master expressed the opinion that the fire would in the end prevail over the tugs. I also am pleased to notice and approve the harmony that was maintained between the different tugs in their united efforts to save the ship, and their desire to remove dispute as to the facts shown by the memorandum of the times of their respective services which was signed by all the masters of the tugs. Taking all things into consideration, I am of the opinion that this ship and cargo should pay a salvage of $20,000. I do not think that the freight should be taken into consideration. In regard to the proper distribution of this amount among the various salvors, I mention some circumstances that have led me to divide the salvage among the various boats in the manner hereafter stated. The circumstances of the ship were such that, at the outset, moments,-seconds even, were of the greatest importance; and I consider, therefore, the time of the arrival of each tug. The necessity of the ship was a great quantity of water pumped into her in a short time. I consider therefore not only the time at which each tug arrived, but also her pumping capacity. I notice also that Capt. Cahill, of the Moran, to a certain extent, assumed direction of the efforts to save the ship, and exercised good judgment in so doing. And I consider that, when a ferryboat abandons a regular trip to give aid to a ship in distress, the nature of the ferry-boat's employment, the inconvenience that arises from leaving a regular trip, the danger of complaint by passengers in case she does so, are things to be noticed in determining the amount of her award. In view of all the circumstances, I am of the opinion that to the owners and crew of the tug Moran should be awarded the sum of $4,000. The Sylvester was a ferry-boat worth $60,000, a sum far exceeding the value of any other of the vessels engaged, and from her construction more exposed to danger from fire than any. To the owners and crew of the Sylvester I award the sum of $3,000. To the owners and crew of the Leader I award the sum of $2,500. To the owners and crew of the Talisman I award $2,500. To the owners and crew of the Indian I award $2,500. The Charm, a tug of greater capacity for pumping than any other tug, arrived after the ship had grounded. To her owners and crew I award $2,000. To the owners and crew of the tug Garlick I award $1,500. The tug Temple was the fifth boat to arrive. Her pumping machinery soon broke down. She was absent for a time, having gone to notify the Patrol, a service of no value to the ship, as things turned out. To her owners and crew I award $1,000. And to the owners and crew of the Pratt, which did the towing, I award $1,000.

CROSSAN v. Wood.1

(District Court, S. D. New York. November 19, 1890.)

WHARVES AND WHARFINGERS-CONCEALED OBSTRUCTIONS-LIABILITY TO VESSEL. In a suit against a wharfinger for damages alleged to have been occasioned to a vessel at the wharf by reason of obstructions under the water, the fact of the existence of such obstructions, and that the damage was occasioned by them, must be clearly proved before the ship-owner can recover.

In Admiralty. Suit against a wharfinger for damage occasioned to libelant's vessel by reason of alleged obstructions at wharf.

Wilcox, Adams & Macklin, for libelant.

R. H. Underhill, for respondent.

BROWN, J. On the night of July 21, 1888, the libelant's canal-boat Cora Bell was lying alongside the respondent's coal dock in an arm of Gowanus canal. She was damaged, as the libelant contends, by being caught at the bows, as the tide went down, upon some obstruction consisting of rocks or timbers under the water at the upper end of respondent's dock. The boat had been made fast at high tide early in the evening by three lines, with about three feet slack, as stated by the captain. of the boat. The tide fell about five feet. At about 2 o'clock at night, the boat was found to have a list to starboard. The bowline was broken, and the bows somewhat elevated, as the captain says, while the other lines held fast. When the tide rose again, she righted, but leaked badly, and, after the coal was discharged, upon survey, was pronounced so badly sprung and twisted as to be practically of no value. The boat was an old one. There were heavy piles driven about 10 feet apart in front of the wharf to serve as fenders. Immediately adjacent to the wharf, there was some accumulation of coal dropped in the discharge of vessels, and it was usual for boats to breast off from the fenders a foot or two in lying up. The great weight of evidence is to the effect that there were no obstructions at the bow such as the libelant contends were there. The bottom was soft mud, with the exception of a little coal immediately adjacent to the wharf, and vessels of the same draught as the Cora Bell, or of greater draught, were in the habit of lying there, discharging at all times of tide without injury. In all the cases where the dock-owner has been held liable for obstructions, the primary fact of the existence of the obstructions alleged, and that the damage arose from that cause, has been clearly proved. Manhattan Transp. Co. v. Mayor, etc., 37 Fed. Rep. 160; Smith v. Havemeyer, 32 Fed. Rep. 844, affirmed, 36 Fed. Rep. 927. I cannot find that this has been established in the present case, and, that wanting, no decree can be given for the libelant. The breaking of the bowline is of itself sufficient evidence that sufficient slack was not given in tying up for the night; and, as the other two lines held, that would

