per cent., instead of 10, which libellant refused to do. The money not being paid, and before the vessel went to sea, she was libelled in this suit. The master, who was examined before leaving port, denied having purchased anything of the libellant. His deposition was taken before the libellant and his man testified, and claimants have had no opportunity to examine him in respect to the alleged conversations testified to by them. The proof on the part of the libellant is from the testimony of the libellant himself and his man. Assuming the truthfulness of the libellant's witnesses, it is plain that the goods are not proved to be necessaries furnished to the vessel, and on its credit, for which the maritime law gives a lien. Necessary clothing for seamen may, of course, be as much necessary for the ship and for the successful prosecution of the voyage as food for the crew. But such is not proved in respect to the clothing furnished by the libellant. It appears by the declarations of the master testified to that the vessel had completed her voyage and was here discharging her cargo. Nothing appears with certainty as to any further voyage, except that she was here to be chartered for another voyage, but that she had not yet been chartered. Whether these seamen had shipped on terms binding them to serve on such further voyage or not is not shown. It is not, therefore, proved that they were any part of her crew in such sense that the furnishing of clothing to them could in any way be the furnishing of necessaries to the ship. Moreover, the proof falls short of establishing the essential fact that the sailors really needed the clothing. No safe inference of that fact can be drawn from the circumstance that upon the solicitation of the libellant they said they needed the clothing; and the improper and illegal agreement of the master, in stipulating for a percentage on the bills to be paid to himself, takes from the circumstance of his assenting to their being supplied any possible inference that might be otherwise drawn therefrom, that what the master has himself ordered in the due course of his employment, being within the class of proper ship's supplies, should prima facie, as against the owners, be deemed necessaries. It is urged that the furnishing of these clothes may be regarded as a mode of advancing money to pay the wages of the crew. But to this there are several answers: First, the suit is not brought for advances to the ship to pay wages. Secondly, the master is not shown to have been in want of money for this purpose. The contrary appears, and was known to the libellant; he was told there was freight money coming sufficient for the purpose. Thirdly, a party colluding with a master to cheat the seamen out of a part of their wages, or to induce them to apply their wages in anticipation of payment to any purpose not shown to be for their own good, will receive no relief in a court of admiralty. Of course, after they are paid their wages they can expend the money as they like; but payment in anything else than money, though with their consent, will be most rigidly scrutinized, and must be clearly shown to be proper and equivalent to the payment of the money itself to them. Libel dismissed, with costs. KANE v. PENNEY and others. (District Court, S. D. New York. 1880.) 1. DEMURRAGE-Delivery oF COAL BY CANAL-BOATS. Held, upon the proofs, (1) that Peck's dock was not the usual place for delivery of coal by canal-boats at Haverstraw; (2) that the consignees did not accept the coal at Peck's dock; (3) that the delay in getting to the place of discharge was not caused by the insufficiency of the respondent's dock, or by any obstacle they threw in the way.[ED. F. A. Wilcox, for libellant. A. B. Conger, for respondents. CHOATE, D. J. This is a suit for demurrage brought by the owner and master of a canal-boat. The canal-boat carried a cargo of coal from Hoboken to Haverstraw, under a bill of lading, by the terms of which the coal was to be delivered to these respondents, the consignees, "along-side." No other designation of the place of delivery was made before her arrival. On her arrival at Haverstraw the boat was left by the tug, in whose tow she was, and was made fast at a pier called Peck's dock, at which it is usual for canal-boats to be left by tugs; there not being depth of water enough at other docks in Haverstraw for the tugs to land canal-boats at them directly. Three points are made by the libellant to charge the respondents with demurrage for the delay subsequent to arrival at Peck's dock-First, that the arrival of the canal-boat at Peck's dock and notice to the consignees was a compliance with the bill of lading; secondly, that if not so, the consignees accepted her at that place; and, thirdly, that if the consignees had the right to designate the dock at which she should deliver, and did designate their own dock, the delay was owing to the insufficiency of their dock and the want of water there caused by their own fault. 