vessel, or that she ever, in fact, had the benefit of them, or that they were furnished to the master of the Jeanie Landles on her credit, or otherwise than on the credit of the master and for his own use.

On the trial, it appeared from the testimony of the master, and otherwise, that the answer was true, and the court dismissed the libel; holding that by the maritime law the master is not authorized to purchase supplies or incur indebtedness on the credit of the ship in a foreign port where the owner is represented by a known agent, unless under circumstances where the conduct of such owner or agent may fairly be construed as giving such authority. 1 Pars. Shipp. & Adm. 8, 9, 15, 20, 332; Abb. Treat. 126. The claimant also had a decree for costs, and filed a cost bill, which includes these two items paid the marshal:

Service of warrant of delivery,
Mileage to Astoria, 110 miles,

$ 4 00 17 00

To these the libelant excepted, and the clerk sustained the exception, and the claimant appeals.

Upon the arrest or seizure of a vessel in a suit in rem, the claimant is entitled to have her returned to him upon giving a stipulation, with sureties, in such sum as the court may direct, to abide by and pay the money awarded by the final decree of the court in which it is taken, or the appellate court. Adm. Rule 10.

By the admiralty rules 5 and 35 this or any other stipulation may be taken in court or at chambers, or before a United States commissioner. Or the claimant may, under the act of March 3, 1847, (section 941, Rev. St.,) procure a stay of the execution of the process, or a discharge of the vessel therefrom, if already arrested, by giving a bond or stipulation to the marshal in double the amount claimed by the libelant, with sureties, approved by the judge or collector of the port.

In this case it appears that the stipulation was taken by the clerk in the form of a bond in double the amount claimed by the libelant, conditioned to "abide and answer" the decree, and upon so doing the clerk issued a writ, entitled a "Warrant of Delivery," directed to the marshal, reciting that the district judge-naming him—had ordered the ship to be delivered to the claimant, and directing him to make such delivery. When this warrant was received by the marshal, it appears that the vessel was lying in the river at Astoria, bound out, in the custody of a deputy or keeper, and that the marshal undertook to "serve" it, by sending it by mail to his deputy at Astoria, who removed the keeper, and surrendered or delivered the vessel to the master or agent of the owner.

Before proceeding further, attention is called to the fact that the clerk was not authorized to take this stipulation, and that, the district judge not having taken it, he made no order for the delivery of the vessel as recited in the so-called "Warrant of Delivery." But sup

posing the stipulation to be taken before the proper officer, there must be some method of giving formal notice of the fact to the marshal, and advising him that the process for the arrest of the vessel has been superseded, and therefore he must surrender or deliver the vessel to the claimant upon demand.

In 2 Conkl. Adm. 98, it is said that "if the stipulation is taken and acknowledged before a commissioner of a distant port, he at once orders the vessel to be discharged; and if it is given in court, a supersedeas is immediately issued to the marshal. This is the only suggestion on the subject that I find in the works on admiralty within my reach, and, comparing it with the mode of proceeding in analogous cases, I think it furnishes a proper and convenient rule in the premises. The stipulation is intended to operate as a supersedeas, and whoever takes it ought to give or cause to be given notice to the marshal accordingly.

If this stipulation had been taken in court, notice would have been given to the marshal by a writ issued by the clerk, and called a supersedeas, because of its effect upon the former process. And if it had been taken before a commissioner, he should have given similar notice to the marshal by an order to the same effect. But in either case the writ or order would be served upon the marshal, and not by him; and by the claimant, his attorney or agent, delivering the same to him. The writ or order should contain a recital of the issue of the process, the allowance of the stipulation, and require the marshal to forbear the further execution of the process, and to surrender or deliver the property taken thereon to the claimant on demand. Of course he can make no charge for serving this writ or order, for, as I have said, he does not serve, but it is served upon him, so far as it is served at all. If, in consequence of it, he is put to any expense, as in transmitting it, or giving direction in pursuance of it to his deputy or keeper in a distant port, he may, I suppose, charge the same as a part of the expense incurred under the process for the arrest and custody of the vessel. See section 829, Rev. St; Rule 59, of the Civil Code. The taxation of the clerk is affirmed and the appeal dismissed.

THE OSCAR TOWNSEND.

(District Court, N. D. Ohio, 1883.)

1. COLLISION-ANCHORING VESSEL IN RIVER-PRECAUTIONS.

Although anchoring in a river in the night-time or day is not necessarily. improper or dangerous, and although it may be customary to do so during stress of weather, yet, when so doing in the night, great care must be used to make ample room and space in the channel for passing vessels, and to so locate the anchorage as to avoid possible danger.

2. SAME EVIDENCE OF FAULT.

In the absence of a proper watch and proper lights on board the anchored vessel, in this case, she must be held in fault and negligent.

In Admiralty.

William H. Condon and E. A. Angell, for libelant.

Goulder & Weh and Willey, Sherman & Hoyt, for respondents and cross-libelants.

WELKER, J. The steam-barge Oscar Townsend, with the barge Edward Kelley in tow, came down the St. Clair river at 2 o'clock on the morning of October 19, 1881, and ran the Kelley into the schooner Sunrise, which was lying at anchor in the river near Sarnia Bay, and was the cause of great damage to the schooner, for which this libel suit is filed. The barge Kelley claims to be somewhat damaged, for which a cross-libel is filed by her owners against the Sunrise. The libelant alleges that the Sunrise was anchored at a suitable and proper place, and that its officers were guilty of no fault or carelessness, and that the collision occurred through the fault and carelessness of the Townsend and Kelley. This is denied by the answer, and it is alleged in the answer that the collision was occasioned by the fault of the Sunrise.

