parte SlaytCYfi, 105 U. S. 451, the supreme court held that under this rule
a petition may be filed before, as well as after, the commencement of the suit, so that the supreme court has construed its own rule, adversely to the position taken by the plaintiff. The defendant has filed a copy of the petition in the distric.t court, and of the decree upon it, and there is no dispute as to its correctness except that the decree has been modified by striking out the injunction. The remainder of the decree remains as it was. When brvught to the attention of this court, its duty, is, according to the decisions of the supreme court, to suspend all proceedings in the case. The supreme court of the United States says that the suit should be dismissed. The motion'here, in form, is, to suspend all further proceedings in the case, and to strike the case from the calendar. I donot know exactly what is meant by striking the case from the calendar, otherwise than dismissing it. 'We are not in the habit of striking cases from the calendar until they are disposed of, because inconvenience may result therefrom many years afterwards. The proceedings will be suspended, and I think, the suit may as well be dismissed. If counsel, however, think that is not proper, I will leave them to move to amend in that particular. Let the proceedings be suspended, and the suit dismissed.
THE AVOCA.! BOYES
et al. v.
THE AVOCA. WEU"S SAME. BRIGGS et
ct al. v. SAME. al. v. SAME.
(District Court, E, D. New York.
July 12, 1889.)
2. SAME-UNNEC!iSSARY AIl>.
After'the bark had been towed into the stream and anchored, and while the crews of the bark and the tug were engaged in extinguishiug the fire, two other tugs came along·slde to assist. Hetd, that the fire would have been extinguished without their assistance; that what little aid they rendered was not needed; and that they were not entitled to salvage compensation., 'Reported by,Edward G. Esq., of thll New YQrk bar.
II,t. Adrt1iralty. .. . .. .. by James Ellis and othe'l'S, Jonathan H. Wells and others, as owne.rsand crew of the steam-tug Alice E. Crew, and Alison Briggs and others,·andCharles W. Boyes .and others, as owners of the steam-tugs Arrow and against the bark Avoca, to recover salvage compensation for services rendered in extinguishing and protecting from fire. George lV. Dease, for libelants Ellis et al. Wing, Shoudy & Putnam, for libelants Wells et al. Alexander & Ash, for libelants Briggs et al. Wilcox, Adams & Macklin, for libelants Boyes et al. William A. Walker, for claimants.
BENEDICT, J. These actions are to recover salvage compensation for services rendered to the bark Avoca on the occasion of a fire at the oildocks on the 11th day of October, 1888. They were tried together, and may be disposed of together. At a little after 5 o'clock in the morning of the 11th day of October, 1888, a fire broke out on the steamer Hafis, lying on the upper side of the pier at the foot of North }£leventh street, on which pier was a shed used for storing petroleum oil, in which at the time there were 30 barrels of refined oil, and upon which was a pipe-line, used for the purpose of carrying petroleum in bulk into tanks upon ships lying at the pier. On the south side of the pier lay the bark Avoca, her foremast boing about abreast of the shed upon the pier. The Avoca had taken on board some 9,600 barrels of refined petroleum oil, and at the time the fire broke out lay. fast to the pier, having 4 barrels of oil upon the deck, and her hold nearly full of refined oil in barrels. A few moments after the fire was discovered the bark caught fire from the blazing shed. The fire was from the beginning rapid and dangerous, and there was no possibility of aid from the shore. Almost ·at the time the fire broke out it was discovered by the pilot of the Alice E. Crew, a steam-tug, then on the other side of the river, about a mile and a.half distant. He at once made for the fire, signaling his engineer to give the tug all the speed possible. Arriving at the burning pier. the tug at once proceeded to give a line to those on board the bark, and to haul her into the stream, the sails of the bark and her bulwarks being at the time ablaze. The slip was about 100 feet wide, and in towing out the bark came in contact with a vessel on the other side of the slip, from which she was speedily extricated, and ·then taken to an anchorage near a reef in the river at that point. As soon as the bark was anchored the crew of the, tug boarded her, and assisted the master and crew in extinguishing the fire. This was accomplished without difficulty by the use of buckets and the tug's hose. The bMk by the fire was the loss of some sails, the jibdamage boom, some feet of herbuhvarks, and some of her deck plank. Her repairs cost $1,280. The time occupied in towing the bark ant to the place of anchorage did not exceed 20 minutes. The fire on board the bark was wholly extinguished in the course of an hotlr and three-quarters.
