SMITH V. THE MORGAN CITY.

(District Court, D. South Carolina. July 12, 1889.)

1. SALVAGE-FEES OF MARSHAL.

A vessel was libeled for salvage, but the warrant of arrest remained in the clerk's office, and was never given to the marshal. The parties stipulated that the vessel should remain in her owners' possession. The bond was neither taken in the marshal's name, nor delivered to him. After a decree for salvage was rendered, the claim was paid without sale, no money passing through the marshal's hands. Rev. St. U. S. § 829, provides for a commission to the marshal for sales in admiralty proceedings, which shall be reduced when the claim is settled without a sale. Held, that the marshal should receive the reduced commission which is given him as compensation for the loss of his opportunity to earn fees by a sale of the property, and not as a compensation for services.

2. SAME-CLERK'S FEES.

But the clerk, under section 828, giving him a commission for “receiving, keeping, and paying out money" in pursuance of any order of court, of a given per cent. of the amount "received, kept, and paid," is not entitled to any compensation.

In Admiralty. Libel for salvage.

Libel for salvage by Smith, master of the steam-ship Apex, against the steam-ship Morgan City. A decree was rendered for salvage, and, the sum awarded having been paid, the marshal's and clerk's commissions were taxed as part of the costs. To this taxation the claimants object.

J. P. K. Bryan, for libelant.

Barker, Gilliland & Fitzsimons, for claimants.

SIMONTON, J. The case comes up on a question of the marshal's and clerk's commissions. When the libel for salvage was filed, the warrant of arrest was left in the hands of the clerk. Libelant's proctor instructed the clerk not to hand it to the marshal. No arrest having been made, the respondents put in a stipulation for the Morgan City, both proctors assenting, and she remained in the possession of her owners. A decree for salvage having been rendered, the case was settled by the parties without a sale. No money was paid into the registry of the court, or into the hands of the marshal. In the taxation of costs the clerk charges his commissions on the award, $12,000. The marshal also charges commissions at the rate of 1 per cent. on the first $500, and one-half of 1 per cent. on the rest. The claimants dispute these charges. Section 829, Rev. St., gives to the marshal, for sale of vessels or other property under process in admiralty, or under the order of a court of admiralty, and for receiving and paying over the money, 2 per cent. on any sum under $500, and 1 per cent. on the excess over $500. But when the debt or claim in admiralty is settled by the parties without a sale of the property, the marshal shall be entitled to a commission of 1 per cent. on the first $500 of the claim or decree, and one-half of 1 per cent. on the excess, if any. Judge BENEDICT, discussing this section in The City of Washington, 13 Blatchf. 410, says: "The provision

of the statute which gives to the marshal a commission is applicable to all cases where the debt is settled by the parties without a sale. There are no terms of limitation.". Although he states this distinctly, yet he adds: "Nevertheless, I cannot think it was intended to apply, where no service is performed or responsibility assumed." After a careful reading of this section, I cannot find the intent which Judge BENEDICT

The learned judge, however, recognized the policy of the courts in this matter. He therefore in that case seized upon the fact that the bond for the release of the ship was given in the name of the marshal. But it was never lodged with or delivered to him. That case was in very many respects like the present case. The warrant of arrest was issued, but never executed. The vessel was never in custody, and was bonded by the parties. The case was heard and settled without any action of the marshal. The point of difference is that in the city of Washington the bond was taken in the name of the marshal. In this case the marshal's name does not appear. In neither case was the marshal ever in possession of the bond. This section provides for the compensation of the marshal by fees. Judge BENEDICT evidently felt the necessity for the most liberal construction of the law in order to secure him his fees. In my opinion, it was unnecessary to strain the interpretation of the act. This compensation in question is not based on any service whatsoever. The commission on moneys paid between the parties without a sale of the property is given to the marshal by way of compensation for the loss of the opportunity to earn the fees by sale and by custody of the money. The cause being in the hands of the court, and the court having rendered a decree, the regular mode of enforcing the decree is by execution. The enforcement of the execution was as well the right, as the duty, of the marshal. The parties, however, prefer to settle the matter without further intervention of the court. If they take this course, they cannot deprive the marshal of all that he might have earned. They pay him a reduced commission. One per cent. instead of 2, and per cent. instead of 11. The same practice, from time immemorial, has existed in this state. When parties settle a case in judgment outside of the sheriff's office, he gets a reduced commission. Gen. St. S. C. § 2437. The marshal is entitled to the commission charged.

