Erastus Cornelius Benedict.

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

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libel, except as to the allegations in regard to the wind, weather and course of
the ship, in the said second article, as to which he requires proof.

Second. He denies each and every allegation contained in the third, fourth,
fifth, sixth and seventh articles of the libel.

Third. He avers that the stranding and loss of the said steamship Ingleside
were done, occasioned and incurred with the privity and knowledge of the
libellants, in that the said ship, when she went to sea, was unseaworthy and
unfitted to encounter tlie ordinary perils of navigation, in the following partic-
ulars among others: First, her compasses had not been adjusted, or her chro-
nometer corrected since her previous voyage, and at the time of her sailing
they were out of order and nearly worthless; secondly, her second officer was
careless and incompetent and entirely unfitted to perform the duties of his
position; and this claimant avers that all of the said facts were known to the
libellants before tlie ship sailed, and he avers that the stranding of the said
steamship occurred by reason of the fact that because of her defective compasses
and chronometer, the ship ran out of her course, and was off her course at the
time of the said stranding; and by reason of the further fact that the second
officer, who was in charge of the ship at the time of the accident, and who
should have been on deck and on the bridge, and who could have avoided the
accident by prompt action after the lookout had discovered the land and had
hailed the bridge, was below at the time and until after the ship struck; and
claimant avers that on the trial of this action he will prove other acts of care-
lessness and negligence on the part of the owners, master and officers of said
ship, which will deprive them of the right to limit their liability.

Fourth, That a claim has been duly filed with the commissioner appointed
by the court to receive claims herein.

That all and singular the premises are true.

Wherefore, this claimant prays that the court will adjudge that the said
stranding and loss were done, occasioned and incurred with the privity and
knowledge of the owners of said steamship Ingleside, and by the carelessness



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664 APPENDIX.

ftnd negligence of the said ship, her master, officers and crew, ard will deny
the ])rayer of the said libellants and condemn them to pay the loss and damage
of this claimant, with interest and costs, and will otherwise right and justice
administer in the premises.

C. D., Proctor for Claimant.

(Verification as in Form No, 1.)



No. 265. — Answer to libel op limitation of liabilitt.

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

United States, for the Eastern District of New York.

The answer of Adolph C. Klindtworth to the libel and complaint of Hiram
Waitt, William Perkins and John Tarbox, against the schooner J. M. Morales,
her tackle, etc., and all pereons lawfully claiming the same or wiy interest
therein, and against William T. Hobart, Ezra L. Pattangall, Benjamin Lincoln,
Daniel K. Hobart and David Wright, in an alleged cause of limitation of liability,
alleges as follows:

First. This respondent has no knowledge or information sufficient to form a
belief as to the allegations of said libel, and they therefore deny the s^me.

Second. This respondent admits the allegations of the second article of said
libel.

Third. This respondent admits the allegations of the third article of the said
libel.

Fourth. This respondent denies that the injury referred to in the fourth arti-
cle of said libel was done, occasioned or incurred without the fault of tiiose
navigating the schooner J. M. Morales, or the privity or knowledge of said
libellants, or either of them, and he expressly alleges that the same was so done,
occasioned and incurred by the sole fault and negligence of those navigating
said schooner J. M. Morales; and, as he has been informed and believes, with
the privity and knowledge of the owners of the same, and that they knew that
the said schooner was insufficiently and improperly manned, equipped and fur-
nished for the voyage on which she was bound. This respondent also denies
that the value of said schooner J. M. Morales, her tackle, etc., together with her
freight then pending at the time of said collision, did not exceed the sum of
two thousand dollars, and he expressly alleges that he has been informed and
believes said value exceeded the sum of three thousand and five hundred
dollars.

This respondent admits that the claims referred to in said libel amount to the
sum of six thousand dollars, but he denies that the libellants are entitled to a
limitation of their liability provided for in the Revised Statutes of the United
States.

Fifth, This respondent is ignorant upon what day and from what place the
schooner J. M. Morales sailed on her voyage, or upon what voyage said schooner
Vas bound, but he admits that she was laden with a cargo of lumber, and he
alleges that there was a full deck load of such lumber on said schooner.

