme
Court of the United States, the seventh day of June, in the year of our Lord one
thousand eight hundred and ninety-three.

Costs of Appellee. > John A. Shields,

Clerk $12.65 Clerk of the United States Circuit Court

Printing Record . . 37.91 of Appeals for the Second Circuit.

Attorney 25.00

Notary 38



$75.84



No. 286. — Order on mandate.

District Court of the United States for the Southern District of New York.

Frederick W. Vanderbilt "j

vs, I

The Steam Yacht Conqueror, her r

Tackle, etc., and J. Sloat Fassett. J

The proctors for the libellant having this day (June 13, 1893) presented to this
(^ourt the mandate of the United States Circuit Court of Appeals for the Second



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636 APPENDIX.

Oircuitf wherein it is recited that the decree of this Court in this cause having
been brought by an appeal into the said Circuit Court of Appes^ and that on
consideration thereof it has been ordered, adjudged and decreed by siud Court
in the words and figures following, namely:

** It is now here by the Court ordered, adjudged and decreed that the said de-
cree of said District Court be and the same hereby is in all things affirmed, with
costs to the said Frederick W. Yanderbilt, libellant and appellee, taxed at the
sum of $75.84 by the clerk of this Court, and to be recovered by said appellee
in said District Court."

— and in and by which mandate this Court is commanded that such further pro-
ceedings be had in this cause as according to right and justice and the laws of
the United States ought to be had, the said appeal notwithstanding:

Now therefore, on motion of Root & Clarke, proctors for the libellant, no ob-
jection being made by the District Attorney, proctor for the claimant and re-
spondent, it is ordered, adjudged and decreed:

I. That the said mandate be filed.

II. That the judgment of the said Circuit Court of Appeals recited in said
mandate be and the same hereby is made the judgment of this Court.

lU. That in addition to the sum specified in the decree of this Couii; so af-
firmed as aforesaid to be recovered by the libellant Frederick W. Vanderbilt, as
damages and costs from the respondent, J. Sloat Fassett, the said Yanderbilt do
recover from the said Fassett the further sum of $75.84, said Vanderbilt's costs
upon the said appeal as taxed.

IV. That the stipulation for libellant's costs in this cause, filed and recorded
on or about September 1st, 1891, be canceled of record, and that the stipulators
therein, F. W. Vanderbilt and Edward H. Wales, be and they are hereby re-
leased and exonerated from all liability on said stipulation.

V. That the stipulation for value, filed and recorded by the libellant herein
on or about February 4tb, 1892, be canceled of record, and that the stipulators
therein, F. W. Vanderbilt and Chauncey M. Depew, be and they are hereby re-
leased and exonerated from all liability on said stipulation.

Addison Bbowk.



No. 237. — Obder on mandate.

At a stated term of the District Court of the United States for the Southern
District of New York, held at the Court Room in the Federal Building in the
city of New York, on the 3d day of May, 1892.

Present: Hon. Addison Bbown, District Judge.

A. B. AND CD. ^

V8. I

The Bbio Extra, her Tackle, bto. r

E. F., Claimant J

The claimant of the brig Extra having heretofore appealed to the United
States Circuit Court of Appeals for the Second Circuit from a decree of this
court entered herein April 29, 1892, condemning said claimant and his stipula-
tors in the sum of one thousand and forty-six 81-100 dollars, and the said Cir-
cuit Court of Appeals having heard the said appeal and affirmed the said decree
of this court, with interest and the costs of said Circuit Court of Appeals taxed
at the sum of seventy-five 62-100 dollars, as appears from the mandate of said



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PRACTICAL FORMS. 637

Circuit Court of Appeals, duly filed with this court: Now, on motion of C. <& D.,
proctors for libellants, it is

Ordered, adjudged and decreed by the court that the libellants above named
recover of the claimants herein and their stipulators the sum of one thousand
one hundred and eighty-five 71-100 dollars, their damages and costs as above
set forth, and it is further

Ordered that the stipulators for value and for claimant's costs and the stipu-
lators on appeal do cause the engagement of their stipulations to be performed,
' or show cause within four days, or on the first day of jurisdiction thereafter, why
execution should not issue against them, their goods, chattels and lands, ac-
cording to their said stipulations.



LIMITATION OF LIABILITY.
No. 288.— Libel askiko appbaisal.

To the Honorable Addison Brown, Judge of the District Court of the United

States for the Southern District of New York.

