The claims as follows:
"(1) . 'rhecombinaticln ;onbeilask. the If.' and the pattern, D, having the. parts. d. d. upit¢ at or near their tops by: a yoke, d ' , consisting of two ringlband a connecting .bar, substantially as llescribed. "(2) The combination!ofthe·flask. B. having the'compartments,B. B t ' and the pattern, D, baving tbe parts, d, d, and the yoke, d', substantiaHy,as desori bed. " . , .' .. . , ",
The yoke which the complainants contended infringed letters ,paient No. 209,428 is a bar, bent somewhat in the shape of an inverj;eq"U," strengthened by a cross--bar,and having the ends of its arms pr()vided with clips, to connect each of them with the ends of a pattern to be
bed. ' . RObert iI.Parhinsoo, E. J. O'Brien, and T. A.Post, for complainant. Geo. H. Knight and H. D. Wood, for defendants.
TREAT, J. Reissue patent No. 8,562, dated January 28, 1879, of patent No. 148,094, dated March 3, 1874, being more than four years thereafter, under the recent decisions of United preme court, is null and,void. As to patent No. 209,428, dated ber 29, 1878, there is no. ,infringement. As to. patent No. 295,295; dated March 18,1884, said patent is null and void fgr want of patents.-
Bill dismiase<l, with costs.
S. S. Co.
Owner, and another.,
(D4fJrict OOU'I't, S. D. N6'I/J YO'I'k.
January 26, 1887.)
For damages by collision, there is no marItIme lIen upon the cargo, except to the extent of freight due, though the cargo belong to the owner of the vessel in fault. S. SAME-LIMITATION OF LIABILITy-REV. ST. U. S. §\ 428B-MuTUAL FAULTHULL AND CARGO-SAME OWNER-OFFSET, HOW lLnE. Under the general,maritime law' and section 4283 of the Revised Statutes, which limit the liability of ship-owners to the value of the vessel and freight, in a collision by mutual fault, where there is a loss to both vessels and the C&I'go, though belonging to the owner of one of the vessels, cannot be appropriated to help equalize the loss between the two vessels; and,Jor the same reason,the owner's claim for damages for the 108sof his cargo cannct be offset fota similar purpose. No abandonment of the cargo. or of the' claim for damages thereto. is required by law as a condition of limiting the ship-owner'sliability. The damage which the maritime law requires to be massed. for the purpose of. equal division, is the damage "to the ships, "; not inclUding daIllJ!,ge to cargo that the ship or'her owner is not legally bouildto pay.
Vpon a collision near Newport, between the bark B. R. and the steamer B., bfmutual fault, whereby the bark and her cargo, both belonging to C., were sunk, and mostly lost, and the B. and her cargo were also injured; it was found, upon the report on: damages, that the damage to the steamer, including the damage to her cargo, which she had paid, amounted to $45,696.74; the damltge to the B.R.wa$ $f!4,807.35, les8$1,671.05, the proCeedSO!,' the wreck; and the net damage to the cargo of the B. R. was ,42,175.07. The cargo, beinginsured, was paid for by the insurance company, who int'ervened in the suWfor a recovery for,the damage to cargo. Held, '(1) that C., as owner of both, ship and cargo, was affected by the fault of his recover but'half the damage to the cargo; (2) that the insurers could recover only whatC. could recover;'(S) that, under the law limiting ship-owners' liability. C. Walt not liaWe for any part of the excess (about $11,000) of the Bristol's loss over the whole value of the bark and freight,-the latter being, in, this case, nothing; (4) that no part of the claim for the loss of Co's cargo could be offset or applied against the'amount (about $11,000) of the Bristol's loss in excess of the damage to the ,bark, excluding cargo; (5) tha.t the value of the wreck, $1,671.05, for which C. was obliged to account as a condition of the limitation of his liability, was applicable as an offset to the liability of the Bristol for half of the damage,to the bark's cargo; (6) that the insurers were entitled to this balance,:amounting to $19,416.48, to the exclusion oiC.
