Erastus Cornelius Benedict.

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

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New York. Other claims have been made against the petitioner to recover for
loss, etc., of cargo, which are as follows, and which are all the claims known to
petitioner:

C. D. & Co., No. Broad Street, $ 201 36

E. F. & Co., No, Wall Street, 461 27

E. S., No. Maiden Lane, 1321 26

—and petitioner avers that the total amount of the claims against petitioner by
reason of the losses occasioned by said stranding far exceed the value of peti*
tioner^s interest in said vessel, and her freight pending.

Fijth. Petitioner further avers on information and belief that there is no
prior paramount lien on the said vessel, and that she has made no voyage or
trip since the voyage or trip on which the claims hereby sought to be limited
arose.

Sixth, Petitioner desires to claim the benefits of the provisions of Sections
4283, 4284 and 4285 of the Revised Statutes of the United States, and the vari-
ous acts amendatory thereof and supplemental thereto, and for that reason offers
tb surrender the said vessel as she now lies to a trustee to be appointed by this
court for the benefit of the above named claimants, or any others who may
appear.

Seventh. That all and singular the premises are true and within the admiralty
and maiitime jurisdiction of this Honorable Court

Wherefore petitioner prays that this court will appoint a trustee to whom the
said wreck of the brig Jamaica may be transferred, and that the court will also
appoint a commissioner to receive proof of claims in accordance with the rules
and practice of this court, and will Issue a monition to all pei*sons claiming
damages by reason of any loss, damage or injury done, occasioned or incurred
by reason of the said stranding, citing them to appear before the said commis-
sioner at or before a time to be named In said writ and make proof of their
respective claims; and to appear and answer on oath all and singular the prem-
ises, and that this court will also issue its Injunction i*estraining the further
prosecution of the above mentioned action of A. L. & Co. against petitioner,
and further restraining the commencement hereafter of any suit, action or le*
gal proceedings of any nature or description whatever against your petitioner,
by reason of the said stranding and wreck, and that the court will adjudge and
decree that petitioner on such surrender of said vessel be discharged from lhi>



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PRACTICAL FOBMS. 641

bility for any demand or claim whatsoever by reason of his ownersliip of said
vessel, and tliat petitioner may have such other or further relief in the prem-
ises as may be just.

L. S. & D., Proctors for Petitioner.
{Verification as in Form No, 1.)



No. 240.— LiDEL OFFERING SUBKENDEB AND CONTESTING LIABILITY.

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 John Doe and Richai*d Roe, owners of the steamtug
Achilles, in a cause of limitation of liability, civil and maritime, alleges as follows :

First, That the libellants are residents of the city of New York, and are, and
wei'e at the times hereinafter mentioned, sole owners of the steamtug or vessel
known as the Achilles, and that said steamtug is now within the harbor of New
York, within this district and within the jurisdiction of this court.

Second. That the said steamtug Achilles has been and is engaged in the
business of towing vessels on the waters of the Hudson river, between this city
and Albany and other places, making regular trips between Albany and New
York, on an average of three per week.

Third, That on the 9th day of May, 1892, the said tug Achilles had taken in
tow six canal boats at New York to be taken to Albany. The said canal boats
were on a hawser astern of the said tug, and were arranged in three tiei-s of two
boats each, and the entire tow was properly made up, and the said steamtug
was at the time stanch and seaworthy, and was properly manned and equipped.

Fourth, That about 1 o'clock in the morning of the 10th of May, the tow had
passed Peekskill, and was entering the lower end of that part of the river known
as the Race, and was on the easterly side of the channel. The lights of the
Achilles were at the time properly set and burning brightly, her master was at
the wheel, and a competent lookout stationed forward. The lights on the canal
boats were also burning brightly and the entire tow was moving at the rate of
about five miles per hour. At this time the lights of a steamboat, which proved
to be the steamboat L., were seen almost dead ahead of tlie Achilles. The lat-
ter* s helm was at once poi-ted and one whistle blown, but no answering signal
was given by the L., nor were her lights observed to alter. The Achilles then
blew another single whistle, and this not being answered, an alarm signal of
three whistles was given, her helm put hard aport and her engines reversed ;
notwithstanding which the L. struck the forward tier of the tow of the Achilles,
sinking one boat and badly damaging another, and injuring herself so badly that
she had to be run ashore at once to keep her from sinking.

