THE ENOS B.PHILLIPS.

153

the ship must be taken at $60,000. I approve of Mr. Stratton's method ofarriving at this valuation, and disapprove of the method employed by Mr. Sanford, but willred'uce the former's estimate, in deference to conflicting opinions.
THE ENOS B. PIDLLIPS. .LICHTENFJ<JLS et at v. THE ENOS B. PlnLLIPS. (District Court, D. New Jersey. December 12, 1892.)

1.

TENDER-SUFFICIENCy-COSTS.

A libelant is entitled to disregard a tender of the amount claimed. with interest, made after the filing of ihe libel and the issuing of the monition, as a tender should cover accllled costs. A libel by a firm of ship chHlldlers at a New Jersey port for ad\"ances of $.i;)() to the master of the Phillips, a foreign vessel lying at a dock at l'iI:!W York, alleged that the master, when purchasing supplies for his vessel trom libelants, applied for the advances in order to free the vessel from liens for seamen's wages, and that .libelants made the advances without asking security. On the part of the libelee the master of the Phillips stated that after purchasing supplies he suggested to the libelants that they purchase of him an interest in another vessel, the Dow, in order to secure its custom and trade when in the port of New York, and that the $150 paid to him by libelants was for a one sixty-fourth interest in the Dow, and not to meet liens for seamen's wages against the Phillips. A captain subsequently in temporarr command of the Phillips stated that one of libelants expressly admitted in conversation with him that the firm had purchased a one sixty-fourth interest in the Dow; and the captain of the Dow stated that, when he afterwards arrived in New York, he was taken to libelants' store, where he purchased supplies for the Dow, and that libelantl'! said to him they expected him to purchase all his supplies from them, as they owned a one sixty-fourth interest in the Dow. Held, that the libel should be dismissed, all the weight of evidence was against it.
OF EVIDENCE.

2.

MARITIME

In Admiralty. Libel by Robert Lichtenfels and John Lichtenfels against the schooner Enos B. Phillips for supplies, and to recover for advances to meet seamen's wages. Libel sustained as to supplies, :and dismissed as to the advances. Otto Crouse, for libelants. William S. Maddox, for claimants. GREEN, District Judge. Robert Lichtenfels and John Lichtenfels, trading as Li.chtenfels Bros., filed this libel against the schooner Enos B. Phillips to recover the sum of $181.51, with interest, which debt was alleged to have been contracted under the following circumstances: The libelants are ship chandlers in Hoboken, in this district, and as such, at tbe request of the captain of the Phillips, they furnished certai.n stores and supplies to the Phillips, amounting to the sum of $31.51. The claimants do not dispute that such stores were furnished w charged, that they were reasonably worth the price charged, and that they were furnished upon the credit of the vessel; a.nd to shield themselves they have paid into court the sum of $31.51, with interest thereon, as a tender to the libelants, and thereupon in-

154

FEDERAL REPORTER,

vol. 53.