The libel and petition of A. B., owner of the schooner' Hattie L., her tackle,
apparel and furniture, in.a cause of limitation of liability, civil and maritime,
alleges as follows:

First That the libellant is, and was at the time hereinafter mentioned, sole
owner of the American schooner, Hattie L., which said schooner is now lying
in the port of New York, and within the jurisdiction of this Honorable Court.

Second. That on the 4th day of May, 1893, the said vessel left the port of New
York, with a cai*go of lumber, bound to Carthagena, South America. At the
time of leaving New York, she was properly manned and equipped, and had a
full complement of officers and seamen aboard, and was in all respects staunch
and seaworthy.

Third. While on the said voyage, and about ten o'clock in the morning, of the
20th of May, the said schooner was off the coast of the Carol inas. A dense fog
prevailed, and the schooner was sailing close-hauled on a south course, under
easy sail, and not making more than three knots through the water. The wind
at the time was about southeast by east. The master was at the wheel, a com-
petent seaman was forward on the lookout, and the schooner's mechanical fog
horn was being blown at the intervals required by law. Suddenly the loom of a
vessel was seen about a point on the schooner's port bow, and almost immedi-
ately afterwards, there came in sight the French bark Helene, bound from
Havre to Charleston, S. C, sailing free on a course of about west, and moving
through the water at the rate of about eight knots. The helm of the schooner
. was at once put hard down, to ease as much as possible the blow of the collision
which was seen to be inevitable, but the schooner's bow struck the starboard
side of the bark, inflicting such injuries that the bark sank shortly afterwards,
some of her crew being drowned, and others injured. Petitioner's said schoon-
er was also severely damaged in the said collision, her bows being stove in, her
head gear carried away, and her foretopmast broken, notwithstanding which
injuries, she succeeding in reaching the port of Charleston, where temporary
repairs were put upon her, and she was towed back to the port of New York,
arriving here on the 0th day of June.

Fourth. On information and belief, petitioner avers that the value of the said



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638 APPENDIX.

schooner, after the said collision, and before being repaired, at the close of said
voyage, did not exceed the sum of five thousand dollars, and that the pending
freight did not exceed five hundred dollars.

Fifth. Tlie said collision was in no wise caused by fault on the part of the
said schooner, her master, officers, or crew, but solely by reason of the negli-
gence of those on board of, and in charge of, the said bark, Helene, in that,
though sailing free, she did not keep out of the way of the schooner, which
was close hauled; in that she was proceeding at an immoderate rate of speed in
a dense fog; in tliat she was not sounding a mechanical fog horn, as required by
law; in that she had no proper lookout, and in other respects, which will be
shown on tlie trial of this cause.

Sixth. The said collision happened, and the loss, damage and injury above re-
ferred to, were done, occasioned and incurred, without fault on the part of peti-
tioner, and without his privity or knowledge. Nevertheless, certain libels have
been filed against the said schooner, by reason of the said collision and accident,
and an action at law has been commenced against your petitioner, the following
being a list of such proceedings:

(a) An action at law, brought in the Supreme Court of the State of New York,
against petitioner, by one J. N., whose residence is unknown to petitioner, and
who claims to recover for personal injuHes received. in said collision. The at-
torneys for said plaintiff are C. <fe D., £sqs., of No. Broadway, and the
amount of damages claimed in the complaint, is $10,000.

(6) A suit in admiralty, brought in the United States District Court for this
District, by E. F. & Co., of No. Whitehall St, New York, in rem against

said schooner, claiming to recover for damages sustained by the cargo on board
thC'Schooner at the time of the collision. The said schooner has been seized
under process in said action. The proctors for libellants are G. <& H., Esqs., of
No. William St., New York, and the amount claimed in the libel is $1,000.

(c) A suit in admiralty, brought in the United States District Court of this Dis-
trict, by Jean Dupres, as master of the sunken bai*k Helene, on behalf of the own-
ers thereof, against said schooner. The residence of the said master is unknown
to petitioner. The schooner has been seized under process in said action. The
proctors for libellant are I. and J., Esqs., of No. Pine street, New York,

and the amount claimed in the libel is $15,000.

In addition to the above, which are all the claims of which petitioner now has
knowledge, he is in fear that other suits or actions may be brought against him
or the schooner Hattie L. by other parties who may have sustained loss, damage
or injury by reason of the said collision.

And petitioner avers that the amount of the claims in the suits already begun
against petitioner and the said schooner Hattie L. far exceed the value of his
interest in said schooner and her freight pending.

