ence of Mr. HeHner, told Mr. Baxter to go on, and whoever was liable would pay, and Mr. Heilner not only did not dissent, but stated that he would pay if legally responsible, his request that the cargo should be raised by Mr. Baxter was plainly implied. Mr. Despard's direction to Mr. Baxter to go on, was evidently made in behalf of both, and was acquiesced in by Mr. HeHner. By necessary implication it was a request by Mr. HeHner as well as by Mr. Mr. Baxter so understood it, and acted upon that understanding. As Mr. HeHner also received the full benefit of the service, he is legally liable to pay for it. The law on this subject is determined by the nineteenth supreme court rule in admiralty, which provides that suits for salvage in per80nam may be against the party "at whose request and for whose benefit the salvage service has been performed." In such a case, the mere fact that the owner is fully insured, and that the service will also inure Ultimately to the benefit of the insurers also, does not relieve the respondent from liability. There waS no abandonment of the cargo to the insurers. The respondent retained the possession and disposition of it. He remained, therefore, the principal; and it is immaterial whether the China Mutual Company, as his insurers, are bound to indemnify him or not. He 'arranged for the cargo to be raised, and arranged for its delivery in his behalf by the libelant after it should be raised. It cannot be supposed ,that the libelant was expected to wait the result of a suit between the respondent and the China Mutual Company before he should obtain payment for his services, or know to whom he should look for payment. There is no equitable reason therefor; nor, in the end, can it make any ,differenpeto the respondent. If he was insured, the respondent is as ,much entitled, in his suit now pending against the insurers, to recover the salvage that he pays to Mr. Baxter, as he is entitled to recover his specific damage to the coal. If he was not insured, unquestionably the respondent would be liable. In either point of view the respondent is equitably estopped from claiming that the salvage service, as respects the cargo, was not rendered at his implied request, as it plainly was for his benefit. Decree for the libelant, with costs.
THE NEWPORT. HATCH
et ale v.
(UVrw.it Court, 8. D. New York.
On a libel for damages from a collision, the case will not be reopened to examine a witness whose statements in an affidavit used on the motion in relation to the character of the' blow and its effect on libelant's vessel are in directcontradiction of statements made by him in a former affidavit.
Ou motiQu to reopen case.
36 Fed. Rep. 910.
Geo1'ge A:' B7iJ.bTc; for libelants',';; , Goodriih,:Deady & Goodrich, for claimant.
LACOMBE, J. ' This is a motion to reopen the case after decision, in order to examine LeonardS. formerlY',a,econd officer of the Newport. !t is, of course, contended that the evidence he might give would tend)6 Varythe,complexion of the cause, or to produce a different result.'!'For such purpose only are such motio11s entertliined.' In order to show'what testimony the proposed witness was expected to give, an affidavit made by him March 16,1889, issubniitted. Several affidavits are presented in repljT, but most of the averments contained in them may be disregarded., Upon the sworn statement of Mr. Deady, and on Holmes' own admission, 'contained in the affidavit which he niade upbntheatgumellt, I have no manner of doubt that the latter did on April 26,1884" make the ll.tlldavit presented by the claimant. Beyond these two a$.davits of the' proposed witness we need not look. " Affidavit ,of March 16, 1889. of April 26, 1884. "I * * lie saw the two "The Newporfslid along the side * *, lie Thesteam- of the there was no blow, coming er [struck] the * * * schooner no concussion nor jar. The starright forward' of her main' hatch. board bowof the Newport slid along ... ' lie· ... 1 heard the sound of breakthe starboard quarter of the schooner, ing wood. * lie ... 1 saw the flash heaving her stern up to the wind, and of a fire, and the smoke cominKfrom the schooner slid !llong by the Newthe funnel of the schooner's cabin port, and the schooner was seen for stove, * 1 judge was half or thl'ee-quarters of a mile afterknocked oyer by the shock of the col_· wards. She did not appear to be Hsion. lie * . . ,1 could see and seriously injured. Not a word was hear her crew >shouting out, and said by anybody aboard the schooner, heard some one say "What in hell -no hail; and nothing could be seen is all this?" and other confused by which the vessel's name could have sounds.· lie * . . By the time the been ascertained." steamer got a length and a half away 1 saw the' schooner suddenly fall over on her side, towards the steamer, flat in the water, with her sails showing white against the blackness of the water, and then SUddenly disappear; and, as she went down in a moment, 1 knew she was a deep-loaded schooner."
It cannot be seriously contended thatevictence such as this, if given by the proposed witness, would have any tendency to vary the complexion of the cause, or to change the result. Whatever further testimony might be given as to the details of the collision by a witness who has $1teady sw\>rn todfametricaUy opposite statements as to facts so essential as the character of the blow; and i'ts effect upon the schooner, would be entitled to no consideration. The motion is denied. The counter-motion made by the claimants to modify the order extending the time to prepare and serve bill of exceptions is also denied.
CHAPMAN.". i'HE ENGINES OIr THE GllEENPOINT.
ENGINES OF THE GREENPOINT.
(DiBt'l'ut OOU'I't. 8. D. NeIJJ York. May 10, 1889.)
,. An 8/P'eementto pay a salvor a specified sum if he in raising the en¥ines of a sunken steamer'within a certain time, and a larger sum if it reqUires j1. Jonger time, does n01,deprive the salvor of his right to a maritime lien. A salvage se'rvice carries with it a maritime lien on the things saved, whether the vessel.iil.foreign or domestic;, the rule as to repairs and supplies, not to be extended by analogy.
In Admiralty. Wing, Sh.oudy Putnam, ·for ljbelant· .Goodrich"Deady Goodric4, rfor claimants.
J. The steam-tug Greenpoint having been Bunk, the libelant wssemployed to raise her engines under a stipulation that he should be paid $150, besides towage, if he succeeded in raising the engines within two days; and a larger sum if it required a longer time. Having suc,.. ceeded in raising the enginesJ and not being paid, he libeled them for his:coJ;l).pensation, as for Other libels were also·filed against the engines for seamen's wages on board the tug, and also for supplies of coal. The owner did not defend; and, the engines being sold by the marshal, the proceeds paid into court are insufficient to discharge the several claims. The commissioner has allowed $215 ·for the libelant's claim, as for salvage, according to the agreement, which I find to be reasonable. The supply men, under leave to litigate the claim of Chapman, contend that his demand is no lien on the vessel, because the tug was a domestic vessel, and because the compensation was to be paid at all events, ,and, therefore, not a salvage contract, nor entitled to a maritime lien. 1. The evidence does not show that the libelant was to be paid a specifiedsumatall events, whether he succeeded in raising the engines or not. On the contrary, though the bargain was oral, it is evident that he would notbooome entitled to any compensation unless he succeeded in raising the eng\nes. Nothing short of a distinct agreement to pay the stipulated sum, whether the service be successful or not, will change the character of a salvage service into a mere ordinary contract of employment, or ,deprive it of its maritime lien. The Camanche, 8 Wall. 448, 477; Adama v. Bark Island City, 1 Cliff. 210. In the case of The Louisa Jane, 2 Low. 295, LOWELL, J., upon a careful review of the authorities, held that even an absolute contract to pay would not change the nature of the service, or prevent a maritime lien. Agreements between the parties fixing a definite sum to be paid for services of a salvage nature are treated as attempts merely to regulate the amount of compensation, not otherwise affecting the nature of the contract, or the right to a lien, if successful. Such agreements are very common, and are upheld by courts of admiralty, if