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

seem to account for the list and the consequent injury through the twist and strain resulting to so old a boat. See Nelson v. Chemical Works, 7 Ben. 37. The libel is dismissed.

ROSTRON et al. v. THE WATER WITCH.

(Circuit Court, S. D. New York. November 15, 1890.)

1. ADMIRALTY-MONITION-DEFAULT.

Where a libel has been filed against a vessel, and on the return-day of the monition the owner of the vessel did not appear, and his default was duly entered in the cause, such default amounts to a formal admission by him of the truth of the allegations of the libel, and a lien in favor of the libelants attaches to the proceeds of the vessel, which has been sold in the mean time under a decree in a prior suit for seamen's wages.

2. SHIPPING-BOTTOMRY BONDS-AUTHORITY OF MASTER.

In a contest between the administrator of the owner and libelants, in a suit to recover the amount of a bottomry bond, who, by the owner's default, have acquired a lien on the proceeds of the vessel sold in another suit, a letter of the owner, denying the right of the master to execute a bond "for so large an amount," is an admission that the master was justified in executing a bottomry bond, and the burden is on the administrator to show that it was for a larger sum than was required by the necessities of the vessel.

3. ADMIRALTY-SALE OF VESSEL-PAYMENT OF PROCEEDS TO PROCTORS.

Where proctors, who filed a libel 30 years before, apply for the proceeds of the vessel deposited in the registry of the district court, assuming to act under their original authority, and it is shown that the sole survivor of the libelants, when last heard from, several years before, was an old man, and "very much of a floater," somewhere in Brazil, the proceeds will not be paid over without a further application, by which it may be shown that there is some person in existence who is legally entitled to receive them.

In Admiralty.

Hyland & Zabriskie, for appellants.

S. Hanford, for appellee.

WALLACE, J. The question in this case is whether the libelants or Prince, who is administrator of the estate of the former owner of the vessel, is entitled to the sum of $888.20, deposited in the registry of the district court, arising from a condemnation and sale of the vessel, under a decree in rem at the suit of one Taggert for seamen's wages. In 1859, the libelants filed a libel against the vessel to recover the amount of a bottomry bond, which set forth the bond, and that it was duly executed by the master of the brig at Pernambuco. A monition was duly issued and published, and the vessel was attached; and, upon the return-day of the process, the owner of the vessel did not appear, and his default was duly entered in the minute-book by the clerk of the district court. Within a few days subsequently, the vessel was sold under the decree in the suit by Taggert, and December 31, 1859, the proceeds of the sale were deposited in the registry. The balance, after payment of Taggert's claim, remained in the registry, and is the money now in controversy. The owner of the vessel died 13 years ago, and in January, 1889, Prince,

who had been appointed administrator of his estate, filed a petition in the district court for an order that the proceeds be paid to him. Whether the proceeds belonged to the libelants or not, it is very clear that Prince is not entitled to them. The default of the owner of the vessel to appear at the return-day of the monition was equivalent to a formal admission on his part of the truth of the matters alleged in the libel, and consequently of a lien by the libelants at that time upon the vessel, which lien of course attached to the proceeds of her sale. See Miller v. U. S., 11 Wall. 268, 301. That default has never been vacated, and the amount of the lien of the libelants, which is the amount of the bottomry bond, is far in excess of the proceeds in dispute.