This respondent admits that on July 1, 1883, about half past one o* clock, in
the morning of tliat day, said schooner was at a point in Long Island Sound off
Little Gull Light, but he denies that the said schooner was at the time in chai^
of a competent master and crew, and had a competent lookout properly stationed



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PRACTICAL FORMS. 665

and Tigilantly performing his duty, and he denies tliat said schooner had her
regulation lights set in their proper places and burning brightly.

This respondent also denies that there was a variable wind from N. X. E., but
alleges that the wind was from N. £. by N., blowing a fresh breeze.

This respondent denies that said schooner was sailing on a course W. by S.
to W. S. W., but he admits that she was running free.

This respondent admits that the schooner Benjamin at the time was sailing
close hauled on the wind, but he denies that she kept off across the course of
the schooner J. M. Morales.

He admits that the two vessels came into collision and suffered damage.

This respondent denies that said collision occuiTed through the fault, neglect
and misconduct of those in charge of the schooner Benjamin, and he denies that
said schooner Benjamin did not keep her course, and he denies that she changed
her course so as to run across the course of the schooner J. M. Morales, and he
denies that the said Benjamin had no sufficient lookout and an iucompetentman
at the wheel, and he denies that said collision was caused without any fault on
the pai-t of those in charge of the schooner J. M. Morales.

And fui*ther answering, this respondent denies all the allegations in the said
libel contained not hereinbefore expressly admitted, answered or denied.

Sixth, This respondent, further answeiing, alleges that at the time hereinafter
mentioned he was the owner of the following merchandise, to wit: One hundred
tons of logwood, shipped at the port of New York on board the schooner Ben-
jamin.

That on the 29th day of June, 1884, said schooner left the port of New York
for the port of Boston, with said cargo of merchandise on board, under the com-
mand of a competent master and crew.

[The circnnmtance8 of the collision between the two schooners are here set forth.]

That the value of the cargo shipped as aforesaid by the respondent on board
the said schooner Benjamin was the sum of three thousand dollars, which this
respondent claims that he is entitled to recover from the said schooner J. M.
Morales, and on the 17th day of September, 1883, filed a libel in this coui-t
against said schooner J. M. Morales and freight moneys, to recover the same,
but which said suit was stayed and enjoined by the commencement of this suit
and the order of this court herein.

That said collision and consequent damage was not caused by any fault or neg-
ligence on the part of this respondent, or of those in chai*ge of the said schooner
Benjamin, for she kept her course steady, as she was bouud by law to do, but
was caused wholly by the negligence of those in charge of the schooner J. M.
Morales, among other things in the following particulars:

(1) That said schooner J. M. Morales was insufficiently and improperly manned
and equipped foV* the voyage on which she was bound.

(2) That she had no competent and sufficient lookout properly stationed and
attentive to his duties as such, and engaged in the proper performance thereof.

(.3) That said schooner J. M. Morales took no timely and proper steps to avoid
the schooner Benjamin, as she was bound by law to do.

(4) That said schooner had no sufficient and competent man at her wheel.

(5) That said schooner did not starboard her helm before she did, and go off
before the wind and out of the way of said schooner Benjamin, sailing on a
course close hauled by the wind, as she easily could and should have done.



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666 APPENDIX.

(6) That said schooner J. M. Morales starboarded her helm at the time and
place that she did, knowing, as she ought to have known, that such a change at
that time and place would produce a collision with the schooner Benjamin.

(7) That said schooner J. M. Morales took no proper steps whatever to avoid
said collision or lessen the damages.

That all and singular the premises are true.

Wherefore the respondent prays that said libel be dismissed with costs, and
that this respondent be decreed his damages, with interest and costs, most
wrongfully sustained by them as aforesaid.

EVART8» ChOATE & BeAMAK,

Proctors for Respondent.
{Verification ob in Form No. 1.)



No. 266.— Final Decree.

{Caption as in Form No. 176.)

