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street pier she was close behind the schooner; that the Clifton, as soon as she passed Ninth street, hauled a little to port, intending to pass inside the schooner; that before the Clifton thus hauled in she bad seen the green light and not the red light of the Johnson Brothers; that if the Johnson Brothers had kept her course she would have gone considerably to the starboard side of the Clifton, the said vessels being neither end on nor head to head, nor nearly so, but that just about the time the Clifton had hauled to port, after passing Ninth strret, the Johnson Brothers gave one blast of her whistle, which was instantly answered by the Clifton with two blasts of her whistle; that thereupon the Johnson Brothers gave another single blast, which was also answered by the Clifton with two blasts, when suddenly and for the first time the red light of the Johnson Brothers came into view, and the engine of the Clifton was stopped and reversed, and her wheel hove hard a-starboard; but that almost immediately the collision occurred, the starboard bow of the Clifton and the port bow of the Johnson Brothers coming into violent collision.
After examination of the voluminous and contradictory testimony, I am of the opinion that the Clifton was in fault, and that the collision would not have occurred if those managing her had observed the rules of navigation applicable to the case. The two vessels were approaching each other nearly end on, involving the risk of coming together. The eighteenth sailing rule (section 4233, Rev. St.) requires, under such circumstances, that the helms of both vessels should be put to port, so that each vessel may pass on the port side of the other. The Johnson Brothers obeyed this rule, but the Clifton did not. Her pilot determined to pass the Sarah and her tow on the larboard or New York side, and in order to do this she starboarded her helm, although by so doing she was brought across the track of the Johnson Brothers, and came into collision with her. Besides, the Clifton was in fault in answering the single whistle of the Johnson Brothers with two whistles. By the first rule of “The regulations for the government of pilots, adopted by the board of supervising inspectors in June, 1871, and amended in January, 1875," it is prescribed that “when steamers are approaching each other head and head or nearly so, it shall be the duty of each steamer to pass to the right or on the port side of each other, and the pilot of either steamer may be first in determining to pursue this course, and thereupon shall give as a signal of his intention one short and distinct blast of his steam-whistle, which the pilot of the other steamer shall answer promptly by a sim
ilar blast of his steam-whistle, and thereupon such steamer shall pass to the right or on the port side of each other.” The pilot of the Johnson Brothers was the first to determine the course, and by one whistle gave notice to the Clifton to port her helm and pass to the right. But the pilot of the Clifton, wishing to go into the Twelfth-street dock by the shortest way, declined to accede to the arrangement, and replied with two whistles rather than one. It was as if he had said to the Johnson Brothers: “I hear your single whistle, but I give you notice, by returning two whistles, that I do not mean to comply with your request and go by you on your port side. I prefer to hug the wharves, and pass you on your starboard side, although the first rule or regulation, governing both of us, gives the pilot of either steamer the right of first determining on which side he will pass the other, and when he has given the notice of his determination by a single whistle, the other must accede by returning the same signal, and passing to the right, or on the port side of each other.”
There must be a decree for the libelants, and a reference to ascertain the damages.
(Circuit Court, É. D. New York. December 14, 1882.)
Decision of the district court in the same case affirmed. See Tho Ferreri, 9 FED. REP. 468.
BLATCHFORD, Justice. I have carefully examined the proofs in these cases, and considered the questions argued at the bar. The opinion of the district judge sets forth the facts correctly, and I concur in his conclusions, that the proofs show a right in the libelants to maintain a suit in rem against the vessel to recover the value of the resin; that, under the averments in the libel, and its prayer, a decree for damages for conversion can be sustained; and that the libelants had a right to require the signing of the bill of lading which they demanded from the master. Whether they had a right to claim the benefit of the contract of shipment made by Michel with the vessel is
•Reported by R. D. & Wyllys Benedict,
a question not necessary to be decided. The discussion of the facts ind the law applicable to the case by the district judge is so full and thorough that nothing can be added to its force.
Decrees must be entered for the amounts of damages awarded below, with interest from September 27, 1881, with the costs taxed in favor of the libelants below, and their costs in this court, the bills of lading deposited to be returned on payment.
THE JULIA L. SHERWOOD.*
(District Court, E. D. New York. December 5, 1882.)