After the administrator petitioned that these proceeds be paid over to him, the proctors for the libelants applied for a decree condemning them. This was, in effect, an application by them to have the proceeds paid. over to them. The court made an order allowing the administrator to contest the libelants' rights to the proceeds. For the libelants the execution of the bottomry bond by the master of the ship at Pernambuco, in the presence of the United States consul, and at the same time an assignment of the bond to Pickeragill & Co., of New York, for collection, were proved, and also that within about a month thereafter the owner of the vessel wrote to Pickeragill & Co. denying that the master had any authority to execute a bottomry bond "for so large an amount." letter is an admission that the master was justified in executing a bottomry bond. When the execution of the bottomry bond was proved, the onus was cast upon the administrator to show that it was for a larger sum than was required by the necessities of the vessel. No evidence was offered by the administrator for this purpose. As between the two rival claimants for the proceeds it is entirely plain that the title to them. is in the libelants.

The evidence taken upon the hearing shows that all but one of the libelants are dead, and the only survivor is one Patchett; and that he has not been heard of in two or three years, and when last heard from was a very old man, and "a floater, very much of a floater," somewhere in Brazil. The proctors who filed the libel are assuming to act upon. their original authority, conferred 30 years ago, in applying for the proceeds. Under these circumstances, the proceeds should not be paid over without a further application, by which it may be made to appear that there is some person in existence who is legally entitled to them. A decree will be entered dismissing the petition of the administrator, and refusing the application of the libelants for a final decree, with leave to renew it upon further proof.

KEILEY V. THE ALLIANCA.

(Circuit Court, S. D. New York. November 15, 1890.)

SHIPPING-LIABILITY OF VESSEL FOR TORTS-SCALDING BOILER-Cleaner.

Where the master of a steam-ship employs a contractor to clean the inside of her boilers, the ship is liable for injuries suffered by the contractor's employe, while engaged in the work, by the negligent escape of steam and hot water into the boiler, whether those in charge of the steam let it escape or it was done by some meddling stranger in consequence of the negligent supervision of those in charge.

In Admiralty.

H. Aplington, for appellant.

Wm. B. Tullis, for appellee.

WALLACE, J. Grube, a minor, while at work inside one of the large boilers of the steam-ship Allianca, on August 17, 1889, was 'scalded by the escape of hot water and steam into the boiler, such hot water and steam coming from apparatus outside the boiler in charge and under the control of the engineer of the vessel. Grube at the time was in the employ of one Ryan, a contractor, who had been employed by the master of the steam-ship to clean the inside of the boilers. In consequence of his injuries, Grube suffered great pain, and was confined in the hospital for three months. The district court in its decree allowed him $750 damages for his injuries. It is entirely clear that the libelant is entitled to recover, and that the sum awarded him in the court below was no more than a fair compensation for his injuries. The master of the steamship, having employed Ryan to work inside the boiler, owed an active duty to him and his employes thus invited there to see that they were not exposed to any unnecessary hazard while there. Grube was injured by an escape of steam, which was inevitably perilous to his safety, and which would not have happened if those in charge of the steam-ship had used proper diligence in taking care of the steam apparatus under their control. It is quite immaterial whether the engineer, or any of his subordinates, let the steam escape, or whether some intermeddling stranger did so. Those in charge were bound to exercise proper supervision over the apparatus for the safety of those who might be injured by any relaxation of vigilance on their part.; and if a stranger meddled with the apparatus, that circumstance implies negligent supervision by those in charge. I have no doubt, however, that the presumption is that those in charge of the steam apparatus let the steam escape, and that the burden was on the steam-ship, under the circumstances, to exonerate herself from negligence. A decree is ordered for the libelant for $750, and for the costs of the district court as taxed, with interest from the date of the decree and the costs of this court.

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