THE JOHN G.STEVENS.
second must, l.mder such circumstances, be held void, or otherwise a pl!!t!l*ee .conld J>I'olong his monopoly indefinitely, and it is not neces!!8;1'yto cite authorities in support of this proposition. The patent sued on being void for the reason stated, the bill of complainant based ' , thereon is dismissed, at his costs.
THE, JOHN THE LoUD
(Circuit ,OOOTt, E. D. New York. November 29,1889.)
MARITIME LIENS-DAMAGBSBY COLLISION-PRIORITY.
On intervention by material-men in libel against vessels for damages from coms, iOD, the objection, that the preference given maritime 'liens created by collision over . prior liens for repairs and supplies ought not to apply, because the collision was causedpar,tly by the fault of the vessel injured, and that such vessel should not be allowed to profit by its wrong to the detriment of innoccent material-men, cannot be considered, where the only evidence that the injured vessel was at .fault is the record ,ocf, a judgment in another suit declaring her at fault, which is set up in an intervenors, motion to 1ile which has been denied.
In Admiralty. For former report, see 38 Fed. Rep. 515, 40 Fed. Rep.33L ' Ge01'ge A. Black, for libelants. Mark Ash, for intervenors.
, :';, i
The opinion delivered byrne in this ,case on tht:'?l'snWOctober, 1889, (40Fed. Rep. 331,) did not allude to one question it, although the point was not overlooked. It has now been presented again by briefs on both sides. It is insisted on behalf of the material-men that the rule that liens for damages are superiorto liens for repairs and supplies should be modified in this particular case, on the ground that the collision for which the libelants are seeking damages was caused partly by the fault of the 'schooner Flirtt; owned by the libelants; that a wrong-doer suffering damage by a collision stands in a different position from an innocent party whoSllffers8uchdamage; that the fault ofthe wrong-doer destroyed the security which the material-men had; and that the wrongdoer ought'not to profit by his own wrong, to the detriment of the innocent tnaterial-men,who were not in pari delicto with him. !tis further urged that, ,if the material-men took the risk of the negligence Of the owners' of the tug, the owners of the Flint also took the risk of the hegligenceof those'who were in charge of her; .that, in that aspect,
FED:li:lULBEPOIftEB, vol 49.
of ;the Frint stand an' footing, and the materliU-nien'should 'be preferred and, be prior in because tiill'Ri}hat. 'as cargo on Flint. the owner of suclicargl$ could not have recovered If the Flmt had been wholly in fault, and that he ought to recover only a part onhe damage to the cargo. if the Flint were partly in fault, the cargo being in either case free from fault; that the material-men were also free from fault; and that, in any event the owner of the cargo stands in the same relation as, and in no better position than, the material-men. There are two conclusive answers to the propriety of the application of the views above suggested to the present case, eyen if they would be sound in any case. By ,the, final decree of the district court, there was awarded to the libelants, for the damages sustained by the Flint, $5,537.85, and fot the damages sustained by the cargo carried by her, $9,778.67. The interlocutory decree against the Carter was entered by default, and on a consenttbat her answer to tbe libel be stricken out, and that tbe libelants recover for the damages caused by the collision. The record does Dot show that any division of damages was m.adein this cast) by the district ,coutt, ,nor is tbere, any competent evidenee to show tbat any such divisiol1()fdl!-mages bas been made by any court, or tbat this court, ,or any cou'it, ,has held tbat tbe Flint was in fault in the collision. ' It appeatsby the in April, 1889, the tbree intervenors who claimed to recover for repairs and supplies made a motion in tbe district court for leave a joint answer to the libel. In that proposed answer it was set forth that, before the commencement of this suit, the libelants had brought a suit for tbe same cause of action in tbe district court of the United States for the southern district of New York, against the two tugs and the bark Doris Eckhoff; that in that suit the bark was duly attacbed, ,alld her claimants appeared ,and answered; that tbe tugs were, not attached in that, suit, but their owners were made parties to itinpersp7loa'ql-, and appeared and answered; that that suit Was heard upon pleadings and proofs, and' the distrbt court for the southern district of New York madtJ a decree in it, in October, 1887, adjudging that the Flint had been guilty of fault causing the collision,and that by reason thereof the libelants could recover only half of their'damages; that such adjudication,was binding upon the libelants , in the present suit; arid that, for that reason, they should be postponed, in the payment of any datnages which they might recover against the proceeds of the 'sale of.'the tugs, to the claims of tbe intervenors. The prayer of the proposed answer was that the intervenors might be awarded such preference. The opinion of Judge BRowN, in the dis"triet court fot the southern district of New York, holding that the libelants were entitled to rlilcover' one-half of their damages against the bark .and the owners of tbe.two tugs, is reported. as, ,the case of The Doria Eckhoff, 32 Fed. 555. But it by the ;record in this case that the motion for leave to file such proposed answer was denied by
