GILLINGHAM tr. CHARLESTON TOW-BOAT &: TRANSP;
imparted to the shank by toughening and hardening it after it had been punched out. The second claim of the patent permits this additional strength to be imparted by flattening, rather than by swaging; but it cannot be that the proper interpretation of the patent includes a punched stud, .not otherwise flattened, which has been curved by the use of a curved die. The bill is dismissed.
GILLINGHAM tr. CHARLESTON Tow-BOAT
Oourt, D. South Oarolina. December 17,1889.)
Where the master of a tug is a member of the corporation that owns ber and . is present' at the meeting of stockholders when she is put out of commission. and tied up, and he does not dissent, it appears that neither he nor the other corporators expected him Wbe paid during the time' the tug was laid up, and he cannot reeolTer wages for such time.
COLLlSION....,.LuBILITY OF MASTER TO OWNER.
Where a tug comes into collision With her tow and receives damages foJ' which, at that time and' afterwards, tile master of the tug declares his intention to pay, such declaration is an admission that the damage was due to his act, and he being liable therefor, his promise to pay-for the same is upon consideration, and is binding. A judgment against the owners of a tug for damages arising from the nell'ligence of the master, whols not a party to the suit, does not estop him from aSBertmg that notwithlltandlng the judgment his negligence was not such as to render him liable to the owners, his employers.
4.. SAME-JUDGMENT-RES ADJUDICATA.
In Admiralty. Libel for wages and advances W. L Gayer, for libelant. L N. Nathans, for respondent.
SIMONTON, J. The defendant, a corporation of nine persons, of whom libelant is one; owns the steam-tug Henry Buck. It has no other property. Libelant was the master of the tug. His wages were at the rate of $100 per month. He now sues on an account for balance of wages for five months, January, February, March, April, and May, 1889, and for $83.75, money advanced by him for the tug, in all $583.75. The answer admits wages for the months of January and March and one-half of April; claims that libelant has already received $129.25 on account; denies all knowledge of the advances; and for another defense avers that, .owing to the negligence of libelant as master of the she was cast in damages ill a cause of Stokes v. The Henry Buck, 88 Fed. Rep. 611. in this coM, in the !:'lum of $577. In appears from the evidence that at a meeting of the stockholders held in the early part of February, 1889, it was determined to put the tug out of commission, and tie her up. In consequence all the crew .··erepaid off on 4th February, and the boat placed in charge of a watch-
mall. '1'be master was not formally relieved. !luring this month, to charter the tug Qn,12th, the corporators }llet and considered a .101' .Fernandina.Attl:l.iI3meeting an was gope into fora master, andUhelant was ele.cted. He was present I participated, and accepted char1Elr was not made. So,al80",ij.t a meeting on 13th dissenting, the tug April, libelant being present and voting, at was put out of commission, and was placed incbarge of a watchman. Again, nothing was said about the discharge of the master. We are not discussing the relations between a tug-master and his owners, strangers to him. The libelant and the other eight corporators went into this Wll,S the onlYmarjner among them, apparently, and took the place of master, as he'says, without the formal· ity of an election. 'They ran the business, and,rirom ,conversations detailed by himself and some of the other corporators, he evidently con· Iilide,edbimst'lf as sharing th,e fate oftheenterprise., At the meeting in being asked if he: had any bill against the tug, he denied all .· th,at neither he ,nor the :payfor him when the tug was laid rip, and that he can charge for January, two days March, and half of " " i'" , One for Webb, the fOlthe month of February. Webb was, paid off on 4th February by the agent 'of the tug, and gave a in 'The, emPloyed notwitllstandiog was out-0fcommissioll , and wastied up by the action company; taken with 'his kuowledgel1nd cOhilent;' He could nQt binp',his,.principalby,this li\ct, nor from it, this money paid to Jtem Pregnell, a shilHarpenter; This was for repaIrs of the' pilot-house. A few weeksllfterthe purchase of the tug she came into collision with the fluke of the anchor of a schooner which she was engaged,toto,w, and carried awaytheipilot;.house. Libelant at the time and afterwards declared hisdeterniination,topay forthis damage himself. This was an admissionthaHt was his ·act; Ifbewas liable for it, his agreement to pay the damage was based on considera· ,tioli".,anqbinds him. '1'heotheritems, $3'.75, are,alJowed. They.were himinhis capacity:and with the authority oLmaster. The 'credits, have'; all been prb!ved. Of these, $29 "was for repairs to pilotIhouse; for 'which, as weh8lveseen, he made himself ,responsible. ' I, difficulty. The respondent, '&sownef .ohhe Henry Buck, waecompelledto pay; iuan action founded 001ibelant'e negligence, $577, (StokelJ v. The Hen'fl'JJBuck, 38 Fed. Rep. ;6Hj):and,this is set up as'a defense, to this action. ,There is no doubt ,that, fodo8S' or damage; occurring to the principal by reason oftha neg.ligence of',1:he agent in,the course, ofhis agency, the agent is responsible, .and ,ie ,bptlhddo indemnify fully the ,principal. StorYl Ag. § 217c. And if the principal sets up these damages in a Buit by the agent, and Itheidam9gt!s,ba'pareelofthe contract on which the suit is ,founded, ,ot! prove it imperfectly fulfilled, or performed in such manner '.s,oobe thepaJ'ty sued, then 'admiralty-will.takecogn.izance ·.oUhe sel-ootf. '" 'Will<;Wdv.' Mason,,161;'Snoili 'v. Oarruth, ISpr.
