DB 1'. B. STANWOOD.
THE F. H. STANWOOD.! CooPER
THE F. H. STANWOOD et ale
(C1Ircuit Oourt oj Appeals, Seventh Circuit. March 8, 1892.,
IUBITIJIB LIENS-SBRVICES-DAMAGE FOB TOBTS-PRIOBITY.
Amaritbne lien for damages arising from a collision caused by negligent navigation over the lien of the crew of theo:lfendlng vessel for wages earned by them on board such vessel before the collision, but is SUbordinate to the lien for suoh wages earned after the colll8lOn.
On Appeal from the District Court of the United States for the Northem District of Illinois. STATEMENT
JENKINS, DISTRICT JUDGE.
tember, 1890, and within the admiralty jurisdiction, negligently collided with and sank the canal propeller Whale. The crew of the tug consisted of three persons, a pilot, an engineer, and a fireman.. On the 20th of September, 1890, the owner of the Whale filed his lioot in the district court, seeking reparation for the wrong. The Stanwood was arrested, and afterwards, under decree of the court, sold by the marshal, and the proceeds covered into the registry of the court. The claimants of the tug intervened for their interests, and, upon hearing, a decree passed for the Iibelant sustaining· his claim and assessing the damages. On the 4th day of October, 1890, the engineer and the pilot filed an intervening Iibelto recover their wages, subsequently amended to include the claim of the fireman. These wages were mainly earned prior to the collision; a portion of them subsequently thereto, and before the filing of the libel. On the23d day of November, 1891, an order of distribution was made directing payment of the claims for wages for the season of 1890 in priority to' the claim for damages by the collision. The fund was insufficient to pay the libelant in full. He thereupon appealed frOIIl the order of distribution. Reversed. John O. RichbfJrg, for appellant. O. E. Kremer, for respondents. Before GRESHAM, Circuit Judge, and JENKINS, District Judge. JENKINS, District Judge, (after stating tk facts.) The record presents the single question whether a maritime lien arising out of damage done in a collision caused by negligent navigation should be subordinated, 'with respect to its payment, to the maritime lien of the crew of the offending vessel for wages earned by them on board of such vessel. It is undoubted, as a general rule, that, as against claims arising ex contractu, the claim for seamen's wages is preferred. This is stated to arise out of the needed protection extended by the admiralty
In Admiralty. The tugF. H. Stanwood, on the'18th day of Sep-
Reported by Louis Boi80t, Jr., EIq., of the Chicago bar.
to a class of men improvident, reckless, and exposed to imposition, and also because "by his .}:lledgiffor all the debts is preserved." The latter reason is perhaps the better foundation for the rule. Possibly, also, the ·'reu.on.. of, theJllule' may, ..inpm,/.be found in the nature of the service, and in the encouragement supposed thereby to be held out in all times of peril. Upon whatever foundation it;rnay .res.t, ,the !ule wages earneq"ppor to consideratiOll' 1 semce has the Oas. Adm. & Ecc. 18; The Athtmian, 3 Fed. Rep. 248. ' :: rl'be. ;to.the· payment. of damages by collision is rested upon two grounds: Firat, that the seamen share in the fault of the offending vessel, and from considerations of public policy to dill(lotlrage -negligent na-vigation; Se6Oii'dj' that it would be compensate a wrong to: be diverted that:wmng;.or: to one having 410 of the offenrling vessehdenied to the owner of the injqrl'lq vessel. :.i , ." ' ' ; We are 'of, :9P'ipi,on contention is well The negU... gent navigation causipg collision and consequantinjury was the act of, Que\Qr more of them. Tbe-Mgligentact or orilisthe vessel 86: negligently"navigated. alile treated as the offending; thing. .The fault: ,of the cre:w is visited upon,the agent by :whicbtbe fault· became effective, ,causing injury. It hHln instance