property I have sold you for value;" and it also seems that the other defendants are equally estopped with Curran, as they are his partners, and can have no greater rights than he. Having clothed this complainant with the exclusive rights granted by the reissued patents for the state of Wisconsin, Curran and his partners cannot now defeat those rights by setting up the invalidity of the patents assigned to him. . The application for rehearing also reargues the invalidity of the original patents in the light of some additional proof as to the state of the art; but, as no reason is assigned for the failure to produce this proofat the hearing. I do not think it should now be considered.. } The question of infringement is also elaborately reargued in the· briefs filed on this motion, but I am still of opinion that theinfringen:ent is clearly ,shown by the proof. The motion for rehearing i§therefore overruled, with the reservation that it is possible on the final hearing the court may be of opinion that Curran's partners and co-defendants are not bound by the estoppel which binds him, and therefore may not be liable in damages for the infringement of the neW and expanded claims of the reissue; and this question may be further discussed on .the final hearing upon the master's report; and it is possible, also, that the third olaim of patent No. 8,846, which is new and is similar in effect, but different in'itsverbiage from the second claim, which was one of the original claims of the patent,may cut some figure in the final adjustment of the damages; but, as I am at present advised, I do notthink it will. The accounting must therefore . go on before the master.
THE EsTEB,AN DE ANTUNANO. CARMONA and others v. THE ESTEBAN DE ANTUNANO. (ALBINA,an'd others, Intervening Libelants; MURIETTA and others, Claimants.)
(Oircuit Oourt, E. D. Loui8iana. June 11,1887.)
MARITIMlil LIENS-SHIP'S HUSBAND.
There fsno maritime lien on a ship in favor of the ship's general agent Or husband. , . . Supplies furnished a ship on the authority of the master in a foreign port will bepresurned to have been furnished on the credit of the ship, but no lien can be given to who furnished suppliEjI!·on the order of the master, whexe the master was without authority to contract for the ship, and the materilll-men' knew, or ought to have known;that such authority was wanting. .
SAME-FUJ;tNlSIlERS. OF SUPPLIES.
In this circuit a stevedore has no maritime lien upon a ship for his services in loading and stowing her cargo; follQwing Paul v. 2 Woods, 229.
by Joseph P. Hornor, Esq., ·ofthe New Orleans bar.
SAME-SEIZURE OF VESSEIr-EFFECT.
When a vessel is seized by an officer. like a sheriff, and goes into the cust'odyof the law, by such officer taking possession of her. her contemplated voyage is broken up. and thereby the authority of her owners, and of their agents, the master and ship's husband, to thereafter affect the ship by any conduct or contract, to result in a lien on the ship. is ended. and by the seizure all persons are notified of the change of control andpoBsession.
Adinitalty Appeal. E. D. Craig and Albert Voorhies, for libelants· . Bayne « Denegre, for claimants. W. S. Benedict, for intervenors. PAltDEl'!l,J. The Mexican steam-ship Esteban de Antunano, owned byAhe Mexican Steam-Ship Company, in February, 1886, was running between Vera Cruz, Mexico, and New Orleans, Louisiana, carrying the, mails and freight and paSsengers for hire. She sailed from Vera Cruz, February 6, 1886, and, after her arrival in New Orleans, discharged her cargo, relQll.ded with freight and passengers, took on full supplies for a round-trip voyage, took out her clearance papers, ready to sail at 8 o'clock A. N. on the seventeenth day of February. On the sixteenth day of February, Murietta & Co., bankers in London, England, alleging themselves the owners of a mortgage upon the said steam-ship, brought suit in the civil district court of the parish of Orleans, state of against the Mexican Steam-Ship Qompany, owners, for the amount alleged to be due under the mortgage, and prayed for and obtained a writ of sequestration, and on the evening of the said sixteenth of February, the sheriff of the parish of Orleans, executed said writ of sequestration, and took into his possession the said steam-ship. After various proceedings in the said civil district court, a personal judgment was rendered against the Mexican Steam-Ship Company for the amountof·the mortgage, with recognition of the nlortgage on the steam-ship, maintaining the sequestration, and. condemning the ship to be sold for the purpose of pa,ying the judgment and costs. Execution was issued under the said judgment, and on July 31, 1886, the said steam-ship was sold by the sheriff of the parish of Orleans, and was pllrchased by Murietta & Co., present claimants. Possession under this sale seems to have been given by the sheriff to Murietta & Co. on the sixth of August following. During the time of the seizure,. and up to August 7th, most of the crew remained on board of the steam-ship, occupying themselves, under the direction of the master, in painting, scrubbing decks, and otherwise keeping the ship in order and condition. The seamen's wages were due from February 6, 1886. No attempt was made on the part of anyone to pay and discharge them. Many of the passengers remained on board several days after the sheriff took possession, hoping, it is said, that there would be a settlement of the ship's and that she would be able to pursue her voyage. The passengers and crew consumed the provisions supplied for the voyage, and when they ran short various parties, intervening libelants herein.
