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
FEDERAL REPORTER t
sold, to appear in the district court on the 13th day of May then next, and interpose their claims and make their allegatIons. The process was executed by the marshal only so far as to attach the steam-ship. He did not publishor'otberwise give any notice r and there was no proclamation or default on the return-day. Prior to the return-day of the process the owner of the steam-ship appeared and filed an answer. No ptherpersoh appear ,Upon the owner giving bond with surety in the ci. sum: of $24,000, aoorder was'made by the court, with the consent of for thel!belants, discharging the steam-ship from custody. There was no appraisal of the steam-ship, and her value was more than $50,000., Proofs were i!ubsequently taken in the cause, and after hearing the parties the court made 8 decree dismissing the libel, and adjudging'that the steam-ship Dever struck or sunk the Shaw. When the libel was ,filed,Sun,dberg was no longer master of the steam-ship. He was not named. in any way as.s party to the cause. He took an active part, however, in the defense of the suit, besides being examined as a witness. 'rha libel was .entered on the 9th day of October, 1886. Subsequently the. libelants appealed from that decree to the circuit courtj and on October 15, 1888, a decree was made by the circuit court affirming. the judgment of the district court. The libel in the present cause was filed: <7Il'the 5thl'of February, 1890. It alleged the collision between the two veseels, and that it was caused wholly by the negligence of those Sundberg, by his answer, interposed as a d:efensethe adjudication in the former suit. Thereupon an amended libel was'filed, admitting the former adjudication, and setting up fucts ,in avoidanee. :Sundberg'uied exceptions to the amended libel. Upon toe facts stated we are of the opinion that the decree in the first suit is not an estoppel as to the owner of the cargo. If due service of process had been made, pursuant to admiralty rule 9 of the supreme court, and a default beenelltered against all parties not appearing at the return-day, doubtless the owner of the cargo of the Shaw, as well as all other pelfsons:having any interest in the steam-ship N'ewport, would parties to the 8uit, and woUld have been conCluded by the deCree from litigating agairi any issue which was necessarily involved in the decisibn:' The·privilege or right of one who has sustained loss by a collision the guilty vessel is inchoate from the moment of collision, although process in rem is essential to enforce itj and it is not dis· placed by a'sale ofthe vessel to a bona fide purchaser withollt notice, Or by the death'.of the owner, or by bankruptcy. It is more than a right to sue.' 11Iis"aTight iIi the thing itself, constituting an incumbrance upon the' proPerty, and' existing independent of the process used to en· force it. The Young Mechanic, 2 Curt. 404j Vandewater v. M'lll8, 19 How. 82. A suit in rem is, in substance, a suit against aIr parties in interest in the res, to the extent of their interestsj and all such parties are parties to the su,it,because they can intervene and make themselves actual parties, and: bring their rights before the court. Consequently, aU persons the thing in controversy are coricluded by the de. ' ; It';
BAILEY fl. SUNDBERG.
