, : FEDERAL' 1REPQR'l'ER,
iJ.IwspondeM also utges,that a misjoiI1der()f alr'not think 'so., The bill 'alleges that the respondents; Bishop et al., ilre<tll3ing :thecorporation but as a1neans of infringemel1t;tliat they are the case of Nerve Food'!Co. v. Bagmbach,BUpra, the Star Bottling, Works, a corpora:tion', was joined with the respondent Batili'lhack, uhder1the same circumstances, the corporation, namely, belonging to hiIll,'Besides, it is doubtful ifthe respondentef'Bishopet lcd., have not,waived this point by not demurring separately., ' The demurrer is overruled.
Fox et al.
ADIlIBAIJO' Jll'RISDIOTION__M;ARJTIl'4B,GoIJ'l'R;\OT. '
By a wrltten ,:,steamboat",. hlreel tor one year, the charterer stIpulating tbat she should be used incatrying and freIght on tlie waters of Pllget 8OJl-ud,the Strai" of Juan de,Fl1Ca, and their tributaries; !t:hat the Charterer ',should ma.n, her, bear all, expenses of" navigation, insurance; and repal1'Si Iteep her bills paid' 80 as to prevent liens from attachmg, pay tbe,ewner aftxed.-ujD,monthltfor ller use, lind, in Cfl86!o.f loss, tbe gross perf!>rmance olllllS part tbe cbarterer a bond, mtb ,sum of, $8,000' ,'to sureties; in'the sum of'I8;OOO. 'Held that,tbough this oontract liifrared in pbraseullual in sbipping traDsaethlJl,siit;wasnevertbe,ology Iln4 form less I/o,maritime contract, IPoIlda suit on the bOIl-d was a matter .of mar,itime jurisdiction," .,'.. ," '" ; , " "', ... ,,,,' ':
In Admiralty. Suitt" personam by Granville O. Haller against Charles L.:Fox, Adolph:Behrens,'iand H. W.Baker on a bond given by chartererto ownerj,conditioned for due performance of a contract for employment pfn/steamboa't 'fcir a speciftedterm. 'fheslireties :fHed exceptions tothelibeldenyinglhejurisdiction of the court; Exceptions ruled.' ' . " Burke, Shepard &- WO<ld8, for libelant: James Harn'iltd'it :Leivis, for HANJwRD;District Judge. On 3, -,,91;'the derendant F0xhired the steambolltMary F. Perley: for a tmn 10f one'year,and with htll: owner, the libelant, executed acon1racthl' writing, whereby they stipulated that said said term be employed in carrying passengers and freight upon the waters of Puget sound, the Stl'aitsof Jua ll de Fucai rand theirtribl1taries; that the chatterer should navigate,'man, ftnd corihol her, and' bear all expenses iilcidelit tonavigating her and' for supplies, insurance, and repa.iTs, and 'keep her bills paid so as to prevent lieus froni attaching, and pay 'Said 'owner fot the use of said steamboat! $180 per mohth, and at the 'end of said term deliver her again :tosald O(l\vner, Of, itl tltlse6fhet loss or destruction, pay him thesum,of$8;OOO'.I'To secure performance oh his' part of the conditions of said contract, said Fox, as l'rincipal'.' with his codefendants as
· IJA,LLER fI, .FOX.