at the instance of the master, without the order of the sheriff, but with the hope that the ship's difficulties would soon end, be to meet the alleged necessities of the made, continued to furnish officers and crew, and the alleged necessity of keeping the 'ship in good order and condition. No application appears to have been madeto the sheriff or to the court, having possession of the ship, for authority to furnish supplies on the credit of the ship, until April 30, 1886, which was followed, after a hearing. by, an order to the sheriff of the court, on May 7, 1886, to furnish provisions to the crew to the' extent of $25 per day, to be paid out of the proceeds of the sale of the ship, and to cease when the ship should be sold. June 11, 1886, while the ship was in the possession of the sheriff, Jose Carmona and 53 others, officers 'ahd· crew of the said ;,steam-ship, filE-d a libel for wages against the'saidsteam-ship in the district court: of the United States for the Eastern district of Louisiana', under which the marshal returns "that he seized the said ship on the thirty-first day of July; and held herin his custody until the seventh day of August, when shewRs released upohbond." 'June 14; 1886,J. M.· Walsh filed an intervening libel for supplies furnished to said ship before and after the seizure of the sheriff aforesaid; 'and on the same day Alsina Bros. filed an intervening libel for supplies alleged to have been furnished during the aforesaid seizure of the sheriff. 'On June 21,1886, Jean Begue filed an interVening libel for supplies alleged to have been ftirnished before and afoor the aforesaid seizure of the sheriff. June 28,1886, Thomas Casserly:filed an intervening libel for alleged services, cleaning, wash..: ing furniture, bedding, and linen ofthe said steam-ship during the time it was in the custody of the sheriff aforesaid. August 4,1880, Edward A. Yorke filed an intervening libel for alleged supplies and advance&furnished said ship before and during' the seizure of thersheriff aforesaid. August 4, 1886, S. C. Manning m.edan intervening libel for services as a stevedore in loading said ship on the fifteenth of February; ] 886, before the aforesaid seizure of the' sheriff. By the record of the state it appears that Casserly, Manning, and Yorke filed interventions in the state court, setting up the same claims which they now respectively set up in thiseourt, and, aiter hearing and evidence, had judgment against them dismissing their said interventions, but no plea' of res judicata bas been filed aga,i'nstthem. The claims of the officers and crew huV'ebeen settled and paid, and the questions presented here are as to the sufficiency of the cla.ims, and the existence of the liens claimed by the intervening libelants,Yorke, Alsina. Bros., Walsh,Begue, Casserly, ahd Manning. E. A. Yorke was the ship's husband. By his testimony it appears that he was the general agent of the ship at this port of New Orleans by appointment of the MexicanStenm-Ship Company, acting through its secretary, and that he visited the City of MeXICO, and' perfected his arrangements in a personal interview with the owners of the vessel; and agreed to act as her general agent in this port, transacting all her busi. ness as vice-principal, with full control of the captain of the vessel and
THE ESTEBAN DE ANTUNANO.