. It: TRANSP. CO.
324; Tk JiludsOJi., OJ'cott: 400. ,And this even if no cross-libel be filed .. The Sapphire, 18 Wall. 51 ; The Dooe, 91 U. S. 383; The Reuben Doud, 9 Biss. 458. But, unless he file a cross-libel, he cannot recover against the libelant, except so much as will extinguish the claim oflibelant.' Ebert v. TheReube:n Doud, 3 Fed. Rep. 520; The set-off in this libel is parceloi thecotltract on which suit is founded. It tends to prove it imperfectly fulfilled, and that it was performed in such manner as to be injurious to respondent. In order to sustain its defense, the respondent introdUCes the record in Stokes v. The Henry Buck, and rests. This was a proceeding in rem. The monition was Elerved on libelant as master of, the tug. He was the principal witness in the case, and was examined and closs-exatbined. The finding was based on his action as master. But is the case res judicata as to him? Ite was not a party to it, nor a privy. ,He was not in control of the case to which the owner of the tug appeared, made claim, and answered. The mere fact that he was a witness would not bind him. Whaley v. H0'U8eJr, 18 S. C. 602. The proceeding was in rel1li,so it bound the res and everyone interested in it. Street v. lrumrance 00., 12 Rich. Law, 16. Indeed, it bound the world, sofar as the res.llnd any interest in ,it were concerned. The Mary· Anne, 1 104. Ai!! a stockholder, libelant had an interest.in the res, and is bound accordingly by the judgment qua res. But as master be had no lien upon and no interest whatever in the res. The CRse went off on his, negligence towards the -rafts. Suppose, however, that he did not go back ,to the rllfts, or had left them because ofother and paramount claims, orde'rs, or 'contracts of his principal. This would have Iriaae him neg-' lectfuI, of the rafts, but would not make, him responsible, to his principal. 'Sothejudgmentmay be perfectly conclusive of negligence in the matter of the rafts, and yet not equally conclusive of negligence towards' his priticipll.l. What!. Ev. § 814, says "that the decree ofacourt of ad;. miralty ** * is held in this country conclusive as to the essential facts on which the decree rests."· But he limits this tocasesofcollision,prize,i In Wells,' Res Adj. § 63, p. 57, the CRseof Emery v. 1 and Fowler, 39 Me. 331, discussing how far a principal is bound bya suit against his agent, uses these words: "In such cases the -technical rule, that a only be admitted between the parties to the record' and their privies, expands so far as to admit it when the same question has been decided and judginent rendered between parties' responsible! for 'the acts of others." The text-writer, quoting this case, adds:· "Hence' judgment without satisfaction is concIusive, and a judgment for or against: a principal avails for or against an agent, and vice verBa." But, as we have seen, the same question has not been decided in Stokes v. The Henry Buck which is to be decided here. In that case it was adjudged that there had been negligence as to certain rafts, shown ,by abandoning them in a certain place. The question now is, was there anything which can excuse the conduct of the master to his employer and principal? I am not prepared to say that the question is reB adjtulicata. The judgment in Stokes v. The He:nry Buck can be used, however, to establish the fact of the judgment and its amount, and that it was based
on his negligence, not as concluding him absolutely or estopping him from denying his liability to his owner, b llt as prima facie putting the burden on him to show that that qecreehe is not liable to the present respondent.. Duffield v. Scott, 3 Term R. 374; Smith v. Moore, 7 S. C. 220. As it is put in Henderson v. Sevey, 2 Greenl. 139: "It was the only admissible proof to show that a judgment had been obtained against plaintiff by Conner on the facts appearing on that record, and the amount of damages which had been recovered." The case, however, seems to be settled by Chicago v. Robbins, 2 Black, 418. In that case the prinoiple is distinctly announced that when an action is brought against A. for a cause which gives him a remedy over against B., if he lose his suit, and B. has notice of the suit, and of the ground upon which it proceeds, the result will bind him. In that case one Woodbury was iIl:iured by an obstruction in the streets of Chicago caused by the negligenceof Robbins. He