Boden v. Demwolf, 13,004.

• Decision Date: 16 June 1893
• Docket Number: 13,004.
• Citation: 56 F. 846
• Parties: BODEN v. DEMWOLF et al.
• Court: U.S. District Court — Eastern District of Louisiana

56 F. 846

BODEN v. DEMWOLF et al.

No. 13,004.

United States District Court, E.D. Louisiana.

June 16, 1893

McGloin & Louque, for libelant.

Farrar Jonas & Kruttschnitt, for claimant.

BILLINGS District Judge.

This is a suit brought by Bertha Boden, as widow of Joseph Brown, and as mother and natural tutrix of his minor children, against Capt. C. Demwolf, master of the German steamship Kerwieder and against Hausa, Dempfschiff & Rhederic, owners of said steamship, for damages occasioned by the death of the husband and father, Joseph Brown. The process in this case was that authorized by rule No. 2 in admiralty, and, in default of the defendants being found, the steamship itself was attached.

The first question to be considered is as to the propriety of allowing an amendment which comes up in this way. Upon the seizure of the steamship Kerwieder, the Hamburg-American Packet Company appeared as claimants, and bonded the steamship. The application is to amend the libel by substituting as defendant the name of this corporation in place of the persons named as owners in the libel. There would be difficulty in allowing this, but for the peculiar character of the answer, and of the bond of release of the steamship. The answer in the case is that of this corporation, Hamburg-American Packet Company, which proceeds to state that it, and not the parties named as owners, are the true owners of the steamship Kerwieder, and then further proceeds to answer the libel upon the merits. But, as matter of form there would be no need of any amendment, because, if A. is sued as owner causing damage, and B. sees fit to come into the case, and submit himself to the jurisdiction of the court, stating that he, and not A., is the owner, and submits the cause upon the merits, the amendment would follow, as of course, provided the libelant was willing to admit that the fact of ownership was truly stated in B.'s answer. But it is urged that the fact of a release bond of the sureties changes the question. The release bond, I have examined. It is a bond given by C. Demwolf, as master of the steamship Kerwieder, and lawful bailee of the Hamburg-American Packet Company, and signed by him as principal, as such master. In the reciting part of the bond there is the following recital:

'Whereas, a writ of attachment was lately issued out of the honorable the district court of the United States of America for the eastern district of Louisiana, at the suit of widow and heirs of Joseph Brown v. Captain and Owners of Steamship Kerwieder, her tackle, apparel, and furniture, etc., commanding the marshal to seize and take into his possession the steamship Kerwieder, which has been seized accordingly, but has been released from said seizure, and delivered to Christian Demwolf, the master and lawful bailee of the owners thereof, by reason of the signing, sealing, and delivering of these presents, said claimant having obtained leave of court to bond said property, and filed a claim thereto, which is now of record in the clerk's office of this court.'

Then follows the condition:

'If said claimant and surety abide by all the orders, interlocutory or final, of the court, and pay the said libelants the amount awarded by the final decree rendered in the court to which the process is returnable, or in any appellate court, then the foregoing obligation is to be void, but otherwise shall remain in full force

...