crew; and had agreed to pay all bills which the vessel might contract, and di!3chargeall claims against her, Mr. Avendano being security for the Mexican Steam-Ship Company, who were to repay to him the amount advanced on the return of the vessel on: her trip following the one on which he had paid the bills. His correspondence down to March '5, 1886, after the seizure of the ship, shows that he gave credit to the owners, and does not show that he relied upon the ship. As the ship's husband, and under his contract, it was his duty and his privilege to keep liens off the ship, rather than to put them on. "The t,hip'shusband is a confidential agent, appointed by the owners to conduct and manage on' shore whatever concerns the employment of thliO ship. * * * He is the person to receive advances of money from the different part owners, in their respective proportions, to meet the ex· pense of the intended voyage, or, if he layout his own money, or make himself liable for the necessary charges of the ship before starting, he may, before the voyage is ended, sue the owners severallyfor their proportionateshares. His is the hand into which the gross freight at the end ofthe voyage is collected, and by which the expenditure of the vessel is cleared off. He is e9titled to deduct the expense from the earnings of the, ship for the saine voyage or adventure before he distributes thenet'profits of the owners." Mac!. Shipp. 182, 183. "And if the ship's husband be a mere stranger, and he has regularly come to the possession of the proceeds of the voyage, or of the ship itself, if or of the ship's documents and freight, he will be entitled to a lien thereon for his reimbursement and indemnity. But beyond this the ship's husband does not seem to be recognized as having any peculiar lien, or, at least, ndt any upon the ship or its proceeds." Story, Abb. Ship. (6th Amer. Ed.) 133. Partn. § 443. The adjudiCated cases cited are all one way, and against permitting a maritime lien on the ship in favor of the ship's general agent or hushand. See The Larch. 2 Curt. 427; The Sarah J. Weed, 2 Low. Dec. 555;White'v. A'l1W1'icu8, 19 Fed. Rep. 848; The J. William8, 15 Fed. Rep. 558; Minturn v. Maynard,17 How. 477. Some reliance is placed upon The J. C. Williams, supra, as being a case where a ship's husband Was allowed a lien for his advances; but an examination will show that, while the court recognized clearly and distinctly the general rule, the exception was made because the ship's agent was a mortgagee of the ship, and the agency was given him by contract as an additional security. Whether the exception was well made or not, is immaterial under the facts of the present case. The Patap8cO, 13 Wall: 329, and The Lulu, 10 Wall. 192, have been called to my attention as cases where the supreme court has been very -liberal in allowing liens for supplies furnished a foreign vessel as furnished 'on the credit of the ship. Since those cases, if not before, the rule may be said to be that supplies furnished a ship on the authority of the master, in a foreign port, will be presumed to have been furnished on the credit of the ship, and such presumption will not be overcome except on clear evidence that the credit was given to the owners. But I
have seen no case where a lien was given to a ship's husband, as such, for advances and supplies, or to material-men who furnished supplies on the order of the master, where the master was without authority to contract for the ship, and the material-man knew, or ought to, have known. that such authority was wanting. , In the present case the husband so little credited the ship that he had security from the owners,and, as will be seen further on, the authoritv of the master was at an end-and the material-men knew itwhen m"any of the supplies herein sued for were furnished. The Pa-tapsco Chse, however, answers the argument of the,claimants that the supplies, furnished the Antunano constituted no lien, because furnished on the credit of the ship's husband. There have been in the district courts of the United States a number of cases in which it has been held that a.stevedore has a maritime lien. In the case of The Hattie M. Bain, 20 Fed. Rep. 389, decided in 1884, Judge BRowN,ofthe Southern district of New York, maintains the proposition upon principle,-,-relying on Insurance 00. v. Dunham, 11 Wall 26, and upon authority; citing Judges CHOATE, Roberts v. The Bark Windermere, 2 Fed. Rep. 722; BENEDICT, The Circassian, 1 Ben. 209, and The Kate Tremaine, 5 Ben. 60; LOWELL, The George T. Kemp, 2 Low. Dec. 482; and DEADY, The Can-. ada, 7 Fed. Rep. 119. To this Hst of judges so holding may be added Judge WELKER, of Ohio, who maintains the proposition on principle. The Senator, 21 Fed. Rep. 19l. Howevp.r the case may be on principle, and on authority in other circuits, in this circuit the question is not an open one; In 1876, in the case of Paul v. The !lex, Mr. Justice BRADLEY, circuit justice for this circuit, decided that the precedents were all one way, and that it was no longer an open question, and that" a stevedore has no maritime lien upon a ship for. his services in loading and stowing· her cargo." 