The in thIs case grew o'ut of a collision between thE( bark Bessie :Rogers and the steam-boat 'Bristol, which occurred near Ne'Wport, Rhode Island, during a derisefQg, <:>nthe night of August 9,:1872. Upon a trial before Bt,Arcm'oRD, J., in April, 1873, both vessels were held in fault. 6 Ben. 477. The bark was sunk by the collision, and WU,S a total loss. Her cargo of iron was owned by the respondent Oonnolly, who was also sole owner of the bark, and was fully insured by the Great Western Insurance Oompany, to which company the cargo was abandoned by the owner upon payment to him of its full value. Up to the time of the decision of the cause the counsel of the insurance company had not appeared separately, but had actetlinconcert with the owner of the bark, in seeking to charge the whole loss upon the Bristol; and no suggestion upon the record' Was made 'of'the'interests of the insurers. Upon the decision of the court that both vessels were in fauIt, the insurers intervened, by petitibri., fO'rlell;ve to proseoute'the suit for the protection ofthelr own interests. Leave was granted, with the direction that they file their allegations, andt.llat the otlier pllrties answer the same, or be held in default. The petitioners thereupon filed their allegations, setting fQJ)th, their interest in the cargo, its abandonment to them, their payment of the loss, the assignment to the illsurers by the owner of all claims by way of damages in respect to the cargo, as well as a transfer of the bill of lading, the total loss of the and the claim of the insurance company against the Bristol to be paidthe whole value of the cargo, namely, $25000 in gold, with interest from August 10, 1872. The owners of the to these allegations. Thereupon an interlocuBristol filed tory decree was entered, by which it was referred toOommissioner Betts to ascertain and compute the amount of damage caused by the collision, reserving,Uritil the coming in of his report the further trial of the cause upon the issues raised by the answer of the Bristol to the averments of th,e ins'\lfa,nce company as respects the amount of damage recoverable, for loss of the cargo, and to whom payment therefor should be made.
Many difficulties attended the completion of the proofs before the commissioner. Part of the cargo was recovered by the insurers. By the report, filed June 22, 1886, it appears that the insurers, on De0ember 17, 1872, paid to the libelant, as owner of the cargo, $24,500 then at a premium of 112, which, with interest from that time, makes $49,689.26. The value of the cargo was found to be $26, which, with interest, makes · $ 49,053 88 Less net salvage on cargo, and interest, 6,878 81 Or net damage to the cargo of the bark, · $ 42,175 07
$ 34,807 35 1,671 05
The value of the bark at the time of loss waR $19,000, or, with interest, · Less net salvage, and interest, Making the net damage to the bark, with interest, The damage to the Bristol, with interest, was · To her cargo, for which the Bristol has paid, Total loss by Bristol, The damage to bark and cargo, Total loss ofboth vessels and cargoes, · ·
$ 33,136 30
$ 28,569 22 17,127 52
$ 45,696 74
75,311 37 · · ., $121,008 11 $ 29,614 62 14,807 31
Difference in the whole loss on each side, One-half this· difference,
The nrie:tol,!upon her arrest at the time of filing the lihel,was released, o'n gi"ing stipulation for her value in the sum of $173,000. The insurance company claimed from the Bristol the whole value of the Bessi,e Rogers' cargo, namely, $42,175.07, or at least a moiety of the cal'go'damage. Counsel for the Bristol contended that, as Connolly was owner of the Bessie Rogers and her cargo, the whole damage is to be added in one mass, and that the Bristol, after offsetting her whole loss, is liable only for half the excess, or $14,807.31. The owner of the bark claimed a proportionate share of this Sum. Henry Thompson, for the Bristol. D; D. Lord, for the Bark. J08. H; Ohoate and Prescott HaU Butler, for Western Ins. Co. BROWN, J. ' Upon the facts appearing in the commissioner's report, the mattersl'eserved for further hearing present some novel questions. These rclatechiefly to the application of the law of limited liability, the extent to which the damages are to be offset, and the mode in which the balance is to be struck, in a case of mutual fault, where there is severe