When the bark was anchored she was in danger of striking the reef when the tide changed. She was therefore held away from that by the tug, so that she did not strike. After the fire was out, the tug took the mate of the bark-the mastbr being absent-down to his owners in New York, leaving him there about 10 o'clock in the morning. The value of the bark was $35,000, less $1,280, the cost of repairs. The value of the cargo was $36,760. While the bark was at anchor, and the crew of the bark engaged with the crew of the Alice E. Crew in extinguishing the fire upon the bark, the steam-tug Arrow and also the steam-tug Excelsior carne along-side the bark, and now claim to have rendered services in extinguishing the fire on the bark, for which they also demand salvage compensation. It is not to be doubted that the services rendered by the Alice E. Crew on this occasion were salvage services of an important character. Had it not been for the timely presence of the Alice E. Crew, the proofs render it certain that the bark and her cargo would have been wholly destroyed, as were other vessels, by the same fire. The services so rendered were promptly rendered, to a vessel in great distress. They were voluntary, and they resulted in saving the vessel and her cargo from destruction. An effort has been made on the part of the claimants to maintain that in the absence of the Alice E. Crew, the bark would have drifted in the ebb-tide away from the pier, and might have escaped destruction. I cannot believe that such would have been the fact. My opinion is that, in the absence of aid from some tug, the bark would have burned up. It has also been contended that the bark might have been saved by the tug Emperor, a tug that arrived at the pier at about the same time as the Alice E. Crew. But the proof is clear that the Emperor devoted herself to the steam-ship Hafis, and in the taking off her men from the end of the pier, and would not have been able to assist the bark at the same time. The fact is that, owing to the intensity of the fire, and the exposed position of the bark, no tug except the Alice E. Crew was present in time to afford any valuable assistance to the bark. The services, however, were of short duration, and involved no special skill or hazard to the "alvors. The case is that of some $70,000 worth of property saved from total loss by the timely aid of the only tug able to renuer any assistance. Such a case calls for a liberal award. In my opinion the tug should recover for her services on this occasion the sum of $5,000. In regard to the services rendered by the Arrow and the Excelsior, in my opinion neither of those vessels are entitled to salvage compensation. Their services were not needed. The Alice E. Crew was along-side the bark, and her crew and the crew of the bark were engaged in putting out the fire, and it would have been extinguished without any aid from the Arrow or the Excelsior. The little aid that they did render was not required, and I am unable to award to them any compensation therefor. The libel in the case of Briggs must therefore be dismissed, but without costs, and the libel of Boyes must also be dismissed, but without costs. In the other two cases, which are one for the owners and the other for the crew of the Alice E. Crew, a decree against the bark and her cargo will be rendered for the
Rum of$5,OOO, and the taxable costs. 'The award will be apportioned hereaftetamong the salvors by the court, unless they agree among themselves as to its division. 1
et al. v. THE
(District Court, E. D. New York.
SALV AGE-COMPENSATION -COSTS.
Fire broke out on a wooden ship, wbich had previously carried petroleum, and which was lying in a crowded dock. A water-boat near by eame up, on a call for assistance. and poured water into the ship for some 20 minutes, when the city fire department appeared. and extinguished the tire. The ship was valued at $40,000, Held. that $500 should be awarded as salvage. but without costs, as no proper effort was made by the salvors to make known the amount demanded before suit, and the ship was seized without notice of intention to proceed against her.
In Admiraltv. Action by Sullivan and others agninst the British ship Vanloo, to recover salvage compensation for services rendered in extinguishing a fire therein by the water-boat Nelly. Edward D. McCarthy, for libelants. Wing, Shoudy & Putnam and C. C. Burlingham, for claimants. BENEDICT, J. This is nn action on behalf of the water-boat Nelly, to recover snlvage compensntion for services rendered to the ship Vanloo on the 23d day of October, 188Fl, on which day, at about 11 o'clock in the forenoon,-that ship being in the Atlantic dock, with little or no cargo on board,-fire broke out in the lazaret, which burst forth through the hatch in flames estimated from five to ten feet high. At the time the fire broke out the master of the ship was not on board, but the mate and several of her crew were. On the bursting forth of the fire, the mate caused an alarm to be at once given by the ringing of a bell on board the ship and cries of "Fire!" On hearing the alarm, the water-boat Nelly, then lying near by in the same dock, having on board some 8,000 gallons of water, at once proceeded along-side the burning ship, and commenced to throw water upon the fire with her pumps. After some 15 or 20 minutes the fire department of the city carne to the ship, and by their powerful pumps the fire was extinguished. There is no c!<Jubt that the services rendered by the Nelly were salvage services. Theonly question raised in the case is as to the amount. The
'The parties being unable to agree as to the division, the court subsequently distributed the $5,000 aUlong the salvors, awarding $3,150 to the owners of the tug, and $1,250· to the master and crew.-[REP. "Reported by Edward G. Benedict, Esq., of the New York bar.