THE ANDREW ADAMS.
the courts of admiralty in distributing the proceeds of boats and vessels seized and sold under admiralty process. When liens are created by state statutes, the court of admiralty will, when called upon to recognize and enforcesuch liens, assign them to the class to which they belong under the maritime law of priority. When thus assigned to the class of liens to which they belong under the maritime law, they will ordinarily share equally with all other liens of the same class. Thus a claim for supplies furnished at the home port, if a lien therefor is created by the state statute, will ordinarily be placed in the class of supplies'furnished, and will share with all other liens of the same nature; no distinction being made between supplies thus furnished and those furnished at a foreign port. In both instances the supplies are furnished on the security of a lien on the vessel; the use made thereof, and value to the vessel, is the same; and I can see no good reason for holding that the equity of the one party is superior to that of the other, simply because in the one oase the lien is created by the law maritime, and in the other by a state statute. The character of the supplies furnished or work done, whether the same are or are not maritime in their nature, and whether they are or not, under the rules of the law maritime, entitled to priority, will' determine, as I have already said, the class to which the several claims are to be assigned; but, when thus assigned, equality is equity among claims of the same class. As the ruling herein made on the question of the lien given by the state statute will require a restatement of the accounts, the case will be sent to the master for that purpose.
THE ANDREW ADAMS. BOSTON Tow-BoAT
'/1. THE ANDREW ADAMS.
(District Oourt, D.
August 18. 1888.)
BALVAGE-COMPENSATION-ORGANIZED WRECKING COMPANY.
It is of the utmost importance to commerce on the New England coast that the business of assisting vessels in distress should be undertaken and carried on by somebody with sufficient capital and enterprise to assist wrecked' vessels. and to keep in readiness the necessary apparatus. stationed at different places where there is liability for its use for vessels in jeopardy and misfort-une; and courts of admiralty should bear this in mind, and see that a liberal measure of salvage is awarded to a company undertaking to furnish sucb effectual means of assistance. when a salvage service has been undertaken by it, and successfully performed. '
SAME-AMOUNT OF COMPENSATION.
A schooner, valued with her cargo of coal and freight at $19,375. was stranded on the southerly coast of No Man's Land. in the district qf Massachusetts, in a place where she was certain to go to pieces in case a storm occurred before she WIIS got off. and where no vessel had ever been got off before, She was on a soft and shifting beach in the nature of quicksand. into which a wreck would sink and becomElimbedded.An organized wrecking company. at the request of the master and owners, undertook to get her off, and dispatched a number of powerful tugs, lighters; steam-pumps, and the
neceasary menanll wrecking gear, t() her assistance. . The services began on May 3d, and, with some intermission, continued. with no great danger to the salvors, but with all possible skill, until the 28d, when the efforts of the salvors turned out to be successful, and the vessel was hauled off the beach, and towe4into Martha's Vineyard, to t1;le amount of $2,500 were made by the salvors. Heid, that 50 per cent. of the value of vessel, cargo, . and freight should be awarded in gross, without any addition for the.repairs, which were deemed to be included in the award.
In Admiralty. Lihel for salvage. L. S. Dabney and F. Cunningham, for libelant. F. Dodge and E. S. Dodge, for claimant.
