THE H. F. DuIOCK.
, , THE ALVA.
MORRISON 0. METRoPoLrl'AN
S. S. CO.te al.
(Dtstr£ct Qau.rt, S. D. New Yqrk. October 7,lS9ci)
LIlIITj,TION 011' LIABILITy-WHO MAY INSTITUTE PROCEEDING.
Under the liinitation of liability damage creditor may institute proceedings to arresHheoffending vessel. ana ·to have the amoun tol all damages. as well as the value of the vessel. judicially ascertained. and the proceeds of the ves· leI and freight distributed pro rata among all claimants.
S.um-Al'PRAISBMBN'rAND STlPULA:TION-Ex . PARTS ApPLIOATION QUlllNT SUIT :DIlJilI88IliD. .. . ' ...
, . Where, under admiraltr rule 54 a stipulation is given for the,Value of the vessel, instead of the '''transfer'' prOVided for oy statnte, a "due appraisement" of the veslelil requ\siteto the validity of the proceeding, As, howeYer:,.it is competent for a court, an ex parte to order a reappraisement aud further security OU causa shown by any creditor, the mere faetthat the first appraisetnent and giving of. the stipulation wel'ee;l: 'Parte does not r!luder the proceed. void, or an ex parte injunction against other suits j and a sUbsequent IUlt in another district, for the lame cause. should be dismissed.
In Admiralty; .Motion to set' aside process and to dismiss libel. Granted. .,:. ·.. G. E. P. Howard, for libelant. . Benedict Benedict, for the H. F. Dimock' and Metropolitan S.S. Co. Root W. K. Vanderbilt'.
BROWN, District Judge. The libelant was master of the yacht Alva, the property of the respondent Vanderbilt, at the time of the collision between her and the steamship H. F. Dimock in Vineyard sound, on the morning of July 24, 1892. The yacht was so damaged by the collision that she sank and 'became a wreck. The libel alleges that before collision she was of the value of $300,000; that her wreck was of very small value, realizing on the sale at public auction only $3,500; that the I collision was by the fault of the steamer; that the libelant thereby suffered the loss of his personal property on board to the amountof$l ,306.80; that divers other persons, besides the libelant and the owner of the yacht, suffered loss and damage to their property on board; that the loss and damage aforesaid were without the privity or knowledge of the steamship company; that its liability is limited to the value of the steamer and her freight, which was insufficient to pay the damages sustained by the libelant and others; and that the value of the Dimock and freight exceeded $200,000. The relief prayed for is that the steamer be arrested and brought into court; that the whole amount of the losses and damages suffered through the collision be ascertained, as well as the value of the steamer; and that the proportionate amount of each damage
'rHE R, F. DIMOCK.
·(}laimant may be ascertained and pajd from the proceeds of the ship and freight. The libel was filed .on September 30th, and on the same day the steamer was arrested under process issued to the marshal. Such a proceeding by one creditor in behalf of all to obtain the relief . afforded by the act limiting liability, though infrequent, if;! in accordance with the provisions of section 4284 of the Revised Statutes, as interpreted by the supreme court in the case of The Scotland, 105 U. S. 24, 33-35, this being one of the four modes in which the statute may be availed of, viz.: (1) By the simple answer of the shipowner when sued; (2) by his libel or petition, offering a transfer of the ship to a trustee appointed by the court under section 4285; (8) by a similar libel or petition offering instead of a transfer of the ship, a stipulation, under rule 54 of the supreme court in admiralty, to pay her value as appraised under the order of the court,or a deposit in ceurt of the amount of such appraised valuej or (4) bya creditors' suit for an apportionment and pro rata distribution, as in the present Cllse. See The North Star, 106 U. S. 17,27,1 Sup. Ct. Rep. 41; Providence &: N.' y; S. S. Co. v. Hill Manufg 00., 109 U. S. 578,591-595,3 Sup. Ct. Eep. 379, 617. A motion is n.ow made to dismiss the libel, upon the ground that proceedings to limit liability had already been duly taken by the owners of the steamship in the district court of Massachusetts on the 16th. of August last, in, which court a stipulation for value was given after appraisement, and that that court has full jurisdiction of the cause, where it is now pending, and in which an injunction order, restraining all other of all which the libelant had suits, was issued on the 17th of notice before this libel was f\led. If the district court of Massachusetts had jurisdiction to issue the re. straining order, or, what is the