94 FEDERAL ,REPORTER.
it seems1Upre r.easonable, to rest, his liability maybe done,upon the mista;ke in pl'eparfp,g, the for the voyage; " Tb.ere is some I tlUnk, in the tpf such a mistake cannot a fault or e,r1'01' IP. or managem-ent that had not then been begun. Jnight, said la", regards such a mistake as re,peated during ev,ev;Y; moment of :Ule'v:oyage;, butl think ,this would be of legl;l.l'iiction, not for the accomplishment of j\lstice. true tJ;1: it not always eR8Y to draw a line that may properJybe said to con!1tituteunseawol'thinesl:1,aIldomisl3ions' or acts thn:t, p:i*j be more properly' described as or errors of navigation or rn.1piagement. I .Failure to provide a corn.Pa,I:11l,Jorexample, mightfalliIito either "and so with other install,ce!l tpat might be specified., I But this would only be to say courts are continually sayin&, ,tMt nc;> rple could be laid down f(ll"allcases, and for: that reason I should prefer to confine my ,attention to .tM particular 'questjo'n before the court in a given case. " foregoing is perhaps a, indication of the reasons thatappeal)o my judgIIi¢nt in behalf of the disputed conclusion, must admit thatfu,rther consideration has convinced me that r I/.m not at liberty to allow them to' control the decision. Some of" the cases cited by the respondent can be, distinguished withqui difi]'cWty, and some are not of blnding authority; but I am un'able to a'v?id the effect of the decision in The Sylvia, 171 U. S.462, 19 Sup. Ot., 7. I am afraid that I B()Illewhat more than half shut my eyes to the facts of that Case. 'J,'hey are strikingly like the facts in the present controversy; so li:ke, ,'indeed, that I feel myself bound to accept the, conclusions drawn from, them by ttie" supreme court. I obey the authority of tribunal, therefore, aM now hold that the condition of the porthole when the ;£ndiana left!4verpool did not reno del' the vessel unseaworthy. It follows that failure to close the port .was a fault or error in management, comrnitteddliring the voyage, relieves the I'flspondentfrom lhibility for such and that the act of a fault. A decree will be entered dismissing the libel, with costs.
MARITTMlIl'LmNS-MONEy'!!!UPPI.JltD TO VESSEL.
The maritime law gives a lien for' money' supplied for the use of 11 ship and necessary to enable her to on her voyage similar In all Its es, sentlal fi:!atu,res to maritime liens for other .kinds of necessary supplles. 1
.. SAME-EFFEC,T OF SALE OF VESSEl, I;N ADMIRALTY.
All liens upon a vessel, whether Illlpressed by general maritime law or local iltatutes,or created by bonds or mortgages, are completely and finally extinguished by a sale of the vessel, ,pursuant to an admiralty decree In rem, and,nC) lien for a pre,exlsting 4ebt can thereafter be created or re, to The George Du.
1 For maritime liens for supplies anQ,;Il,l;)n-ices, see mois, 15 C.' p. A. 679. ' . '., ' . .
THE EV ANCmL.
vived, so as to become enforceable against the fund produced by the sale, to the exclt.sion of creditors whose liens were fixed before the s:11e. 2
SAME-SURETY ON REI"EA8E BOND-SlJBHO&A'l'ION.
The effect of a bond given for the release of a vessel after its seizure by court of admiralty in a suit in rem is to extinguish the lien of the libelant on the vessel, and surety on such bond who pays the claim of the libelant after the vessel has been sold in subsequent proceedings to enforce other liens does not by such payment become subrogated to an3' right in the fund produced by the sale.
In Admiralty. The steamer:Evangel having been sold under a decree in admiralty to satiEfy maritilne fiens, and said liens having been paid from the proceeds of the sale without exhausting the fund, the cuse came on to be heard upon questions as to the disposition to be made of the surplus and remnants. Will II. Morris, for intervener United States Fidelity & Guaranty Co. B. Sachs, for intervener First :Nat. Bank of 1'ort Townsend. A. Buddress, for interveners Fowler and Katz. HANFORD, District Judge. This is a suit in rem, against the steamer Evangel, to enforce a maritime lien for wages. The 8teamer', having been arrested under a writ of attachment according to the usual course in wch cases, was released upon a bond given pursuant to section 941, Rev. St. U. S.; the United States Fidelity & Chunanty Company, one of the above-named interveners, being the sole surety upon said bond. After being 80 released, she was retaken b.r the marshal under other writs sued out by intervening libelants ing to have liens for wages and for supplies and materials furnished, and, after being released in a similar manner the second and third time, and again rearrested under similar process sued out by other intervening libelants, she was, pursuant to a decree of this court, to s,atisfy the demands of the intervening libelants who were adjudged to have valid maritime and statutory liens. The court also rendered a decree against the claimant and said surety company for the amounts adjudged to be due to the original libelant and each of the intervening libelants to whom security was given as above stated. After paying all costs, and the several amounts due to the intervening libelants in whose favor the decree was rendered for sale of the vessel, there remains in the registry of the eourt a balance of several hundred dollars of the proeeeds of the' sale to be disbursed. 8inee the sa:Ie of the vessel, the above-named surety company has paid the sums decreed against it in full, aggregating an amount exeeeding the balance in the registry, and it is now before the court asking for said balance. The argument hlade in its behalf is founded upon the theory that, having secured the release of the "essel, ano. afterwards paying d,emands whieh were originally enforceable by process in rem, it is, according to prineiples of equity, entitled to be subrogated to the rights of the original creditors as lienholders,
For extinguishment of lien by judicial sale, see note to Tbe Xebl'aska, 17 C.
