180% TONS OF SCRAP IRON.
v. Boylston Ins. Co. 107 Mass. 140. To hold that the contact of such vapor is the actual contact of sea water, is to fritter away the good sense of the provision, which was introduced after decisions in such cases as Baker v. Manuf'rs Ins. Co. 12 Gray, 603. The view of the libellants would require the same decision under the actual contact clanse as without it. I do not understand the case of Woodruff v. Commercial Ins. Co. 2 Hilton, 130, as being an authority for the libellants. The observations of the district judge in his decision in this case, as to that case, seem to be well founded. If all the damage in this case had been from vapor arising from sea water which had found its way into the ship, without any other actual contact of such sea water with any barley, it might as well then, as now, have been contended that the contact of such vapor was the actual contact of sea water. But this would take away all force from the actual contact clause. The libel must be dismissed, with costs to the respondent in the district court and in this court.
SNOW & BURGESS V. ONE HUNDRED AND EIGHTY AND THREE-FoURTHS TONS OF SCRAP IRON.
'District Court, D. Rhode island. February 23, 1882.)
BOTTOMRY BOND-PROCEEDINGS IN REM. A suit on 8 bottomry bond, except
in certain cases, must be by proceedings in rem agaInst the property hypothecated or the proceeds, as prescribed by admiralty rule 18, and 8 libel in rem may be a proceeding against the property by arrest or attachment; but it does not follow that an attachment can only be made by actually taking possession of the property; service may be made either by notice or by actual levy on the goods. Service by notice anrl monition is analogous to the process of garnishment, and a good attachment of the proceeds in whatever form they may exist.
In Admiralty. Exceptions to libel. W. W. ct S. T. Douglas, for libellants. Thurston, Repley ct Co., for respondent. COLT, D. J. This is a suit on a bottomry bond brought against 8 portion of the cargo of the brig Mechanic, of Portland, Maine, and the proceeds of said portion, in whosesoever hands the same may be found. It is admitted that the iron claimed was part of the cargo e.t the time the bond was made, and that it was subsequently
delivered to the Rhode Island Horseshoe Company, of Providence-;
It appears that the marshal, not finding the iron, attached the pro-
oeeds in the hands of the Rhode Island Horseshoe Company by serving a copy of the attachment and monition upon the president of the company, but took no property of any kind in specie into his possession. The only question now before us arises upon exceptions filed by the Rhode Island Horseshoe Company, which are as follows:
"First. That the said libellants, in prosecuting their supposed cause of action, should have commenced the same by petition, addressed to this honorable court, praying that this respondent should be cited to appear and show cause why said supposed proceeds should not be brought into court to answer the exigency of such petition, and not by libel and monition, as in and by their libel they have done. Second. Because this honorable court has no jurisdiction, for the reason that said action is a libel in rem, and that, as appears by the return of tile marshal upon said monition, he has found no res on which to make service, nor has there at any time been any res in his custody or possession."
The position sought to be maintained by the respondent is that in a proceeding in rem of this kind it is necessary that the marshal should find the property upon which to make service, and should aotually take into his possession the property or its proceeds in specie; and that in cases where this cannot be done the proper form of proceeding is by petition and citation. In support of this the following quotation is made from Benedict's Admiralty, § 441: II In cases of proceedings in rem, when freight or other proceeds of property
are attached, or are bound by the suit, (as is often the case in suits for seamen's wages, bottomry, or salvage,) and such freight, or other proceeds, are in the hands or possession of any person, the court, upon application by petition of the party interested, may require the party charged with the possession thereof to appear and show cause why the same should not be brought into court to answer the exigency of the suit, and if no sufllcient cause be shown, the court may order the same to be brought into court to answer the exigency of the suit, and upon failure of the party to comply with the order may award an attachment, or other compulsory process to compel obedience thereto."
