PARK .,.
OF THE EDGAR BAXTER.
the: exception of the nav:igation;of the 'vessel for orie trip,. redelving all moneys;, and presumablyliccounting therefQr to the owner. The latter 110 dealtwith',him, not:with:the libelant. '''',ThellOswer Of the owner, after auch dealing,:and after ,seizure of the vessel, IlsseFting ,that libelant was IPaster, ,carries'no 'weight. ' ' :It ie; urged-that the·.libelant sh0uld, not be permitted to recover,.for the reason that by his action in registering as master he 'has held him. sel£ out to the aflsuch,'and others have dealt with the vessel suppQsinghjtn'to ,be master,and entitled toino lien on the vessel for hisser,v. ieee;. Whether the laws for the enrollment of vessels can be considered in the lightoHhe recording acts of the state need not be determined, be. cause here nearly, if not all, of the demands againstthevessel accrued before ,tb.e trahsaction complained of. There is no suggestion that any mppliEls, ,were furnished or services rendered at the request of the libelant, :or,uponJihe faith ,of'his being master of the :vessel. The libelant's claim will be allowed as the first lien upon the fund iti:thereg:istry of the court. There must, however, be deducted from the claim the amount expended by him to the use of,the vessel, and the amount of his services upon the trip he actually served as master.
PARK V. THE HULL OF THE EDGAR BAXTER · ",", '! V.SAME.
'·1
{J?i'irict ,Oourt, 8· .D. New York. November 30. 1888.} llAmTnl:E LIENS-SHIPWRIGHTS-CoMMON-LAW LIEN-AsSIGNMENT.
A shlpwrtght i holding poss6esion ofa tug underblllUenfor repairs assigned his claim to,E;, still ho1dingpossession as the latter"! agent. The owner filed a libelz'n,p61'B01j.am to recover possession of tbe tug, without tender of the amount owing for repairs; and E. filed a libel in renHo enforce the claim for repairs. Held that, the contract being maritime, tbe claim and lien were transferable, and could be enforced in this court by the assignee; that the latter was entitled to a decree for the amount owing. and the owne.r to,a possession only on payment of that amount. r,.
In AdmiralLy. :Wilcox, Adam8 «Maeklin, for libelant Park. Carpe:num & M08her, for libelant Every. Wing;·Skoudy« Putnam, for claimant in second BROWN, J. The first-mimed libelwas filed by the owner td reC9vel" posseElSion of the tug EdgarBaxter,PQssession of which was refused on the ground that she was held unders shipwright's lien for the expense of 'certain repairs made under contract, and' fat' an E1dditiOtial Bum for ", .", ", - ' " The second libel was brought to enforce paY,1,ll@t of the amount alleged to be for,the contract work and the extra workj' the-libelant
220
FEDERAL REPORTER.
having taken an assignment of the repair claim and lien, and the shiP. wright still retaining possession as agent for Mr. Every, the assignee. The evidence shows a bona fide assignment of the shipwright's claim and lien, to obtain moneys tb pay bills that the shipwright had incurred in making the repairs. The repair bill being a maritime contract, it is considered, in this court, competent for a shipwright to transfer his common-law lien along with his claim, and to enforce such a lien at the suit of the assignee in admiralty for the sale of the vessel, or of the owner's interest in it, in order to satisfy the common-law lien. The B. F. Woolsey, 7 Fed. Rep. 108, 116; The Two Marys, 10 Fed. Rep. 919, 925; Nash v. Mosh(f1', 19 Wend. 431; 3 Pars. Couto (6th Ed.) 244; 2 Kent, Comm. 639. Both libels were, therefore, properly filed. The libelant Park is entitled to possession of the vessel on payment of $1,578, without interest; and Every is entitled to a decree in his suit for the same sumj and the costs of the two suits must be divided be, tween the parties.
THE ONTARIO.
(Dlatrict (Jourt, E. D. Michigan.
January 2,1889.)
1.
:MARINE
Under a marine policy exempting the underwriter from liability for" all perils. losses. misfortunes. or expenses consequent upon, or arising from, or caused by, * *' * the want of ordinary care and skill in navigating said reco,v,er general average expenses incurred in resvessel," the cuing the vessel from a peril brought about by negligence in her navigation. , ,. ,
POLICy-:"ExEHPTIONS-NEGLIGENCE OF INSURED.
2.
SAME.
Where a vessel was negligelltly,run ashore, and, a storm coming on, was voluntarily scuttled to save her from total loss. and other general average expenses were s\lbsequently incurred, held, that the stranding, and not the storm, was the proximate cause of the loss. .
(Bgllabu8 by the (Jowrt)
In Admiralty. This was a libel by the Northwestern Transportation Company, owner of the Ontario, against the Boston Marine Insurance Company, to recover a general averftge loss. The facts connected with this loss were substantially as follows: The propeller Ontario, valued at $55,000, was insured against total loss and general average only in five companies, of which .· the respondent was one. The policy in suit contained the following exception to the general liability of the respondent as insurer: "Excepting all perils, losses, misfortunes. or expenses consequent upon, or arising from. or caused by, the follOWing or other legal.excepted causes: 'I< * * Damages that may be done by the v:essel hereby insured to any other vessel property; incompetency of the master or inSUfficiency of the crew, or want of' ordinary care and skill in navigating said vessel, and in loading, stowing, and securing the cargo of said vessel; rotte'nness, inherent defects, overloading. and all other unseaworthiness; theft, barratry, or robbery."