1. Peck's dock, upon the proofs, is not the usual place for delivery of coal by canal-boats at Haverstraw. It is a private dock, and the place where boats can lie for discharge was inaccessible to the consignees by reason of the dock being covered by railroad tracks so laid that wagons cannot reach the end of the pier. The consignees had no right there. The consignees had a dock of their own, at which they often receive coal, accessible at ordinary high tide for canal-boats of the draught of this one. 2. The consignees did not accept the coal at Peck's dock. On the contrary, the evidence shows that the libellant engaged a tug to tow the boat to respondents' dock, and agreed with the captain of the tug to pay for the towage by giving him an order on the consignees for its payment out of the freight which they were to pay. This shows that he acquiesced in the designation of the respondents' dock as the place of discharge. 3. The libellant's boat failed to reach the respondents' dock, mainly through insufficiency of water, caused by a long course of prevailing westerly winds, which kept the tide down. At ordinary high tide there was water enough, but from the six teenth of December, 1877, to the twenty-ninth of December, it was found impossible to reach the dock from this cause, and also, a part of the time, on account of ice formed about the boat. The respondents did all they could, meanwhile, to assist the libellant in overcoming the difficulty, and about the twenty-fourth day of December they obtained permission of a steam-boat company, owners of an adjoining pier, to have the coal landed there; and this was done at considerable additional expense to the respondents in receiving the coal. Upon the proof, I think the delay in getting to the place of discharge, was not caused by the insufficiency of the repondents' dock, or any obstacle they threw in the way. There is a great conflict in the testimony of the parties, but the libellant is, on material points, so contradicted as virtually to be discredited. Upon settlement of his freight bill the libellant brought up the subject of a claim for demurrage, but, upon the suggestion by respondents of the extra expense they had been at, the claim appears to have been waived or abandoned, but afterwards this suit was brought. Libel dismissed. ANDREWS and others v. SMITH and others. (Circuit Court, D. Vermont. February 22, 1881.) 1. JURISDICTION-STATE AND FEDERAL COURTS-COMITY-RECEIVERS MORTGAGE TRUSTEES-ACCOUNTING. In a suit by the first-mortgage bondholders of the Vermont Central Railroad against the mortgage trustees, for holding said trustees accountable for moneys alleged to have been taken by them from the trust funds in their hands in violation of their trust, the defendants pleaded that during the period of the accounting called for they had been in possession of the railroad as receivers or officers of the court of chancery of Franklin county, Vermont, and, as such receivers, had already rendered an account to said court of chancery for the sums claimed in this suit, and so they could not be held chargeable therefor in any proceeding for that purpose in this court; or that if they were otherwise so chargeable, yet as the same subject-matter was previously before the state court for adjudication, this court should dismiss the plaintiffs' bill, out of comity towards the state court. The defendants also contended that if they had ceased to be receivers of the state court prior to the origin of the demand in suit, yet no order for discharging them as receivers had ever been entered in the state court, and that this court should still regard them as official receivers of the state court. Held, that the receivership formerly existing in the state court had practically ceased prior to the period covered by the accounting claimed in this case, and that the state court had so determined, and that, as the parties themselves had brought the receivership to a close by their own acts, no formal entry in court of such discharge was necessary, and that, as the parties to the proceeding in the state court were not the same as the parties in this case, the pendency of such proceedings would be no bar to this suit. Also held, that the rule of comity towards the state court could not operate to deprive this court of its own rightful jurisdiction. In Equity. Demurrer and plea to jurisdiction. B. F. Fidfield and L. P. Poland, for defendants. WHEELER, D. J. The defendants, citizens of Vermont, are trustees and representatives of trustees under the first mortgage of the Vermont Central Railroad, who have been in possession, after a default of payment, of that and the Vermont & Canada Railroad, (subject to a prior lien upon the income of both roads,) to secure the payment of rent to the Vermont & Canada Railroad Company. The orators, citizens of Massachusetts, are holders and v.5,no.10-53 |