THE NEVADA.

681

That was the opinion of Capt. Matthews and the committee of underwriters. It is not apparent from the result that anything was gained by the delay, nor that any injury arose therefrom save the additional expense of wharfage and expense of crew. If, in any ease, it would be prudent to suspend the immediate discharge of a cargo, pursuant to the direction of the surveyors, until the arrival of a special agent, other facts than those here present should be given to justify it. It fonows that the items for wages and provisions and wharfage as above should be disallowed.

THE NEVADA. THE PORTIA. O'MEARA v. THE NEVADA and THE PORTIA. (District Court, E. D. New York. L
AnMmALTy-SUIT IN REM-BALE OJ!' REB.

February 28, 1898.)

A sale of a libeled vessel may be ordered before final decree, on the claimlint's motion, when the libelant does not object after due notice, and especially When the claimant is financially responsible and personally liable for all lawful demands against it growing out of the colllsion in question. The claimants could obtaln no advantage from such a sale, even in case they should Institute proceedings for limi,taUon of liability, for the price realIzed would not establish the vessel's value for that purpose, though It might be some evidence of value.

2.

SAME.

This was a libel by John O'Meara against the ferryboat Nevada and the steamship Portia to recover for injury to his horse, caused by a collision between the two vessels. The question was heard on a motion by the claimant for an order of sale of the Nevada before final decree. The owner of the Portia opposed the motion, upon the ground that the Portia had been injured in the collision, and that it was such owner's intention to file a libel against the Nevada therefor. Hobbs & Gifford, for libelant. Wilcox, Adams & Green, for the Nevada. Butler, Notman, Joline & Mynderse, for the Portia. THOMAS, District Jildge. A collision between the Nevada and the Portia on January 31, 1898, resulted in an alleged injury to the libelant's horse, carried on the Nevada.. The libel was filed against the Nevada and Portia February 16, 1898. The claim of the Brooklyn & New York Ferry Company, as the owner of the Nevada, was filed February 23, 1898. No other proceedings relating to the collision are before the court, save the pending motion made by the claimant for an order to sell the Nevada before final decree. The libelant did not oppose the motion, and thereby consented thereto. Hence no person who has a property interest in the Nevada, or, so far as the records of the court show, who has taken proceedings

85

1U!}PORTER.

her,op,P?S,es: ppli'catio!if . In:l>eti :therel)tl'irenients 33,. that no' snHH)f 'thetJes' :wlU,be 'ordered ('4excetlt on default or·bycotisent of i the parties appearing,llnless' ,of the' perishing: 'or perishable' eonditiOil' of the res." 'There is; ,under: rules 10 ana 11, no [reason for discrimination against·ithe'Nevada'on such 'a motion. The Swedish Bark Adolph, 5 Fed: 114, 116. The owner of the res'has, until a ?eocee ttl entire beneficial mterest, whIle the burden of establishmg the lIbel, rests lipon the libelant. But in the present instance, the libelant does not oppose the claimant's application. Nor is it·upparent that the owner of the Portia would ,be prejudiced by a sale. Such owner has no present standing in this courtsuggestingi a right to affirmative relief agaillilt the Nevada. But the .consideration is a most important one, and very influential in the 'decision of this question, that the Brooklyn & .New York i,Ferl'y",Com.pany is presumptively of large qu,ite,aj)le. to meet, aU claims against it; financial and a libel against it in persomiin is permitted 'for damages arising from. the collision in question. HQWever, should :the claimant desire directly to the ship, the proceeds of the sale would be in tM of tlJ,e, court, standing,.in the place of the res, and obtainable by proper proceedings. , It is suggested that the Nevada would be sacrificed if sold at the time. She should bring as large a sum upon a sale under the qirected, to Illade herein 'as v,nder a usual marshal's sale aftertI:le deterioration incident to her' lying at,the wharf during the time necessary to dispose of the litigation with reference to her. NorwQuldthe saleofh be of advantage to her owner, should it r institute proceedings .to limit its liability. Her Vla.Iue. for the purposes of that proceeding 'Would not be established by her sale under the I(i)rder here applied; for, although such sale might be some evidence of, her value. ,. It 'results from the foregoing suggestions that the motion of the .claimantshould b.egranted, buttheol.'der of sale should provide for a daily publication of the notice of sale for 12, days pr vious to such and sale, in a newspaper pup1js1led in the for a like publication iIi a newspaperpoblished in the borough of Brooklyn, and 'lor a personal service on an persons who have instituted, or within five days of. the day of sale shall institute, prot;eedings in this court the ship or her owner, on account of such colli's.ion, ,or. any m,atter arising therefrom. The order of sale will be settled on one day's notice.