In the Matter of the Libel and Petition
of The DampskibsselsLabet Thing-
valla, as Owner of the Steamship
Thingvaila, and of the late Steam-
ship Geiser, oi of the spes recuper-
andi therein, for Limitation of Lia-
bility.

A libel and petition having been verified and filed herein on November 14th,
1888, for limitation of the liability of the said petitioner for the collision between
the steamsliips Thingvalla and Geiser on the fourteenth day of August, 1^8,
and it appearing tlierefrom that the Geiser sank by reason of said collision, and
that said vessel and the cargo therein became a total loss; and said petitioner,
as owner of the Thingvalla, also contesting any and all liability in respect to
said collision, and any and all liability of said steamship Thingvalla for said
loss, destruction, damage and injury (independently of the limitation of liability
claimed), and said libel and petition having stated the facts and circumstances
by reason of which exemption from liability is claimed; and it appearing that
at the time of filing said libel and petition various suits had been begun against
said petitioner, and that an action was then pending against the petitioner in
the Supreme Court of the State of New York, in and for the County of Kings,
within the Eastern District of New York: and the court having made an order
bearing date the 14th day of November, 1888, whereby, for the purpose of mak-
ing due appmisal of the interest of the petitioner in the steamship Thingvalla,
it was referred to Richard P. Morle, Esquire, a commissioner of the Circuit Court
of the United States for tlie Eastern District of New York, to ascertain and re-
port the value of the interest of the petitioner in the steamship Thingvalla im-
mediately after her said collision with the steamship Geiser, on August 14th, 1888,
and in her freight moneys then pending; and tlie said commissioner having pro-
ceeded under said order of reference, and having taken proofs thereon, and
having ascertained and reported the value of the petitioner's said interests as
the sura of sixty- four thousand six hundred eighty 66-100 doUai-s; and excei>-
tions having been filed to said report, and, after hearing had thereon, said ex-
ceptions having been overruled, and said report in all things confirmed; and the



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PRACTICAL FORMS. 667

court having ordered the petitioner to pay said sum into court or to give a stip-
ulation therefor; and said petitioner having, on March 4th, 1880, duly paid into
court the sum of sixty-four thousand six^hundred eighty 66-100 dollars in com-
pliance with said order; and an order having heen also made dated on the Afth
day of March, 1889, directing a monition to issue out of and under seal of this
coui*t, citing all persons claiming damages for the loss, destruction, damage and
injury occasioned hy said collision to appear before this coui*t, and make due
proof of their respective claims before the above named commissioner, with
liberty also upon making proof to answer said libel and petition and to contest
the right of said petitioner to the limitation of its liability or to the exemption
from liability; and a monition having been thereupon, and on the said fifth day
of March, duly issued in pursuance of said last mentioned order, and the said
monition having been duly returned by the Marshal of the United States for the
Eastern Distiict of New York, with proof of tlie due personal service of said
monition on the attorneys of record and proctors for the libellants and the plain-
tiffs in all the suits brought and pending against said petitioner, and also due
proof of the giving of due notice of said monition by publication in conformity
with the directions in said last mentioned order; and an order having been made
thereafter extending and adjourning the return day of said monition to the 2l8t
day of August, 1889; and upon the return of said monition, proclamation having
been duly made for all persons claiming damages for any loss, destruction or
injury occasioned by said collision, to appear and present their claims and such
answer or exceptions to said libel as they should be advised; and claims having
been presented by various persons and corporations, as appears by the report of
said commissioner; and the following named claimants having answered to said
libel and petition: The President and Directors of the Insurance Company of
North America; The Commercial Mutual Insurance Company; The Providence
Washington Insurance Company; The Atlantic Mutual Insurance Company; Die
Allyemeine Versicherungs-Oesellschaftfur 5ee, Fluss und Landtransport, in Dres-
den; Samuel H. Dollard; Emanuel Anderson; Thorwald Ejeldaars; Hilda Lind;
Anders B. Wilse; and by William B. Davenport, as public administrator, in
Kings county and state of New York, administrator of Ida Malgren, deceased,
and the default of all other persons having been duly noted, and thereafter, by
the special leave of the court had and obtained, the default of the claimants,
Messrs. Koop <& Co., having been opened and an answer filed by them in this
cause;'

