818
vol. 41.
delays tn-at migb,t:8tttend theCltmbodiain the process their disa,ppointing 'efperience w'ith from tho tardiness of her arrival at lIaJ:llptoD J;tQli,ps. ," ,As to the at w,pich the, of readiness to load ,were given :by the say anything. Clearly, the notice of tpe ,22d DecemberJ given after 12 o'clock; was invalid. I am jncnped).othink, however, that thetelegrapbic notice given on the IllQrJ?jugof .tbe,24th"received before,12, M., in time,.'and would have been valid if the vessel had in fact been ready for cargo. Clearly, 12 M. the letter Monday,wasn()t in timEt. " :Xhl¥ll:! of tiIlle of notice, however, 'are, in the case at bar, altogether immatElrial., .Theship,was never ready to receive cargo. She had not the requisite 100 tons of ballast either on board or at hand. Even Hahe' had'th8' option to use coal as' ballast, she had not tbatquantity of c08Jplac,ed 'sftin, the No.3 deck. ,Nor was she on tp.e tbevoyaga 'to' an(l pOlddnot have proceeded 'tbeneedirect " Mqreover, she, had coal in themaill, whichwas,tberefore, not cleared for cargo, etc.· and to which', to the,tertns and spirit ortha charter-party, the had 8 right foJ' cotton. On the whole case, I willsigua decree dismissihgthe'libel,
0'£ coaling, .
risk of the
THlll, LEONARD 1UERNAN , i:: " , :.';
RlCRARDS. 'If ' : ' .' ",' "
etal. ",.THE 'LtONARD
(Dl.BtrI.ct 'Oourt,D. New JtIf'8GY; January 80,1890;)
.
I.
The real value of the vessel in fault,'witltout regard to,l1enill1pbnlier at the'termin,"lon of hel'voyage, upon which,$ht;l complained ofl measures the value of the interest of the owner, wlthmtne meanIng of the lImitedlill.bility' act; which provides that the liability of a vesselfbr any loss, damage/ or injury 1>1, eoUi,sion, done without t,he,p,&'iVity or knowledge; of tP.e owner,' "shall in no case exceed the amount or value of the interest of sucll owner in such vessel ' 'and her freight,then pending. " SAME-COSTS.
LIABILITY
b;r OWNElI.'
,
Where distin.ct are raised as to t4e right of the owner, of theof{endillgves"sel to the bene:llt'of the limited liabilitY. a'<It,' and also as to the't'aultOfthe vessel, upon the first of Which only the owner is successful, he will be allowed such costs only as accrued ,on that issue. AdmJralw:rule 55, which provides for the payment , of, claims out ,of the fund in court, after the costs and expenses are first deduqted, applies 'only when the owner doesnot"eontest the liability of the 'vessel for the 'alleged wrong; " ", of a material-man to bring 'll.nlJotion in personam ,against the owner of the owner is in,a position to invoke the limited liability act, and hence he will nofoe enjoined from prosecuting 8uchaction. The ' ,
, , ' "
·8,SJ.ME-RIGHT8 'Oil' :M:ATJiRIAL-MEN.
"a vessel IS not taken away by the fact
:,In,AdlIliralty:. 'Qn decree.; E.p. McOarthy, for, the 'Leonard Riphards. Owen, Gray &8turges, for the Quickstep. WaWs, Edwq.rd8& Bumsted, for, COIllmunipaw Coal Co.
THE' LEONARD RICHARDS.