ohin;lputed guilt, thE!;llin of: icre'Nbeingattrib9ted to tl;re So, also, think .that"as to the injured.' ves-the c..ewshO:'JlIi.share: ,in the faul$Jrnputed to the offending vessel. :A,.stQthe injur6dve$sel, oft'endillg.thillg and her crew are one. The c!:'ew participate in the pfthe shit>. She is the passive strQment.of their I,1ctive co,-operationin effecting the injury. Ship. and QrElW constitute the ,comm.on ,enerpyJthat has destruction. .There play be dil:ecting Jllindo. The others are, however, like the ship, his instruments in the perpetJ'atiollo(,the wrong, tl.nd,i as to the injured vessel, participants in the fault. They aloe. joint torMeasors. Which one, inter set was directly and immediately respqnsible for the act or negligent omission is of no moment toth6v68sel injured through their co-operation. We think it opposed to every principle of natural justice to permit QU'e of an crew to hold ptiority 'over !,claim for damages their actpmd in tAecourse of lltcc:nnQlQU, employment. That would. be to reward guilt \the expenseo( innocellCe, and to tender premium to negli/1;ence. Pareful navigatjon is .It should be the constanteare of courts of admiralty, tPl1t given to conduct prejudicial to life or iqatno safeguard to prudent. navigation beremovedj t;latno .Qffered touagligent conduot. With the. greatest care, navigation is hazardous. Seamen will not be less vigilant in the performance of duty ifJ '1\S and the ·fund created to
THE F. H.
compensate thewroDg, they are held sponsors for 'the They will not beless careful iNhe1'e8 the their wages he firahubjected to the payment of the injury/tiheir fault had occasioned. The wrong donear6se' frotti the delictwm of 'either the master or crew of the:vessel at fault, and should be first compensated. This conclusion, as it seems to us;·rests·upon and finds.support ill' the highest considerations of public poliC)". A fund already,insuffiClentto compensate the injury should not be diverted to compensate thOse who actively, or by inference of law, have occasioned or contributed to the wrong. !tis essential to the safety of'commerce Upon to punish negligent navigation, and to redress the consequent injury, that others may not be to breach of duty. Careless nii.vigation, reckless conduct of master arid crew, avoidable collision, will be less frequent if punishment, not reward, shall surely follow transgression. :The second ground is;aJso controlling; The seamen have a remedy by personalaotion against the owner of the' offending vessel for the wages he has earned.: There is no suggestion here of the insolvency of the owner. The insufficiency of the fund to pay the damages awlirded is apparent. The owner of the injured vessel has no remedy, except against the offending vessel. Rev. St. § 4283; Norwich Co. v. Wright, 13 Wall. 104. It is a settled principle of equity that when one party has several, and the other but one. remedy,ihe former will be remitted to his additional remedy, and will not be permitted to select thatwlii'Ch is the only edy of the other party, when so to do would absorb or diminish the fund, and leave a jUflt claim unsatisfied. There'arises no element of hardship in ,remanding these seamen to their personal action. The owner is solvent, and able to respond to their just demands. To yield them precedence or equality in the distribution of the fund would be to eompensate those who were the cause of the at the expense of those who suffered the injury; to 80 far absolve the owner responsible to those seamen, and whose vassel should make good the injury; to reward the wrong-doer; and to punish the innocent victim of wroqg. We cannot bend our judgment to such inequitilble conclusion. , The suggestion that the owner of a vessel' may insure against collision, and so obtain indemnity, is without merit Insurance would be the subject of independent contract for the benefit of the insured, not the wrong-doer In respect to