,damage to both vessels; and of one of the vessels is also the owner of,her cargo. The latter circumstance is the peculiar feature that distinguishes the present case'from any known The petitioners, insurers of the cargo of the Bessie Rogers, having paid the sum Of $24,500 ,as for a tQtalloss, claim that the Bristol must pay to them, as innocent third persons, the whole value Of that cargo, amounting now, with interest, to $42,175.07; and that, in ascertaining the balance, payable by the Bristol, no part of this loss on the cargo of the Bessie Rogers can be offset ,against the loss of $45,696.74 incurred by the Bristol. The owners of the two vessels contend that in no event can the insurers ,recover more than one-half the loss on Connolly's cargo; and they further claim that the true rule requires that the whole losses on each side, without making any distinction between the Bessie Rogers and her cargo" should be offset against each other, so far as they go, and the Bristol held for only one-half of the excess on the .Eiide of the Bessie Rogers and her cargo. The latter mode of adjustment would make the insurer's claim about $7,000 less than the recovery of half the loss on ,cargo. Connolly, as owner of the Bessie Rogers, claims that the balance payable by the Bristol should be apportioned ratably between him and the insurers, as subrogated owners of her cargo, according to the respective values of vessel and cargo, viz., in about the ratio of three to four. Before considering this question, however, the rela.tions of the insurance company, as a claimant against the Bristol, should be defined. 1. Under the adjudication of the supreme court in the case of Phcrnix Ins. 00. v. Erie 7ransp. 00., 117 U. S. 312,6 Sup. Ct. Rep. 750, 1176, as well as under other decisions there cited, I find it impossible to hold that the insurance company stands in any superior or essentially different relation to'the Bristol from that of Connolly, the insured owner of the cargo. It was there deten;nined that, in cases of this kind, the right of the insurer is a right of subrogation only to the claims of the assured; and that this right is affected by all the limitations and restrictions that attach to the claim for damages in his hands. The case of Simpson v. Thomson, 3 App. Cas. 279, is cited with apparent approval, where all remedy was denied to the insurer because the not have maintained any action assured, owning both vessels, against himself., ' The scope of the decision in the case of the Phcenix Insurance Company, and of other decisions of the supreme court, is such as to limit the insurers, in a case like the present, to' what Connolly himself could have recovered. 2. The decision of the supreme court, also, in the case of The Juniata, 93 U. S. 337, in' effect, determines that Connolly, and therefore the insurers of his cargo, could recover only one-half of the damage to the carjl;O, where both vessels are in fault. In that case the owner of one of the two vessels was on board his own ship at the'time of the collision, and received severe personal injuries. He was held entitled to recover but half his damages. The principle there involved is equally applicable bere, even though Connolly's interests as owner of the.ship and as owner
of the ca:rgo are treated as quite distinct; for that decision necessarily involved the principle that the owner's pecuniary claims against the other vessel, for personal injuries even, was affected by the faults of his own master and seamen, as his agents in the navigation of his own ship. The same faults· must equally affect his claim for injury to his cargo; and, as rights, they ca.nnot recover, in any the insurers are limited, to event, beyond half the loss on Connolly's cargo, viz., $21,087.53. A somewhat similar application of the same principle was made by this court in the case of The City of New York, 25 Fed. Rep. 149. In contending that Connolly's entire damages to ship and cargo must be consolidated, and then offset against the Bristol's whole loss in hull and cargo, so fM' as the latter go, and, that the Bristol is to be held liable for· one-half the excess only, the counsel for the claimants cite, in the absence' bf any adjudications, the language of Mr. J BRADLEY in the case ofntAlabama, 92U. S. 696, where he says,in regard to the rule that each must bear half the damages: "The rule ·has' 'been thus applied when the ship and' her cargo constituted one opposing force, and a single ship the other; the entire damage to ships and cargo being equally divided between the two ships. Where both ship and cargo on olle aide belong to the same owners, the case is no way dUlerent from that of the two ahips alone. being injured. " Repeated perusal of this passage, with its context, persuades