And the issues raised by said several answers having come on for trial befoi*e
the coui't, and the court having heard the testimony and proofs of the respective
parties, and the cause having been argued by the several advocates and submit-
ted upon their briefs, and due deliberation having been had, and the court hav-
ing rendered and filed an opinion herein: Now, upon motion of Wing, Shoudy &
Putnam, proctors for the petitioner, it is considered, ordered and adjudged, that
said loss and disaster were done and occasioned without fault, privity or knowl-
edge of the petitioner, and that the petitioner herein, the Dampskibsselskabet
Thingvalla is entitled to the benefit of the limitation of liability provided for in
tlie act of Congress of the United States, entitled ** An Act to limit the liability
of ship owners and for other purposes,'' passed March 3d, 1851, and the said
provisions for limitation of liability as contained in the Revised Statutes of the
United States, and the several acts and statutes amendatory thereof and sup-
plemental thereto.



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668 APPENDIX.

It is also conHideredf ordered, adjudged and decreed, that the said loss and dis-
aster occasioned by the collision which occuiTed on August 14, 1888, between
the steamships Geiser and Tliingvalla, which resulted in the total loss of the
Geiser and her cargo, and caused serious injury to the steamship Thingvalla,
and to a poi*tion of her cargo, occurred without any fault or negligence on the
part of those in charge of the said steamship Thingvalla, or of her officers or ere v.

It is further ordered, adjudged, and decreed, that said libellant and i>etitioner
be and it hereby is forever discharged from all and every claim or demand aris-
ing from or growing out of said disaster and collision, and from all and any
claims for alleged personal injuries, and for the loss or injury to any cargo,
property, effects, goods or passenger baggage then laden or earned upon either
or both of said steamships.

And the costs to the petitioner of these proceedings having been taxed at the
sum of eight hundred and sixty-four 63-100 dollars, it is ordered and adjudged
that the said petitioner recover said sum, to be paid to its proctors from the de-
posit heretofore made by it in the registry of tliis court, as representing the
value of the petitioner's interest in the steamsliip Thingvalla in the condition in
which she was on August 14, 1888, after said collision; and that the petitioner
be repaid the residue of said deposit, with all increase and interest that may
have accrued thereon, as is hereinafter provided.

And it is further ordered, adjudged and decreed, that said Emanuel Anderson,
Hilda Lind, Jens O. Andersen, Anders B. Wilse, and the president and directors
of the Insui*ance Company of Korth America, their several agents, attorneys,
proctors and counsel, refrain from the further prosecution of said respective
actions begun by them against the said petitioner or against its said steamship
to recover for the losses and injuries as aforesaid.

It is further ordered, that all other persons whomsoever claiming, or who may
hereafter claim for any loss, destruction, damage or injury occasioned by said
collision be, and the same hereby are, peii>etually restrained and enjoined from
bringing, commencing or instituting, or further prosecuting any suit or suits or
proceedings whatever, upon any cause of action whatsoever, against the Damp-
skibsselskabet Thingvalla, The Thingvalla Steamship Company, or said steam-
ship Thingvalla, for any loss, damage or injury done, suffered or occasioned by
reason of the loss and disaster caused by the collision between said steamships,
as aforesaid.

And it is further ordered, that unless an appeal be taken from this decree
within the time limited by law and the rules of this court, the clerk of this
court do present to the United States Trust Company the certificate of deposit
issued to him for the sum of $04,680.66 deposited by said petitioner on March 4,
1889, and tliat said depK>sit with all increase tliereon, less the con^roissions of
said Trust Company, and after payment of the per centum of the clerk of this
court, be tliereupon repaid to Wing, Shoudy & Putnam, the said proctors for
the petitioner, in full discharge and satisfaction of said deposit, and of the costs
adjudged as aforesaid.

