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herein 1891, now, on motion of D. & F., proctors for the libelant and appellant, it is
Ordered that said decree be, and the same hereby is, reversed, with costs of this Court, and that the costs of the District Court be apportioned, and that a mandate issue to said District Court directing said court to proceed in accordance with the opinion of this Court.
FORM XXX.-MANDATE IN ADMIRALTY. UNITED STATES OF AMERICA, ss
The President of the United States of America, To the Honor. (SEAL] able the Judge of the District Court of the United States for
the Southern District of New York, GREETING: Whereas, lately in the District Court of the United States for the Southern District of New York, before you, in a cause between J. S., libelant and appellee, and the steamship X., whereof A. B. is claimant and appel. lant, wherein the decree of said Court is in the words and figures following, viz: [Here state substance of decree of District Court) 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 Circuit by virtue of an appeal taken out by said A. B., 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 thousand eight hundred and ninety-one, 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 ordered, adjudged, and decreed by this Court that the decree of the District Court be, and the same hereby is, affirmed, with the costs of this Court, amounting to the sum of $42.25.
You, therefore, are hereby commanded that such further proceedings be had in said cause, in conformity with the opinion of this court, as according 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 twenty-fourth day of December, in the year of our Lord one thousand eight hundred and ninety-one.
JOHN A. SHIELDS,
for the Second Circuit. Costs of Clerk......
$12.90 Printing record.
$42.25 FORM XXXI.- FINAL DECREE ON MANDATE IN ADMIRALTY. At a stated term of the District Court, etc. Present: Honorable Judge.
[TITLE.] The decree of this court entered berein July 7, 1891, having been affirmed on appeal to the United States Circuit Court of Appeals for the Second Circuit, as appears from the mandate of said court filed herein December 12, 1891, now, on motion of D. & F., proctors for the libelant and appellee, it is
Ordered, adjudged, and decreed that the libelant above named recover herein the sum of $—, damages, and the further sum of $- interest thereon from the date of the report of the commissioner herein, and the further sum of $—, costs of this court, and the further sum of $42.25, costs of said Court of Appeals, making in all the sum of $_, for which sum the above-named vessel, her tackle, etc., are hereby condemned.
And it is further ordered, adjudged, and decreed that the stipulators for costs and value on the part of the claimant and the sureties on the bond given on appeal herein cause the engagements of their stipulations and bond to be performed, or show cause why execution should not issue against their goods, chattels, and lands in satisfaction hereof.
FORM XXXII.-LIBEL OF PETITION FOR LIMITATION OF 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 the T. Steamship Company, owner of the steamship D., in a cause of action, civil and maritime, respectfully shows: —
First. Your petitioner is a corporation duly created and organized by and under the laws of the kingdom of —, having its principal office at
-, and owns and runs a line of steamships for the carriage of cargo and passengers between German ports and the port of New York, known as the T. Line. At the times hereinafter mentioned your petitioner was the owner of said steamship D., which was engaged in the business of carriage of cargo and passengers in said line as aforesaid.
Second. On the 20th day of March, 1889, said steamship D., having on board a large general cargo and about 500 passengers, and being fully manned with a large and competent crew, under command of an experi. enced master with a full corps of efficient officers, left the port of H. bound on a voyage to New York via the ports of C. and D. After touching at said ports, and taking on more passengers and cargo and ship's coals, said steamship left D. for New York on March 26th. passing Dennis Head on the 27th, and through Pentland Frith on the following day, whence all went well with said vessel until the 2d of April, when a storm came up, and for two days the vessel labored heavily in the seas. On the morning of the 4th the high seas continued, and finally, at 3:30 P. M., when in lati. tude 46° 28' and longitude 40° 6', a shock was felt throughout the ship. The engines were stopped instantly, and upon investigation it was found that the stern section of the propeller shaft had broken in the stern tube, and that at the same time the stern bulkhead was broken into and rivets started, letting in a large quantity of water. All the pumps were worked, the sails set. The pumps were kept going, but were unable to keep the water under control. The pumps were worked by steam, and the other compartments of the vessel kept empty; but the water continued to rise in the engine-room. A portion of the cargo was jettisoned without avail. The water in the after hold rose to a depth of three feet. The sea was still
high. The storm continued, and the steamer labored heavily, and began noticeably to settle lower aft.