Seventh, Petitioner desii^s to claim the benefits of the provisions of sec-
tions 4283, 4284 and 4285, of the Revised Statutes of the United States, and the
acts amendatory thereof and supplemental thereto. And in this proceeding,
by reason of the facts and circumstances hereinbefore set forth, to contest his
liability and the liability of the said schooner Hattie L. to any extent whatever
for any and all loss, destruction, damage and injury caused by and resulting from
the collision aforesaid.

Eighth. All and singular the premises are true and within the admiralty and
maritime jurisdiction of this Honorable Court



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PRACTICAL FORMS. 689

Wherefore, petitioner prays that this court will cause due appi-aisement to be
had of the amount of the value of his interest in the said schooner Hattie L.,
at the close of said voyage, and her fi*eight then pending, and will make an or-
der for the payment of the same into court, or for the giving of a stipulation,
with sureties, providing for the payment thereof as ordered by the court; that
the court will issue a monition to all persons claiming damages for any and all
loss, destruction, damage or injury caused by or resulting from the collision
aforesaid, citing them to appear before a commissioner to be named by the
court, and make duo proof of their respective claims at or before a certain time
to be fixed by said writ; and also to appear and answer on oath the allegations
of this petition, according to law and the practice of this coui't, and that the
court will issue its injunction restraining the prosecution of the aforesaid ac-
tion of J. N. and the suits of E. F. & Co. and of Jean Dupres, and the com-
mencement and prosecution hereafter of all and any suit or suits, action or
actions, or legal proceeding's of any nature or description whatever, except in
the present proceeding, against petitioner or the schooner Hattie L., in respect
of any claim or claims arising out of said collision; and that the court in this
proceeding will adjudge that petitioner and the said schooner Hattie L. are not,
and neither of them is, liable to any extent for said loss, damage and injury, or
if it shall adjudge that they, or either of them, are liable, then, that the liabil-
ity of petitioner be limited to the amount of the value of his interest in said
schooner and her freight pending at the close of her said voyage; and that the
moneys paid, or secured to be paid as aforesaid, be divided pro rata among such
claimants as may duly prove their claims before the commissioner heretofi)re
referred to, saving to all parties any priority to which they may be legally enti-
tled; and that petitioner may have such other and further relief in the premises
as may be just.

K. «fc L., Proctors for Petitioner.

E., Advocate.
{Verification as in Form No, 1.)



No. 239.— Libel offebing subbendeb and not coin-ESTiNO liability.

To the Honorable Charles L. Benedict, Judge of the District Court of the

United States for the Eastern District of New York.

The libel and petition of the New York and West Indies Trading Company,
in a cause of limitation of liability, alleges as follows:

First, That petitioner is a corporation duly organized under the laws of the
state of New York, and having its principal place of business at the city of
Brooklyn in said state and within the Eastern District of New York, and was
at the time hereinafter mentioned the owner of the American brig called the
Jamaica.

Second. That on the 9th day of November, 1892, the said brig sailed from the
port of New York, having on board a large and valuable miscellaneous cargo,
and bound on a trading voyage to various islands in the West Indies. At the
time of the commencement of said voyage the said brig was stanch and sea-
worthy, with an experienced master and a full crew, and was in all respects
properly manned and equipped for the said voyage.

Third, That the said vessel on the 4th day of November, while in the prose-
cution of her said voyage, encountered a gale, which increased into a hurricane



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640' APPENDIX,

on the 5th of November, and the said brig was on that day driven ashore on
the island of Cuba, where she now lies, practically a total wreck; and petitioner
avers, on information and belief, that her value does not exceed the sum of
$50. Petitioner also avers that, by reason of the destruction of the said vessel,
no freight was earaed on her voyage, and there is now no pending freight,
recovered or recoverable.

Fourth. The said stranding happened, and the loss, damage and injury occa-
sioned thereby was incurred without the privity or knowledge of the peti-
tioner, and without any fault or negligence on its part Nevertheless an action
has been begun against petitioner in the Supreme Court of the State of New
York for Kings County, which is within this district, by Messra. A. L. & Co. of
No. South Street, New York, who were the owners of certain cargo of

said vessel lost in consequence of said stranding, and who claim to recover the
sum of two thousand six hundred and four 63-100 dollars. The attorneys rep-
resenting the above named plaintiffs are A. <& B., £sqs., of No. Wall St,



Online LibraryErastus Cornelius BenedictThe American admiralty, its jurisdiction and practice, with practical forms and directions → online text (page 69 of 80)