819
Sidney Chubb, for F. O. Matthiessen Sugar Co. GREEN, J. It appears from the proceedings in this cause that in May, 1887, a collision occurred in New York bay between the steamship Ludwig Holberg, outward bound, and the bark Quickstep, inward bound, laden with sugar consigned to the F. O. Matthiessen Sugar Refining Company, and at the time of the collision being towed by the steamtug Leonard Richards to her wharf at Jersey City. As a result of the collisi()n, the Quickstep speedily sank, and, with her cargo, became filed in this court by the owners and a total loss. A libel crew of. the Quickstep against the Leonard Richards, as the negligent cause of the collision, the owners of the tug also filed their libel against their own vessel, denying the negligence alleged, and praying that, if the steam-tug should be found to be in fault, they should be permitted to have the benefit of the act of congress of March 3, 1851, commonly known 'as the "Limited Liabilit)· Act,» and the amendments thereto. The right of the owners of the steam-tug to claim the benefit of the limited liability act was contested by the other libelants, but unsuccessfully,-this court holding that the right was, under the circumstances, clear and unimpeachable; and thereupon the tug was ,ralued under the act at the sum of $8,000, and a stipulation for that amount duly filed. Upon the final hearing of the cause, Judge BUTLER, then holding this court, found that the tug was in fault, (38 Fed. Rep. 767;) and, the a.mount of the various claims against her having been determined upon reference, the matter now comes before the court upon settlement oithe final decree. The first question suggested by counsel for the owners of the tug is as to the proper construction to be put upon the words "value of the interest of the owner," as used in the limited liability act. The section of the act in point, or so much of it as it is necessary to quote, is as follows: "The liability of the owner of any vessel, ... ... ... for any loss, damage, or injury by collision ... ... ... done, occasioned, or incurred, without the privity or knowledgeo! such owner or owners, shall in no case exceed the amount or value of the interest of such owner in such vessel, and her freight then pending. .. Rev. St. U. s. §, 4283. It appears in this case that supplies to a large amount had been furnished to this tug, which were at the time of the collision unpaid for, and which, under the law, were liens upon the vessel, and the insistment of counsel was that· although the tug had an apparent value of $8,000, and had been appraised at that sum, yet the "interest of the owner" in her ought not to be calculated upon that basis, but that from the appraised value of the vessel should be deducted the full am()unt of the debts and claims owed by the vessel, and the balance taken to be the true of the interest" of the owner. In other words, that while the stipulation filed, and upon which the tug was released from the custody of the officers and returned to her owner, was for $8,000, yet when the time came for the payment of the sum into court, in com-
820
FEDERAL
pliance with its cpndition, to he distributed among libelants and claimants according to law, there should be first deducted therefrom a sum equal to the full amount of all debts due for supplies, repairs, etc., for which liens against the vessel could be enforced, and the balance only brought here as the true "alue of the owner's interest, to be distributed pro rata among other libelants. Without considering whether the owner is not by his own act estopped from raising this question, now, after entering into a stipulation to pay the full amount of the appraised value of the tug if she be found in fault to the other libelants, and in consideration thereof receiving security from the law from all further or greater liability, I am clearly of opinion that the real value of the vessel in fault, without regard to liens upon her at the termination of her voyage, upon which she negligently caused tlie injury complained of, measures justly and equitably the value of the interest of the owner therein as. contemplated by the limited liability act. If the opposite contention of counsel be correct, it follows that in all claims. arising ex contractu against a vessel, .and liable to be secured by lien, are practically preferred to those other claims which arise directly out of the collision, and l,l.re, ex delicto; and because of such preference are entitled to be paid and· satisfied in full out of th,e value of the vessel, to the exclusion, if necessary, of the collision claims. But such result is directly in conflict with the principles laid down in the adjudicated cases. The contrary doctrJne has been held almost univerRally. In ThePri,de of the Ocean, 3 Fed. ].Wp. 162, it was expressly held that, in a contest for priority between claims arising from a collision .and a bottomry-loan, the former were entitled to preference. In this case Judge BENEDICT used this language: II The val ue of the lender's security cannot be enhanced by a collision, nor could such collision in any way tend to preserve thelender's security for him, but the contrary,"-a statement of a principle which applies with equal force to a lien creditor. In The Vandercook, 24 Fed. Rep. 472, Judge NIXON in this court ,held that the damages arising from the fault or negligence of the vessel, being ex delicto, should be paid in preference to claims for prior repairs and supplies; und to the same effect are the cases of The R. B. carter, 38 Fed. Rep. 515; the same case, on appeal, reported as The John G. Stevens,40 Fed. Rep. 331; and Norwich Co. v. Wright. 13 Wall. 104, 122. The rule in. England is in entire harmony with the rule as laid down here. I findit stated in Abbott on Shipping as follows: "The maritiD,1elien of damage originating in the wrong of the master and ,crew of the vessel in fault, and founded on considerations of public poHcy, for the prevention of careless navigation, takes precedf'nce, within the limits which the lawass,igns to the indemni.fication of the injured party, even though anterior in date of liens e:» contractu. It absorbs, in the event of the rea proving insufficient to meet all liens of wagel5, towage, pilotage, bottomry, leaVing them to btl enforced by proceedings against the persons of the owners. Were it otherwise, the owners to whom· the damage is imputed would be i ndem ni.fied at the expense of the inj urad party; the wrong-doel'g, at the cost of him to whom the wrong is done." Abb. l:lhipp. 621.