2 Woods, 229. This decision makes the law for this circuit. Mr. Justice BRADLEY, by,the way, delivered the opinion iti Insurance 00. v. Dunham, supra, and it did not occur to him that that decision affected the question. When the sheriff of the parish of Orleans, Louisiana, seized and took into his possession, under process from the state court, the· steam-ship Antunano, she weIit into the custody of the law, and her contemplated voyage was broken up and abandoned, and thereby the authority of her owners, and of their agents, the master and ship's husband, to thereafter affect the ship by any conduct or contract to result in a lien on the ship, was ended. By the seizure all persons were notified of the change of control and possession. While the ship was -in the custody of the law, it is doubtful whether on any account, or for any service, (except, perhaps, for salvage, or through a collision,) any Hen could arise on the ship; certainly not without the express authority of the court having the property in possession. Liens for supplies and materials are based on contracts entered into on behalf of the ship. Where there is no representativeof the ship or her owners authorized to contract, there can be no contract, and therefore no lien based ona contract. The supposed
THE· ESTEBAN DE ANTUNANO.
necessities of the ship, or of her crew, would warrant no person in interfering without the authority of the sheriff or the court. These propositions seem to be too plain to be disputed, and their recognition to be absolutely essential to preserve the authority and jurisdiction of the courts. Article 283 of the Code of Practice of Louisiana provides that "the sheriff, while he letains possession of sequestered property, is bound to take proper care of the same, and to administer the same, if it be of such nature as to admit of it,as a prudent father of a family administers his own affairs. He may confide them to the care of guardians or overseers, for whose acts he remains responsible, and he will be entitled to receive a just compensation for his administration to be determined by the court, to be paid to him out ofthe proceeds of theptoperty sequestered, if judgment be given in favor of the plaintiff. " This article gave the sheriff full authority, and at the same time made it his duty to look after and provide for the necessities and preservation of the ship, and the presumption is that he did his full duties in the premises. If he did not, there was the court to appeal to, and the record here shows that the first application made (on behalf of the crew, the only alleged meritorious parties) met with a ready response. If it had been otherwise, it would not avail the intervening libelants in this case, for it was within the province of the court to determine what were the necessities of the ship, and what was necessary and proper to have done to meet such necessities. Nor is it of any avail to atgue that the officers and crew were notdischarg-ed, and therefore had a right, to remain ab(1)ard, and have subsistence until they were paid off and discharged, and that therefore, the material-men had a right to judge of their necessities, and to furnish, at the cost of the ship, necessary subsistence. The premises 'are doubtful, and the conclusions non sequitur. It is probable that the breaking up of the voyage by the seizure of the ship operated, ipso facto, a discharge of the crew, (see The Oder, 2 Pet. Adm. 261;) and, if the crew thereafter remained aboard, they did it by the consent of the sheriff. In ,such case they would, no doubt, be entitled to their pay, and damages resulting from discharge, and the same would constitute an admiralty lien, not divested by the seizure and sale of the ship. But whatever may have been the rights of the crew to remain aboard, and have subsistence until they were paid and discharged, the court, in possession of the ship, alone could authorize supplies to the'ship.· The seizure of the ship, nor the sale under the mortgage, divested no maritime liens existing on the ship at the time of the seizure. This is no case of remnants in the hands of the court, where distribution can be made to any claimant showing a better title than the owners. If any recovery can be had here, it must be on maritime liens on the ship, so as to give jurisdiction to the court, and to show a better title than the claimants. Because, as against a purchaser of a ship, there be an. outstanding maritiJI:le lienholder who properly proceeds in rem, it does not follow that claimants, with less than a maritime lien,