me that DO case like the present was in contemplation of the court. No question in respect to the cargo was involved, nor any question as to the application of the statutes Ihniting the liability of ship-owners; whereas these are the distinguishing features of the present case. Where no question of limited liability ariseS; the language quoted is, doubtless, an exact of the Beasie statement Of the law. In this case Connolly, the Rogers, by an amendment of his answer to the libel against him in personam, has pleaded the Stattltes in limitation of liability, and has invoked their benefit in his defense. Though a foreigner, he is entitled to the benefit of them. The Scotland, 105 U. S. 24; I do not think the passage above quoted was designed as any expression of opinion on the question here involved. . The importance of the mode of offsetting the damages arises wholly without their from the limitation of the liability of ship-owners for personal fault. Aside from this limitation, it would be immaterial what method were applied, because the damages in the end. must be equally divided. It is still of no consequence what method is pursued, if each vessel, with her pending freight, is of sufficient value to respond for her one-half of the whole loss. But whenever one of the two vesSels is sufficient;· and the other is insufficient, the loss, under the law of. limited liability,is not borne equally; and the method of offsetting damages may then become material, making in this case a difference of nearly $5,500. . . . Our statute declares, in terms, that "the liability of the owner of any vessel for any loss, damage, or injury by collision, incurred withOut the privity or knowledge of such, owner, shall in no case exceed the amount
or value of the interest of auch owner of such vessel, and her freight then Rev. St. U. S. § 4283. This is the general maritime law. Nothing could be more explicit than this language. It makes no distinction between a his own cargo and. one carrying the shipanother's cargo. So far as respects a discharge from owner in each case is entitled tb: that relief on the same terms. In neither case is he required to abandon his cargo, or any otller property, save the vessel and pending freight only. Abandonment of the vessel includes abandonment of the' claim for damages for the injury to the vessel, though it does not include the 'claim for insurance. Place v. NorWich &N. Y. T. Co., 118 U. S.468, 6 Sup. Ct. Rep. 1150. Under this limitation, therefore, the value. of the Bessie Rogers before collision, and her freight, viz,! $34,807.25, ol',what is the same thing, the value of her wreck after collision, together with the amount oLher .claim for damages, are the utmost limit to which the Bristol isentiUed to have Connolly, as owner of the Bessie Rogers, contribute .to the common loss. The owners of the Bristol are entitled tohava the whole value of the Bessie Rogers, including the clailJl ·the loss .of the. ship' and her pending freight, specifically applied ,and : offset against their own larger loss. This was the very point of the adjudication in the case of WheNol'th Star, 106 U. S. 22, 1 Sup. Ct. Rep. 41. 'This specific application, by way of offset, of the 19138 arising to 'the ship Bessie Roge:rs, extinguishes all claim [or that item of damage; amounting, according to the report, to $33 , 136.30, and leaves $1,671.05, the net salvage froni the wreck, still to be accounted for by Connolly in reduction of, the Bristol's loss. Beyond this" the owners of the Bristplhave no claim agaillst Connolly, because the statute sets that limit to Connolly's liability. _ The Bristol, being worth $17,3,,000, was legally hound t9 pp,y the losses of her cargo owners in full;' so tbat, as respects. her, it was immaterial, in this case, whetber the damage Was, to her hull or to her cargo. The damages to both amounted to $45,696.74, or nearly $11,000 in excess of the whole value of the Bessie Rogers before the collision. To add the whole loss of the Bessie Rogers and of her cargo into one mass, and tben to charge the Bristol for only one-half the of that sum over the Bristol's loss, would, in effect, be appropriating $11,000 of Connolly's cargo to offset the Bristol's loss pf $11,000 in: excess of the prior val ue of the Bessie Rogers. But this further offset of $11,000, in favor of the Bristol, cannot be legally had against Connolly, or his property, because, under the statute, that excess of $11,000 in tbe Bristol's loss over the damage to the Bessie Rogers, and her strippings and freight, constitutes no legal claim against Connolly. The statute, as I have said, does not require the owner to surrender his cargo, or any other property, but the vessel and her pending freight only. Wben that has been surrendered, and the damages to the veRsel offset, the owner's legal responsibility is at an end. Hence no further appropriation of his cargo, or of his claim for damages to his cargo, can be made, in order to offset any excess of damage to the Bristol, any more· than other property of his could be seized and appropriated or offset for a similar purpose. To mass the whole loss
