TIlE MINNIE.
801
credit of the vessel and freight were effected at the defendants' request, at their cost, and for their benefit, and that Parsons & Loud were bound by their cont.ract with the, defendants to apply the insurance money, when received, to the payment of the debt incurred on account of the advances.. Tpe receipt of the insurance money by Parsons & Loud, therefore, operated at once as an extinguishment of the debt, and they could thereafter have maintained no action against the defendants for its recovery. The debt having been thus satisfied, nothing, of course, passed by the formal assignment of the claim by Parsons & Loud to the libelant. For the same reason, by paying the loss the libelant acquired no right by way of subrogation to. enforce the debt against the defendants. It could not, by paying the loss, get by subrogation a right which the sured did not possess, and it makes no difference that it had no notice of the arrangement between ParSons & Loud and the defendants when it issued the policy. All this has become settled law in this court by the recent of the supreme court in Phcenix Ina. Co. v. EJrie &: We.atern Pransp. Co., 117 U. S. S12, 6 Sup. Ct. Rep. 750, 1176. Libel dismissed,with costs.
THll: THE GEDNEY
MINNIE. DORIS. MINNIE
and others v. THE
and another.
(OitrIYuit Court, D. Connecticut.
June 24,1887.)
ADMIRA.LTY-Tow AND STEA.MER PASSING IN NARROW CHANNEL-NEGLIGENCE.
While. the steam·tug M.,with two barges, made fast on each side, was.pass. ing through the north channel, between the Sunken Meadows and the Mlddlll Ground, beyond Hell Gate, the steamer D. passed on the starboard side full speed, and caused the M. and her tow to sheer so that the outside' barge on the port side ran upon the rocks of the Sunken Meadows, and was sunk. The channel is between 300 and 400 feet wide. ,The M., on entering, chose a course close to the Sunken Meadows, and was making less than three miles through the water. The D., then about 500 feet astern, blew one whistle, indicating she proposed to pass the tow on the starboard side, to which the M. made no reply. The D. continued her course, making about 10 miles through the water, and passed within 25 feet of the M., on the starboard side. The M. sheered to port, and, although the helms of the tug and barges were ported, sbe was unable to keep the outside barge off the rocks. Held, that the M. was in fault in choosing a course so close to the Sunken Meadows as to be unsafe, and in not answering the signal of the D. in protest of her passing in the channel as proposed; and that the D. was in fault in passing the'M. in a narroW channel at a high rate of speed, or in not waiting until the M. had got out of the channel; also that, as between the vessels and their stipulators, each must pay OIie-half of the amounts due the respective libelant and co-libelants, and, in case of default on the part of either vessel or ber stipulators in the payment of her half, the deficiency must be made up by the other vessel and her stipulators. . ,
Findings of Fact.alid Conclusions of Law by the
Court.'
362' WALLACE,
FEDERAL REPORTER. , FINDINGS OF FACT.
J.. Jiirst. On the ninth of March, 1883, the steam-tug Min-
nie took the barge H. S. Van Santvoord, with three other barges, in tow, to take them from New York to New London, Connecticut. The barges were made fast along-side the Minnie, two on the port side and two on the starboard side. The H. S. Van Santvoord was the outside boat on the port side. She was a large barge, 130 feet in length, 38 feet in width, and had a draught, as loaded, of not over 9 feet.. The other barges were about the same size. The Minnie was a steam-tug about 115 feet in lengtlilind about 20 bea.n;i. , . Second. The tug, with her'tow, proceeded up the East,river,and through Hell Gate. From there thecQul'se of the tug and tow-lay past Randall's island,betweenthe Su-nken Meadows and the Middle Groond, where"the cllannelisbetween 300 and 400 feet wlde. This is the North channel. South of ihe Middle Ground is another channel of about'the same width. The :M:iddIeGroundis a narrow shoal, dividing the tw()channels, and about a quatter of a mile long.:; , ,' .. ,', , Third. The Minnie, on entering the North channel, chose a course close to the Sunken Meadows. ,She, with her tow, was making less than three miles an hour through the water, and about six miles an hour by the land, as she was running with the flood-tide. About the time the Minnie entered the North channel the steamer Doris, which was about 500 feet astern of her, blew one whistle; indicating that she proposed to pass the tow on the starboardsj.de. . The tug made no change in her course, and made no reply to the whistle' of the Doris. Fourth. Th{lrporis'was a of 1,096 tons. ,Her length was 236 feet, her beam 32 feet, and her draught between i2 and 14 feet. She was boundffromNewYork to Providence, Rhode Island, running