TBB F4VOBIlfL

213

THE FA.VORITE.

(District Oowrt, N. D. lllitwis. 'May 13,1882.)
CoLLtBION-DAMAGES-LIMITED LIABILITy-IN'rEREsT.

Where, in an action for damages. arising from a collision, the owners of the rules for a limitation colliding steamer applied under the liability as such owners, and by stipulation with approved sureties agreed to make payment of the assessed value of the steamer, and thereby procured her release from arrest, held, that the owners were liable, in addition to such assessed value of their steamer, for the interest thereon from the date of the stipulation, with costs of the litigation.

Schuyler If, Kremer, for libellants. Richberg If Kniep and A. McOoy, for respondents. BLODGETT, D. J. On the second of AUgUst, 1877, a collision oc-

curred upon the waters of Lake Michigan between the steam-propeller Favorite; and the schooner Grace A. Channon, by which the sch'ooner and her'cargo of coal \vere sunk, and became a total loss. oh teenth of the same month a libel was filed in this court of the Channon against the Favorite, charging the collision 'to occurred through the negligence of those iIi charge of atelimer,i and claiming to recover as damages the value of the schooner and her freight. A furtber libel was subsequently filed by - ' - Graham to recover damages for·the death of a child who WitS a pass'enger on the schooner and was drowned by reason Of the cOllision, and the Providence Washington Insurance Company, who had insured the cargo of the schooner, and paid the loss which accrued' under 'their policy, also filed a libel for the amount so paid. After the filing of the libel by the owners of the schooner, and the arrest of the steamer, "O'wner ot the Kirby Carpenter Lumber Company, who was the; the steamer at the time collision, tdthisCQutt, under admiralty rules 54, 55, 56, and 57, fora limitation ofits liability as such owner for damagesoc(;!a,sioned by such collision' to of the stea:mer ap.d her freight then pending, andsuch' steps were. taken' that the value of the steamer, machhiery, boats; and furniture, (there no freight pending,) w.as ILPPJ.:aised and fixed at $12,397.80, and her owners, by stipulation, with approved sureties, agreed to make payment of that sum into court whenever ordered, and the steamer w,as thereupon' ri:\!eased from artt'!st arid .and proQfs of delivered to her owners. Upon hearing court found th steamer in· and the libels for damages,
, · . . . . , . ,I

2Ui directed a reference· to a commissioner to take proof and report the damages sustained by the respective libellants. The commissioner reported that he findsThe value of the schooner, at the time she was sunk by the collision, was - $15,000 00 That her then pending amounted to $277.50, for which 138 75 she should be allowed one-half, 1,000 00 Damages in the Graham suit from the death of child, Damages to Providence Washington Insurance Company, insur2,50C 00 ance of cargo, Making a total of damages sustained by the several libellants, · $18,638 75

By his report the commissioner finds that the several libellants were entitled to share pro rata in the amount fixed as' the value of the steamer at the time of the cpl#sion; and he also finds that. the Kirby Carpenter Company, having; appeared as claimant 41 these se,veral suits, and contested its. liability and the liability of the steamer for such collision, is liable for not only the amount called for by the stipulation as the value of the steamer, but also interest upon the same at the rate of 6 per cent. per annum from the date of the collision, together with the costs incurred by the several libel. lants in their respective suits. Exceptions are filed to so much of the reports as charge the respondent with intereElt and costs; respondent, the Kirby Carpenter Company, insisting that the amount called for by the stipulation, which was the appraised value of its interest in the steamer at the time of the collision, constitutes the full measure of its liability, and that it is not liable beyond that surofor interest and costs, or ,either. The only question tp be considered under these exceptions, therefore, is as to the correctness of the commissioner's findings in regard to respondent's liability: for interests and costs·. By the fifty-fourth rule in 'admiralty it is provided that.. Said court having caused due appraisement to be had of the amount or value of the interest of said owner or owners, respectively, in Buch ship or vessel, and her freight for the voyage, shall make an order for the payment of the same into court, or for the giving of a stipulation, with sureties, for payment thereof into court, whenever the same shall be ordered; or, if the said I)wner or owners shall so elect, the said court shall, without such appraisement, make an order for the transfer by him Or them of hiB or their interest in such vessel and freight fo a trustee to be appointed by the court under the fourth section of said act; and upon compliance With such order thecow-t; issue a monition against all persons claiming damages for any ment, loss, destruction, damage, or injury,citing them to appear before the court, and make due proof of their respective claims."

J.

Ji'AVORITE.