same thing, if it had full possession of the cause by a proper appraisement and stipulation given in conformity with the fifty-fourth rule of the supreme court in admiralty, then the relief of aU persons interested mUf;!t be sought 1D that court alone, and the present libel, being improperly filed, should be dismissed. For the libelant it is contended that the district court of Massachusetts never acquired full jurisdiction or authority to issue any restraining order, because it is said (in the language of Ex parte Slayton, 105 U. S. 451, 452) that neither the monition nor the injunction could "properl)' issue either under the operaHon of the supreme court rules, or otherwise, until jurisdiction of the res had been in some way secured j" and that jurisdiction of the res was not Elecured in the Massachusetts court,because the vessel had never been arrested by, nor surrendered to, that court, nor had any stipulation been given for its proper value, as a substitution for the res, under the 54th rule, since the stipulation was given in an ex parte proceeding, without notice of the application, or of the proceeding for appraisement, paving been given, or attempted to be given to any creditor, although Mr. Vanderbilt, the principal creditor, was named as a defendant in that libel, and the appraisement being for less than half the value of the vessel. The appraisement of the vessel was
FEDERAL REPORTER ,
$80,000, and of freight $2,395.33. The present libel alleges their value to have been $200,000; while iuthe shipowner's petition their value was stated to be "less than $150,000." If the latter averment affords any clue, the appraisement was altogether inadequate. Such mode of procedure for appraisement, it is claimed, is not a "due appraisement," and not a compliance with the conditions of the fifty.fourth rule, upon which alone that court was authorized to take any further proceeding in the cause. No dO\1bt the creditors have a right, under the statute, to have the vessel and its full value applied upon their claims. The statute only provides in terms for a transfer of the vessel herself. Rule 54, in providing for the giVirlg of a stipulation &sa substitute for the vessel, was not designed to deprive a cteditor Of any substantial right. It should not, I think, be interpreted so as to compel him to accept an inferior sUbstitute., through a purely ex parte appraisement, or one in which credday in court. The apitors can never be heatdand have theit praisement, as fixing the amount of liability, is a vital part of the proceecing. The vessel, if liable; is viHually the property of the creditors. The. sUbstitution of a the shipowner, in effect, to appropriate to himselfthecredifor's property, arid to give an obligation To deprive of due hearing, and of a in place of prQper defense of his interests,in the appraisernentand in fixing the amount of the sUbstituted stipulation, which is to limit the possible amount of recovery, would be,as it seems to me, to: deny him a hearing on the most vital part of his case, and a violation of the principles of common right. Windsor v. McVeigh, 93 U. S. 274,280. If, therefore, the original Mfparte appraisement and stipulation were a finality, not capable of subsequent inquiry or (lol'l'ectionby tha court on due applica- . tion, if inadequate, I should have great doubt whether such an appraisement could be deemed a" due appraisement," within the meaning of the fifty·fourth rule, so as to authorize the court to take the further proceedings authorized by that rule. But it is competent for the court, I think, having had a.n appraisement on an ex parte application, to order a reappraisement and further security upon application by any creditor, showing that the previous appraisement was mistaken and inadequate, and that the duty of the appraisers had been inadequately performed. See The Union, 4 Blatchf: 94; Dist. Ct. Rule 55. This procedure would in most cases probably answer the ends of justice, though difficulties might occasionally arise. The vessel after an ex parte appraisement and stipulation given thereupon, might, as in the present case, at once depart from the jurisdiction;. and she might never afterwards return, either from occupation abroad, or froul subsequent loss; or she might be sold, or be subjected to new lien proceedings meantime. On the other hand, as the proceeding to limit liability may be lawfully insti. tutedwithin the jurisdiction where the vessel is, it would be a great embarrassment, when the creditors were all in a diff('rent jurisdiction, if no. appraisement could be taken· at all until absent parties were legally-
THE H. F. DIMOCK.