at fl1.11 speed,making 10 miles through the water, and about 14 miles by.,the land. ,After signaling the Minnie, though without receiving a reply to her signal,she continued at full speed, and overtook the tug and in the North channel, passing within 25 feet of the starboard side of the tug. The pasSage of the Doris, so close to the tug and tow, drew the stern of the tow to starbottrd, throwing the head ,of the tow to port, giving the tow It sttong sheer towards the Sunken Mead0ws. This is the ordinary effect of a vessel, of the size and speed of the'Dpris, passing another in such close proximity. To meet influenc'e, the master of the Minnie put his belm to port,and ordered the helms of the barges to be ported. The orders were promptly executed, ,but they were ineffect'ive to ·break the sheer which the tow had taken, and the bow of the H. :So Van Santvoord. struck upon the rocks of the Sunken MeadolVs, which wa.s not put to 'were close upon her port side. The wheel of as charged in the libel. .' "Fifth. The bO,ttomof the barge was raked ,by the rocks for a distance of 20 feet; and she filled with water, and sank, sliding off into the channel, where the depth of water was 90 feet. At the time of sinking she bad a carg.o of 605 tons .of ()oal, which was being carried on freight. Si:dh. The Doris made no change in her couts'a'or speed after signal-
THE MINNIE.
303
ing the Minnie.· 1he channel to the south of the Middle Ground was open, and the Doris could have used that. It was about the same width as the channel to the north of· the Middle Ground, and the depth of water in it was 60 fe.et. . . . . Seventh. The Doria could have passed the Minnie in the North channel at a greater distance than' that at which she did pass, and at a distance that would have been reasonably safe. . Eighth. If the Doris. had checked her speed until the Minnie had passed through the channel, both vessels would, in the course of two minutes, have run into wide water to the eastward of the Middle Ground, where there would have been ample room tor the Doris to pass the tow at such distance that her speed would not have affected the Minnie. The course taken by the master of the Mhmie was too close to the Sunken Meadows to be safe, but, after the Doris had entered the North channel, the Minnie could not get away from the Sunken Meadows without throwing herself across the course of the Doris. },1,nth. If the Doris passed the Minnie at a lower rate of speed, her influeJ;lce upon the tow could not have been so great, and the influence might have been overcome by the helm of the tug and tow. Tenth. The barge and ·her cargo was subsequently raised and brought to New York, where the was sold. A survey of the barge was held,and repairs were recommended. The libelants George W. Gedney, and Anna H. 1;>ost, administratrix, were the owners of the ibarge. They lost the furnitUre of the barge, and the use of her for a considerable period, and the freight pending on the voyage. The value of the furniture wa,s $100; the use of the barge during the period which would be occupied in the necessary repairs was $210, and the net freight which they would have earned by the completion of the voyage was $160. 'The expense ofraising the barge was $1,155. It was necessary to dock the vessel hi ordedhat it might be determined what repairs were necesSary, and· also to make certain· temporary repairs to keep her from sinking when she left the dock. These expenses, with the expenses of towing and of recovering certain pieces of wreckage, amounted to $352.55. It would have cost $7,500 to repair such damages to the barge as were caused by the disaster. In fact, the owners of the barge expended $10,147.91 in repairing and refitting her, but in doing so they made certain improvements for which no recovery can be had in this action. Eleventh. The barge was insured in the Phcenix Insurance Company and the Western Assurance Company of Toronto. These companies paid the cost of raising the bllrge, and the cost of temporary repairs as above found, and further paid the sum of $7,500, the estimated costs of repairs to the hull. The entire payments on the part of the Phamix Insurance Company and the Western Assurance Company of Toronto, on account of the hull, amounted to $9,022.54, one-half of which Wall paid by each company. The cargo of coal was insured in the Phcenix for its value of $2,700, and they paid that amount to the owners of the coal as a total loss. They Bold BUch· of the coal as was recovered, and
304
FEDERAL REPORTER.
the net salvage thereon amounted to $831.57, making the net loss of the .Phcenb Ins.urance Company on account of the cargo, $2,068.43. Twelfth. The libelant TheronB. Post lost his clothing to the value of $103.70. The libelant Henry Post lost his clothing to the value of his clothing to the $77.54, and the co-libelant James Gallagher. value of $33.97. CONCLUSIONS OF LAW.
