TH:E MAGGIE M.
that he did not let go his second anchor. The second mate seems to ,have thought this advisable. But the captain's judgment was that he had not room enough to give her aufficient chain to bring her up before striking the Carl Frederick. He further says the anchor would have dropped over the chain of the latter vessel, and would have had no effect. Both the captain and the second mate agree that the second anchor, if dropped, could not have prevented the collision nor the subse.quentdrifting of 'both vessels down the bay, to the vicinity of Blossom rock. This opinion is confirmed by the fact that when the master, did let it go, because, as he says, he did not like to go on the rock with an anchor on his bow, it had no effect whatever, and the vessels continued to drag until brought up by a change in the tide. When the primary cause of disaster is shown to be a peril of the sea, the proofs should be clear that' it might' have been prevented by the exercise of reasonable skill and diligence. Error of judgment ought not wcreate a liability, unless the error be such as to show incapacity, or the want of that degree of professional skill which reasonably may be exacted of a ship-master. It must also plainly appear that but for that error the damage would have been avoided, or appreciably mitigated. I do not consider that the proofs show that the master in this case committed any, error' disclosing a want 'of reasonable skill and diligence. I think, on the contrary, that the preponderance of proof is in favor of the conclusion that the dropping of the second anchor would have been wholly i!letrectual to prevent or modify the injurious consequences of the accident. Libel dismissed.
THE MAGGIE, M.I ROBINSONet
tI. THE MAGGIE M.
(DUt'I'Wt 'oourt, S. D. New YO'I'k. January 18, 1888.)
ADHIRALn-"-8TIPU'LATION-SUltETY DEFENDING LIABLE FOR INTEREST;'
One whp signs a stipulation for the value of a vessel libeled. and thereafter defends the SUit. is liable for interest'on the face of such stipulation from the time it was filed, though hll acted simply as ,agent for an absent owner.
,Henry Broadhiad, for libelants.
. OlJi:n', Rives, <to MontglYflUfrg, for claimants.
BROWN, J. The bark in question being British, and her owners resident abroad, upon her arrest by the marshal, I..eonard & Florez, the ship's agents here, intervened as agents of the owners, and filed a claim on the owners' behalf. They executed a stipulation for the agreed value
'Reported by Edward G. Benedict, Esq., of the New York bar.
of the vessel, appeared in the cause, and in November, 1885, interposed an answer in behalf of the owners, and signed it in their own names, as respondents. The result of the trial shows that the libelants are entitled to a greater sum than the amount of the stipulation. The libelants claim the right to enter a decree for the amount of the stipulation, with interest thereon from the day it was filed, on the ground that the obligors therein, by personally appearing and making. themselves parties to the recordjand defending thfl action, are responsible for interest on their stipulation during the time that they have delayed the libelants in obtaining their rights. See Rule 10, Sup. Ct.; Rule 71, Dist. Ct. The respondents contend that it being plain that the obligors signed the stipulation as sureties only,and acted only as agents. of the absent owners in the defense, there is no reason for charging them personally with what is legally only the act orthe principal; or for holding the sureties beyond the face of their stipulation. As bearing on this question, the respondents moved to amend their answer, nunc P1;Q tunc, by adding after theirdsignatures as "respondents," at the end of the prayer for relief, the words lias agents as aforesaid." Although the affidavits on which this motion is made do not show that the agents had. no personal or pecuniary interest in the defense, all the papers do show that they designed to act as agentltonlYi .and in order that no Jllere form of words, or accidental oversight, may be deemed to affect. the question as to the exten'toftheir liabilitYf I think the motion should be granted, nunc pro tuna, asofth,e date wbenthe answer was filed.. But, with the amendment granted, I still think the stipulators are responElible for interest on the face of their stipulation. 'l'he Belle, 5 Ben. 67. I cannot disliuguish the case from that of The William Stover, 1 Curt. 201, in which Mr. Justice CURTIS held the stipulators responsible, who, as in this case, intervened and defended as agents of absent owners. In his opinion he examines the question in all its aspects,. and holds the agent liable as the only person before the court over whom the court can have any control; as the dominus litis, delaying the libelant by his personal appearance and defense, though acting as agent only; (The Dundee, 2 Hngg, Adm. 137;) and as being, on the ordinary rules of law, personally liable for his acts in behalf of a foreign princ;:ipal. SeeThe Suliote, 23 Fed. Rep. 919; Berwind v. Schultz,25 Fed. Rep. 912, 918. The'responsibility of the ager,t or surety, as a principal, for interest on his stipulation, where he thus "appears and defends," appears also to be recognized by the supreme court in the cases of The Wanata, 95 U. S. 612, and The Maggie 1. Smith, 123 U. S. 356, 8 Sup. Ct. Rep. 159. The decree should, therefore, be for the amount of the stipulation, with interest from the time it was filed, with costs.
