Carpenter & Park, for libelant. . Wilcox, Adams & Green, for claimant.
BROWN, !)istrict Judge (afte,rstating the facts). tug In towing not being guarantor, is liable only for negligence, Leo the lack of ordinary nautical skill and prudence., Does the evidence fairly warrant such ajlnding as regards of the Taurus? I think not The fog lightened as the. master w.asabout to ,anchor, and his judgment was that he could make his way through. The event actually proves his knowledge and skill, since in the dense fog he ran in the very center of the channel exactly where he ought to have been until the rock-breaker, recep.tly moved, and giving no signal, deceived him, and caused him to Sheer to the westward. Had sig· nals been given properly from the rock-breaker he would have been warned. Knowing her previous place near the east shore, and hearing no signals, he naturally assumed he,must have got too far to the eastward in the cross tide, and therefore starboarded. I think this' ought to be treated as a sudden ,and une:ipected emergency, naturally tending to mislead just as the pilot of the Taurus was misled. The case seems to me quite unlike The Bercw-es, 81 Fed. 218, in that regard. This case shows, in fact, a careful, skillful pilot working his way with precision until misled by the rock-breaker; which deceived him not by change of place, but by not giving prior signals, Buch as she was bound to give on her actuaJ change. This was notnegligence in the pilot, but at most an error of judgment in a sudden emergency. Libel dismissed without costs.
THE CATSKILL. THE ST. JOHN.
(DIstrict Court, S. D. New York. July 8, 1899.)
COLUSION-MuTUAL FAULT--LIlIUTED LIABILITY ACT-DISTRIBUTION 011' PROCEEDS.
Where both vessels are held In fault for a collision which resulted In the loss one vessel, and In the death and Injury of passengers, and the loss of baggage and cargo, for which claims are filed, and the proceeds of the other vessel, surrendered under the limited liability act, are Insutl'lclent to pay all losses, the owners of the vessel destroyed are equitably estopped from claiming any part of the fund on, account of the loss of the vessel until the claims of third' parties, for which she Is jointly liable, have been paid In full; l1;Ild her Insurers, who have paid theloSlj are subrogated only to the rIghts of the owners·
.. SAME-CLAIMS FOR DEATH AND PERSONAL INJURIES.
Claims for Injury to the person and loss of life resulting from a collisIon are within the provisions or Rev. St. §§ .4284, 4285, which require the proceeds or the ol!endlng vessel, when surrendered, to be distributed among the claimants In proportion to theIr respective losses, and bar the clalmants or other remedy; and the el!ect of those provIsIons Is to make every admissible claim a statutory lien on the fund, and entitled to share therein pro rata, except as al!ected by equitable rights between the parties.
In Admiralty. Proceejling to limit liability on account of damages by collision. On distribution of proceeds of surrendered vessel.
De Forest Bros., George Holmes, and Harrington Putnam, for petitioners. Benedict & Benedict, for the Catskill. Leroy S. Gove, for insurers on cargo and baggage. Shipman, Larocque & Choate, for insurers on Catskill. J. Newton Williams, Leon Abbett, and G. Washbourne Smith, tor claims for personal injuries and deaths.
BROWN, District Judge. Upon the decision in the above matter holding both the St. Johns and the Catskill to blame for the collision (92 Fed. 1010), and the report of the commissioner to assess the damages to the property and report the evidence as to per-' sonal injuries, several questions of interest have arisen which have been elaborately discussed by counsel. The Oatskill was very nearly a total loss; and the proceeds of the St. Johns are less than half the total damage to the Catskill and her passengers and cargo.
Her damages as reported by the commissioner amount to ..······· $48,719 66 For baggage lost............................................... 1,071 78 For cargo..................... .····· 3,67542
The last two items were paid to the different claimants by the owners of the Catskill, who received from the insurers on baggage and cargo the amount of the last-named items less $100 particular average; and the insurers now claim to recover the amounts thus paid to the owners. 1. Upon the evidence submitted for personal injuries and loss of life, Inward the following sums, namely:
To claimant Nellie McCree, age 23 $ 3,553 85' For the death of Mary L. Morris, age 46. 3,000 00 For the death of Marla MacDonald. age 75.... ....···· 685 00 For the death of the boy A. M. 'l"immerman, age nearly 5......... 602 00 To Hannah Klein, age 46........................... ..... ...... 25000 To Leonard R. Miller, age 68.................................. 2,500 00 To George F. Cook, age 28..... 227 50 $10,81885
The above sums include the items for baggage of McCree and Cook not yet paid to them, and also the funeral expenses of the deceased, as proved. . The claim for the death of Mary L. Morris is made by her husband, Michael F. Morris, who has been appointed administrator. She left surviving two children, namely, May 16, and Fred 15, years old. The evidence shows that the husband for some time past had abandoned both wife and children, did not live with them, and contributed nothing to their support. The children were supported by the mother. By the statute of New Jersey, where they resided. the recovery for the death of Mrs. Morris would go to her husband. It is manifest, however, upon the evidence of his abandonment of his family, that he personally Buffers but little, if any, pecuniary damage from his wife's death; and pecuniary damage is all that the statute allows. It is the children who really suffer pecuniary loss through their mother's death; and their father is legall.v bound to support them, though he is without responsibility for not doing 80.
