30 F. 283 | D.S.C. | 1887
This is a libel for°salvago. The steam-ship Cherokee, loaded with a cargo of cotton, cotton and woolen goods, turpentine, and lumber, had just loft her dock in the port of Charleston, when it was discovered that she was on lire in her lower hold aft. She had proceeded on her voyage about 600 foot from her dock at the time the fire was observed. She stopped at once, and in a very short time returned to the wharf. She was taken in charge of the city lire department, which had been summoned to her wharf. The fire was thus extinguished. The Monarch, a powerful steam-tug with complete lire apparatus, as soon as the fire was discovered, had been sent to the assistance of the steam-ship. The tug went out to her while she was in the stream, and accompanied her to the dock. The tug had put her hose into the steam-ship, and had pumped water into her. As soon as the lire department took charge, the hose of the tug was ordered to be taken out of the steam-ship, and after some demur the order was obeyed. Some parley occurred between the owner of the tug and the agent of the steam-ship as to the amount of compensation to he paid to the former. The result was the libel for salvage.
The steamship and her cargo wore attached under process from this court. The judge was absent holding his court in the Western district. Negotiation was conducted looking to the amount of the stipulation. No sum was demanded in the libel. At first the libelant required a
Had the stipulation been executed under an order emanating from this court, binding on the parties, libelant and respondent, or under the section of the Revised Statutes, I would feel no hesitation in looking into the amount demanded, and in reducing it if the facts justified me in so doing. The City of Hartford, 11 Fed. Rep. 89. But in the present case the bond is the result of the act of the parties, and was insisted upon by the libelant as the sole condition of the immediate release of the steamship and of her cargo. Without st}ch consent she could not have left the port. Reluctantly and under protest the claimant finally yielded and gave the bond. This was done to gain a present advantage, — the speedy departure of the vessel, and time and money saved. Upon this, and this alone, the libelant released his lien on the cargo and the ship. He accepted this bond in lieu of both. This being the act of the parties, accompanied by the release of present advantage on the one part, and the gain of present advantage on the other, I cannot interfere with it. If, when the case comes up on its merits, it shall appear that the libelant took advantage of his opportunity to oppress and harass the respondent by an abuse of the process of the court, he can and he will be punished for it. If his claim has merit, his conduct will enter as an element in fixing his reward. If his claim has no merit, and is simply vexatious, the respondent will have a remedy. But, as the case, now stands, without any opportunity — indeed, without any right — to form or to express any opinion as to the ultimate result, I cannot interfere with a stipulation entered into by concurrence of parties and out of court.
The motion is dismissed.