brought in by publication of process. Often the creditors are numerous; some are not ascertained, and, actual notice to all is frequently imprac· ticable. The matter seems properly to fall, therefore, within the domain ofpractice, to be regulated by the district courts, in the absence of any express rule of the supreme court, as the interests of justice seem to demand. As rule 54 of the supreme court does not in terms require any notice to creditors of the original appraisement and stipulation, I am not prepared to hold that the "due appraisement" provided for by that rule, may not be, in the first instance, an ez parte one, to be supp1E:mented thereafter, if unsatisfactory, by further inquiry on the application of the creditor. For many years in this district, and in the eastern district, it has been the practice to require the names of the principal creditors to be stated in the petition, and a reasonable notice to be given by mail, or otherwise, to a sufficient number of creditors toafford a practical opportunity for the protection of their interests in the original appraisement and stipulation. In some other districts, including that of Massachusetts, the practice seems to be otherwise. As the creditor upon application is entitled to relief for any inadequacy of an ex parte appraisement, and the proceeding may fairly be said to fall within the department of practice, I cannot hold the want of notice in this instance to constitute a jurisdictional defect in the appraisement and stipulation, such as to render void the subsequent order for the issuing of a monition and other subsequent steps in the cause, including the injunction against all other suits for which the fifty-fourth rule provides, upon the analogy of the provision of the statute in the case of a traijsfer of the vessel, under section 4285. For this reason I must hold the prior proceeding in the Massachusetts district to be valid, and the present libel, therefore, improperly filed. It should, therefore, be dismissed. Motion granted.
(CircuUCourt, 'E. D. Michigan. ',.
LToWAIB";"DuTY OJ' HASftB-APPBoAOniNG:SToBM. ,A t.ug t\yo lUlQ,ber sclloonetB, frQWCheboygan to, Buffalo passed Thunder
sOme indications of aJitorm; Three hours later shew8s struck lit llh'eaTY squall, and twoh'ours thereaftell,: during 8' fierce gale, a heavy sea rf,Ee<1,:IIoW/IoY,', O,ar,d, d,eCk,',IO,ad,;giVing her, a lis,t to por,'" which interfered with IIteerililg. ,She rounded to, trimmed, hEll" load, and then prl)ceeded on her course. lAter the towline brok9;8tid the schooners were driven onshOl,'e and lost. Betd; that'tile W!¥ll;er Wias not negligllnt in not taking sMlter in Thunder bay, under the thenprevaillng, or in fail\ngto tUrn backafter he was struck by the iquall;'betng then many mUes on his course to Tawaa bay, where safe shelter was to be.toq,nd. 47 :Jredoltep.,$9, affirmed." ' voyage after rounding to and trimming and the storm of uncertain ,
'vV8e it berl()l1.d,since the position Was Onl;l of duratioD. 47,Fedo Rep. 89. aftlrmed.
Libel by: EmerY'.T. Vance and others, owners of the Wilhelm, to recover for the loss of the :while being towed by the Wilhelm. Decree in the district court dismisEdng the libel, with costs. 47!Fed.Rep. 89. Libelants appeal.
Simomon" Gillett and 'H. 'D. Goulder, for appellants. F. 0. Canfield and H. a. 'Wi.mer, for
JlCKBON, .C1rcuit Judge·. 'rhe ill this case was filed to recoVer the value of the barge Mears, of which libelants 'were the owners, arid which was lost on November 27, 1889, while being towed by the propeller Wilhelm, on a voyage from Cheboygan, Mich., to Buffalo, N. Y. It is claimed in the libel that the Mears was lost through the negllgence of the propeller or of those navigating her. The special acts of negligence and ofcareless and unskillful towage alleged against said propeller are: (1) '.l'hat said propeller Wilhelm was not properly officered and manned; (2) that said propeller attempted to tow said schooners Mears and Midnight across Lake Huron during a violent and increasing storm, without regard to the condition of wind, weather, and sea, and the indications of the weather existing after passing Thunder Bay light, instead of taking said tow to a near, accessible, and safe shelter in Thunder bay, as she could have done without difficulty, and as was required by ordinary care and seamanship; (3) in negligently failing to come about and hold her said tow head into the wind and seas after the loss of said propeller's deck load; (4) in negligently hugging the west shore of Lake Huron in a thick, driving snowstorm, and with a heavy wind and sea from the eastward; and (5) in negligently turning at full speed into the lake so sharply as to part the towline of said Mears, whereby said schooner was necessarily ren-