sistitha.t the libel should"be'qi.emissed ISO far as thatpart of $.e..,1a\lU a.nd that the (UOOlants should lilot be to recover oostIlin,oospect thereto., :J.3Jlt the law ,is otherwise. That a tender shall be eft'ootual, and shall bar a recovery of interest and costs after suit has been begun, it must be of such sum as will cover the claim admitted, with interest to the day of the tender, and such costs as have accrued in to that tbne. The claimants in this case failed to include in theii:' tender a sum sufficient to cover the costs which had 8,(i,erued, the tender being made after the filing of the libel and the iSijuing of the}llonition. The libelants therefore are entitled to disregard the tender as such, and recover the amount of $31.51, wiijl. such ,as may be taxed. , the, clajm, $150, had its origjJl,inthis manner, as the libelants allege: The Phillips was lying at 81 dock at New York in the North river; that the master of said vessel,who was until that time tofhe libelants; after making the purchase of to, stated to theril, in effect, that his vessel W8$ in, applied to them for It loan or an advancement of"1 50" with whieh he declared he desired to payoff and discertain 'claims whiCh were liens, as he alleged, then existing against hU:I Sf:l.i!lvessel,and the libelants,in pursuance of such request and applica.tiQJl, without seeking or asking any security, advanced to the said master for the purpose aforesaid the said sum of $150; that in conseqp;etlCe such the! thereby entitled to, and areho:w ,entItled to ,a ,hen upon saId vessel for saId $150. The allegedliellwhich the x«ailter, according to the statement of the libel'ants,mostdilSired to cancel and pay with this money, arose op the de,fault of payrnentof'the seamen's wages then overdue. If in fact the $150 was made'by-the libelants for the purpose of freeing ilie vessel, wp,ich Wail a foreign ve$sel, in a foreign port, from liens for seamen's wages, undoubtedly they would be entitled to have the benElfit of such lien, in order to recovel:' their advancement. ButthisstateJiDent isstontly contradioted by the master of the Phillips, and the weight of, the evidence, it seems to me, supports his story, which is a very different one. His statement is that he, after he chased the a,rticles for which the claim of $31.51 is made, suggested to the libela,nts, in a conversation which he had with them, to purchase a one sixty-fonrth interest'in a vessel of which he was part owner, called "The Dow," for the purpose of obtaining its custom and tt'ade,aJIld' ll,pc)ll:. the express understallding and90ndition that whenever the Dow: was in the port of. New York she would purchase all ber necElS-'ilary supplies from the libela;nts; that,for this purpose,and upon the libelalf,ta did pay $150 for a one sixty,fourth in that vessel, and tlJ,atthe $150 now claimed by libelants is t41 flV-Q1 paid for [said one sixty-fourth interest. This statement is®rnaborated"tQa certaineJ;tent atleast, by the captain of port of New York, was taken as such master, and there made to the libelants? store, alld certain purchf\Ses, amop.nting to $99, for the benefit of the Dow; and while there, conver&ation which he had with one of the libelants, it was tllat they (the expected the master of the Dow

TUliJ CIAMPA EMIiJIA.

hereafter to purchase ,all his supplies of them l because they owned one sixty-fourth interest in that vessel. This vessel was unfortUnately wrecked on its next voyage,. and became a total loss.. It can hardly be supposed that the master of the Dow, 'a totally disinterested wit· ness, would deliberately make such a statement, under oath, so defi· nite and particular in all its parts, if it were false. No motive can be assigned for such gross perjury on his part as this would be, if the statement were wholly untrue; and yet, if true, it· gMs very far to corroborate the statement of the master of the Phillips. BesideB tllis, the master of the Phillips is corroborated by another witness, Capt. Brown, who was temporarily in command of the Phillips, and who, while so in command, as he testifies, had a conversation with one of the libelants. in which it was expressly admitted by the libelants, or one of them, that there had been a purchase of the one sixty-fourtb. part interest in the Dow by them. The improbability of the statement of the libelants that they advanced $150 without security to a comparative stranger, a master of a vessel then lying at New York in another district, to payoff alleged liens, without in any wise protecting themselves, seems to me to be very much greater than the statement made by the master of the Phillips touching this sale of the intereBt in the Dow, corroborated, as it is, to a certain extent, by the two other witnesses. Possibly there may be some explanation which would harmonize these statements so contradictory of each other. I have been unable, however, to find it, and I am compelled by the weight of the evidence to hold that the libelants have failed to sustain their claim of $150 as a proper lien against the Phillips, and it is therefore disallowed. Let there be the usual decree.

THE ClAMPA EMILIA. THE CIAMPA EMILIA v. SOMERSet al. (Circuit Court of Appeals. Third Circuit.
COLLISION-TuGS AND TOWS-VESSELS AT ANCHOR.

December 1,

189._

A dredge anchored in the Delaware river. on a clear nip;ht. with lights properly burning. was struck by a ship in tow of a tug on a hawser. Held. on the weight of the evidence, that the collision was not due. as alleged, to a sudden change of course by the tug from the east to the west side of the dredge. but was caused solely by the fault of the ship in failing to follow the tug's course. which. from a point more than a mile away, was directed and steadily maintained to the westward of the dredge. 46 Fed. Rep. followed.

In Admiralty. Libel by Frank C. Somers, owner of the steam dredge Arizona, against the ship Ciampa Emilia, (Francisco S. Ciampa, claimant,) for damages for a collision. The dredge was struck by the ship while the latter was in tow of the tug F. W. Vosburgh on a hawser. In answer to a petition by the claimant, the owners of the tug appeared as defendants, and the contest was between the two as to which was in fault. The owner of the ship libeled the tug in the district court 'for the eastern district of .New York to recover damages sustained by the ship in the same collision,