With regard to the clerk. The language of the section (828, Rev. St.) is, "for receiving, keeping, and paying out money in pursuance of any statute or order of court," the clerk is entitled to "one per cent. on the amount so received, kept, and paid." In this case there is no statute requiring payment of the salvage award into the registry. No decretal order has been entered. Upon knowledge of the views of the court, the parties settled without further action on its part. Thus no order was As the compensa

passed requiring payment of the money into court. tion to the clerk is for the trouble and responsibility of actually receiving, keeping, and paying out money, (In re Goodrich, 4 Dill. 230,) this claim is disallowed.

FEDERAL REPORTER, vol. 39.

THE ADMIRAL.1

GROVE et al. v. THE ADMIRAL.

(District Court, E. D. New York. July 23, 1889.)

1. COLLISION-CROSSING COURSE.

The lighter A. was going up the East river along the Brooklyn piers, and the water-boat C. was crossing the river from New York to Brooklyn, and had the A. on her starboard hand. The C. blew two whistles twice without receiving a reply. To her third signal of two blasts the A. replied with two. The C. thereupon starboarded hard and opened her engine in an endeavor to cross the A.'s bows, and the latter ported. The vessels came together and the C. was sunk. Held, that the C., being bound to avoid the A., took upon herself the risk of an attempt to cross the latter's bows, and could not re

cover.

2. SAME-SIGNALS.

When a boat, bound by rule to avoid another, signals that she is going to cross the latter's bows, an assenting signal by the boat having the right of way is merely an announcement to the other that her intention is known. It gives her no immunity from the responsibility cast upon her by law, and constitutes no fault in the event of subsequent collision.

In Admiralty.

Action by Francis H. Grove and others for damages caused by collis ion.

Hobbs & Gifford and R. D. Benedict, for libelants.

Wing, Shoudy & Putnam, H. Putnam, and C. C. Burlingham, for claim

ants.

BENEDICT, J. This is an action brought by the owners of the waterboat Croton to recover for the sinking of that boat in a collision with the lighter Admiral that occurred in the East river on the 13th day of February, 1888. The Admiral was proceeding up the East river along the piers. The Croton was crossing the river from the New York shore, bound to the slip at Prentice's Stores, on the Brooklyn side. ination of the evidence shows the collision to have been occasioned by An examthe fault of the Croton, and not by the fault of the Admiral. The Croton was on a course crossing the course of the Admiral, and having the Admiral on her starboard side. Although she, as she says, blew two whistles to the Admiral twice without receiving a reply, she kept on without change of course or speed, giving to the Admiral a third signal, to which the Admiral then replied by two. It is argued on behalf of the Croton that the failure of the Admiral to reply to her signal shows now that the Croton was not seen by the Admiral. The Croton, therefore, attempted to cross the bows of a vessel near at If so, it showed the same thing then. hand, and known by her to be ignorant of her presence, and of course she assumed the risk of crossing in safety, without any action on the part of the Admiral. Again, when after the Admiral's delay to reply

'Reported by Edward G. Benedict, Esq., of the New York bar.