It is apparent, however, that this proceeding (as well as that laid down in admiralty rule 38, whieh is substantially like it) relates simply to a way for getting property into the hands of the court after suit has been commenced, and not to any mode of beginning the action; therefore, it is far from tending to establish the position taken by the respondent. The libellants in this case were obliged to bring a suit in rem against the property or the proceeds. By admiralty rule 18 all suits on bottomry bonds, except in certain cases not here
applicable, shall be in rem only, against the property hypothecated, or the proceeds of the property, in whosesoever hands the same may be found. It has long been settled that a suit in rem will be against the proceeds of the thing, as well as against the thing itself. "There is no difference," says Judge Story, "between the case of a restitution in specie of the ship itself, and a restitution in value. The lien attaches to the thing, and to whatever is substituted for it." Sheppard v. Taylor, 5 Pet. 675, 710. The question, then, under the exceptions, narrows itself down to this: Whether it is necessary to the maintenance of a proceeding in rem, by libel and monition, for the officer to actually find the property upon which to make service, and to actually take it into his possession, or whether a monition served upon the holder of the property or of the proceeds is not sufficient. "Proceedings in rem may be maintained, not only when there is a vessel or other thing which can be arrested by the marshal, but also where there is a fund in the possession of persons within the jurisdiction." Flaherty v. Doane, 1 Low. 148, 15l. In England suits in rem, served by a monition upon the owners, may be brought where the vessel is on her voyage or has been wholly lost. Flaherty v. Doane, 1 Low. 148, 151; The Trelawney, 3 C. Rob. 216; The Stephen Wright, 12 Jur. 732. And in this country notice of the action in rem is often served by a simple monition, where there is no danger of loss and it is desirable to save the expense of custody. Flaherty v. Doane, 1 Low. 148, 151. A libel in rem may be a proceeding against the property by arrest or attachment; but it does not follow that an attachment can only be made by actually taking possession of the property. Service may be made either by notice or by actual levy on the goods. "An attachment may be of goods and chattels, or of rights and credits, and by actual arrest of the goods, or by notice to the person having either or both in his possession." Ben. Adm. § 420; Conk!. Adm. Pro 478. We think there can be no doubt, after analogy to the process of garnishment, that the service of proper notice upon the Rhode Island Horseshoe Company constituted a good attachment of the proceeds of the iron in its hands, in whatever form they may exist. Exceptions overruled.
THE MARIA AND ELIZABETH.
(District Oourt, D. New Jersey. l'1arch 9, 1882.)
In a collision case where the vessel was totally lost, where the proofs fairly show that the vessel was worth to the libellant, at the time of the loss, the sum of $2,800, a decree was ordered to be entered for that amount, although the offending vessel was not. worth that amount.
2. LIMITED LIABII,ITY OF OWNERS.
All owners of vessels are not entitled to the privileges of the limitation of liability, but only such as fall within the description named in the act, (section 4283, St.,) to-Wit, those who had no privity or knowledge of the damage incnrred ; and where the owners may invoke the provisions of this section, the court caimot know, without appropriate proceedings, the value of the offending vessel and the pending freight
SAME'-STAY OF PnOCEEDINGS.
In this case a stay of proceedings was ordered until the of the offending vessel have the opportunity of filing a petition on libel according to the rules. See The Benefactor, 93 U. S. 239.
In Admiralty. H.. P. Wortendyke, for libellant. Flavel McGee, for respondents. DIXON, D. J. The libel was filed in the above case by the owner of the schooner Achorn, to recover damages for the injuries arising from a collision with the Maria and Elizabeth, on the night of March 16,1880, off Absecom light, on the coast of New Jersey. Upon a hearing on the merits I held that the respondents' vessel was in fault, and must be held responsible for the total loss of the Achorn. A reference to a commissioner was ordered to ascertain and report the damages. See 7 FED. REP. 253. The testimony being very conflicting as to the value of the libellant's schooner, at the request of the parties I agreed to hear the case upon the proofs, without a report from the commissioner. I have given the evidence and the arguments careful consideration, and am of the opinion that the proofs fairly show that the vessel was worth to the libellant at the time of the loss the sum of $2,800. The witnesses for the respondents go much lower than this; and the witnesses for the libellant much higher; but the weight of the evidence points to that sum as the nearest approximation that can be made to the damages incurred by the faulty navigation of the respondents' schooner.