Fifth, That the said collision was in no way caused by fault or negligence on
tlie part of the master or crew of the said Achilles, and the loss, damage and in-
jury thereby done, occasioned and incurrred were without the privity or knowl-
edge of the petitioners. But the fault of the said collision lay entirely with the
said steamboat L. in that she was coming down on the easterly side of the chan-
nel, in that she had no proper lookout, in that she did not observe or heed tlie
signals of the Achilles, in that she did not alter her helm or her speed before
the collision, and in other respects which will be shown on the trial of this cause.

Sixth, That nevertheless certain persons have made claims against petitioners
for losses arising out of the said collision, all of which claims, with the amounts

41



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642 APPENDIX.

thereof, and the names and addresses of the claimants, are as follows, viz. : Tb9
claim of

(1) A. B., of Haverstraw, N. Y., for loss of the canal boat Bessie, . $3000 00

(2) S. Insurance Co. No. Pine St, New York, insurer of cargo

on said canal boat, 080 31

(3) C. D., Albany, N. Y., damage to canal boat Middletown, . 861 32

(4) T. Insurance Co. No. Broadway, N. Y., insurer of cargo on

said canal boat, 1142 31

(5) E. F. and others. River St., Troy, N. Y., owners of the steam-

boat L., an indefinite claim of damages, which it is stated

may amount to 5000 00

None of the above claimants has as yet actually begun suit against the Achil-
les or against petitioners.

Seventh, Petitioners aver that there was and is no freight pending by reason
of the said trip in question, and on information and belief that the value of the
said Achilles at the close of the said trip did not exceed the sum of $6,000, and
the amount of the above claims far exceeds the value of the interest of petitioners
in said tug at the said time.

Eighth. Petitioners desire to claim the benefits of the provisions of Sections
42aS, 4284 and 4285, of the Revised Statutes of the United States, and the various
s^ls amendatory thereof and supplemental thereto, and in this proceeding, by
reason of tlie facts heretofore set forth, to contest their liability and the liability
of the said steam tug Achilles to any extent whatever for any and all loss, destruc-
tion, damage or injury done, occasioned or incurred by reason of the above col-
lision, and to that end desire to surrender the said vessel during the pendency of
this proceeding to a trustee to be appointed by this court.
. Ninth. Petitioners further aver on information and belief that there is no
lion on said Achilles prior or paramount to any lien which may have accrued by
reason of the matters aforesaid, unless as hereinafter set forth. They also allege
that the said vessel has made numerous trips between New York and Albany,
in the regular prosecution of her towing business, since the said collision hap-
pened, upon one of which trips she was in collision with tlie steamtug African,
and was damaged to the extent of about one hundred dollars. With this excep-
tion, her market value has not deteriorated since the time when the above acci-
dent occurred. The following liens or claims of liens have arisen on trips
subsequent to the one in question:

(1) A claim of lien to the amount of $900, made by A. B. and C. D. of No.
Broad St. N. Y., owners of the tug African, and alleged to have accrued by rea-
son of the collision with the African referred to in this article.

(2) A lien for the sum of $99.66 in favor of L. F. A Co., No. West St N. Y.,
ship carpenters, for repaii-s to the Achilles rendered necessary by the collision
with the African, and of which specifications have been filed with the clerk of
Uie city and county of New York.

^ (3) A claim of lien in the sum of $108.28 made by M. N., whose residence is
unknown to petitioners, formerly mate of the Achilles, for wages.
' And petitionera further aver that the special fact on which the right to sur
render the Achilles to a trustee, notwithstanding the fact that she has made
ti'ips or voyages subsequent to the one in question, is that at the termination
of such voyage the amount of the claims against the Achilles was unknown to
petitioners, and that petitioners now offer to pay or secure, outside and apart



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PRACTECAL FORMS. C43

from this proceeding, by Btipulation or in any manner ordered by the court, any
Hens which may have accrued against said Achilles by reason of any matter or
thing not connected with the collision mentioned in articles third and fourth of
this petition. #