NELSON, J., (wally.) In the case of the Boston Tow-Boat Company against the schooner Andrew Adams it appears that on the night of the 30th of April, 1887, the Andrew Adams ran ashore on the southerly coast of No Man's -Land, and required, assjstimce. By an arrangement with the Boston Tow-Boat Company, made by her master a.nd owners, the libelant:commenced the work of saving the vessel, and: hauling her off the beach. .The services comrnencedon the 3d of May, and continued, with some intermission,until ,the 23d, when the efforts of the towboat company turned 01It to be succefls.f:ul, and the vessel was hauled off the beach, 'll:nd towed into Martha's Vineyard. It appears by the stip-. ulationof,theparties that the value of the vessel, cargo, and freight saved amounted to $1.9,375. In the first place, it appears that the vessel was ashore at w1)ere, she was certain to go to pieces in case any storm or bad weather should occur before she was got off. She was exposed to the open op.ean. She was on a soft or shifting beach, (the shore bE'ing in the nature of quicksand,) and at a place where several vessels had been wrecked in former years; but no vessel had ever.before been got off, the nature of the ground being such as to cause the wreck to sink, and become imbedded in the sand. Andjt.ltlso aPlJeared thattbe vessel was SO, situated that it was impossible to relieve her without the assistance of apparatus of the most costly character. . The ordinary service of men, unaided by powerful machinery would have been used by the company without avail, and it was to the preservation ofthe 'Vessel that apparatus of the very best .and ;quality Should be use.d.For effecting this service the libelants made use of tow-boats of avery considerable size, some of them of the lal'gestand most powerful description, and also of steam-pumps pfgreat capacitY,.,.-tpewhole.lunountin value, in proportion to the rescue, being very large; , In the second place, the element 'of danger to the apparatus isto be considered. There was certainly no evidence that this service was of a. character'to .endanger lives, or afford 1\ great deal of unusual hardship lind discomfort to the men employed ; and as to a portion of the machinery made use,'of,jt does not appeadhat that was exposed to any particticular dangE'r;Rs,for instance, the tow-boats themselves were not exposed·.' appear Rf the pumps of the company were,pla,ced on board Jothe .of a.
. THE ANDREW ADAMS ·
. storm, and, in case a storm .hnd arisen, would undoubtedly have been lost. In regard to the amount of skill made use. of, there was an attempt made on the part of the owners of the scllOoller to prove that tow-boat CQmpany failed in the exercise of skill and g<;Jod management in performing these services. I must confess that this defense does not impress me much. I have no doubt that Capt. Cook /lnd Capt. Tower used ajl the skill which possibly could be used, under the circumstancesiand I do not believe that they were negligent or failed in taking such precalltions as the circumstances at the timj:l seemed to demand. Certainly, a . great portion of their efforts was unsuccessful, and, of necessity, experimental. Various experiments were tried, and most oftbem did not succeed. Still, they exercised their best judgment, under the circum!'ltances, . in a case. of great peril; and· I have no doubt they used all the any other persons engaged in this business possibly have used. Of course, after the event, it is, perhaps, easy to perceive how some things might have been different, but, at the time these efforts were made, it seems to me very plain that these gentlemen exercised as much skill asit w8spossible to apply to the extraordinary service in which they wereengagedi therefore,.I hold that the servjces were skillfully, as well .. as successfully, performed. . It was also claimed that the tow-boat company was negligent,and failed in .their duty towards tbis vessel, for which the salvage should be diminished, by having left the vessel for several daYlil to go to the rescue of another vessel,the Mira1).da, which was on shore in Vineyard !lound. In regard to that, it seems to me that certainly ought not, undEjrthe circumstances, to be alleged against the tow-boat coIllpany, so as to ;make any material reduction in their salvage. of the A-ndrew .Adams.was such that it was extrernelydoubt(ul whether she could got off, and in the mean time another .vessel was demanding assistance, and situated where there wasa·greater probability of I!uccessi and it would seem that the tow-boat company would hQ.ve been negligent in thegeneral performancfl of its d)lties if it had.seen fit to d.E)vote itlil apparatus to the .Andrew Adams, .and bad. taken .uo,acc,ount of the oth.er which ·wason shpre, a,ssistancea,l.llo. edly exposed the Andrew Adams to some danger on account of the lapse of time, because a storm might have come up any moment which would have brought about her entire destruction, yet, in point of fact, that did not happen, and therefore I am not at all inclined to look upon that as any dereliction which should diminish the salvage to be awarded in this case. Then the court should especially take into consideration the business which is carried on by this tow-boat company It has procured apparatus of the most expensive character, which is used almost entirely for the purpose of saving vessels wrecked on this coast. It is of the utmost importance to commerce on our coast that such a business should be undertaken and carried on by somebody, with sufficient capital nnd sufficient enterprise, to assist wrecked vessels. This company has seen fit to come forward and furnish this capital,and keep in readiness the apparatus, stationed not merely at Boston, but also stationed at other
