GENTHNER v. WILEY. WILEY v.
(District Court, D. Massachusetts.
February 14, 1898.)
Nos. 628 and 712.
ADMIRALTY PRAOTICE-CROSS LIBELS-STIPULATION FOR DAMAGES.
A libel was filed to recover for injuries to a barge from defects in the consignee's dock. The consignee filed a cross libel against the barge owner to recover expenses Incurred in pumpIng out the barge, and placing her in the dock, in order that her cargo could be discharged, and that she herself should cease to obstruct the dock. H that the cross libel was one "arising out of the same cause of action" with the original libel, within admiralty rule 53, requiring the respondent in the cross libel to give a stipulation for damages in such case.
These were cross libels for damages resulting from injuries to a barge at a dock; the first being filed by Philip J. Genthner against William Otis Wiley, and the second by Wiley against Genthner. Edward S. Dodge, for William Otis Wiley. Carver & Blodgett, for Philip J. Genthner. LOWELL, District Judge. The first libel was filed by Genthner, the owner of the barge E,sopus, to recover for injuries to the barge, caused by the alleged defective condition of the doek of Wiley, the consignee of the cargo. The second libel was filed by Wiley against Genthner to recover the expense incurred by Wiley in pumping out the Esopus, and in placing her in the dock so that her cargo could be discharger'!, and she herself should cease to obstruct the dock. The injuries to the barge for which Genthner sought to recover in the first libel, and which prevented the barge from lying properly in the dock, were alleged in the second libel to have been caused by the fault of Genthner's agents. Wiley prays in his libel that proceedings in the first libel be stayed until the stipulation required by rule 53 shall have been filed therein. Genthner contends that the libel of Wiley is not a cross libel within the meaning of that rule. The rule requires the respondent in a cross libel to give a stipulation for damages where the cross libel has been "filed upon any counterclaim arising out of the same cause of action for which the original libel was filed." The words "same cause of action" are, it must be admitted, somewhat ambiguous, and, if construed narrowly, might exclude Wiley's libel. I think that they should be construed broadly, and as equivalent to "same transaction, dispute, or subject-matter." Vianello v. Credit Lyonnais, 15 Fed. 637. See, dlso, The Giles Loring, 48 Fed. 463; The Ciampa Emilia, 39 Fed. 126. The two libels before me were certainly filed upon claims arising out of the same subject-matter, to wit, cer· tain injuries received by the barge. The injuries caused damage to both Genthner and Wiley, and whichever of the two was at fault should pay for the damage. These libels were brought to fix the blame. In Refining Co. v. Funch, 66 Fed. 342, Judge Butler said
85 FEDERAL REPORTER.
that in the Eastern district of Pennsylvania ruIe 53 was not undertltoOO to apply to cases where the original libel was in personam, but the circuit court of appeals, in its opinion in the same case, ignored this practice, although it would have been applicable to the case before 'them. Refining Co. v. Funch, 73 Fed. 844. In Steamship Co. v. Hagar, 78 Fed. 642, Judge Butler himself says that "the language of the rule applies to all cases of cross libel," and this plain language I do not feel at liberty' to disregard. Order to issue stay· tog proceedings in No. 628 until stipulation shall be filed in 712, pur· suant to rule 53.
THE MARION S. HARRIS. SKINNER v. WINSMORE et a1.
(Olrcult Oourt ot Appeals, Third CircuIt.
February 16, 1898.)
SALE OF A VESSEL-PAYMENT OF PURCHASE MONEY AND DELIVERY.
The sale, by a shipwright, of a vessel being repaired in his yards, Is com· plete on the payment of the purchase money and the delivery of possession af;! far as It can be done, the vessel remaining In said yards, and the repairs :continued in the name ot the purchaser; no bill of sale or written Instrument being necessary to transfer title to a vessel.
MA.JclITIME LIENS-MATERIALS-CONTRACT FOR LIEN.
Where supplies for the equipment ot a vessel are sold to the owner, who is· known to be financially irresponsible, and are forwarded and delivered to , the vessel at a port In another state under an express contract for a lien, the sellers are entitled to a lien. A contract for supplies for a completed ship intended to engage In navigation and commerce, though at the time not prepared to enter upon a voyage, and entitled to the rights and prIvileges ot a vessel of the United States, is, in Its nature, maritime, where the. object and efrectls to enable her to pursue her business upon the seas; and for supplies so furnished the seller Is entitled to a lien on the vessel.
SAME-BUSINESS FOR WHICH VESSEL 18 INTENDED-MARITIME LIEN.
Appeal from the District Court of the United States for the Eastern District of Pennsylvania. Thomas Evans,for appellant. Curtis Tilton, for appellees. Before ACHESON and DALLAS, Circuit Judges, and KIRKPAT· RICK; District Judge. KIRKPATRiCK, District Judge. This matter is brought before the court upon an appeal from a decree of the district court of the United. States for the Eastern district of Pennsylvania dismissing the exceptions of the appellant to the report of a cOI!1Illissioner. It appears from the record that the bark Mllrion S.Harris ,was at one time a Norwegian vesseJ, known as the Linda. In 1893 she was abandoned at sea. In January, 1894, after having been towed into the port of Wilmington, N.O., she was, by authority of the owners and under·