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

Wherefore petitioners pray that this court will make an order, on such terms
as will be just to petitioners and to all persons having liens or claims of liens,
appointing a trustee to whom the said steamtug Achilles may be surrendered
Muring the pendency of this proceeding, and that the court will also appoint a
commissioner to receive proof of claims in accordance with the rules and prac-
tice of this court, and will issue a monition to all persons claiming damages by
i*eason of any loss, damage or injury done, occasioned or incurred by reason of
the said collision mentioned in articles third and fourth, citing them to appear
before said commissioner at or before a time to be named in said writ, and make
proof of their respective claims; and also to appear and answer upon oath all
and singulai* the premises; and that this court will also issue its injunction, re-
straining the commencement of any and all actions, suits or legal proceedings
of any kind arising out of the said collision against them or said tug Achilles,
other than in the present proceeding, and that the court will adjudge that peti-
tioners are not liable for any demand or claim whatever in consequence of tlio
said collision, or if such liability ever existed, then that they be discharged
therefrom by the surrender of the said tug Achilles, and that petitioners may
have such other or further relief in the premises as may be just.

M. <fe N., Proctors for Petitioners.
(Verification as in Form No, 1.)



No. 241. — Ordeb appointino appraisers, etc.

(Caption as in Form No, 176.)

In the Matter of the PeUtion of A. B., ^
Owner of the Schooner Hattle L., for I
Limitation of Liability. J

On reading the libel and petition heretofore filed, of A. B., owner of the
schooner Hattie L., praying for a limitation of his liability and for an appraisal
of the amount of the value of his interest in said schooner and her freight pend-
ing, and on reading and filing petitioner's notice of motion for the appointment
of appraisers, with proof of due service thereof on J. N., E. F. & Co., and Jean
Dupres, mentioned in said libel as making claims, and no one appearing to op-
pose it is now

Ordered, that E. F., L. M., and R. S. be and they hereby are appointed ap-
praisers to appraise the amount of the value of the interest of said A. B. in the
schooner Hattie L. and her freight pending; and it is further

Ordered, that days* notice of the time and place of such appraisal be given
to the above named claimants, or to their respective attorneys or proctors, and
to any other parties who may have filed claims against said petitioner or said
schooner by reason of the matters and things in the Ubel alleged ; and it is further

Ordered, that the amount of the value of petitioner's said interest in said
schooner and freight, when ascertained, be paid into the registry of this court



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644 APPENDIX.

by petitioner to abide the event of this proceeding; or, at the option of petitioner,
that he file a stipulation, in such appraised amount with interest from the close
of the voyage described in the petition herein, providing for the payment of
such amount as ordered by the court, and with sureties to be ap|>roved by said
claimants or their proctors; and it is further

Ordered, that upon such payment into court or the filing of a stipulation as
aforesaid, the said schooner Hattie L. be released from the seizure under the
processes in said libel and petition referred to, and restored to the petitioner.



No. 242. — Obdeb appoikting appraisebs, and fob monition and injunc-
tion.

(Caption as in Form No. 176.)

In the Matter of the Petition of Hiram
Waitt, William Perkins, and John
Tai'box, Owners of the Schooner J.
M. Morales, for a Limitation of their
Liability, etc.

The schooner J. M. Morales, having been heretofore libelled in this court
by William T. Hobart and others, as owners of the schooner Benjamin, and by
Adolph C. Klindworth, as owner of the cargo on said schooner, to recover for
the damage arising out of a certain collision between the two vessels, and the
above named Hiram Waitt, William Perkins and John Tarbox, owners of the said
J. M. Morales, having thereupon filed their libel and petition in limitation of
tlieir liability, in accordance with the statutes of the United States, praying to
be allowed to pay into the registry of this coui-t, or give a bond for the amount
of the value of their intei-est in the said schooner J. M. Morales and her freiglit
pending, it is now, on motion of Benedict, Taft <fe Benedict, proctors for peti-
tioners.