sureties, gave to the a ,bond in the penal sum of $8,000, and this suit is brought upon said bond. to recover damages in the sum of $5,153.45, with interest. The libel charges that by reason of said Fox having absconded without having paid for the use of said steamboat according to said contract, leaving her in the possession of other parties, who put the libelant to the cost of a suit to recover possession of her, and leaving unpaid bills and demands for supplies furnished and services rendered, and for expenses and charges incident to the use and navigation of said steamboat; and that the libelant was compelled to pay the same, with the fees and costs of a suit in rem, brought against her to enforce liens therefor, in order to recover possession of said stellmboat, and clear her of liens. The sureties on said bond have appeared and filed exceptions to the libel, alleging that the court is without jurisdiction, for that the subject-matter of the suit is not cognizable in a court I of admiralty. The bond in sui t is to be construed as if it contained allthe promises and conditions of the contract between the libelant and Fox. By this the respondents assured the libelant that their principal would do and perform the things specified in said contract, and obligated themselves to pay whatever damages should result from any failure on his part. This suit, therefore, is founded upon a contract relating directly to the employment, navigation, supplying, repairing, insurance, and possession of a ship. Contracts touching these several matters are subjects of adv. Bait, 2 Gall. 398; The miralty jurisrHction in this country. De Tilton, 5 Mason, 465; The Sloop Mary, 1 Paine, 673; The Smilax, 2 Pet. Adm. 295; The Seneca, GiIp. 10; Insurance Co. v. Dunham, 11 Wall. 1; The Lottawanna, (Rodd v. Heartt,) 21 Wall. 558, 589; The Windermere, 2 Fed. Rep. 722; The Oanrtda,7 Fed. Rep. 123, 7 Sawy. 178; Coast Wrecking 00. v. Phcenix Ins. Co.,7 Fed. Rep. 242; The Guiding Star, 9 Fed. Rep. 524; Maury v. Callifo,rd, 10 Fed. Rep. 391; The Vidal Sal(!, 12 Fed. Rep. 211; The San Fernando, Id. 342; The Waubaushene, 22 Fed. Rep. 115; The Alberto, 24 Fed. Rep. 381; The Fannie, 8 Ben. 429; The North Cape, 6 Biss. ,1'50.5; The George T. Kemp, 2 Low. 477. In the case of Cutler v. Rae, 7 How. 729, relied upon by counsel for the respondents, a majority of the supreme court held that, in a suit against a con::!ignee to collect a sum claimed as a contribution in general average, on account of goods delivered to him, the principles of the common law must be applied, for by the maritime law, the lien upon the goods was discharged by delivery without creating any personal liability; that the implied promise to pay,arising frorn the receipt of the goods. was rooted in the common law; hence there wasno maritime contract in the case, and a court of admiralty was without jurisdiction. From the nature of the question which the court passee} upon the case cannot be regarded as an authority applicable to a case like the one at bar, which is founded upon ,n maritime contract. Although the contract under consideration difl(jrs in form and· phraseology from agreements usual in shipping and maritime transactions, its validity as a maritime contract is not, for that reason, at all doubtlul. By the maritime law
FEDERAL· iBEPORrna, vol. 51.
·mere. form' is not regarded as being of greater importance than substance and meritsr., Early in the history of our government that great jurist Justice STORY, in the case of Lavio v. Bait, announced the doctrinewhioh has since received approbation from the bench and bar generally,extending the admiralty and maritime jurisdiction of the courts oftheUnited States to include causes of action arising ex contractu, which, in England, owing to the jealousy of the common-law judges and the power of the court of king's bench to issue writs of prohibition, were excluded from the jurisdiction of the high court of admiralty. It was many years afterwards that for the first time a case before the supreme court afforded an opportunity for it to pass upon precisely the same question.But finally, in the insuran<:ecase of Insurance Co. v. Dunham, theJo,pJ):mtunity came, and in a learned and exhaustive opinion by the late MJ.1. Justice BRADLEY the court sanctioned Judge STORY'S views, and settled the controversy so long maintained as to the jurisdiction of the ildniiralty,courts bfthe United States Over cases founded upoh maritime contracts. Although not referred to directly, C((tler v. Rae has been considered, as overruled by ,thatdecisitlfi. The district and circuit courts have, more than once treated it as an overruled case. See Coast Wrecking QJ.v. Phlen-b: Ins. 00.,7 Fed. Rep. 242; The San Fernando, 12 Fed. Rep. 342·. J It is my opinion that this suit is cognizable as an admiralty cause in: this court, and that the exceptions to the libel are not well founded. overruled.
MACANDREWS et al.
.Oourt, S. D. New York. June 8, 1892.)
1.l'RAOTl0....TENDER-SOUTIlERN DISTRIOT 011 NEW YORK,
Intbe district court for tne souttlern district of New York a libelant may at any time, on: Order of the cOlirt, obtain money tendered and deposited in court, sufficient only being resel'ved to cover future costs.
r.ntlle, same court, when. respondent serves written notice that he consents to libelants, taking an order for. the withdrawal of the whole or any specific portion Of a. sum so deposited in the registry, interest on SO muoh of libelants' claim thereafter ceases. ,
Judge., :Before suit'the respondents tendered $1,507,39; ;fOJ:(reight ,due. The libelants declined to accept that amount. and filed their libel claiming $1,603.54. The respondents thereupon, before answer anli in accordance with rule 72 of this court, deposited the