And it is further ordered, that this decree be served within the Eastern Dis-
trict of New York, in the usual manner, and within any district or districts of
the United States other than the Eastern District of New York, by the United
States Marshal for such otlier distiict or districts respectively, by delivering a
copy of such original decree, and exhibiting a certified copy thereof to the party
or person to be served.

Chas. L. Bkitedict.



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PRACTICAL FORMS. 669



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No. 267.— Final deobee.
{Caption as in Form Ko, 176.)

In the Matter of the Petition of The

Long Island North Shore Passenger |

& Freight Transportation Company.

A libel and petition having been filed' in this court on the Slst day of July,
1880, by the Lbng Island North Shore Passenger and Freight Transportation
Company, owners of the steamboat Seawanhaka showing among other things
the loss of said steamboat by fire on the 28th day of June, 1880, and also show-
ing that the said libellants and petitioners had been sued by various persons and
parties for losses, dama<ros and injuries alleged to have been sustained in that
disaster; that the loss of said steamboat occun-ed without the privity or knowl-
edge of said libellants and petitioners, and without any design or neglect on
their part, and that said libellants and petitioners desired to claim the benefit
of the limitation of their liability as such owners provided for by the laws and
statutes of the United States in that behalf, and also to contest their liability
and the liability of said steamboat for all said loss, destruction, damage and in-
jury independently of the limitation of liability claimed under said laws and
statutes; said libel and petition also stating the facts and circumstances on which
such exemption from and limitation of liability were claimed and praying proper
relief in the premises.

And an order having been thereupon and on the same day entered in tliis
court in tliis proceeding, whereby among other things the said libellants and
petitioners were directed to transfer their interest in the said steamboat, etc., to
John A. Osborne, Esq., who was appointed trustee for the purposes specified
in said order; and the said libellants and petitioners having thereupon and on
the same day duly executed and filed in this court a transfer of such interest
pursuant to said last mentioned order; and an order having been thereupon and
on the day aforesaid made and entered in this court in this proceeding, whereby
among other things the said trustee was directed to sell the property embraced
in said transfer, and the said trustee having thereafter and on the 20th day of
August, 1880, duly rendered and filed in the office of the clerk of this court his
report bearing date the 12th day of August, 1880, showing among other things
that the property embraced in said transfer had been sold by him pursuant to
the order above referred to, and that the proceeds of such sale amounted at tlie
date of said report to the sum of twelve hundred and fifty-six 38-100 dolla]*8,
and an order having been thereafter and on the said 20th day of August, 1880,
made and entered in this court in this proceeding, whereby among other things
the said report of said trustee was confii*med ; and an order having been made
and entered in this coui-t in this proceeding on and bearing date the 31st day of
July, 1880, whereby among other things it was directed 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 occasioned by the disaster referred to
in said libel and petition, citing them to appear before this court and make due
proof of their respective claims on or before the third Tuesday of November,
1880, at eleven o'clock in the forenoon and designating John A. Osborne, Esq., a
commissioner of said court as a commissioner before whom such claims should
be presented in pui-suance of snch monition, and otherwise providing for the
giving of notice of said monitiuu;



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670 APPENDIX.

And a monition having been thereupon and on the said thirty-first day of July,
1880, duly issued in pursuance of said last mentioned order, and the said monition
having been duly returned by Louis F. Payn, the Marshal of the United States
for the Southern District of New York, with proof of the due personal service
of said monition, and of said order directing the issuance thereof on the attor-
neys, 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 said Long
Island Noi-th Sliore Passenger and Freight Transportation Company, or against
said steamboat Seawanhaka, to recover for any such damages, or upon such
plaintififs or libellants as directed by said last mentioned order, that is to say: [re-
citing them.'} And also proof of the giving of due notice of said monition by
publication in conformity with the directions contained in said last mentioned
order;

And an amended libel and petition having been filed by the said libellants and
petitioners in tlie office of the clerk of this court, on the twenty-ninth day of
November, 1880, purauant to leave theretofore granted by the court in that be-
half;

And on the return of said monition, proclamation having been duly made for



Online LibraryErastus Cornelius BenedictThe American admiralty, its jurisdiction and practice, with practical forms and directions → online text (page 73 of 80)