The court finds that the Sunrise was in the night-time anchored in the St. Clair river, and within the channel or roadstead usually taken at that point by vessels coming down the river at night; that, although anchoring in the river in the night-time or day-time is not necessarily improper or dangerous, and although it may be customary to do so during stress of weather, yet, when so doing in the night, great care must be used to make ample room and space in the channel for passing vessels, and to so locate the anchorage as to avoid possible danger; that the Sunrise was anchored at a dangerous place in the river, at a point where there was a strong current, and where her lights might have easily been confounded with those on the Canada shore beyond her by persons on vessels coming down the river, and difficult to distinguish from them; that the Sunrise did not have at the time a suitable and proper anchor watch to guard her from danger from passing vessels coming down the river; that she did not put up and keep up in good order to the time of collision suitable and proper anchor lights, to notify passing vessels of her locality, so as to avoid collision with her; that she did not comply with rule 10, Rev. St. § 4233, which requires that all vessels, when at anchor in roadsteads or fair-ways, shall exhibit, where it can best be seen, a white light, so constructed as to show a clear, uniform, and unbroken light, visible all around the horizon; that she did not display, as it was her duty, a torch-light, when the lights of the Townsend and Kelley were first made, as they approached her, to enable them to see her and avoid a collision; that immediately before the collision she failed to change her position, as she might have done by putting her wheel to starboard instead of to port, and thereby cause her to

swing out of the way of the Townsend and Kelley,-in all of which respects the Sunrise was at fault and negligent; that the Townsend, in coming down the river, occupied the usual channel or roadstead at the point where the Sunrise was anchored and located; that it had proper lights and a proper watch at the proper places; that the lights of the Sunrise, being so dim at the time, were not seen by the Townsend far enough away to have avoided the collision, although proper diligence was used for that purpose; that when the lights were seen, being close upon the Sunrise, the master of the Townsend used proper seamanship in trying to avoid the collision; and that, therefore, the Townsend was not guilty of negligence or carelessness in causing the injury; that the Kelley, being the tow, was guilty of no negligence, and therefore not liable for the injury to the Sunrise.

The claim of the Kelley in the cross-libel not being pressed by counsel, the cross-libel is dismissed. Decree dismissing libel at libelant's costs. Appeal allowed.

THE ARCTURus.

(District Court, N. D. Ohio, E. D. April Term, 1883.)

LIBEL FOR WAGES OF MASTER.

The master of a vessel has no lien cn the cargo of the vessel for his wages beyond the amount of the freight thereof, and where, for any reason, he does not unload the cargo, he is only entitled to a lien upon such of the freight as the vessel has actually earned, that being the freight less what it costs to unload.

In Admiralty.

Mix, Noble & White, for libelant.

Goulder & Weh, for the Arcturus.

WELKER, J. The libelant was the master of the Arcturus, and had wages due him as such master from the owners of the vessel about the month of November, 1882. At that time he had on board the vessel a quantity of telegraph poles, owned by A. A. Colby, which had been carried on board the Arcturus, and were to be delivered at the port of Sandusky, upon which the said Colby was to pay freight in the usual way. Before the telegraph poles were unloaded at Sandusky the vessel was seized by the United States marshal under a libel filed by W. H. Wolf et al. against the Arcturus, so that the master could not, and did not, unload the poles at Sandusky, and Colby, the owner, was compelled to pay $70 to procure the poles to be unloaded, and before he was allowed to do so he paid the whole freight money into the registry of the court which would have been earned by the Arcturus if the contract of affreightment had been ful

filled by the delivery of the poles. The libelant, Jones, the master, claims the whole freight should be applied on his unpaid wages, and also a lien on the poles, the cargo, for the amount due him for services as master.

The court finds that the libelant had no lien on the cargo for the wages beyond the amount of the freight thereof; that in this proceeding he is only entitled to the freight actually earned by the vessel, that being the freight less what it costs to unload it at Sandusky; that the libelant is entitled to a decree for that part of the freight so actually earned, to be applied on his wages as such master; that Colby is entitled to repayment out of the registry of the amount he paid for the unloading of the cargo, being the sum of $70. Decree accordingly.

See The De Smet, 10 FED. REP. 483, and note, 496.

THE MONTAUK.

(District Court, N. D. Ohio, E. D. April Term, 1883.)

PERSONAL INJURIES TO SEAMAN.

A seaman cannot recover for injuries resulting from his own carelessness in executing a proper order of the master.

In Admiralty. Libel for damages for personal injury.
Willey, Sherman & Hoyt, for libelant.

Goulder & Weh, for respondent.

WELKER, J. The libelant was the wheelsman on the Montauk, and while in the Sault Ste. Marie river the schooner, on the fourth of August, 1881, in tow of a tug, ran aground, and the libelant, then at the wheel executing an order of the master, was injured by the wheel spinning around and striking him. The libelant claims that the master gave him an improper order, and that, while executing it, he was injured without his fault. This is denied, and it is alleged the libelant was injured through his own carelessness. The court finds that the order given the wheelsman, from the weight of the evidence, was a proper one; that the libelant, in executing the order, was himself guilty of carelessness, which produced the injury, and therefore not entitled to recover. The libel is dismissed, with costs, and the appeal allowed.