. on each side, and give to Connolly, or the petitioners, only half the difference, would be to abrogate the law of limited liability, as applied to this case. Again, to allow the offset of cargo as claimed, would be, in effect, not only to require Connolly to abandon to the Bristol's use $11,000 of his cargo, but also to enforce a lien in the Bristol's favor upon the Bessie Rogers' cargo protanto,i.e., to the extent of $11,000. But no such lien ®. cargo for the torts of the ship is known to the maritime law, whether the cargo belong to the ship-owner or not. Such a lien finds no support in the text-books of English or Continental authors, and it is opposed to the ordinary practice oftha admiralty. By this practice, the cargo, except for the collection of t,he freight due, cannot be held for the faults 'of the ship: There being no lUm beyond freight due, no'proceeding in rem lies against the cargo for· damages by collision, if the freight be paUl, whether the cargo belongs to the owner of the offending vessel or not; and,if arrested, the cargo must be released upon the'payment of the freightdlle. . .. ' This rule was clearly stated by Dr. LUSHINGTON in the case of The Vic-tor, 1 Lush. 72; and it was applied by Sir ROBERT PaItLIMORE in the sequent. case ofTheRoec7Ji;Q',L. R. 2 Adm. & Ecc. 363, where the offend;,. ing vessel was owned by the owner of the cargo, and the case was free from anycomplicating circumstances. The cargo, having been arrested, on the payment of the whole freight, on the ground was ordered that" the cargo is not resp'onsible for the damage." Parsons, in his work on Shipping and Admiralty, (volume 1, p. 531,) says: "There is no lien, in favor of an injured vassel, on the cargo laden on board of the offending ship, although it belongs ta the owner of stich ship." English text-books state the same. 2 Kay, Shipm. 918; 1 Maude & P. Shipp. 619, note; Mars. ColI. (2d Ed.) 78;8crutton, Char. ter-parties,199. Article 216 of the French Commercial Code declares, in effect, the same limitation of liability with our own statutes. Commenting upon this artiCle, Boistel says (Precis de Droit, Comm. § 1189:) "If the owner is his own freighter, he must abandon the amount oithe freight which he would have paid upon another'Vessel, according to the prices current; but he iBnevlrr obliged to abandon.thecargo belonging to himself." To the same effect see 1 Laurin'sCresp COUtS de Droit Mar. 632; Valroger, Droit Maritime, § 264; Desjardines, Comm. Mar; § 289, p. 93. As respects freight, the rule just stated was applied in a case of collision by SPRAGUE, J., in Allen v; Mackay, 1 Spr. 219, 224; and by thesupreme court of Massachusetts in a case of adjustmeilt of general average in SpaffOird v. Dodge, 14 Mass. 66, 81. I find nothing in the case<d' The North Star, 106 U. S. 22, and 1 Sup. Ct. Rep. 80, with the above view, or' requiring the value of Connolly's cargo to be offset before striking the balance due from the Bristol. ' On the contrary, the language, as weHas the principles of the decision, tends to the opposite view. III that case, the Ella Wa'l'ley having been sunk and totally lost, and having obtained,a
decree against the North Star for half the difference in their respecti ve losses, the owners made the extreme claim that, upon her surrender as she lay at the bottom of the sea, they became entitled to recover half her full value as. against the North Star,although the latter had sustained considerable, though less, damagE;. The court rejected this contention, and held that the statute limiting the liability of ship-owners did not apply until after the loss "of. the two ships" had been added together, and offset; and that the statute then became applicable to ,the excess of the one against the other, as the case might be. But no question as respects the cargo of the Ella Warley was before the court. The language of the supreme court shows that the -damage that is to .he o;ffset before the statute limiting liability is applicable