ca.:o, .in Ule case, .and have their claims ·the theory that the release bond. repre!3entsJ the proceeds oltha, sllip, alld that the of thebondasrempants. the court . These views r.esult in the following disposition of tpe intervening libels in this caSe: Those olE.A. Alsina Bros., $.,C. Manning, and Thomas Casserly, to be dismissed, with costEl; that of Jean Begue and James A. Walsh to be maintained for the amount of supplies furnished prior to February 17, 1886. As to Thomas Casserly, who appears to bl'l the proprietor of a laundry in .the city of New Orleans, where the linen of the Antunano was carried and washed during the seizure, it may be remarked that his lien. on the ship for such washing would be very doubtful if there had been no seizurEl; but he did have a lien on the linen if he came lawfully in possession, and that lien existed until payment, provided he retained possession. He ought not to have surrendered the possession with a view of claiming a maritime lien on a ship that he did ,. not wash. The material-men in this case may seem to be badly treated, but it is not the fact. Each one of them furnished supplies with his eyes wide open'''''''or else willfully shut,-with the hope that, through some ment or settlement, the seizure of the ship would be released,and the abandoned voyage resumed. Neither the ship nor the claimants are responsible for their too sanguine expectations. The amount due Walsh, under this opinion, as appears by the record, is the sum of $300.03, and. due Begue is $226.60, 'with 5 per cent. interest from February 16, 1887.. If there is any question as to these amounts, the matter may go to a commissioner. Yorke, Alsina Bros., Manning, and Casserly should pay the costs of their interventions respectively. The remaining costs of the district court should be paid by the claimants, and olthe circuit court by Walsh and Begue, in equal proportion!!. Let the proctors prepare the form of the decree to be entered·.
(District Oourt, S. D. Alabama. March 29.1887.)
A decree in admiralty may be reopened at the same term on motion, and at . a subsequent term corresponding relief may be granted on petition.
Under a release-bond, with a penalty for double the amount of the libelant's claim, conditioned to answer and abide by the decree of the court, issued to the marshal pursuant to section 941. Rev. St., to obtain the release of a vessel, a decree may be entered against the obligors for the amount of the libelant's claim and the costs, although a separate stipulation may have been filed for the costs, provided the decree does not exceed the amount of the penalty of the bond.
THE ' MAnGIE.
3. SAME-SUBROGATION OF SURETIES,
When sureties inarelease-boI!d have paid a decree thereon. they maybe the claim of the libelant against their principal, the claimant of .
In Admiralty. On petition by sureties on release-bond for relief. On June 12,1886, a libel wa.sfiled by Alexander Francis against schooner Madgie for$70.50sea.man's wages, and on the same day Charles Zucca intervened as claimant of the vessel; filing the usual stipulation "for all costs and expenses" that might be awarded by final decree in the suit in of $250, with John Marques. as surety, Marques duly justifying ipthat amount before the clerk. On June 15, 1886, Zucca gave a release bond for the vessel in the penalty of $150, with Giovanni lvulich and Joseph Cady, the petitioners, as sureties. This bond was duly approved by the collector of the port of Mobile, in the absence of the district judge. Upon the triallibelallt recovered a decree for $90.50. The decrEJe, dated July 14th, proceeds as follows: "And whereas, it appears that heretofore, on the fifteenth day of June, 1886., the said schooner M3dgie was released to CharlesZucclt, claimant, on bis bondintb,e sum of $150,with Ivulich and JosElPh Cady as sure'it is therefore ordered, adj udged, and decreed that the said Charles Zucca and his sureties on said' release bond be condemned jointly and severally to pay the aforesaid jUdgment aM costs, and in default thereof [let] execution issueJ;forthwith in favor of libelant for the collection of the.same." Execution 'accordingly iSl$ued, lind was levied on property of the sureties for 6189.95, being the judgment and costs, on July 