that, there is no privity between the offending crew and the owner of the injured veSsel. The insurer,paying the loss, is subrogated to the rights of the insured, and clothed with all his remedies for the negligent injury. The insurer then stands in the shoes of the insured. This works mere change in the ownership of the right to redress.' It neither extinguishes nor diminishes that right. We conceive our ,riews to have the support of the decided of authority. ,In England it would' appear to be no longer an opel} quesAbb. Shipp. (11th Ed.)'621j MacL.Shtpp. (3d. Ed.) 703; The ChimfJl'a, Coote, Adm. 121j The Benares, 7 Notes Cas. Adm. & Ecc. Supp. J;)0,54; ,The Aline,l, W. Rob. 111; The Linda. Flur, Swab. 309; The Elm, 8 Prob. Div. 39, affirmed on appea1i In America there
wop,lc;1oseem t9)e spme ofopinion. The conclusion to which ha've upheld upon ,ope or ,the other of the grounds upon which it is in Henry, .A,.dt;n. 199; The SpaUlding, 1 Brown, Adm. 313; The Pride .o/The Ocean,.3 Fed. Rep. 162, 7 Fed. Rep. 247; The Mafia and Elizq,beth"l2 Fed. The M. Vandercook, 24 Fed. Rep. 472; The R. S. Carter" R¢p.515, affirmed on appeal by Mr. Justice BJ,ATCHFORD, 40 Fed. Rep. 3,31. Some support is also derived from, the dictum of Mr. Justice BRADLEY in Norwich 00. v. Wright, 13 WaU.,104, 122. , Ins9me of the discUIlSion upon the subject, as notably in The America, infra, the priority awarded the creditor in damage is sought :to be rested upon the rule of the admiralty that maritime liens are ,to be paid in the inyf;lrsl'l prder of their inception. We think such decision to be lodged upon' faulty foundation. That rule relates to liens ex contractu, not to those arising ex delictu; and it is bottomed upon the obvious and just ground that each foregoing incumbranoer is benefited by means of the incuml;>rance, ,and is ltpplied, only to maritime liens of the same class or rank of privilege. Hcan have no application, as between a damage lien and a prior contract lien. In such case the reason of the rule fILils. The lien for dainages by collision is injurious, 'not beneficial, toa .prior,contract lien. opposed, or seemingly opposed, to our conclusion, demand order, The America, 16 Law Rep., 264, decided by Judge HALL, of the northern district of New York, in 1853, is strongly ,tp our attention. 'It was there held that the lien of the collision claimant,was not prefert'!'ld to, but stood in equal rank with, that of material-men.. Tpe)ellrnedjudge asserts the principle upon which thendmiralty has recognized, the. right to redress for collision, that it is not only ,ac\vil indemnification,butn ql!-asi penalty for the wrong, always to enforced, that such wrong may ,not pass unredressed, inciting others to simiJar negligence, (page: .276;) that the damage claimant is not io,E,lqual position to the creditor, on mortgage ·or. bottomry, or for materials, injury to the onebeiug in invitum, the .exteusion of credit by tbe other being at his option; and concludes that, therefore, they stand upon equality, and are to be governed by the general rule of preference stilted by him, (page 273,) that maritime liens of the same class or rank of pp,vHege should paid in the inverse order of the dates of their creation. ..The decision that was actually made, as we read the case, was that tbe damage claimant had precedence of the claimant for material previol,lsly supplied, because the lien was of later date. The decision was correct eJ1,ough, but the reason upon which it was bottomed was, as we have shown above, fallacious. With respect to seamen's wages,and all. that is said upon, ;the subject is merely obiter, the wages of the seamen having been contention,..,-JudgeHALL asserts the; geQeral rule of accorded to such claims, and declares, (page 273:) 'I
"In some cases other 'claims, sl1ch as' claitns'ln cases of colliSion and salYage and bottoIJ;lry been preferred to saamen's .wages; but these
THE F: H. STANWOOD.
