TOUJ.MIN, .J. The libelant obtained a decree in the district court, which was appealed from by the claimants. On appeal the circuit court also rendered, a decree in favor of libelant, and the appellants were taxed with all The clerk taxed against appellants three proctor's fees, aggregating $45. Among them were two docket fees of $20 each, one of which was taxed as part of the costs in each of said courts, and the fee of $5 was taxed under section 824, Rev. St., for services rendered in the case in removing the same by appeal from the district court to this court. Appellants now move the court to retax the costs to the extent of the docket fee of $20, taxed as part of the costs in the district court, on'the ground that it is illegal and unauthorized. Section 824, Rev. S1., provides that there shall be taxed and allowed to proctors, on a final hearing in admiralty, a docket fee of $20, 1l.tid t4e question now presented for decision is, were there two final in this case, or what is the final hearing? An appeal in admiralty suspends and vacates the decree appealed from, and the decree is nottirial until the case is heard and decided in the appellate court, and there is no final hearing until there is a final decree. Ben. Adm. § 590; 2 Conk. Adm. 385, 394; Hen. Adm, § 138; U. S. v. Preston, 3 Pet. 57; The Viwille, 19 Wall. 73. The statute provides that the proctor shall be allo\'I'eda docket fee "on final heaving," and it is held that final hearing is the last hearing, in admiralty cases, when the case is finally heard as to costs. Goodyear v. Sawyer, 17 Fed. Rep. 7, 8. The court says that the, docket fee is general, and it is taxable on the final hearing in favor of the proctor of the prevailing party as a lump sum for all the services in a case. There has been but one" final hearing" in this case. There is but one final decree, and that is the decree rendered on appeal in this court, the decree in the district court being superseded and vacated by the appeal. My opinion, therefore, is that there can be but one docket fee of $20 allowed,-the docket fee taxed as part of the costs in this court. The motion to retax the costs is granted.
SHIPPING-LIMITING LUBILITy-SUIT BEGUN IN STATE COURT-JURIBDICTION.
, In a,case ,applicatio\1 for limitatwllof liability of the owners of a steam-boa1i whb had been sued in th.estate courts given by the statute of Maryland for 1088.of life ariSing out of a collision in the .harbor ot Baltimore,· held, :that after th6'l1teamer had been appraised, atld'stipulation given in the district court for the payment into court of the amount of··t1he appraisement when ordered, the reduction of the amounts sued for in the state courts 80 as to reduce the aggregate of the amounts claimed in those suits below the amount of the appraisement and stipulation could not take away the jurisdiction of the district court, even concedmg t'hat the claims so reduced were all that the owners of the steam-boat could be made liable for. . .
Held, further, that, the li.ability of the owners of the steam·boat arose out of a maritime tort committed ou water which Was a naVigable highway of commerce,
SAME-TORTS COMMITTED ON NAVIGAIlLE WATERS-HIGRWA.YB-JURIBDICTION Oll' 1l'ED,
the district court had jurisdiction of it in admiraltr., and that the rule 0: limitation of the liability of the owners of the steam-boat WIth respect to such a tort was a rule of admiralty procedure prescribed b'y congr'3ss, the power to enact which was not necessarily referable to the commerCIal clause of the constitution, and therefore the fact that the vessel was customarily employed solely in Maryland waters, and not in foreign or interstate commerce, was immaterial.
SAlIIE-ALLOWANOE Oll' SUITS IN STATE COURT.
sion a fund to which, under the rule of procedure enacted by cong-ress,all claims were transferred, anli proceedings against the owners were forbidden j that therefore the court had no discretion to allow the suits in the state courts to go on for the purpose of ascertaining the amount of damages, even though the plaintiffs in those suits might have reason to anticipate difficulty in assertiu!$" in the district court the right of action given by the state statute for the loss and mjury sustained by them by reason of the death of the persons drowned in the collision.
Beld, further, that after the stipul",tion was given the court had in its posses-
Beld, further, that the district court, having in its control the only fnnd towhich claimants have a right to resort for payment of their claims, and being the only court competent to administer the admiralty rule for the limitation of the liability of the owners of the vessel, it has the authority and jurisdiction, in order to prevent that administratipn and its decree from being nugatory, to issue an order restraining the further prosecution of the Buits in the state courts.
-(SyLlabus· by the Oourt.)
In Admiralty. John H. Thomas and H. V. D. John8, for libelant. 4lbert Ritchie, for respondents.