At daylight on the 6th of April the steamship M. was sighted. She promptly offered assistance. Her commander undertook to tow the D. to the nearest land, which was the Azores. The M. accordingly began towing. The leak in the D. increased so rapidly that at 11 A. M. her passengers were begun to be transferred to the M., which was concluded at 4 P. M. The captain of the M. then declined to tow the D. longer, after the passengers had been transferred; and as the leak was increasing, the captain and crew of the D. were compelled for their own safety to abandon the vessel, which was done; and thereafter said vessel, together with all her tackle, apparel, boats, and appurtenances has become a total loss, and no freight moneys have been earned, paid, or received therefrom.
Said accident happened, and the loss, damage, injury, and destruction above set forth were occasioned, done, and incurred without fault or priv. ity or knowledge of your petitioner, and without the fault of any of its officers, agents, or servants, but were due solely to perils of the seas.
Fourth. Nevertheless certain persons claiming to have been passengers on said vessel, and persons claiming to have lost passengers' luggage or baggage upon the D., have already brought suit against your petitioner, and other suits are threatened. On the 6th day of May, 1889, one X. Y. commenced an action against your petitioner in the Supreme Court of the State of New York for the City and County of New York, within the Southern District of New York, to recover damages for alleged loss or destruction of luggage upon said steamship; and said action is still pending, the plaintiff's attorney being J. S., Esq., whose office is at —, in the City of New York. Your petitioner desires to contest its liability for the loss, destruction, damage, and injury occasioned by said accident, and also to claim the benefit of the limitation of liability provided in the third and fourth sections of the Act of Congress, entitled “An Act to limit the liability of shis-owners and for other purposes," passed March 3, 1851, now embodied in SS 4283 to 4285 of the Revised Statutes, and the various statutes in addition thereto and amendatory thereof,7 [and is ready and willing to transfer any interest or spes recuperandi in the steamship D. for the benefit of all such claimants to a trustee to be appointed by this Honorable Court, although, as this petitioner is advised and believes, said steamship D. and her freight moneys, and her tackle and apparel, are now and have been a total loss.]
Fifth. Your petitioner further states the facts and circumstances by reason of which exemption from liability is claimed, as follows, in addi. tion to the facts hereinbefore alleged:
That the said steamship D. was in all respects sound, staunch, and seaworthy, and properly manned and equipped, and provided for the voyage in which she was engaged, and under command of proper and suitable officers.
1 Or in case of an appraisement, "and to that end desires an appraisement to be had of the amount or value of its interest in said steamship in the condition in which she was after said accident and damage on — 1889, and of her freight then pending; and for that purpose your petitioner asks that said steamship be examined and her value ascertained by a commissioner of the Circuit Court, or by such other means as the court shall direct."
That said accident occurred through no fault or negligence on the part of the persons on board of or having charge of the navigation of the said steamship D., but was wholly due to the perils of the seas, the severity of the storm, and the action of the elements in breaking the shaft of said steamer within the stern tube, whereby the stern bulkhead was broken and started and a leak made so that it become impossible to repair her, which finally caused her to be abandoned by her passengers, officers, and
That said steamship D. has not been libeled or arrested in any court to answer for said loss or destruction, but that the owners have been sued within the Southern District of New York, as aforesaid.
That your petitioner is ignorant of the amount of the losses and injuries suffered by the several freighters and owners of merchandise upon said voyage.
Wherefore your petitioner prays that this Honorable Court I will issue a monition against all persons claiming damages for any loss, destruction, damage, or injury occasioned by said accident, citing them to appear be fore this court and make due proof of their respective claims, at a time to be therein named; as to all which claims your petitioner will contest its liability, independently of the limitation of liability claimed under the act and statute aforesaid.