eases proceeded upon the sa.me general principle,:the preferred claims having !,:corned subseqllent to the claim for wages. "
He also .declares (page 277) that ."his [the seaman's] demandfor wages is preferred to all other demands, for the same reason that the last bottomry is preferred to one of prior date." Referring then (page 282) to· the case Of Theehimera, wherein Dr. LUSHINGTON is stated to have held that seamen's wages do not itake preferenc.e of the damageS awarded in a cause of collision, Judge HALL states that, after an ex..: amination of the cases of The Sidney Cove, 2 Dod. 13, and ·ne Bertha, 1 Law &Eq. Rep. 665, he is inclined to the opinion that men's wages for the same voyage should be preferred to the claims of the suitor in damage. The cases referred to, and upon which he seems to base bis conclusion, were not cases of collision at all. The contention there was as between seamen's wages and a subsequent bottomry bond. The allowance of priority in such cases rests upon the general rule awarding precedence to seamen's wages over all other liens e:tcontractu. It seems to. us that the argument of Judge HALL should have led him. to a conclusion directly opposed to that reached by him, respecting the priority of seamen's wages in cases of collision. In The America, Judge HALL underlooka wide field of discussion, not involved in tbecaee, as he expressly declares at pages 266,.284. He ventured to declare prirl..: ciples of maritime law in advance of any cause requiring their applica;. tion. Naturally he fell into error. He failed to consider the principle upon whIch seamen's wages for prior service should be subrogated·: to claims for collision. He lost sight of the question of public policyin'" valved, and of the .equitable consideration that the seaman bas another: remedy than that in rem-, and that, in a case like that sideration,.the allowance of a claim would permit a solvent wrong-doer, liablefotthe wages .of the seamen, to divert a fund: applicabJeto the satisfaction of the wrong to the payment of his debts at the expense 'of the injured party. With deference, we are unable to yield assent to the' dictu7(l, or reasoning invoked. The other cases to which we are referred, as opposing the conclusion to which we have arrived, are, with.theexception of The Daigy Day, '40' Fed. Rep, 588, cases arising in the eastern and southern districts of New York. The Orient, 10 Ben. 620j The Samuel J. Ohristian, 16 Fed. Rep. 796j The Grapeshot, 22 Fed. Rep. 123j The Rep. 789; TM· Amos D. Carver,35 Fed. Rep. 665; The Daisy Day; 40' Fed. Rep. 538j The Gratitude, 42 Fed. Rep. 299.. With the exception' of The Orient and The Carver, these were cases of damage arising from negligent towage, and the decisions are, with the exception of The Da:i8y Day, predicated upon the express ground that they are claims arising ex contractu, for violation of the contract to tow safely, and present quasi torts in distinction from cases of pure torts. It may well be doubted whether, in the light of the cases of The Quickstep, 9 Wall. 665, and Norwich Co. v. Wright, 13 Wall. 104, tbe distinction can be upbeld. Judge SEVERENS, in The DaiByDay, expressly repud iates the distinction, and holds that claims in: damage outrank claims arieing ex contractu; but follows the
..Orient and TM.,Sru1jl.uel J. Oh'Y'i8tia",j :so far as to prefer seamen's. waKes to claims" for "sll'eli; totts Iis'llegIigence in towage, 'pto.:: Ureis.qman !'WbOS6 ·claim, from fault.'''.' With 80 far,at least, as are expressly 'overruled by Mr. Jus-tjce inrThe!R. S. GV/l:ter;40Fed. Rep; ,331. Notwithstandin J the: IddScussion of, the question in those ing the ahility cases,they their pow<tr'.by thidater and controlling hold.. inK of superiora'lltho.dty.That decision was not renderediwhen The Daisy Day was decided. : Had it been:othervvise, it is. possible that Judge SEvERENswo\l.ldhave held all, events, it may be said that the. consideration' that the seaman has a double, and the damage claimant a single, remedy was not considered by him in that decision. In, ,TM: Gr,atit'ILd/l, .JudgeBRowN, who had held negatively on thepriority.of.llen8 damages by ooHisioll, recognizes the binding authority of Mr. Justica BI.ATOHFORD'S decision, but seeks to distinguish between cases or :damage .done in invitum to an independent vessel and damage by negligence under a voluntary contract of towage. As suggestedabove, the distinction may not be sustainable. We are not, however, here. oalled upon· to determine that question. It is proper, also,to,Md;,that,the:decision of Mr. Justice BLATCHFORD seems to have escaped, the attention of -the distinguished jurist whose ruling is here involved. III Th6 Elin, 8Upra. the maritime lien for damage by collision was allowed precedence of the :lien of the seamen for wages earned by them sincetlle,collision, upon the ground that it would give relief to the Ownel,' of ship in the hands of the court. We are unable to follow the ruling to that extent. That ruling, is in forgetfulness of the equitable:considtlration that the subsequent;service has been beneficial to the fund. Like the case of salvage, the $ervice following , the collision preserved the rea .for subjection to the lien of the damage claimant, and brings the case, as to such subsequent service, within the rule that he ehall be· prefertedwho has contributed most immediately to the preservation of the thing. This rule imposes an equity upon an eqnity,--an equity, not discharged by the corisideration that, by inference, of the law,thesoomen were participants in the prior fault occasionipg injury, nor impaired.by the fact that they may have personal resort to the owneroftbe offending ship, the rule in the regard not applying to a superior /ilquity. We hold, therefore, that in cases of pure tort, as to prepedent wages, the damage claimant has priority, and that wages earned .since the collision have precedence over the claim for damage by collision. The decree appealed from will be reversed, and the remanded for further proceedings in conformity to this opinion.