MORRIS, J. This proceeding was begun by the Tolchester Excursion Company, of Baltimore city, a Maryland corporatiun, which filed its libel for a limitation of liability on the 30th December, 1889, alleging that it was the owner of the steamer on the night of 28th July, 1889, when a collision occurred between that steamer and a small sailboat in the harbor of Baltimore. The libel further alleges tbat suits have been instituted in the state courts of Baltimore city against said -company by persons c14iming to have; suffered loss and damage by said -collision, f()r an amp1.lnt in the aggregate exceeding the value of the and her pending freigpt. The company, in its libel, denied its liability for damage resulting from the collision, desiring to contest if liabll'l, prayed to have the benefit of a its liaRility therefor, and limitation of its liability, setting 01.lt ·the facts and circumstances on which it relies, and praying for an order for the appraisement of the steamer and freight, and to be allowed to give a stipulation with sureties for the paYIllent thereof into court when ordered, and for a monition warning all persons having claims arising out of the collision to and for an order restraining the,further prosecution present the ,of all suits against the company in respect of all such claims. On January 3. 1890, the court ordered the appraisement to; pe made; and on January 7th ,stipulation for $23,150, the amount of the appraised value .of the vessel and freight, was given and filed in court. On the 13th -of was ordered that notice should be served.on the parties and injuncwho had instituted suits, to show cause why the [01', in the libel should not be granted, and why they should tion ;not be restrained from prosecuting in the state courts. .
FEDERAL REP01t'l'ER ,vol.
The patties upon wh6m this served are now opposing the granting, of the prayer of libelant's petition, and for cause they show: (1) That the collision .obcurted in the har,bor of Baltimore, within the limits of the city, and, as respondents contend, was caused by the wrongful act and neglect of libelant and its officers and agents; that the persons who were in the small sail-boat atJhe time of the collision were Mary Kolb, John Pietz,Armie Kolb, Louis A. Deering, and Mary Weiner, and that the of the boat .was Frederick Isaacson; that the suits instituted are for the damage to the sail-boat, and for the personal injuries received by'A'nnie Rolb and Louis A. also suits under the statute of Maryland for the death of Mary Kolb and John Pietz, who were and a ofAnnie Kolb for loss of her services, and that MnryWeiner, 'who. was drowned, left no one living who, under statute, ",ould be entitled to suit· for her death. embrace every claim which And the respondents allege that these could possibly arise from the collision against the steamer or her owners. They allege that while It was true, when the libel was filed, tha.t the amounts claimed as damages in the suits in the state courts exceeded the amount for which and her freight has been appraised, since the appraisement and the stipulation there/or was filed in this court the amounts claimed in the suits in the state courts was on January 16th raduced,sO that now the: aggregate amount claImed is only $22,000, which is .the appraised value of the .interest oflibelant in the steamer and freight. and that therefore the libelant is not entitled to proceed to liinit its liability. (2) They further sM,w that the steamer was em ployed . exclusively as an excursion steamer, in the internal commerce of Maryland, and therefore thtdibelant is not entitled to a limitation of its linbilj:ty. (3) They further'show that,in viewofthe doubt whether claims fofdarnage$ arising from death by negligence given by the state statute can be made the basis ofasuit in the adm.iralty, this courtshould refrain from interference until itahall appear that the libelarit cannot be protected 'by' pleading the defense of limited liability in the state court. · 1. The first objection th'e jurisdiction of this court is that the aggregateofthe tllaims for which suit can be brought, conceding that it is a fact thitt there is no one living who is erititled, under the state statute, to sue for the death of Mary Weirier, does not, as now reduced, exceed the valneof the steamer and freight. In our opinion, this question is to be determined by the juri$dictional facts as they existed at- the time couttassunied jurisdiction. It may, perhaps, be conceded when that the libelants' proceeding, in its inception, was ex pll.rte, and that up to the time of filing the stipulation the court had nothing upon which it. could act, and that the libelant might, as of course, have dismissed the stipulation wall filed, there was placed under the its li.bel; in which all parties interested are court's control a fund for. entitled to 'shl1l'e; That fUlldcould not be withdrawn without the consent of all intllI'ested; anli whether or not the court is entitled to retain that fund, 'and 'to exercise the jurisdictfonin\"oked, must be determined by the factsn:istirigat the time it was plficed in the (lourt'scontrol. If
at that time the court's jurisdiction was properly inv:oked. and it was then the duty of the court to keep it, and adjudicate all the questions as to its distribution, it does [email protected]
except England, from time immemorial; and, if this were not so, the subjectmatter itself is one that belongs to the department of maritime law." See also> Butler v. Steam.Ship Co., 130 U. S. 556, 9 Sup. Ct. Rep. 612.