Ordered, that Edward Hincken, Belcher T. Thurlow and Richard Poillon be,
and they hereby ar& appointed appraisers to ascertain and appraise and report
to this court the value of the intei*est of the petitioners in the schooner J. M.
Morales, her tackle, etc., and in her freight for the voyage in the libel men-
tioned. And it is further

Ordered, that upon the filing of the report of the said appraisers, these peti-
tioners do pay the sum so reported into the registry of this court, or do give a
stipulation, with sufficient sureties, for the payment thereof into court when-
ever the same shall be ordered, and that upon such payment into court, or upon
the filing of such stipulation, duly approved, the said schooner J. M. Moiales,
her tackle, etc., be delivered to the petitionei's. And it is further

Ordered, that a monition issue out of this court against all persons claiming;
damages for any loss arising out of the said collision, citing them to appear be-
fore B. L. Benedict, Esq., United States Commissioner, and make due proof of
tlieir respective claims at or before a certain time to be named in said writ, not
less than three months from the issuing of the same; and also to appear and
answer in this cause. And it is further

Ordered, that the further prosecution of the suits of William T. Hobart and
otliers against the schooner J. M. Morales, her tackle, etc., and of Adolph V.
Klindworth against said vessel, and of any and all suits against said sch(M>ncr,



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PUACTICAL FORMS. 645

her tackle, etc., or against the petitioners as owners of the said schooner, in re-
spect of any claim or claims arising out of the said collision, be, and the same
hereby are, restrained and enjoined.



No. 243. — Appbaisbbs' bepobt.

United States IHstrict Courts Eastern District qf New Tork,

In the Matter of the Petition of Hiram "j
Waitt and others, for a Limitation of I
their Liability, etc. f

The undersigned, having been duly appointed and sworn as appraisers to ap-
praise the value of the interest of the petitioners in the schooner J. M. Morales,
and her freight pending, do hereby report that they have examined and appraised
the said vessel and the said freight, and do find that the said vessel is worth the
sum of thirty-two hundred and fifty dollars, and said freight is worth the sum of
two hundred and fifty dollars.

All of which is respectfully submitted.

Dated New York, September 22, 1883.

Edwabd Hincken,
B. T. Thubia)W,

RiCHABD POIJLLON.



No. 244. — Stipulation fob appbaised value.
United States IHstrict Court for the Southern District qf New York.

Whereas a libel and petition was filed on the day of « 18 «

by John L. Williamson and others, owners of the schooner Talisman, praying
for a limitation of their liability for any loss, damage or injury arising out of a
certain collision between said schooner Talisman and the steamer Daylight, and
the value of the interest of petitioners in said schooner Talisman and her freight
pending has been duly fixed at the sum of twenty-three hundred dollars for the
said schooner, and four hundred and eighty-one 92-100 dollars for said freight, in
all twenty-seven hundred and eighty-one 02-100 dollara, as appears from the report
of the appraisers, now on file in this court; and the parties hereto hereby con-
senting and agreeing that, in case of default or contumacy on the part of the pe-
titioners or their sureties, execution for the above appraised amount, with
interest thereon from this date, may issue against their goods, chattels and lands:

Now, therefore, the condition of this stipulation is such that if the petitioners

herein and A. S., residing at Van Binjnt St, in tlie city of Brooklyn, and

by occupation a ship broker, and P. M. P., residing at East 63d St, in

tlie city of New York, and by occupation a stevedore, the stipulators under-
signed, shall abide by all oi*ders of the court, interlocutory or final, and pay the
amount awarded by the final decree rendered by this court, or by any appellate
court if an appeal intervene, with interest, then this stipulation to be void
otherwise to remain in full force and virtue.

Taken and acknowledged this ^ John L. Williamson.

day of 18 , before me, > A. S.

J P. M. P.



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646 APPENDIX.

Southern District of New Torkj 88.

A. S. and P. M. P., the above stipulators, being duly sworn, each deposes
and says that he resides as above set forth, and that he is worth the sum of fifty-
five hundred and sixty-three 84-100 dollars over and above all his debts and
liabilities.



Sworn to before me, this
day of , 18



.}



No. 245.— Obdeb fob MONinoir.

(Caption as in Form No. 176.)

In the Matter of the Petition of The
Providence & New York Steamship
Company, Owners of the Steamship

Metis.