THE LEONARD RICHARDS.
821
If, then, the maritime lien created by collision takes precedence of liens for loans or repairs or supplies, and other liens of a simi!'lr character, although the latter liens arose prior to the collision, it follows, at least as between the wrong-doer and the party injured, that the value of the vessel in fault, freed from aU liens,-that is, the whole value of such vessel,-is to be looked to as the source of reparation. Such value cannot be lessened by any other claims whatever. Bottomry loans, claims for repairs, supplies; although outstanding as liens, must give way to the claim based upon the negligence of the vessel in fault. If the owner of such vessel desires to obtain for himself the benefit of the limited liability act, he D:lust make a complete surrender of her, for the benefit of those she has injured, and the wronged party accepts her with the that his claim has precedence of all other claims; that her full value, without deduction for any lien. then outstanding, not arising out of col. lision. is set apart-dedicated-for the satisfaction of his claim.· In this case the owne.rs elected. as they had the right, to retain the custody of the vessel in fault, and stipulated that, in lieu of the rem, they would pay the sum of $8,000 as her value. That sum must be taken to be the value of the vessel, which, if the vessel had remained in the custody of the court, would have been produced by her sale, and which would have been devoted .to the payment of the claims against her arising out of the collision; and hence the "interest of her owners" in her is measured by her full and complete value as appraised. In my opinion, the stipulators must pay the whole sum for which the stipulation was filed, as the proper and justappraisement of the value of their interest in the tug, This flum would bear interest only from and after the date of the final decree. ThE:' second question raised by the owners of the Leonard Richards concerns their liability to be cast in costs. They claim exemption from such liability on two grounds: First, because they were successful in the application made by them to the court for the benefit of the limited liabilityact; and, 8ewndly, because such exemption is conferred upon them by the fifty-fifth rule in admiralty, which, in terms, provides for the payment ofclaims out of the fund in court, in cases of limited liability, after the costs and expenses are first deducted therefrom. The allowance of costs, in many cases, is very largely a matter of discretion with the <lourt, but the general rule is that the successful party in the litigation is entitled to them, In this case there were really two distinct and separate issues; the first relating to the right of the owners of the Leonard Richards to the benefits of the limited liability act, and the second as to the negligence and fault of the Leonard Upon the first of these issues the owners of' the Leonard Richards were successful, and I shall allow them such costs as accrued solely upon that part of the litigation. But the issue most hotly contested, in fact the main issue in the case, was that which concerned the alleged fault of the tug as the negligent <lause of the collision; and upon this issue, a matter wholly distiuct and severable from the other, the tug was found guilty. I know of no especial reason that would take this case out of the general ,ule, and there-
822
FEDERAL ':aEPOR'rER,
fore I think the owners ,of 'the tog' should pay the costs under this issue, ,an'd'Tsb ·order. It is proper to say that Ihave:'cittefully considered the admiralty rule to-which niyattention'was called. I do not consider tnat'it governs this case. In;my opinion, it is applicable only to those cases wherein the owner oithe libeled vessel, having substantiated his claim to the benefit of the limited liability act, does not contest the liability of his vessel for the alleg\'d wrong. In such cases the surrender of the vessel itself, or the of a stipulation for the value of his interest therein under the statute, fixes a liinit to his liability; and thernle in admiralty very properly provides that the costs and expenses of the formal and orderly course of litigation necessary to ,obt!1in the proper distribution of the money representing the value of the vessel among claimants should be first paid' out of such money. Otherwise, if the owner should be condemned to pay suchcosts; his liability would be in excess of the value of his interest in his vessel,and the limited liability act would not afford him that protection he is, by its terms, entitled to. But if the owner of the libeled vessel, by hisdefiantcourse, causes Htigation'upon an issue entirely distinct from and upon his claim'for limited liabilit.1, and in such litigation is wotsted, it is equitable and just that the taxable costs thereby necessarily incurred by his opponent should, in accord with'the general rule ,ahd common practice, be paid by him. The F'a'l>Orile, 12 Fed. Rep. 213; l;Ien.' Adm. 296; Thommasen v. Whitwill, 12 Fed. Rep. 891. ' Another question mooted is whether the material-men having claims agll.inst the Leonard Richards ,'should be enjoined from bringing their actions to recover them. I think not. 'fhe limited liability act of 1851 'not, in terms or by implication,include such claims; and as to them the owner's liability is not, by force of the statute, in any degree limited. The action inpet80nam is not disturbed or taken away from any classdf claimantB not expressly mentiohecl in the act. The right to such action, vested in all other claimants) remains unaltered and unaffected. It is'al;, leged that.the act o£June26,'1884. eptitled " An act to remove certain burdells 'on the American merchant marine, and to encourage the American foreign carrying trade, and for other<purposes," as amended by the act of June 19,1886, seems to be applicable to claims of this character; and, if so, would limit the liability of an owner to the proportion of any or all debts and liabilities that his individual share of the vessel bears to the whole. Without assenting to or dissenting from this view, it is only neceSsary to say that the proper construction of that act and its effect is nut now before the court. The simple question to be considered is, does a material-man lose his right of action in personam against the owners of a vessel, where such owners are in position to invoke the benefit of the liability'act? Ihm:yopinioh, he does not. The right to his action is preserved to such claimant, and an injunction restraining him from vrosecuting it would be'a tyrannical exercise of pewer by this court, whoJly without or reason. Let a decree in accordance with these conclusions be entered.
