The New Orleans daily Democrat. [volume] (New Orleans, La.) 1877-1880, 1878-03-07
PROTECTOR vs.. TORNADO.
TEXT or JUDGE BILLINGS DECISION.
The ship and Gotten In Lcvee Press Al
lowed to be nOnded-Thc Balance
Of Cargo Ordered To he sold.


upon bond. ! has boon insisted on tho part Of
llbelants that this being y salvage ehse. whore
The sayors W be ent tied to hnm r. PRO Pre-
could be no bonding and. on the part Of tho
master, that his right to bond was absolute,
g. no bonde The mot eaa
ID that Of Nathaniel Hooper. 3D. Of Summers Ro-
ports. pago 500 but # g canr that Judge story
dn that case confined his statement Of tho law TO
thst Is, Which rrecndd any discretion on the
limits his observations to that view, 800 also
I'D Parsona on chipping and Admiralty. page
ysB: QoDkling's New Edition revised. pags on
Dunlap's Admiralty Practice marginal png1ng
think Judge Ware In tho case Of tho En-
hem bayies hep"r's pags g. has
true doctrine rs to the snlvor's interest. and rs
to, his right to pos ,essinn., He says:
proprietary interest In the goods u Jus IN re, u
complete possessory right against all persons
claiming an interest In hem. to retain th9n IN
ttl his compensation ia paid. or until he can
proceed to enforce his right against them by
And he adds: "rhe goods upon tho filing of
libel by the palvors ire taken into tho custody
OF the court and ordered to be sold for tho pny-
mont OF tho snlvnge."
was for tho savors. through the justices, to have
apportioned to them auu,mariIy. either y r.
ton Of tho goods IN specis or 70 have sale by
the Justices. as being sort. OF a.bitrhtors. ind
TO have proportion Of the value delivered to
them but do not find that Tho authorities go
beyond tho doctrine that In case tho prop rty Is
lbsled In u court Of admiralty by the Balvors
the claimant cannot. US natter Of strict right
be- allowed to bond.
absolute right to bond.
He bases this claim on section a4I OF the Re-
not Of March 3, 1877. und in tho NintI, statutes
at Large. page 1871. That not Is entitled An net
for tho re- iuolion Of the costs and expenses Of
proceedings in admiralty against ships and
DHfDDED
was confined to ships and vessels, and tho great
itr III Il e t waT he which d.
judgment should exceed 800. Az. enacted in
section Dlt Of the Revised Statutes these limitn-
tons are stricken out. but 1t is clear to my mind
that 1t docs not apply to u case Of salvage whore
fixed sum Ia not claimed and whore It L. clear
= proportionnte ifterest might be awarded: for
tho salvor in sunh case has. In the Ian
, guage Of Judge Wnre proprietary IN, In
former owner from occupy ing tho position Of
an undispnted claimant. la caso the allega-
tons as to the salvage nre founl TO DO correct.
stduum after tho extent Of tho interest Of the
aalvor has been determined: TINT H. to say
the suit@-lhe saving being conceded becomes
one fol-. tho ascenainment Of tho respective
rights OF two or more persons. who In equity
occupy the position OF Joint owners. Tho mas
ter or former owner cannot In such II case DO II
full claimant; there Ia q question as to the OK
tent OF interest to be determined which takes
the matter from the dominion Of the court and
the judgment of ths court.
On the other hand the savors hnve no abso
lutte right TO prevent the bonding. nor have the
former owners any absolute right to insist upon
The modes OF procedure IN admiralty causes
Ress he M saosa q th q 81
1850. First Statutes at Large. pnge %. which pro-
yided that he forms and mo!es or proceeding
eordng 70 tho course Of ihe civil law. The net act
r. regulate processes IN the courts Of the United
States, etc. apt row ID March g. 17p2. found In the
First Statutes at Large. pnge 276, provides. In
substance, that The forms and modes OF pro-
opdnre In suits q admir"ty and maritime jn
rules and usages which belong to courts of nd.
miralty rs contrads inguished from courts Of
common law; except 80 far ~ they have boon
iect, however, to such alterations aud additions |
Ms the said courts respectively shall. in their |
discretion, deem expeaient. Or 70 sue, such atora-
shall think proper from time to time by rulo to
prescribe to any circuit or district court, con
II IL to b, observed that tho Supreme Court |
has tho power of making tho alterations and |
additions by regulations to tho practice then
The rules OF tho Supreme Court which boar
upon this matter are rules 10 and 10. Rule 10 |
provides fully for suits for salvage, and IL rs |
I'm all suits for salvage tho suit may be in rem
against tho propery saved or tho proceeds
whose request and forw whose benefit the snl vnge
service has been performed" And rule 10.
which confers upon tho court. In cases whore
the goods or other things nre arrested, If tho
some are porshablo. the discretion eithor to
decree . sale OF permit roleaso uuon stipua-
rants IN rem had issued and Nm arrest OF the
thing had been effected. aud 1t IL clear from ruIe
10 that u suit for salvage was included in tho
The mat ter then is by tho ats of Congress
,.r TIE rules OF the supreme Court lodged In
the discretion OF the court. in oil cases whore
n u I ft
could BIO demanded. and whore a proportion of
tho property itself. which Is to DO determined
by the court. IL cumed.
The question then Is, what ought the court to
sale decreed2
Numerous witnesses were examined orally
before, me from W hose to timony 1t appears
that with the exception OF the cotton that has
boon deposited in the Levee Press tho cargo is
both by mud aud fire injured
There seems to be no difference OF opinion
who were examined upon tho question MS to
what would be tho wisest disposition of the
property They gil speak OF i as being most
tho cotton would seem TO preclude any repair
with the view Of sending it forward, except Mt
m expense which would consume n large por-
NJ pears that the cotton was insured. and tho
agents Of tho underwriters testified that In
heir opinion tho cargo would be total loss.
In but ono int lance hni there b zen n
formal abandonment rs total loss and Il
formal acceptance.
There can b,no doubt Of tho correctness of
he proposition contended for by tho proctor
or the claimants, that until there has boon an
abandonment and an arceptn!Nce rs a to'al ,ss
he underwriters cannot technically como be-
ore the court as claimants. Tho Boston first
IF Sumner, $50. The Ew]and. Same VOL ao5
although Mr.. Benodct. in his treatise. pages 8, 3
md 5os gives the form Of Il claim Of The under
writer's prior to an abandonment for their ulti-
mate contingent interest
There can Q no doubt that the master. by
iireet authority represents tho owners Of TIL o
'esse, and under an impltod authority repre-
'ents the owners OF the cargo, and. in case Of
oss. the underwriters.
Zee Abbott on Shipping. page 222 side paging
60 note:
When the progress Of a voyage is interrr ped
~ any casuhIty. such rs capture. ehipwrcck or
,ther accidents. the master IF the ship becomes
II necessity the authorized agent Of tho owners.
reighters. inaurers aud MI concerned.
In Hall vs. franklin 9th of Pickering 4Gb 41s |