sued the city and. recovered judgment. The city then sued Robbins. The court '''Theeorporation has. however, a remedy over against .the party that is in fault. and haa so uaed. the streets as to produce the injury, unless it was also a.wrong-doer. If it wast.hrough the fBrult of Robbins that Woodbury was injuretl, he is concluded by the judgment recovered, if he knew that the suit. was peildin'g and could have defended it.. Anexpres8 notice to him to defetid the Buit Was not necessary in order to charge his liability. He knew that the case was in court; was told of the day of trial; was applied to to assiat in procuring testimony, anG wrote to awitness; and is as much chargeable with notice. as if he had.bllel1directly told that he could contest Woodbury's right reqover, and that the city'would look to him for indemnity." Pages
, The case came up again in 4 Wall. 672, and was expressly confirmed Qn this very point. But in these cases it was held that Robbins was not Elstopped showing that he was under no obligation to keep in a safe condition, and that it was not through his fault the accident happenj:ld. 2 Black, 423. So in the present case libelant is bound by the fact and the amount llnd cause of the judgment. But he is not from showing that notwithstanding he is not liable to his owner, the respondent, either because his action towards the rafts was caused by paramount orders, or by. necessary concern for other and superior interof his principal. . It is best, however, that the pleadings on. this point be more full than they are. Let the cause be retained, and let respondent file across-libel, with leave to the libelant to allSW.er the aame if he be s.o ad:viaed·.
FELICE B.l FELICE
BERTSCHMANN et ale v. THE
(District Oourt, E. D. New York. December 6, 1889.)
MARITIME LIENS-ITALIAN VESSEL-MASTER'S WAGES.
The master of an Italian ship has a lien on the vessel for hIs wages, whIcn nized in this court.
SAME-MAsTER'S ADVANCE\l-PRIORITY-BOTTO:MRY BOND.
The lien for wages and advances of the master of an Italian vessel takes precedence of the lien 01a bottomry bond, on which the master is not personally liable. The lif3n of material-men, for tbe value of wbosf3 services the master is pf3rson!illy liable, is supf3rior to a lien for tbf3 master's wagf38. 'J,'hf3liell of material·mell is superior to tlIe lien of a bottomry bond wben the ices of the material-men have tended to make tbe ship more valuable, or when de. lay in enforcing the b9ttomry has tended. to induce the services of t!If3 materialmen.
. . ·
·8AME-ELEdTION OF REMllJDIES.
Where material'men have proceeded under the twelfth admiralty rule against the vessel inlltead of tbe master, sucb election dges not destroy their right to p!;'oceed against thf3 mastf3r for the sallle de.bts. . The .Aina, ante, 269, disting'uished.
In Admiralty.On application to determine the priority of Heria.:
Sidney Chubb, for Bertschmann.
DUo &; Ruebsamen. for material-men· and seamen.
R. D. Benedict, (E. G. Benedict,) for the master. Wing, Shoudy &; Putnam, 'for Revere Copper Co. Fredk.W. Hinrichs, for. Empir.e Warehouse Co.
BENEDICT. J. The bark Felice B., an Italian vessel, sailed from the port of Pensacola, Fla., bound for a port in England, with a cargo of lumber. While pursuing her voyage she met with disaster, and was compelleclto put into the port of New York in distress, being then SUbject to bottomry for the sumof $1,170.80 placed on her in Pensacola. Upon arriving in New York she was surveyed, and then repaired un;'; der the direction of the master. In some way not explained the cargo ahipped in Pensacola wasgotten rid of in New York. The voyage to'England was then abandoned, and at the time of commencing these pr'oceed" ings the vessel was about to load for Australia. Thereupon she Was libeled by Bertschmann, the holder of the bottomry. No person intervening in her behalf, 'a decree by default was entered in favor of Bertsohmann. and the vessel was sold by the marshal. The proceedsof.the saleamdunted to $8,000; Subsequently t&e material"men who had repaired'll.l1dsupplied the vessel after Mr arrival in New York; also the agent, who had attended to her business, and made oerta.in advances for·herin New York; also her orew. :for wages; also the for his 'Wages and advMOO8',and the master, for his wages and advances.....fi.led petitions to 'be "paidout
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