C. A. 102.
94 FEDERAL REPORTER.
and: to claim the money in the registry in lieu of· the liens upon the ship which were displaced by giving the several release bonds above p:lentioned. Each of the other interveners above named is the owner upon the vessel, given vrior to of of a this suit,. !lnd they Claim that tM remnant 'of. the fup-d should be paid to them in satisfaction pro tanto of the debts' secured by their Whether or not the equitable doctrine of subrogation has any place in admiralty practice is not a question which must D,(jcessarily be in, this case,because the surety company in whose behalf the doctrine is invoked will not present itself in a more favorable attitu4e forthe purpQj3e of claiming the fund in court, if. the doctrine of subrogation shall be applied in this case, than it will otherwise occupy. According to the rule in equity, payment .of the debt of anotl).et who is primarily liable un,der force of necessit!, or compulsio'n, is "essential to the right of subrogation, and a person, by his owuvolUl;lt(lryact in becoming surety for a debtor,does not become subrogated 'to the righ'ts of the creditor. . The' only change effected by the giving of the release bonds was to extinguish the creditors' and to substitute inpla<;e of the ship the personal liens securfty .. ,$ubrogation c()Uld only phwe the surety cOPl,panypmdthe amounts duetothe credItors,' and It could t.he creditors eXisting' at the .lime of the only agquire' the rights iS I personal of the sighefl;l :dftlIe bond, 'l'hCiI).aritiw.elaw, as'understood and the' courts in this '90untry, yes tor of a ship ,to . J:Wr to .upon her vOY!lg'e. Thomas and. 'Grap'eshot, .9 , WaH.. 145. . The v.gspqr,¥; ·· .'J;Iow. As'. ·all .of features to .. Child, .. I llPonj of. every .Fed..OM: : ,'1 .by. the, ge.p:eral w or local ?r are comple.t;ely'and finally Ny ,sa,le.8:f to. de:cree of III of a:dJillraltyIua SUIt III rem. , Xn thIS ,case the rIghts of the partIes . .by 'the ves,sel. nq ,a trans.}.,!:.i,.f . . ,Y.,. o:r,. e.n ..fo:.ce?,:: ;,.,Th. . ,case :maoY "e. ... . ,be ,thllS: fund. in eour,f .In tbe ship. It Is t"to pay In'full the for' which to the ship' ,t#k it 'ali' 'belon¢s creditors. 'the surety compa,N by; i . .. ll.an.y. b. y th e.s.w.,·et.1 COill .. .· Of. tlIe .... t.y.,COI;llPi1n Y for . to iPfl-i' t.o ''the ship, bec.IlUs.e. '1 f . ....,a,dv.f!.u Cl,(Jd. ntII . .., ".n. . ,r t.,,.l;J.e.. .,sh.,Ip, ,was sold. 'the before anu:at hl)le of the sale.!! t.Tl;1erefpre; the in the regIS ry. thefollow,il1g cited by for the surety compauy: The Tangier, Fed. Cas. No. 13,744, The J. A. Brown, Fed.
THE JENN'IE MIDDLETON.'
Cas. add'q}trroll v. Tbe T. P. No.. 2,455. These decisions fayor,- the application of the doctrme of subrogation in admiralty practice, as do many others, but they do not give any countenance to a claim of the right to be subrogated by one who merely ,aided the owner of a vfSsel liens. by becoming afilurety, and who ,did not pay any Jebt unhl after aU bens for preYiously existing debts . had been completely destroYed by an admiralty sale. 1'be' principle which must govern tb,e decision of this case, and the reasons therefor, are concisely and strongly stated in the opinion by'Mr.J'ustice Bradley in the c8$e of Roberts v.The HuntSVille, Fed. Cas: No. 11,904, and the authority of that case is supported by'the decision of Judge Dyer in the case of The Robert· son, Fed. Cas. No. 11,923, and the decision of Judge Toulmin in The Madgie, 31 Fed. 926. ' Ordered that the balance in the registry be paid to the abovenamed mortgagees.
THE' MIDDLETON. May 23; 1899.)
(District Court, D. New Jersey.
MAniTfME LIENS-REPA.IRS IN FORE.fGN PORT.
Where repairs' are made In a foreign port by order of the managing owners, the presumption Is against the existence of a maritime lIen. 1
The refusal of the managing owners to pledge their personal credit for repairs d1>es not justify an inference of the existence of a maritime, lien, where the repairer agrees to accept payment out of earnings of the vessel, aathey accrue.
Joseph H. Brinton, for libelant. Flanders & Pugh, for claimants. KIRKPATRICK, District Judge. The libel in t4is case was filed to recover a balance due for repairs on the schooner Jennie Middleton incurred under the following circumstances; , In March, 1898, the schooner Jennie Middleton was in the yard of the libelants at Camden,N. J., in need of repairs. The captain did not feel authorized to determine the extent of these repairs, and the shipwrights were referred by him to Messrs. Bartlett & Sheppard, of Philadelphia, who were the managing owners of the schooner, for orders respecting the same. Subsequently Mr. Mathis, one of the libelants, and Mr. Bartlett, one of the managing owners, met at the office of Bartlett & Sheppard, and discussed the matter of the tlxtent of the repairs to the schooner, when Mr. Bartlett directed Mr. Mathis to make only tlUch repairs a8 he might deem necessary. Mr. Mathis then asked if Messrs. Bartlett & Sheppard would personally guaranty the bill for the repairs, to which they replied, "No." It is a&>erted by Mr. Bartlett and by Mr. G. W. Sheppard, Jr., who was present at the interview, that Bartlett said to Mathis that, if he (Mathis) took the
nlO/s.l;),()., C. A. 679.
As to maritime liens for supplies and services, see note to The' George Du. ,