1. VESSEL-LABOR AND MATERIALS SUPPLIED—LIEN UNDER STATE STATUTE.
The facts that a domestic vessel was placed upon a dry-dock for the purpose of being repaired, that she was there repaired, and had not left the place where the repairs were done up to the time of filing a libel against her by the owner of the dock for labor and material furnished, are sufficient to support a lien on
the vessel therefor under the New York state statute. 2. SAME-FILING SPECIFICATION OF LIEN.
The statute does not require the filing of a specification of lien, except in
case the vessel departs from the port. 3. STATUTORY LIEN-ENFORCEMENT IN ADMIRALTY.
Semble, that the facts proved in this case showed a lien enforceable in admi. ralty, aside from the provisions of the state statute.
BENEDICT, D. J. The bill presented by the libelant, Theodore A. Crane, to the claimant and signed by him as correct, coupled with the positive evidence of a subsequent admission of its correctness by the claimant, affords abundant proof of the averments of the libel that the items of labor and material mentioned in the bill were supplied by the libelant to the boat upon the request of the owner. There is also proof in the case that such labor and material were necessary to the repair of the boat. The defense that this labor and material were furnished upon the sole personal credit of the owner of the boat, and to be paid for in four months, is not proved to my satisfaction. Neither has it been proved to my satisfaction that the work was performed under a contract to do it for a specific sum. The libelant is therefore entitled to a decree for the amount of the
*Reported by R. D. & Wyllys Benedict.
bill, less $25, proved to have been paid, provided the facts proved show a subsisting lien upon the boat therefor. The facts proved to support the liens are that the vessel was a domestic vessel; that she was placed upon the libelant's dry-dock in Brooklyn for the purpose of there being repaired; that she was there repaired, and, up to the time of filing the libel, had not left the place where the repairs were done. No evidence of the filing of a specification of lien has been given. These facts show a lien upon the vessel by virtue of the provisions of the statute of the state of New York.
I do not understand the statute to require the filing of a specification of the lien, except in case the vessel depart from the port. No adjudged case to the contrary of this has been referred to, and I suppose no such case exists. I therefore hold the existence of a lien created by the state law to have been proved.
It may be added that the fact set up in the answer as a defense, namely, that the libelant took the vessel into his custody for the purpose of repairing her, and continued to hold her in his possession until taken possession of by the marshal by virtue of process in this action, seems to bring the case within the authority of the case of The B. F. Woolsey, 7 FED. REP. 110, according to which decision the libelant has a lien enforceable in admiralty, aside from the provisions of the state statute upon which the libelant has relied.
Let a decree be entered in favor of the libelant for the sum of $258.55, with interest from June 1, 1880, a costs.
THE TIGER LILY.
(District Court, E. D. New York. November 14, 1882.)
1. NEGLIGENCE-PROOF OF DAMAGES.
On a reference to ascertain the amount of damages resulting from negligence, the libelant is bound to prove not only the injuries sustained, but also the amount of money necessary to repair such injuries; and an estimate including repairs not proved to have been made necessary by the accident, cannot be taken
as proof of the amount of damages. 2. Costs ALLOWED.
Where the libelant succeeded upon the issues, costs were allowed him, even though he recovered less than the amount claimed.
*Reported by R. D. & Wyllys Benedict.
Oscar Frisbie, for libelant.
BENEDICT, D. J. The evidence introduced to show the cost of repairing the injuries to the libelant's boat is the estimate of the carpenter, Marshal. This estimate included repairs not proved to have been made necessary by the accident in question, and cannot therefore be taken as proof of the amount of the libelant's damages. The libelant was bound not only to prove the injuries sustained, but also the amount of money necessary to repair such injuries, and he has failed to prove any greater amount than that allowed. The commissioner correctly limited his report to the sum of $45, as the proof stands. The libelant’s exceptions to the report are accordingly overruled.
The claimant's motion to be relieved from costs must be denied. The only ground for asking to be relieved from costs is that the libelant recovers less than the claimant offered to pay bim before the institution of the suit. But no tender or offer to pay anything was made after the suit was commenced, and the case was strenuously contested upon the question of negligence. Upon that question the libelant recovers. There is not here a failure to succeed upon the principal questions put in controversy. In this case the libelant succeeds upon all the issues, but recovers less damages than he claimed. Moreover, to give him costs will do no injustice to the claimant, for the proofs indicate that the claimant's liability, limited as it is by this decision, will be less than it might have been under a different condition of the evidence.
Let a decree be entered for the amount reported due, with interest to date and costs.
See 11 FED. REP. 744.