THE JOHN· G. ,STEVENI. . .,,' ,".,
of the intervenors over the claiin of the libelants. There is no evidence in the record that the Flint was in fault. The allegation, in the proposed answer, of her fault cannot be taken as true, because the an· swer was not allowed to be filed, and therefore its allegationa cannot be taken to have been admitted to be true. The record of the 'case in the southern district of New: York is not made record in this case. The decision in the case in the southern district of New York appears to have been made in October, 1887, and the interlocutory decree l?efore referred to, adjudging that the answer to the libel be stricken out, and that the libelants recover for the damages caused by the collision, was entered on consent, in October, 1888. As neither the district court nor this court has passed upon the question of the fault of the Flint, and the decision of the district court for the southern district of New York is not .presented in such a way as to operate as ires adjudicata, the point by the intervenors is not open for consideration. Another apswer is this: A division of damages would not leave any-, thing for the)ntervenors. It does not appear by the record exactly what is the amount in the registry of the court to be distributed. The statemellt iJ;l the final decree of the district court is that the amount due to the libelantf! exceeds the amouilt in the registry. It is .stated in the brief of the for the libelants that that amount is only about 000. This is less than one-half of the damages sustained by the owners of the Flint, and also less than one-half of the sl,lffered by the owners of the cargo wllich she carried. It is unnecessary, therefore, to consider on its merits the question raised. The intervenors ask that, if the point above made by them is not SUBtained, no of appeal against them, as. the question was an entirely new one in this court, and the appeal was taken to settle a. conflict .betweencourts having co-ordinate jurisdiction. .But I see no sufficient ground for not awarding costs. A decree wil,l be entered,awarding priority to the libelants in respect of their claim for damages, with costs against the. intervenors, personally.
to be true, were not sufficient in law to give a preference to the claims
the district court, on the ground that the facts set forth in it, if taken
lTALIA. 1 THE GELLERT. HAMBURG-AMERICAN PACKET
.(Dtatrf,Ct Court, E. D. New York. June 2; 1890.)
SALVAGE-COl\lPENSATION""'ToWING SHIPlI\1'I'l1 BROKEN SHAFT.
Where the steam-ship I. became dillabled at sea by the breaking of her tunnel shaft., and in such con<1ition was towed for 750 miles, to the POl't of New Y.ork. by the stelil;D-ship G.,.b.othveB6els being. of large value. and having valuable cargoes and ,many passengel'S b.oard, it was heW that the G. should recover 125,000 as salvage for her servicles; . .
In Admiralty. Action to recover salvage. The steam-ship Ttalia, bound from Hamburg to New York, broke her tunnel shaft while laboring in a heavy sea. The shaft was temporarily repaired, and the vessel continued slowly on her coursel;tt a speed of three knots per hour. The weather at this time;was favorable. The ltalia's sails were of no practical use, and he1'shaft was liable to break again at any time, especially if the weather should become had. She ran 234 miles in this -condition, when she was overta.ken by the steam-ship Gellert, also bound from Hamburg to New York. She was then about 750 mIles from New York, and 320 miles from Halifax. In response to her distress signals, the Gellert came to her assistance, made fast to her by hawsers, and towed her to the port of New York; the service occupying about four days. The weather during the was at times stormY;IHld after the arrival of the vessels at New York the path over which they had come was swept bya succession of gales. The Ita:lia was at no time completely disabled, but used her own steampower and sails during the whole of the towage. Her value, with her cargo and $473,421.88. She was ca1'l'ying220 passengers. The.Geliert was worth $400,000, and she had on board at the time of the service 461 passe'tlgers. Wheeler, Cortis &: Godkin, for libelant. Wing, Shoudy &: Putnam, for claimant.
BENEDICT, J. I am of the opinion that the facts presented show the rendition of an important salvage service to a vessel of large value, by which she was relieved from a position of peril. Upon the evidence, I am of the opinion that $25,000 is a proper salvage reward for the services rendered. The ealvage award is therefore fixed at that Bum.
by Edward G. Benedict., Ellq., of the New York bar.