·

It will be seen: that under this rule the court may require the appraised value of the owner's interest in the vessel to be paid into <lourt. await distribution to the several claimants, or all9w the to retain possession of the vessel, free of liens and charges, in the prelllises, on his giving stipulation, with sureties, for the payment of the appraised value into court whenever orde:t:ed. Inthiscjl,se the owners were allowed to retain the steamer on filing a stipu.laMon, as for by the rule. The practical effect of doing this is to ,give the owners the use of the appraised value of the steamer .until or. dared to PaY it into court. If the responqent had paid the .value of the into court, the court could, and doubtless would, have ordered the money to be put at interest for the benefit of the· parties concerned pending the litigation. But the respondents, evidently to have the use of the steamer, thereby using which she was appraised, instead of· paying the money into court, or vessel to a trustEle, elected to give a !ltipqlation,. with sureties.. It then contested not only its own personalliabilitYI\ bui; t,hat of the steamer, to the'resp/:lctive libellants for .. ()f this,collision, and insisted that the collision occurred f1tult of the schooner and not from the fault of the steamer, the Jibellants to . and protracted litigllttiQnto establish their claims, say it is. not liable beyond. the .. for by the stipulation; that it is not liable for interest, and costs must come out of the fund. It seems to me a bare statement of the proposition is sufficient to show its injustice and unfairness'.. By coming into court and seekingto have its liability limited to the value of the stWl,mer, there would Beem ,to be at least an implied admission that the applicant '\Vas liable for the consequences of this colliSIon, and needed, the ben:efit of the statute in that regard; and it might perhaps be urged that the owner could not, after such proceedings, be heard to deny its liability to the extehtof the appraised value of the steamer. But tho supreme court having held that, even after a decree finding, tbeship libelled a.t fault. the apply for and have the benefiCof this would. thllrt the owner has the reserved right to require the persons claiming damages to establish their oase;by -proof; but it cannot, I think, have been the intention, either of congress in framing the statute or of the supreme court by its rules, that the shipowner, after having had the extent of his liability limited and defined by proceedings under the statute, can enter the arena of litigation. and contest the question whether he is liable at all or not at the

216

FEDBBALBBPOBTEB.

expense of a fund in which he has no longer any interest, which he has paid or agreed to pay into court as a condition for his discharge from further liability. To allow him to do so would be to put a premium upon the law's delay, and give the ship-owner the right to vex claimants for the fund which he has cited them into court to claim, without risk of cost to himself. The practice under this statute has been ·so limited in this country that but few adjudged cases are reported t I do not find any direct adjudication on this· point in ourcouttst although the plain intiniationby the supreme court in the case 'of The Wanatah t 95 U. S. 600 t is that'the owners of the offending vessel are liable for costs and interest. ' Our statute is taken substantially from th'eEngliBh act of George III. and under that statute the English court of admiralty has always allowed costs, and, in a large number of cases, interest. The Dundee, 2 Hagg. 137; The John'Dunn t 2 Wm. Rob. 160;,The Valiant, 1 Wm. Rob. 64; The Amelial 34 Law J. 21; The Northumb,'ia t 39 Law J. 6; K&by{24: W. R. 207. In this case the stipulation does not t in terms t require the latol'sand sureties to pay undotibtedly the liability of the sureties cannot be extended to the payment of interest; unless it be for delay after the court has ordered payment; but I am so fully impressed with the obvious justice of the commissioner's findings that I shall overrule the exceptions to the report and order that the stipulators or their sureties pay into court the sum of $12,397,80, mentioned in their stipulation, within 20 days from this date, and that the respondent, the Kirby Carpenter Company, also pay into court within said time the interest on the said sum of $12,397.80, from the date of the stipulation to the present time, and that costs be awarded against the respondent in each of the suitst to be taxed by the clerk.
NOTE. That an action for damages for tbe death of a porson HeR in admiralty, see Holmes v. O. & O. By. Co. 5 FED. REP. 75,523; The Garland, Id. 924; Inre Passenger & Freight T. Co. 5 FED. REP. 599; The Sylvan Glen, 9 FED. REP. 335. As to limited liability of ship-owners, see The Maria and Elizabeth, ante, 520; National Steam Nav. 00. v. Dyer. Notes of Decisions, Iii 527 t and cases cited.-[ED.

'XBB ABBY INGALLS.

217.

To

ABBY INGALLS.

THE ALFRED A.

(District Court. D. MaBBachuBstt8. April, 1882"
1.

COLLISION-RULE Oll'THE RoAD-VESSEL CLOBE-HAULED.

Where two vessels are meeting, end on or nearly end on, the one close-hauled on the starboard tack and the other having the wind on her port side, the ves· sel close-hauled has the right of way by the well-settled rule of the road. 2.
FAULT-NEGLECT Oll' LooKOUT.

Where the lookout failed to see the lights of the approaching vessel until too late to avoid the collision, liability attaches from such fault.

John Lathrop, for owners of the Alfred A. J. C. Dodge and F. Dodge, for owners of the Abby NELSON, D. J. These are cross-libels for a collision between the on schooner Abby Ingalls and the sloop Alfred A., which took the thirtieth of July, 1875, at 10 P. M., about four miles soutll-cll.st of Highland light, on Cape Cod. In the libel ill behalf of the .Alfred: A;. it is eharged that the wind, at the time of. the collision, was, varyi.ng from W. by S. to W. S. W., blowing fresh, and the cOurse of the·Alfred A. was N. by W.; that the lookout saw a red light on another vessel about a quarter of a mile distant, an4 about half a point on .the weather or port bow; that the helm of the sl()op was thereupon put hard to port to keep the vessel off; that the approaching vessel, which proved to be the Abby Ingalls. also kept off, althopgh the mate of the Alfred A. shouted to the schooner to put her helm hard down; :"'Ind that the schooner run into the sloop, striking her on the port bow. The case stated in the libel in behalf of the Abby Ingalls is that the wind was blowing from about S. W. by W., a fresh breeze, and varying slightly; that the schooner was steering close-hauled by the wind on the starboard tack, and pursuing a general course of about S. by E.; that the lights of the sloop were first seen a few minutes before the collision about one-half or three-quarters of a point over the port or lee bow of the schooner; that the sloop came straight on, luffing a little as she approached the schooner, and iminediately struck the schooner on her port bow; and that the schooner made no change of course whatever, except to put her helm to port, when the sloop was so near as to render a collision inevitable, to ease the force of the blow. Yam of the opinion that the evidence sustains the allegations of the respective libellants as to what took place on board their own vessels;