cree in the suit; and of course all the rest of the world are concluded by the decree, because the judgment binds and settles the rights of all those who have any interest in the property. The cargo-owners in the present case might" therefore, if the suit had been conducted abCording to the rules which give to proceedings in rem their conclusive effect, have intervened and become actual parties, and without becoming actual parties would have been parties in interest, and bound by the decree. The decree necessatily determined that any right or interest claimed by any party as arising from the alleged collision was without merit. "The decree of the court in such case acts upon the thing itself, and binds the interest of the world, whether any party actually appears or not. H iUs condemned, the title of the property is completely changed,and the new titleaequired by the forfeiture travels with the thing in all its after progress. If, on the other hand, it is acquitted, the tadnt of, forfeitureis removed, and cannot be reannexed to it. Thebriginal owner stands upon his title, discharged of any latent claims with which the supposed forfeiture may have previously infected it. . A sen'tenee of acquittal in rem does, therefore, ascertain a fact as much as a sentence of condemnation.· It ascertains and fixes the fact that the property is not liable to the asserted claim of forfeiture." STORY" J., in Gelston v.: Hoyt, 3 Wheat. " .' The SUpreme court, by authority of the laws of the<United States', prescribes and regulates the mode of procedure in suits in admiralty by promulgating rules therefOr.· Rev. St. U. S. §§913, 917. Admiralty rule 9 requires process in rem to be served, not only bya:rresting,the property, but by giving notice by publication of the arrest, andofJthe time' assigned for the return of the process -and the hearing of the:, Under this rule the noticeiis: as indispensable as the arrest tocOllfer jurisdiction upon the court to adjudicate upon the rights of those interested in the property, and those who do not appear are not bound by the decree. Cooley, Const. Lim. 403. The rule has the force of aIaw of congress, and, in effect, declares that publication as well as seizure isessential to constructive notice of the proceeding to a.ll those who hav-e a. right to be heard. . In the first suit, not only was there no such service of process as the rule prescribes, but no default was entered upon the return of monition, and the-property arrested was released upon giving security sufficient to satisfy the claims of the owners of the Shaw against the arrested s1!eam-ship. cThuf! the suit was prosecuted and condlicted throughout as onein which the only parties in interest were the formal parties to the suit,-the o"Wners of the schooner and the owner of the steam-ship. We think neither party can invoke the 'decree which was rendered in it as an estoppel, beyond the extent to whioh it would operateas such if the suit had been a:n action in per80nam by the owners oltha Shaw against the o'Nner of the steam-ship. Oooper Reynolds, 10 Wall; 309; Durantv.Abendroth, 97 .N. Y. 133; McCaU'I1. Carpenter; 18 297; Windsor v" Mc;Veigh, 93 U. S. 274;Pennoyer v. Neff, 95 U. S.714. _ In this view it is obvious that the cargo-owner is not concluded by it from question whether the loss was caused by th&
I.Qf action accrued, and ,thi;lre are no 'special cirthe time when· the cumstahcesto, charge cargo-owner, with ·lachell, we ,think. there is· no equitable bar to the suit upon the ground of delay. Where there is nothing exceptional in' :thecase, CO\;l,.J;ts ()( a.dmiralty govern themselves by the analQgies Of,couHuon.law limitations. The Batal. Ann, 2 Sum. 206; Southarclx.Brad'JI, 36 Fed. Rep. 560; JO'!Jv.AUen. 2 Woodb. &
andtbe stl}a.I1l-aMp:. . Litchfield v. Gl6d«W.,123U. S'J54&,' S Sup. Cli.iRep. 210·. ': . .Inasmach as the preeEmtactionwaaroomm.enGed,within siiXyears from