First. The disaster was due to the fault of both the Minnie and the Doris. . Second. The Minnie was in fault in choosing a course so close to the , Sunken Meadows ItS to be unsafe,. Third. She was. further in fault, in not answering the signal of the Doris in pI:otest of the Doiie her as proposed. Fourth., The D()ris was in fault in that, On receiving no reply from the Minnie, she did not check her speed, and refrain .from passing the Minnie until they had reached wider water. She was also in fault in that she did pass the Minnie at a high rate of speed, ina narrow channel; could,have waited until the Minnie had got out of the North channel; or could have passed at a lower rate of speed. Fifth. The libelants and co-libelants should recover the sum of $12,661.19, with interest thereon from May 1, 1883, and the further sum ,of $4048.78, their costs as taxed in the district court, and their costs in this court to be taxed, the recovery to be apportioned as provided in the ,of the district court, making due allowance for interest and cost.."!. Sixth. As between the Minnie and the Doris, and their respective stipulators, each vessel and her stipulators must pay one-half of the amounts due to the respective libelants and co-libelants; and, if there is 8 default on the part of either vessel or her stipulators in the payment of her half of said amounts, the deficiency must be made. up by the {)ther vessel and he.r stipulators.
PARSONS 'D.
CHAR'rER
OAK
LIFE
INS.
00.
805
PARSONS and others v. CHARTER OAK LIFE lNs. CO. and others. (Oircuit Court, S. D. Iowa, C. D. June 11, 1887.) CoRPORATIONS-RECEIVERS-INSOLVENCy-JURISDICTION. A life insurance company, organized under the laws of Connecticut, owned real estate and had policy-holders in Iowa, and, having become insolvent, a receiver was appointed by the Connecticut court. Afterwards, in a suit by Iowa creditors, the Iowa court appointed a receiver of the property located there, it being claimed that Iowa creditors had a superior right to such property, aud that a foreign receiver did not control assets outside the st!ltewhere he was appointed. Held that, as the statutes of Connecticut provided for reo ceivers, it was a part of the contract with policy·holders that. in case of in· solvencr, such receiver should marshal all the assets, so that his powers were not limIted as those of a receiver usually are, and the Connecticut receiver controlled all the company's assets; following Reife v. Rundle, 103 U. 8. 222.
In Equity. Demurrers to original bill, and to intervening petitions. Gatch, Connor Weaver and Kauffman GUern8ey, for complainants and intervenors. Oummins Wright, for defendants. SHIRAS, J. This cause was originally commenced in the circuit court of Polk county, Iowa, and, upon application of defendants, was removed to this court. In the bill filed by complainants it is averred that the Charter Oak Life Insurance Company is a corporation. organized under the laws of the state of Connecticut, for the purpose of carrying on the business of life insurance; that it has been thus engaged for many years, and has issued policies on the lives of many persons residing in Iowa, as well as on the lives of residents of many other states; that it has invested large parts of its assets in Iowa, now owning real estate and other property to the estimated amount of $100,000, situated in the state of Iowa; that a short time since the said corporation became insolvent, and in a proceeding brought for that purpose in the superior court of the city of Hartford, Connecticut, the company was adjudged to be iIlsolvent, and in September, 1886, a receiver was appointed by that court, and authorized to take possession of the property and assets of said corporation, in order thatthe affairs of the company might be legally wound up, and the corporation be dissolved; that the complainants herein are citizens of Iowa, holding policies of insurance in said company, and therefore creditors of said company, and as such they have an equitable interest in the property of the company situated in said state of Iowa prior and superior to the rights of creditors residing in other states, and for the protection thereof. Complainants pray for the appointment of a receiver to take possession of the property of the company in Iowa, the same to be held and disposed of by the court for the protection of complainants and the other Iowa policy-holders. The state court appointed areceiver, who gave bond in the sum fixed by the order of appointment, and thereupon the cause was, upon application of the defendants, removed ·to this court. Several policy-holders v.31F.no.6-20