95 FEDERAL REPbR:'rER.
tJOu&idel.'ling the proofs; therefol'e!, ,as to the character, previous life and irresponsibility of the husband, the payment of the above lowance for the death of Mrs; Mor:r'is will Dot be made except upon condition that security, approved by this court, shall M first given for the application of three-fourths of the amount above awarded, both principal and interest, to the ,use, benefit and support of the two children above named. The net proceeds of the sale of the St. Johns paid into the registry of the court in:thisproceeding are $23,944.52. From this amount after deducting the aniount of $10,818.35 allowed for personal injuries and deaths, and $4,647.20 for baggage and cargo, there will l'ernain the sum of $8,478.97 only, which is far less than sufficient to'niake good one-half of the loss 'on the part of theOatskill, even at her valuation of $48,719.66, as fixed by the commissioner. The insurers on the Catskill having intervened for their interest, after paying in full as for a total loss upon a valued policy of $20,000, have excepted to the commissioner's report, and contend: that her should have been fixed at from $65,000 to $75,000. In view, however, of the small sum remaining for distribution, it is wholly immaterial whether her value was $48,000 or $75,000 unless the owners of the Catskill and their insurers by subrogation, would be entitled to share pro rata in the whole fund with the other damage claimants. 2. The Catskill, having been held in fault in thispl'oceeding as well as the St. Johns, is bound jointly with the latter to make good all damage claims; and any amount recoverable from the' St; "Johns which might otherwise beapportionable to her, on account of her own damage, must be held applicable to make good all outside claims for which she is bound equally with the St. J.ohns. As between these different the owners of the Catskill are equitablyestopped from withdrawing in this proceeding any part of the fund whereby the other' damage claimants might lose any part of their demands. 'The Erinagh, 7 Fed. 235 ; The Olga, 32 Fed. 329, 331; The Eleanora, 17 Blatcht 88, Fed. Cas. No. 4,335. This is a priority in adwhich falls within the scope of rule 55 of the supreme miralty. The insurers stand by subrogation in the shoes of the owners of the Catskill, and can claim no more than her owners could claim. 3. It is further contended, inasmuch as by the law of the states of New York and New Jersey no liens are given for death claims, while a maritime lien does exist for the damages received by the Catskill, that this entitles the Catskill to a priority for her claim over the death claims. I cannot sustain this contention. Section 4284 of the Revised Statutes, providing for the distribution of the proceeds upon a surrender of the vessel, declares that the proceeds shall be distributed among the claimants "in proportion to their respective losses"; and no distinction is made between the different kinds of damage, whether to property or, person. Injuries to person and loss of life are held to be claims within the scope of the statute (In re Long Island North Shore Passenger & Freight Transp. Co., 5 Fed. 599, 624; Butler v. Steamship Co., 130 U. S. 527, 552, 9 Sup.
Ct.612), and recovery in personam against the owners of the "\Tessel for loss of .life is restrained upon the surrender of the vessel in proceedings under the statute (section 4285). It is evident, therefore, that the statute not only makes the fund derived from the sale of the vessel a fund applicable to all claims pro rata (see, alfjo, rule 55 in admiralty), but that it bars all other remedy. The necessary effect of this is to make every admissible claim a statutory lien upon the fund. The fund must be distributed, therefore, according to the statute itself, i. e. pro rata among the claims arising from the collision (Butler v. Steamship Co., supra; The }Iaria and Elizabeth, 12 Fed. 627), saving any special equitable rights as between the parties. 4. No question arises here under the Harter act as respects the liability for baggage or cargo. 'L'he claims for both were settled and paid by the owners of the Catskill, who were reimbursed, as above stated, less $100 particular average, by the insurers on baggage and cargo, and their claim for so much of the loss has beeh duly proved. The amount of this claim will, therefore, be paid to these insurers, like the other damage claims, in priority to the claim for the damage to the Catskill. 5. A question being raised as respects the abandonment of the wreck of the Catskill to her insurers, in accordance with the suggestions on the argument, in case any surplus should be found.re, maining after the payment of the other claims, a further order of reference may be taken to report the evidence upon the question of abandonment and as to who is entitled to the balance remaining.
THE SAGI:."l"AW. (District Court, S. D. New York. May 19, 1899.)
COLLISION-MEASURE OF DAMAGES-DE1\WHRAGE.
The ownerS' of a vessel injured in a collision during a voyage are not entitled to recover demurrage for the time the vessel was delayed for making repairs, they suffered no actual pecjlnlary loss from the delay.
In Admiralty. Libel against the steamship Saginaw to recover damages for collision. On exceptions to referee's report. Wheeler & Cortis, for the Persia. Robinson, Biddle & Ward, for the Saginaw. BROWN, District Judge. From the evidence and the finding of the referee, I understand that there was no actual pecuniary loss sustained by the owners through any loss of the use of the Persia during the short time she was laid up while repairing her damages from the collision, except two items of expense, namely $170 for night work in expediting her unloading after the collision, and $39.29, the cost of board for passengers during a delay of 1 day and 16 hours beyond the scheduled time of sailing, making together the sum of $209.29. The referee has allowed, however, to her owners the sum of $2,0.26.66 for the value of the use of the Persia for 3i days, the period occupied in making repairs, upon the authority of Randall v. Sprague, 21 C. C. A. 334,74 Fed. 249, 250. That case, however,