BOOTH V. LLOYD.
SUFFICIENCY OJ/' '
et 01. v.
(Oircuit Oourt, D. Maryland. May 6,1887.)
COURTS- FEDERAL JURISDICTION- FEDERAL QUESTION PLEADING.
Plaintiffs alleged that their property had been seized under color of a state law, whichwas alleged to be void as against the federal constitution. Held, on demurrer, that a federal question was sufficiently presented without formally alleging that the circumstances of the arrest were such as to call forth the operation of the state law.
CONSTITUTIONAL LAW-PRIVILEGES OF CITIZENS-MARYLAND OYSTER LAWS.
The Maryland act of 1884, c. 518, prohibits the use of vessels to buy oysters on the Chesapeake bay unless a license is obtained from the state therefor, conditioned upon a twelve·months residence in the state, and the payment of a Wnnage fee. Held unconstitutional, as denying citizens of other states privileges enjoyed by those of Maryland. Thelaw is also void as imposing a tonnage duty.
OF UNCONSTITUTIONAL LAW.
SAME--IMPOSITION6F TONNAGE TAX-MARYLAND OYSTER LAWS. TRES:PASS..;.-By
to mS,ke a member of the Maryland board of public works liable for a trespass committed by an offi.cer of the state fishery force, under color of authjmty of an unconstitutional state law, .it must be directly shown that , the offlceracted under directions of said board, and that sllch member concurred, therein. 6. DAMAGES-TRESPASS BY OFFICERS-UNCONSTITUTIONAL LAW. Where a vessel is seized and detained by officers acting under an unconsti· tutional state law, supposed by them to be valid, the damages, in the absence of harshne,ss or rigor in the seizure, will be confined to the actual value, of the cargo lost, and the additional expense for the crew, etc., caused by the detention.
The state of Maryland, by an act of her general assembly, passed at the January session, 1884, c. 518, provided that no person should employ auyvessel to carry, buy, or sell oysters on the waters of the Chesapeake bay and its tributaries, without first having obtained a license so to do from the state; and also that no one should obtain such license unless he had been a citizen and resident of the state for 12 months immediately preceding the application for license, and until he had paid the sum of three dollars to the state for every ton the vessel might measure. The plaintiff firm consisted of Alfred Booth and William V. Booth, who are citizens oflllinois, and Alfred E. Booth, who is a citizen of Maryland, .and· are largely engaged in canning oysters in Baltimore for ,the markets of the world. They send barges down the Chesapeake, towed by tugs, the tugs being licensed and enrolled vessels of the United States, from their ,canneries in Baltimore, to the oyster grounds, where their agents purchase oysters, load the barges with them, and they are then towed back to the canneries. In this way oysters are collected for their business. They applied for licenses for their vessels to carry, buy, and sell oysters, but were refused, on the ground that they were not all of them citizens of Maryland. Vnder the advice of counsel they proceeded with their business, and two Of their barges, loaded with oysters, were seized by the state fishery force, and their captains arrested and held to bail by a justice of the peace, on the charge of carrying oysters without having v.33F.no.l0-38