UXITED STATES V. THE SADIE.
823
UNITED STATES V. THE SADIE. (Df8trlct Oourt, S. D. New York. February 28,18110.)
Astatv.tory(power to fix the limits of a prohibited area should be exeouted with reasonable and aooording to the statutory intention. . 2.. SAME;...(}bNS'l:BUCTION OF ACT CONGo JUNE 29. 1888. The act of June,1888, prohibited the disoharge of refuse, eto., "in the .tidal waters of the harbor of New York, or its adjacent or tributary waters, or in those of LoIIg Island Bound, within the limits which should be presoribed by the,super. visor." The,supervisor direoted that deposits of must take place east 'of the meridian 73° 55' 56", and south of parallel 40° Held: (1) That the superviSOr's direction was not a oompliance with the statute, for laok of definiteness and certainty. for excluding ,bY implication aU the "tributary waters,'l and all the waterso! Long Island sound, both of which were to the northward of the designatedP.:ara.11el.;. that this w.as in excess of his power; and contrary.to the. p.lain in. tent of the statute. (2) libewords "the tidal waters" in the first seotion of the act were not to be construed as limiting the subsequent words, "itsadjacept or tributary'waters,'" there being no suoh limitation.of the same words in ,the second and fourth seotjpns, and thalthe northern limit of the arlla, within the tributary waters, was to fixed b\"' the supervisor} until that was done by him no suit forpenaltiellwould'liefor deposits within tne Hudson river.
1.
BABBOBS-DEPOSITI:i{G REFUSE-PROHtBITED AREA.
'
InAdmiralty.. ,Action (or ,penalties. Exceptions to libel. Edward Mitchell and Mr. Ro$e, for libelant. AleJ:ander .A8h· .forolahnants. , BROWN, ,I. The, above ,l.ihel was filed to recover penalties under the . act of congress l),pprovedlune 1888, (25 St. l;lt Large, 209,) "to,prevent obstructive and injurious withiIl.. the harbors and waters of New York oity"by liurnping or other.wise." The libel avers use of the in discharging.and dumping into the wate]:'sof the North river, opposite Newburgh. certain loads ofmud, contrary to tbe provisions of the said act, for Sadie madeliable. ' The exceptions aver that no cause of action is statl;ld libel, a,ct has been submitted to the court for its conand upon the struction. ' The first, section of the act declares that the II discharging * * * of r,efus6,,dirt, ashes, cinders, mud, sand, * * * sludge, * * * in the tidal. vaters of the of New York, or its adjacent or tributary watersior in those of Long Island sound, within the limits which shall be prescribed by the supervisor of the harbor, is hereby strictly forbidden;" and every sucb act is made a misdemeanor punishable by fine or imprisonment, or both. Section 2 provides similar punishment of "every master and engineer * * * who shall knowingly engage in towing any * * * boat or vessel loaded with any such prohibited mator place of deposH or discharge in the waters of barter any lwr of or in its adjacent or tributary waters, or. intbose of Isllm(Lsound, or to ,apy point or place elsewhere than with.in the limits defined. and permitted by the of the .harbor hereinafter mentiQned."d Section 3makes.it tbe duty of the master, on receiv;ing on board any such .forbidden znalter, before proceeding to take it to the to apply,for and obtain from the supervisor a permit place of
is