Couno;f.dppeaZt, 8eccmid Ctr6ttilt. .Tanull!iy 18, lB9J.)
a vessel which was sun)rby COl).lsion,witha,lIt;eamllr brought .Ubel the steamer was attached, but no notice wasglven or publication made 'by oomiralty rule .9. $ubllequentlytbe steaIQ.et' was released on: her t!'-e lii>elantfor lell\! thlliJ;!her ·. . that a deqree lHsmls&'llig the libel·was bmding on the libe18nt on17, alld'wOuld not prevent a nllw owner of the carjfo. '. · on' a libel in rent. forciollision, the master of the libelee, though not a formalpart,y, takes an active part inthedefense.a'dismlilSldCln the meritsrendera the. queltion,.es libel aga.lJJ8t ..
,. .'.' ,
TN REI\[-PI!BLlcA!1'I01l' O.
of a vessel is not in therJ.that blnds:ptiVie'&!J .,bllu partles to the estoppel of a'judgmut. " " "
Int/le a,bs"noe,of, c:trcmmstapces a of leIs ,thJ!.n. six 1eam In brlnglPI a'libel tn persondm for Ol:>nblion Will not be colisideted as laches, swqe'CO\lN of admiJ8ltygovern themselves blthe analogi£ll of common:,l&wllmitatioDB. 44 Fell. 807, reverse(L
Col,Jrtoe'the United.Stlltee for theSouthem District,QiNew York.. , , : , In Libel George BaileY AUld othel'$ against JohnP.,Sundberg,asJ;llaster of the steam-ship Newpop. , The libel was qismissed in the district OOlilt; ,(see 43 Fed. Rep. Bland 44 Fed. Rep. 809;) which, decision wasaflirmed in the circuit court. Libelants appeal. ,Reversed. Gwrge A. for. appell8JJ,ts. , Wm. W. ,Goodrich and Robert D. Benedict, for appellee. Before WALLACE and Circuit Judges. W.ALUCE, Circuit Judge. This is an appeal from a decree dismissing a libel in personam for collisiOll. The questioll$ pl'escmted arise upon the pleadings, and are: ;(1) Whether a decree in a former suit is res, ad.judicata in the present suit; and (2) whether the claim of the libelants ie stale. The suit isbrqughtby the owners of the schooner Shaw, and the her cargo, Sundberg, to recover their owner by losses sustained, in. a collision between the Shaw and the steam-ship Newport, of '\fbichsteam-ship Sundberg was master at the time of the CQllision. place February 23.1884. 'fhe Shaw was sunk, ,her cargo became a total loss, and 'all the persons on board, of her were drowned. April 23, 1884, the owners of the Shaw filed a libel in ,.em in the United States district court for the southern district of New York against,the steam-ship to recover the value of the sehooner, freight money, anq the personal effectapf her master and crew. Process i!!suedon that day, in usual fo nn , to the marshal of the court, requiring the steam-ship, and to give due notice to all persons having anything to say, why she should not be condemned and