It would appear, therefore, that the alleged liability with regard to which limitation is invoked has arisen from a marine tort on navigable waters, and that the jurisdiction of this court, and its power to adjudicate every question with regard to that liability, is dependent on locality, and not on the nature of the employment or commerce in which the vessel was engaged. 3. The, third ,ground of contention goes to the exercise of jurisdiction, even if the court has it" because of the alleged difficulties attending the assertion by the in this court of the right of action given by the state statute. As to this, it does not appear to me that the court has any discretion. '!'he giving of a stipulation for the value of the vessel and freight is by the supreme court to be the equivalent of the surrend?r of (reight provided f()r by section 4285, Rev. St., and that s,ection declaresthat, upon such surrender, "all claimsand proceedings against the o,wner shall cease." That is to say, such claims are thereby ,transfeqed from the owners to the fupd thus created. The supreme court, in order t() give effect to the immunity of the owners from such surrender, directs that "the said court shall also, on the of th(l said owner or owners, make an order to restraIn further prosecution of all a,ndany suit or suits against said owner or owners in respect of any such claim or claims." It would appear, therefore, that this court, has ,no discretion to allow suits in other court,s to go on even for the pUrp01:\6 of merely ascertaining the amount of damage. The express provision of the law and of the rule of the supreme court is that such suits shall not go on, ,but shall cease, and that all litigation shall proceed ip the oistrict court as against the property surrendered or its proceeds, or the SUm stipulated to be paid into cou,rt in lieu of such surrender. 4. The only remaining question is as to the power of the court to issue an injunction as prayed. In Providence & N. Y. S. S. Co. v. Hill Manuf'g Co·· .it, would appear that the supreme court has intimated the proper solution of this question. On page 594,109 U. S., 3 Sup. Ct. Rep. 389, it is said:
"It is hardly possible to read them [the supreme court rules] in connection with the act of Itl51 without perceiving that, after proceedings have been in the proper district conrt in pursuance thereof, the prosecution paripas8u of distinct suits in different courts, or even in the same court, by separate claimants against the ship-owners, is, and must necessarily be, utterly repugnant to such proceedings, and subversive ot their object and purpose." On page 600, 109 U. S., 3 Sup. Ct. Rep. 394, the court said that it was "unnecessary to determine the question to the legality of the writ of injunction issued by the district court. Although we have little doubt of its legality, the question can only be properly raised On an application for ap attachment for disobeying it." In Nwwich Co. v. Wright, 13 Wall. 125, the supreme court had already eaid:
"If an action should be brought in a state court, the ship-owner should file a libel in admiralty. with a like surrender or deposit of the fund, and either court, or procure an order from the district plead the fact in bar in the court to restrain the further prosecution of the suit."
The right of the district court, after it has in its possession the fund to be distributed, to issue an injunction, can, I think, also be supported upon the principle recognized in Dietzsch v. Huidekoper, 103 U. S. 494. The distri9t court has possession of the only fund to which the claimants have a right to resort 'for the payment of their claim. It is the only court competent to settle, by a decree binding upon all parties interested, the question of the right of the ship-owner to have his liability limited. The injunction would, therefore, appear to be, as in the case of Dietzsch v. Huidekoper, ancillary to its administration of that fund, and necessary to prevent its judgment and its proceeding from being nugatory. The issuing of such an injunction was, after careful consideration, sanctioned in the Providence & N. Y. S. S. Co. Case, 6 Ben. 124; and in the Long Island Transp. Co. Case, 5 Fed. Rep. which was followed in The Amsterdam, 23 Fed. Rep. 112. This proceeding is not a case of admiralty and maritime jurisdiction in which the right of a common-law remedy is expressly saved to suitors where the common law is competent to give it, because, as has been decided in the cases above cited, the common law is not competent to administer this maritime rule of limited liability where the vessel, or the fund representing it, is surrendered into the admiralty court by the owner.
THE INTREPID. J WRIGHT
'V. THE IN"TREPID.
(District Court, E. D. NcwYork. March 26, 1800·.
COLLISION-,-PRACTICE-ExCEPTIONS TO ANSWER-8PECIFICATIONS.
When exceptioDs to a pleading are drawn with severa! specificationll, the fallure to sustain any specification is fatal to the exception. Exceptions to pleadings in collision cases are permitted only when made in good faith, for the sole purpose of obtaining the full statement of facts which the law requires.
In Admiralty. On exceptions to answer. The libel in this case set forth a case of collision by night in the East river, New York, between the steam-boat Morrisania, belonging to the libelants, bound up stream from Fulton street, New York, to Astoria, Long island, and a car-float in tow of the steam-tug Intrepid, bound down the river. The answer of the ovyner of the Intrepid consisted of 11
lReported by Edward G. Benedict, Esq., of the New York bar.