The of .the schooner are precluded from re-examining .the ques· tion whetbel\ the steam..shipwas the instrument which .caused the collision, if ,the adjudicl\tion..bt:tween. them and the of the steam-ship is an estoppel as between.them and:Snndberg. gen,eral rule is fa.miliartbat .therecannQt be an estoppel which is. not mutual; that is, which ,dote inwking it aathe other pa.rty. Consequently,Su.t\dbel'g cannot invoke the former adjudication as an astoppelunless,had it:beendecide<Lthat the steam-ship was the instrument -orc.o1lilSion, it iCOuld been: :invoked again$t him, so as to prethat,qu.estion in aJ;U bsequent suit against clude him him by the owners of the schooner. He was not 'in privity with the owner of the .steam-ship, ,within the rule that binds .privies as as parties tothe,estoppel.of a judgment. Privity denotes mutual or successive the same rights of property, or, as is said in Bigelow,. Estop:. p., 142,Uthe ground of privitf is·property, and ,not in the present caSe, it:would perlmnaLrelati<>n." Jnview .seem that if had been a decree:agll.inst the steam-ship or itt) owner. and the. ownet,bad,SQught indemnity against .bitxl because the collision was caused by,his ,perJional misoonduct,·he, would have.been .eatopped from BS.llerting ..m-ship,was. not the instrument of collision. The .master of ia velilsel ris liable, not only to third. persons, but, to the owner, for 10$8'.resulUng:f'rom a coUisionbecause.of his own misconduct and:negligence. Maul1,.&P. Shipp. 459; Kay, Shipm. 994. ,Su.ndberg Qcjt only had,notice. oHhe,,Suit, but .he participated in its defense; and) althoull;h it does not. appear that he was requested to,assume its defense, he would not..-bepel'witted to re-examine·the fact. Ohicagov. Robbins, 2 Black, .4: Wall. 657; HeiBer v. Hatch,.86N. 615; MiUer 7 Fed. Rep. 91·.He was the agent of the owner of the, steam-ship in the treapa.sswhieh was the cause. of action asserted. by the owners of the schooner; 8IU'd the decree neceasarily determined that. he, Rs,wellras his principal, was innocent of theiooputed wrong. Upon.: :pril1@.ple, all those who have litigated that question <lught to be pfecluded,asagainstioneanother,from litigating;itagain. "J,u8tioo causebe.'O,uce fairIy.aQd, impartiallY tried; bat; the publictr.aXlq1.liUity,\deJri8uds ,that, ha"ing,been ,once so' tt1e4, all litigationoftbAt',questtipn,betwtie'tl. thpse: parties. should be closed fo1""[. l:Greeut.Ev.§ 622. the schooner; having chosen &0 tesHbeinighllagainst. the pdnoipnlt, and: having baq..,their day in court,
ought to be precluded from testing it again on the same issue against the agent. F)m'lTUJ, Silver Mining Co. v· 19m,'lTUJ, Silver Mining Co., 7' Fed. Rep. 401. It was held in E-mcry v. Fuwler, 39 Me. 326, in a carefully-considered opinion by the supreme court, that. a party is not permitted to bring an action against a principal for an alleged trespass, and, after failing upon the merits, to subsequently bring one against the servant who acted by the order of the principal, and rely upon the same acts as a trespass. The court said:
"In such cases the technical rule that a judgment can only be admitted between the parties to the record. or to their privies. expands so as to admit it when the same questipn bas been decided and judgment rendered between parties responsible for the.acts of otheril."
See, also, Kinnersley v. Orpe, Doug. 517; Warfield v. Davi8, 14 B.Mon. 40; Castle v.· Noyes, 14 N. Y.· 329; Kitchen v. Oampbe11, 3 Wils. 804; Phillips v. Ward. 33 La w J. Exch. 7. It is unnecessary to the present decision to hold that the former judgment would not estop the owners of the schooner if Sundberg had not participated in defending the suit; but, as the facts are, we think it.Ut a good estoppel. The decree of the court below is reversed, with instructions to dismiss the li.bel as to all the libelants except the Virginia Home Insurance Company, and as to that libelant to overrule the exceptions to the amended libel,. and to take such further proceedings 88 may be proper, in conformity with this.opinion.
THE W. B. CoLE.
'V.Tw: W. B.
Court, S. D. Ohw, W. D. February 23,1892.)
A mortgage .of a vessel Is valid as against having actual notice thereof, though not recorded in the collector's office, as required by Rev.St. U. So 15 4192Under those sections, a m(lrtgage which is actually recorded is constructive n0tice, though it has not yet been indexed. .
2. BANE-FAJLURE TO INDEX.
SAttfE-Ac'J:UAL NOTICE-PRIOR BONA FIDE PuRCHASER.
Where one purchases a vessel with eil her actual or constructive notice of a mo", gage, it will not be presumed in his favor that his vendor, who purchased before the mortgage· was recorded, was a bona fide purchaser without notice, &Dd the burden is on him to show that fact.
OP MORTGAQE"':'PRJOR EQUrtUIS: . .
'O,ne who 'tIlkesa'nlortgage of :aves861 by assignment' after the:recordlng of · mor.tgageofE1ar}ler date cannot prCltect hiJnself ,from the of exc,ep$ by clearly showlbgthat some one of tb.e owners of the vessel through whom he &0quired his lien was a bema Me pu,rchaller without :notice. . .
In .'dmiralty. ,On appeal from di!ltrict court. Libel p.rtner against the steam-boat B. Cole. Decree below dinned.