Upon reading and filing the libel and petition of the Providence and New
York Steamship Company, owner of the steamship Metis, sworn to on the fourth
day of September, 1872, and the order of this court made thereon bearing date
on the sixth day of September, 1872, whereby it was ordered that the said peti-
tioners transfer their interest in such vessel and her freight for the voyage in
said libel and petition mentioned to George F. Betts, Esq., to act as trustee for
the person or persons who may prove to be legally entitled thereto, pursuant to
tlie provisions of the act of Congiess in that behalf in said libel and petition
referred to, and upon reading and filing the instrument of transfer duly exe-
cuted by said company bearing date the sixth day of September, 1872, whereby
it appears that such vessel and freight have been duly transferred to such trus-
tee pursuant to such oi*der, and the said act and the rules of the Supreme Court
of the United States in that behalf, upon motion of Evarts, Southmayd & Choate,
proctors for such petitioners.

Ordered, that a monition issue out of and under the seal of this court against
all persons claiming damages for the loss, destruction, damage and injury occa-
sioned by the disaster on board of the said steamship Metis, on the thirtieth day
of August, 1872, referred to in said petition, citing them to appear before this
court and make due proof of their respective claims and answer the said libel
and petition at or before the seventeenth day of December, 1872, at eleven
o* clock in the forenoon, and John A. Osborne, Elsquire, a commissioner of this
court, is hereby designated as the commissioner before whom such claims shall
be presented in pursuance of said monition.

And it is f ui*ther ordered that public notice of such monition be given by pub-
lication in a newspaper daily for the space of fourteen days and thereafter once
in each week until said seventeenth day of December, 1872, and that a copy of
such monition and of this order be personally served on the attorneys, proctors,
or solicitors of record for the plaintiffs or libellants in each of the suits brought
and pending in any court in the United States against the Providence and New
York Steamship Company, or against the said steamship Metis, to recover fur
any such damages; such service to be made at least one month prior to the said
seventeenth day of December, 1872.

And it is further ordered that in the place and stead of the service hereinbe-
fore ordered to be made upon tlie attorneys, solicitoi-s or proctors for tlie said



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PRACTICAL FORMS. 647

parties prosecuting any such suit or soits, service of such monition and order
may in any case be made upon the party or parties prosecuting such suits re-
spectively, or upon any of them, or in case the attorneys, solicitors or proctors
for either or any of such parties be absent from their office, by delivering copies
of such monition and order to the person in charge of such office or placing
them in some conspicuous place therein.

Samuel Blatchford.



No. 246. — Okdbb for monition and enjoining suits already begun.

{Caption cw in Form No. 176.)

In the Matter of the Petition of Robert
Rogers, Owner of the Steam tug F.
W. Devoe, her engines, etc., for Lim-
itation of Liability, etc.

The steamtug F. W. Devoe, her engines, etc., having been heretofore libelled
in this court and district by one John L. Eccles to answer for the alleged loss
of the sloop Amelia in a collision between said sloop and the said steamtug
F. W. Devoe, in the North River, New York, on the night of June 14-15, 1891,
and an action at law having been also commenced in the Superior Court of
the city of New York by one Thomas S. Bahan as administi'ator, etc., of Wil-
liam H. Bahan, deceased, against Robert Rogers, libellant and petitioner here-
in, and others, to recover $5,000 and interest, upon the loss of life of William
U. Bahan in and in consequence of said collision; and said libellant, Robert
liogei-s, owner of said steamtug F. W. Devoe, her engines, etc., having there-
upon filed in this court his libel and petition claiming the benefit of limita-
tion of liability provided for in the Revised Statutes of the United States,
Sections 4283, 4284 and 4285, and the acts amendatory thereof and supplemen-
tal thereto, and setting forth the facts and circumstances on which said limita-
tion is claimed, and praying proper relief in that behalf, and also contesting his
liability and the liability of said steamtug to any extent whatever for any and
all loss, destruction, damage and injury caused by or resulting from the colli-
sion aforesaid, and this court having thereupon, at the election of the said Robert
Rogers, made an order for the transfer by him of his interest in said vessel and
her freight pending at the time of said collision to Samuel H. Lyman, trustee
appointed by the court under section 4285 of the Revised Statutes of the United
States; and the said Robert Rogera having thereupon in compliance with said
order, by instrument in writing and under seal, dated the first day of July, 1801,
transferred to the said trustee all his interest in said vessel and freight within
the meaning of the Statutes of the United States aforesaid for the purposes



Online LibraryErastus Cornelius BenedictThe American admiralty, its jurisdiction and practice, with practical forms and directions → online text (page 70 of 80)