to two of her signals, upon receiving a reply to her third signal, she starboarded hard and opened her engine in an endeavor to cross the Admiral's bows, she took the risk upon herself, and failing is responsible for the result. The reply of the Admiral to her signal gave the Croton no immunity from the responsibility cast upon her by the law. A mistaken idea seems to be entertained in behalf of the Croton that it was a fault on the part of the Admiral to blow two whistles in reply to the two whistles of the Croton, unless it was the judgment of the Admiral that there was room and time for the Croton to pass ahead in safety. It was not for the Admiral, but for the Croton, to determine whether there was room and time for her to pass the Admiral's bows in safety. Her signal to the Admiral announced her determination of that question, and the reply of the Admiral simply informed her that her determination was known to the Admiral, and constituted no fault. It is further claimed, on behalf of the Croton, that the Admiral was in fault, because, after blowing her two whistles in reply to the Croton's signal, she ported her helm, when, by starboarding, she would have assisted the Croton in her attempt to cross the Admiral's bows. The answer here is that it was no part of the duty of the Admiral to assist the Croton. The limit of the obligation upon the Admiral was, when danger of collision appeared to her, to adopt such measures as she had at command to avoid collision. Upon the evidence I doubt whether it was a mistake on the part of the Admiral to port when the Croton starboarded to cross her bows, but if it was a mistake it is not to be laid at the door of the Admiral as a fault. If it was a mistake, and if in the absence of that mistake the Croton would have passed in safety, the mistake is not to be attributed to the Admiral, but to the Croton, whose unwise action alone required the Admiral to determine a question that otherwise would not have been presented. The libel must be dismissed, with costs.

THE GUYANDOTTE.1

CHAPPELL V. THE GUYANDOTTE.

(District Court, E. D. New York. July 26, 1889.)

COLLISION-VESSEL AT ANCHOR-ANCHOR LIGHTS.

The schooner barge M. was run down at night while at anchor near the middle of the Elizabeth river, a little below Lambert's Point pier, by the steamer G. Held, on conflicting testimony as to whether the barge exhibited an anchor light, that she did exhibit such light, and, the night being good for seeing lights, that a vigilant lookout on the steamer would have discovered, in time to have avoided, the barge, but the latter not having an anchor watch when lying in an exposed place, she was in fault also, and the damages should be divided.

'Reported by Edward G. Benedict, Esq., of the New York bar.

In Admiralty.

Action by Frank H. Chappell to recover damages caused by collision. Carpenter & Mosher, for libelant.

Biddle & Ward, for claimants.

BENEDICT, J. This is an action to recover for the sinking of the schooner barge Marion by the steam-ship Guyandotte, on the night of the 17th of December, 1887. The Marion, laden with a cargo of coal, consisting of about 1,595 tons, was anchored in or near the middle of the Elizabeth river a little below Lambert's Point pier. While so lying she was run down and sunk by the steam-ship Guyandotte, at the time bound down the Elizabeth river from Norfolk, Va. The amount of the claim is upwards of $24,000. Upon the greatly disputed question in this case, whether the barge was displaying an anchor light, I incline to the opinion that the strong array of witnesses which the barge has been able to produce upon that point must be held to outweigh the testimony produced in behalf of the steam-ship. The case of the claimants is somewhat weakened by the fact shown by the circumstance in proof, that at the time of the inspectors' examination, held shortly after the accident, they were desirous that the lookout on the boat should not be examined by the inspectors, and by the further fact that, although the master of the boat is now positive that the barge had no light, in his letter to the agents, written the day after the collision, he said that she had a dim light. Upon all the testimony I am unable to hold the barge in fault for not displaying an anchor light. But she must be held in fault for not maintaining an anchor watch. Anchored where she was in such a night, she was bound to take every precaution to warn approaching vessels of her presence. A vigilant watch on her deck might by shouting and swinging a lantern have attracted the attention of those on the steam-boat to her presence in the locality where she lay at anchor in time to have enabled the steam-boat to avoid her. The probability that a watch on deck would have prevented the disaster seems to me greater in this case than in the case of The Clara, 102 U. S. 200, where the decision of the circuit justice that neglect to have an anchor watch was fatal to a recovery was affirmed by the supreme court. If, as the weight of the evidence is, the barge had a light displayed, the steamer was also in fault for not seeing it in time. The night was good for seeing lights, and I cannot doubt that a vigilant lookout on board the steam-boat would have discovered the barge in time to enable the steam-boat tc avoid her. Both vessels being found in fault, the damages will be apportioned.