is not the damage to cargo,hutthedamage"to both vessels" only. The French authorities cited by the court are very clear upon this point; they. indicate what the court intended. The passage, from Boulay-Paty is iIi -reference "to the daUlaged.parts of each ship," (page 22;) and 1, p. 179:) "The damage of which our article treats is to be .understood only of the d(image which happens to the two 8hip8jexclv-ding that done to the merchaindi8e. 11 Emerigon (chapter 13, § 14) says: uThe kind of divisiOJ;l provided, for by:article 10 is an exception, which is applicable to the 8hip8 only,uriOwuJ, embracing the 'fnerchaindwe." Article of the Code de Commerce, using substantially ,the same language M,lj;rticle 10 of the ordinance of 161U, declares, in terms, that the damageqshall be paid by the ships that have caused suffered it, (par lea namr(18 ,q.wi l'auront fait et 80Ujfert.) Liyre,3, tit. 7, art. 10..· And Valroger, iP h,is recent work, (1886,) states it to be, without question. the French law, .that only the Wunage to i. e., not including merchandise, is massed for division. For cargo, each isliable in,8oli:do. 5 DroitMaritim6, 109-135, §§ 2115; ,212,2.. ". ' ·i By the German and Italian Codes, though there is no division of damages ()fD;lutua1 fault,eaoh. ship and each owner,to the extent of the valueoftbuhip and freight,.is,answerab1ein [email protected]
,'\ I" . : ' . ·
It makes no difference on board which vessel the cargo happens to be· Leonard v.WhitwiU, 10 Ben. 688, 658; The (Jdnim.a; 17 Fed. Rep. 271, 272. But the loss "to the ship" does not inClude what the vessel has not paid, and what neither she nor her owner is bound to pay. Had the cargo of the Bessie Rogers belonged to a'third parson, neither the vessel nor her owner would here have been bound to pay for it; nor could it have been offset against the Bristol's damage, in order to limit the amount that the Bristol should pay. The language used in the case of The North Star has 110 more application to the present Mse than it would have if the cargo had been oWhed by a third person. . The damage to the Bristol is greater than that "to the ship" Bessie Rogers. Connolly, having surrendered his vessel and her strippings, and having suffered an offset of all his claims for damage on her account, is under no further responsibility for the Bril!tol's excess of loss. He stands, therefore, as respects the residue of his claim, i. for his loss of cargo, as any other cargo owner would stand who was nevertheless affected with fault,and was, for that reason,· entitled to recover but half his damages. This construction of the law of limited liability works no hardship to the Bristol. She has all the benefit of the responsibility of the other vessel,' and of her owners, that the law of limited liability is designed to allow her; and in affecting the claim of the cargo owner, as owner Of the veBBel.with the faults of his master and crew, and thereby reducing the claim for 1088 of her cargo by one--half, the Bristol is charged with but half the sum she would have been obliged to pay to any innocent shipper of the same cargo, for the same loss. . In what has been above it has been assumed that Connolly must be held to'contribute to the oommon loss, irrespective of his cargo, all of his claim for damages for the loss of the ship, and any proceeds of the wreck, as a condition of the limitation of his liability. The commissioner's report shows a net salvage upon; the hull amounting, with interest, to $1,671.05, of which Connolly has had the benefit. This sum is, in effect, the value of the strippings of the wreck. As more than this amount is necessary to make up Connolly's one--half of the gross loss, irrespective of the CaJ;go of the Bessie Rogers, the owners of the Bristol would be entitled to a decree for this sum of $1,671.05 in their suit against Connolly in personam; and this sum, as between the same parties, would be applled as an offset or part paynient ofthe amount chargeable against the Bristol in the suit in rem. And, as the insurance company stands only in Connolly's shoes, the same application and offset must be made upon their intervention in the suit against the Bristol; because the owners of the Bristol are entitled to the benefit of that offset against Connolly. The Oity oj Norwich, 118 U. S. 468, 502, 6 Sup. Ct. Rep. 1150; The Great Western, lIS U. S. 520,524, 526, 6 Sup. Ct. Rep. 1172; The Eleanora, 17 BIatchf. 105; Atlantic Mut. Ins. C.o. v. Alexandre, 16 Fed. Rep. 279, 282. \ As respects freight, the commissioner's report shows nothing; apparently none was earned, as in the case of The Great Western, supra. The value of the cargo, it must be assumed from the evidence, was taken ac-