21, 1886, after adjournment' of the term. of the district court; and before a restraining order, 'which was applied for, could be obtained from the judge, then in another part of the state, nearly the whole amount had been pard out by the marshal to the libela.nt and officers of court under a supplemental decree of JUly 15, 1886, ordering this to be gone. ' Peter J. Hamilton, for petitioners. TOULMIN, J. This is an application by sureties on a release-bond, given under section 941 of the Revised Statutes for the release of the schootiet Madgie, for the reopening of a decree rendered upon the bond by my predecessor, Hon. JOHN BRUCE, at the last term of this court,under whicH they have been compelled to pay more than the amount of the penalty of their obligation, and seeking also the new and affirmative relief of subrogation. During the trial term a decree may be reopened on motion, and it is no longer a question that a decree can be reopened at a subsequent term in a proper caEle. Owing to the flexibility of admiralty procedure, while a libel of review may be the proper form for such purpose, a petition may be treated as an applicati6n for leave to file such libel, and the appropriate relief may be granted thereon. &wwv. Edwards, 2 Low. Dec. 273. ' It is sought, in the first place, to reopen the decree to the extent of relieving the petitioners, as sureties in the release-bond, from aU liability for the costs of this litigation, and to throw the costs upon the stipula-
tion for costs previously given by the claimant with another surety This cost stipUlationis oonfessedlyworthless, and so the practical result in this 'case would' be that all costs' would be lost. As it was the serv ices of the office:rR of court which secured the collection of the claim. it resuit which would now, when the libelant has been pll.id and left the these officers of all compensation, is not to be approved port, without ,careful consideration. I am of opinii:m. that the obligors on the release-bond may be made liable for costs. The; history of releasebonds shows this. Originally the release of a vessel could be secured -only by giviriga bond based on, the value of thevesselj but experience showed the inconvenience of this in the case of small claims; and an act -of congress of March 3, 1847, authorized the release of the vessel upon the claimant's giving bond in double the value of the claim; approved by the judgeior, in his absence, by the collector of the: port. 9 St. at Large, 181. See form 2, Conk. Adm. 582. The act contemplates the payment of costs, as it limits the amount thereof recoverable in 8 proceeding under its provisions; and the only change made by the revision of the statute was removing the limitation of the amou'nt of costs. Rev. St. § 941. . The fact, that a stipulation for costs had been previously given in:,thiscase does not seem material. The c<;mditionof the release-bond itself is "to abide by and Il.nswer the decree of the couTt,'1 and costs are a part of the decree. It was' no dOl).bt within the discretion of the court to put the costs upon. the stipulators for costs; but, as that instrument practically worthll'lSs, there seems no impropriety in decreeing the costs against the obligors in the releasebond. There is no doubt, however; that the decree in this cause, so far as it- authoriZ\3d the recovery of a greater sum thl\n the penalty of the bond signed by the petitioners, should be modified·. ,They are not liable beyond what they agreed to pay,.in the absence of any contumacy on their part. The Wanata,95 U. S. 600. The decrees of;July 14 and 15; 1886, must therefore be modified so as to compel the officers of court receiving costs from the petitioners; to refund ,proportionate a.mounts thereof. , .. It should he remarked that the officers have merely collected what the decree of July 14th authorized, and that the decree, in principle, is perfectly correct. It hal merely so happened that the costs are larger than was in the contemplation of the court when the decree was rendered. It was not to be supposed that a $90 recovery would be at a cost of more than $60, and so no provision was made for the contingency. In addition to this correction of the previous decree, petitioners pray that they he subrogated to the rights of the. libelant to the amount they have properly paid in this cause. This will be granted, but the subrogation must be limited strictly to the rights of libelant against the claimant personally, and the vessel is not affected. The bond has released the vessel for all purposes of this suit. Carroll v. The Leathers, Newb. Adm. 432; Robe:riB v. '!he Huntwille, 3 Woods; 386.
END OJ' VOLUMB