IN RE
1·1

OF SHWl'INGt:OMMISSIOl'iER.

683

In te ACCOUNTS :OF SHIPPlNG COMMISSIONER.1 (Circuit Court, S. D; New Yoi'k.' May' 5, 1884,)
SHIPPING

On motion of the shipping commissioner of the port of ,New York for confirmation of his accounts of the receipts and expenditures of his offic(, for the year 1882, held, that the payment of a saiary of $3,648 to. each of his three sons as deputies was unreasonable ,anll excessive, and that for the future the following regUlations sbould, be adopted: fl.) That the employ, ment of one chief cl/ilrk, deputized, in case of necessity, to act for the ping ,commissioner in his official capacity, and to be allowed a salary nott<! $2,500 per annum, may be justified by the of the and Is authorized. (2) 'l'hree other clerks, at salaries not l 1'0 exceed $1,200 each, or two at salaries'not to exceed $1,600 each, In tbe discretion of the commissioner, may also be employed. (8) All compenslltioll received Oy the commissioner, or his!lubordinates, for, !lervices rendere9- during office hours to owners or masters' of vesseis or to seamen, are to be' accounted for and returned with the receipts of the office. '

AND EXPENSES-RE(HjLATIONS.

In the Matter of the Confirmation of the Accounts of the Shipping .Commissioner of the Port of New Yark. . Elihu. Root, U. S.Dist. Atty. Enos 'N. Taft, for shippi.hg commissioner. WALLACE, Circuit Judge. , The' immediate question presented by the report of the master, and the ,motion made on behalf of: the shipping cOmmissioner to confirm the report, is whethe,r paid by the shipping commissioner to his deputies for the year 1ii\82 were reasonable. Having filed his account of the receipts and expenses of his office f()r the year 1882, an order was made, pursuant to the established mode of procedure since the year 1876, by whiCh the account was referred to a master for an examination and report to the court, upon notice to the United States attorney. Pursuantto that order, Mr. Gutman, the master, in February, 1883, filed his report, showing that the receipts Qf the office for the year 1882 were $22,531.50, and the expenses for the year wer:e $22,531.5,0. Among the items of expenses in that account were three, of $3,648 each, paid by,the shipping commissioner to his three sons, for their salaries as deputy shipping commissioners. Upon the motion to con.firm, that report, objection was made by the United States attorney that the salaries paid by the shipping commissioner to his deputies were excessive. Thereupon, and on the 2d of October, 1883, this, court made an order, referriJlg back the, report to the .master, and directing hini to take such proof as might be, produced by the shipping commissioner and by .the United States attorney, and reo port upon the reasonableness of these ,salades. Altb,ough. the accounts, of the shipping cOIIlmissioner have been retl1rnedannually, have been passed by a, master, and on several
1 This has been hel,'et9fore fepol.1:ed).n,22 Blatchf. 148, and is now lished IIJ. thiS,'"s,eries, so as, t9 inClude therel.n, all ,Cil,'CUi,'r and district 'elseWhererepol.'ted, which have been inadvertently' omitted' from the Fl!detlll ·Repor1eror'the'FederaICases. ; ! : ','" : ," ":