cording to the rules ofthe in collision causes, viz.: ' Its value at the time and place of shipment, as stated in the written admissions on which the value was found, which excludes any further question of My conclusions, therefore,are: 1. That the cargo oftheBessieRogers. though belonging to theowner ofthat is not subject to any lien in favor of the Bristol, and not liable to contribute anything tOtnllke good any part of the Bristol's loss; that Connolly's claim for damagesfor the loss of his cargo is not liable to any offset on account of the of the loss of the Bristol in her hull and cargo over the loss ,of the Bessie Rogers, i. to the bark herself; but that ConnollYtIlust contribute the value of the wreck and freigbt,-the latter , ,: ' " here being nothing. 2. That,the :insurance compa,ny is subrogated to,therightsof Concargo owner, and entitled to recover of the J.3risto1 on&-half of noij.y theaQtilaJ, 10 88 on the cargo.' It is entitled to no more, because the faults of Connolly,'s IPll.ster, as his;agent"afI'ect his claim ascaJ;'gQ owner. ,3,., onhe entitled to offset,l;lsagainst her 'o/hole loss, ,the whole claim of Connolly for the loss of tl;le, Bessie R()gers herself;;·aqdto have furtherappIiedandoffset, for their benefit, the o(.her strippings, viz., $1,671"Q5:; lJ,nd to more. ,,' 4. That Connolly ,has no part of th,e b\tlance herein found due from the Bristol, becausetl),is' balance arises Wholly from the loss of cargo, all o£Whi?h belongs,bY.Elubrogation, to the petitioners. 5. Woolangham, the master,;wh() was made defendant in the process, if served, to have made good to the Bristol the would have amount she.wiJ;lbe obliged t() Ray above one-half of the aggregate loss. As he wasn.otserved, there can be no decree against hitn. Upon the commissioner's report, the sum due the petitioners, after the offsets allowed, will be as follows: · $42.175 07 Loss on of 'Bl;lssie Rogers. · , i 21,087 53 One-half same. (decree in rem.) ..· · · ... 1,671 05 Less net vess£'l, chargeable against Connolly.
Balance of amount due petitioners. . · $19,416 48 -With ihtereston the principal from the date ofcommissioner's report. maibe·entered ahdthe costs are divided.
THE TONAWANDA. ,
TIm, TONAWANDA. l
(OVrcuit Gourt, E;D. Pennsylvania. January 17,1887.)
Unregistered and secret maritime liens may be enforced against a vessel in the hands of bona fide purch/tsers, unless the holders of such liens havebeeJ;l , guilty of negligence or laches. See the Same case, at' length, in 27 Fed·, Rep. 575. '
Appeal from district court. See 27 Fed. Rep. 575. EtfJlng' & WiUiama, for l.ibelants. , HfJnry ,R. Edmunds, forfespondents.
In ,Admiralty· '
McKENNAN, J. The defenseoftherespondent3 in this <lase is apparently so equitable, and therefore meritorious, that I have examined and considered the whole case with an to make effective against the claim of the libelants. 'r4eyhave d911e l\nd have not forborne to do anything, ininy judgll1ent, the assertion by them of any just or legal reason for denying their liabil. '.Cgey bona fide, 'Purchasers of the vessel,froll1 its real as as qsteIlSible owners. received 'a,ssurances of the freedom of 'the #9Pi an and charges, and they took frorn theirv.endor a conveyance, ",ith,:,li,iS, P,'ersonal w,arrari,t Wh, ic, was rende,!ed ine,ffe,ctive bYSUOS, , irisol:vency. Hence they had. a rIght to beheve that they had paid, tp.e full consi!leration for theirpurchase for which they were, in any wise, bound. But tile libelanw held an unregisWred' and secret lien uponthe vessel, which they had an' undoubted right to enforce, unless they' haye lost it by their own negligence. Greater on their in tracing the ownership of the,vessel, and in demllnding payment for their debt from the purchasers of it, might have imabled'the latter to protect vendor; but I am constrained to the conthemselves Qy a resort to clusion, by the pressure of 'decided cases, that they are not chargeable with such'laches as will subject them to the loss of their remedy llgliinst him. This is fully and satisfactorily described in the opinion' of the learned judge who' decided the case in the district court., , I therefore adopt his .views, and now order that a decree be prepared entered in this court for the S,UlA decreed by tile district court, in favor of the libelants,and agairistthe respondents, with costs. ' ..
IReported bie. Berkeley T"ylor, Esq., of the Phil"delphia ba.r.