Also that the Court will designate a commissioner before whom proof of all claims presented in pursuance of such monition shall be made; and that, upon the coming in of the report of said commissioner and upon the hearing of the cause, if it shall appear that the petitioner is not liable for such loss, damage, destruction, and injury, it may so finally be decreed by this Court. And that in the mean time and until the final judgment of the Court shall be rendered herein, this Court will make an order restraining the further prosecution of all and any suit or suits against the petitioner, in respect to any such claim or claims, particularly by the said X. Y., who brought suit in the Supreme Court of the State of New York as hereinbe. fore specified; and the petitioner will ever pray, etc.
FORM XXXIII.- ORDER FOR TRANSFER TO TRUSTEE.
At a stated term of the District Court of the United States for the South.
ern District of New York, held at the United States Court Rooms in the City of New York on the 25th day of June, 1889. Present: Honor
able ADDISON BROWN, District Judge. IN THE MATTER OF THE PETITION OF THE
T. STEAMSHIP COMPANY AS OWNER OF
THE LATE STEAMSHIP D. Upon reading and filing the libel and petition of the T. Steamship Com. pany as owner of the late steamship D., showing that it has been sued as
In case of appraisement, here insert “will be pleased to cause due appraisement to be had of the value of said steamship D. in the condition in which she was immediately after said accident, and is now, and, upon the ascertainment of said value, make an order for payment thereof into court, or for the giving of a stipulation, with sureties for payment thereof into court whenever the same shall be ordered, and."
such owner by one X. Y., claiming to have been owner of certain passengers' baggage lost and destroyed on such vessel at the time of the abandonment of said steamship on the 6th day of April, 1889, to recover for such loss, destruction, damage, and injury; and that other actions are threatened against said petitioner, and that the whole value of said vessel and her freight has been totally lost, and that the same is therefore not sufficient to make compensation to each of the freighters and owners therefor; and that such loss, destruction, damage, and injury was done, occasioned, and incurred without the privity or knowledge of such owner, and that said petitioner desires to claim the benefit of the limitation of liability provided for in the third and fourth sections of the Act of Congress, entitled
“An Act to limit the liability of ship-owners and for other purposes,” passed March 3, 1851, now embodied in SS 4283 to 4285 of the Revised Statutes, and the various statutes in addition thereto and amend. atory thereof, and also to contest its liability and the liability of said vessel for said logs, destruction, damage, and injury, independently of the limitation and liability claimed under said Act, said libel and petition also stating the facts and circumstances on which such exemption from limitation. of liability are claimed, and praying proper relief in the premises in that behalf, and the said owner having elected to make a transfer as herein. after provided,
It is hereby ordered, in conformity with said Act of Congress and the statutes amendatory thereof and the Rules of the Supreme Court of the United States made in pursuance thereof, that said T. Steamship Company transfer its interest in the late steamship D. and her freight for the said voyage, for the benefit of all such claimants, to Samuel H. Lyman, Esquire, of the City of New York, who is hereby appointed, pursuant to the provisions of the fourth section of said act, to be trustee for the person or persons who may prove to be legally entitled thereto.
FORM XXXIV.- TRANSFER TO TRUSTEE.
T. STEAMSHIP COMPANY AS OWNER OF
LIABILITY. WHEREAS, a petition has been filed by the above-named petitioner as owner of the late steamship D. praying for a limitation of its liability in respect of such vessel; and whereas, by an order duly made herein, Samuel H. Lyman, Esq., has been appointed trustee, to whom the petitioner's interest in said steamship and her freight is directed to be transferred for the benefit of the claimants thereto:
Now, therefore, in consideration of the premises, and in compliance with the said order of this Honorable Court, the T. Steamship Company of above named, by its agents thereunto duly and lawfully authorized, in pursuance of the Act of Congress of the United States entitled “An Act to limit the liability of shipowners, and for other purposes,” passed