places on the coast, where there is liability for its use for vessels in jeopardy and It appears that there was not in this vicinity, certainly not on the Massachusetts coast, any company organized with sufficient force to undertake this important service; certainly, there is no company in existence this side Of New York which would have been capable, as I understand the situation, of getting this vessel off. Therefore I think the court should bear' that in mind, and see that a liberal measure of salvage is awarded toa company undertaking and performing successfully a service of this kind; Now, it also appears that, after this vessel had been got off the beach and taken into Vineyard haven; the tow-boat company made a large ex· periditure in repairing her. There was an attempt made to castsuspicion upon this expenditure, and to show that these repairs were voluntary, and riot asked for, nor assenteel to on the part of the owners; but I think the aUempt failed. I think it is clear, from all this evidence, that · the owners assented to the repairs. It was done, perhaps, with some .formal objection, for the purpose of saving their rights, without any real opposition to the expenditure; certainly, it was in their power to stop the repairs at any moment; but 'they:never exercised it. They saw this go on with, certainly I no positive objection-some grumbling and scolding,about nothing that I regard as depriving the tow-boat company of therightto have this considered ana matter of salvage. The a.mount expended, as, appears by the bills rendered, was somewhere · in the vicinity of $2,500, and is to be included in the salvage award which I propose to make. It appears, as I have said, that the entire amount of property saved · amounted to $19,375,-vessel, cargo, and freight. The libelant claims one-half of this as salvage. I think the claim is not an unreasonable one; and, with the understanding that this is to include the expenditure made by the tow-boat Mmpany after the arrival of the vessel at Vineyard haven, that amount is awarol3d. This really amounts to an award of onethird of the whole amount of property saved, with addition of the repairs. The amount of the salvage which I have fixed upun is one-half of $19,375, to be apportioned upon the vessel, cargo, and freight.
(Oircuit Oourt, N. D. Illinois. May 21, 1888.)
COURTS-FEDERAL CIRCUIT-JURISDICTIONAL AMOUNT.
A declaration tiled in the circuit court in Illinois averring that the plaintiff is a citizen of Ohio. and containing three counts.-one upon a promissory note for $875, one for money had and received. $875, and one for work and labor, $875,'-:'is sufficient upon demurrer to give that court jurisdiction, as the aggregale of.the sums alleged to be in controversy exceeds the sum of $2,000. The receiver of a national bank in process of liq\lidation. having received his appointment from the comptroller of the currency. under the national banking laws. is an officer of the United States. and as such may sue in the circuit court, without regard to citizenship or the amount involved, unner Rev. St. § 629, cI. 3, conferring upon that court jurisdiction "of all suits at common law where the United States. or any officer thereof, suing under authority of any acts of congress, are plaintiffs."
SAME-SUITS BY OFFICERS OF UNITED STATES-NATIONAL BANKS-RECEIVEW!.
At Law. On demurrer ,and motion to dismiss. Action by David receiver of the Fidelity National Bank, against Benjamin Ettelsohn. J. S.McClure, for complainant. KraU8, May(Jf & Stein, for defendant. BLODGETT, J. This case is now before me on a demurrer to the declaration and a motion to dismiss. The question raised both by the demurrer and'motion is one of jurisdiction of this court. The declaration contains three counts. The first is upon a promissory note of $875, of which there is about $900 nowdue; the other two counts are the usual common counts for money had and received, and work and labor done, -one charging that the sum of $875 is due for money had and received; and the other, that the sum of $875 is due for work and labor done. The declaration avers that the plaintiff is a citizen of the state of Ohio, and, as will be seen from the statement in regard to causes of action set .out in each count, the aggregate of the sums alleged to be in controversy exceeds. the sum of $2,000. It was urged in argument that the only right of action that the plaintiff had against the defEmdant is upona promissory note mentioned in the first count, and that may prove to be so when the case comes to trial; but upon the face of this declaration, which we can only look at under this demurrer, there appear to be three causeS of action, which, when aggregated, make more than the amount required to give jurisdiction. So that, upon the question of citizenship .and amount; the declaration seems to me to show jurisdiction. There is, however, another ground for jurisdiction, which seems to me . equally conclusive of the plaintiff's right to maintain this suit in this court. Clause 3, § 629, defining the jurisdiction of circuit courts of the United States, gives the circuit court jurisdiction "of all suits at common law where the United States, or any officer thereof, suing under authority of any acts of congressj are plaintiffs." The plaintiff in this case is the receiver of a national bank in process of liquidation, and as such has the v.36F.no.4-14