43 F. 166 -

166

"I :

vol. 43.

.

; ·. PORNEU,

THE, JERSEY

CITy. 1

' ,

v.

THE JERSEY

CITY.

; ,(Dtsi'lict

CoLLt9I01¢H5u1I:l«JGATION.

Oourt, E. D. We:w

.", .

York. JUly 21,1890.)

lipq, \Il<¥>ntraot aUtlleboat& of the Delaware & HU'dsoD Olirial Company·. While, towing one of their boats, it was run into and :,!l1,ih,k,',b,Y,' 8' :fer,rY-boat.The, ca,n,aleotnpan,y, olaimedthat, the libelant was, liable to them for the damage., Libelants: denied this, notwithstanding which the oanal , ,oom'panydeducted the amount of the damages from their next payment to libelants. ":: ': Libelants:tefUsed to recognizetbeir 'right to make this deduction, but the money ,,',' wlth)J,ellii until the statute of limitations was about to tun in fMor of the col. "Udirig ferry-boat, when the,hbelants assented to the deduction, and brought this , action in their own name against the fllrrY-boat. On exception to the libel on the ,ground that.itshowed no cause of ,action in favor of the libelants, held that, under the cil;cuInstances, libelantS were subrogated to the rights of the canal oompany, ; and the exception should be overruled·

.

.,1 In Admiralty.

On exception to libel.

Robert D. Benedict, for libelants. .RobinBOn, Bright, Biddle '&: Ward,. for claimants.
BENEDIC'J.'I, J ... This action is brought by the ,owners of the tug-boat Genl.Sheddan, to recover of ii-he ferry-boat Jersey City the damages done to the coal-boat No. 3,O.%ljand her cargo of coal, while being towed by the Genl. Sheridan, in a collision between that boat and the ferry..b6at, Jersey City· The libel avers that the collision was caused by .the sole negligence of the ferry..boat; that the libelants have paid to the Delaware & Hudson Cana1JCotnpany, the owners of the coal-boat No. 3,059, the damages so caused; and that by reason thereof they have been subrogated to the rightsof the Delaware & Hudson Canal Com pany to recover said damages of the ferry-boat. ,Wherefore they pray to recover of the said ferry-boat the sum they have so paid the Delaware & Hudson Canal Company. To this lIbel the exception is taken that it . sets forth no cause of action, because the libelants' payment of the Delaware & Hudson Canal Company's claim, as owners of boat No. 3,059, and cargo, for damages sustained while in charge of the libelants' tug, Genl. Sheridan, confers no right of subrogation upon the libelants. It appears by the evidence that the libelants had a contract with the l)elaware & Hudson Canal Company to tow all their boats at certain prices, for which they were to be paid on the 10th day of each month. . This towing they agreed to do in a skillful, judicious, careful, and effective manner, and they also agreed to pay all damages and losses that the Delaware & Hudson Canal Company might sustain by reason of the omission of the libelants so to do such towing. Upon the happening of the collision in question, the Delaware & Hudson Canal Company set up the claim that the libelants were liable to them for the damages done the coal-boat. This the libelants denied, notwithstanding which
l

'Reported by Edward G. Benedict, Esq., of the New York bar.

'.tHE JERSEY

CJ'.i'v;

167

the Delaware & Hudson Canal Company deducted the amount of the damages from the next payment due the Cornell Steam-Boat Company under the towing contract. The Cornell Steam-Boat Company refused to recognize the right to make this deduction, but the Delaware & Hudson Canal Company held back this amount from the towing bills until the statute of limitation was about to run in favor of the ferry-boat. Then the Cornell Steam-Boat Company assented to the deduction, and at once brought this action. - In determining the question raised by the exception it must be conceeded that payment by a mere stranger confers no right of subrogation. As declared in the authorities, the rule is not, however, limited to payments by a surety, but will apply "in every instance, (except in the case of a mere stranger,) when one man has paid a debt for which another is primarily liable." Bisp. Eq. § 337. The question, therefore, is whether the position of tbeHbelants is that of a "mere stranger," within the meaning of the rule. In ACe?' v. Hotchkis8, 97 N. Y: 395, it is said that the right of subrogation IIiay be claimed by one who pays the debt of another under some compulsion; and it seems to me that the libelants,niay fairly enough be said to have paid the debt due the Delaware & Hudson Canal Company by the ferry-boat under compulsion. ,'r,hat corporation owed them money exceeding the amount of this claim for damages, 'Yhich it refused to pay except subject to a deduction of the, amount of this debt. The libelants were thus compelled to either acquiesce in the deduction made by the Delaware & Hudson Canal Company from the monthly bill, and claim to be subrogated to the right against tlle ferry-boat, or to bring a suit against the Delaware & HUdson Canal Company under the towing contract,andso put that company to a second' suit against the defendants. Byncquiescing, under cumstances, in the deduction made from their bills, and bringing this suit, theyenabled the controversy to be settled by one suit ins(e'ad of two, and equity should therefore uphold them in so doing. Furthermore, if a different course had been pursued, and the Delaware & ij:udsoh Canal Company had oeen driven to sue the ferry-boat, it would have been within th,e power of the ferry-boat to bring the libelants into that suit, they having had charge of the navigation o( the at the time she was injured. This liability to be made a party to theoontroversyis in my opinion sufficient to prevent the libelants' payment from being held to be the payment of a mere stranger. Moreover, while the ferry-boat, if compelled t9 answer to the libelants, will. be held to precisely the saIlle extent, and in precisely the same manner, as if the action were by the Delaware & Hudson Canal Company; if not compelled to answer to the libelants, they will. el;lcape allliabi),ity, and in th;s way be enabled to cast upon t4e libelants a lossfor which the ferry-boat alone may be found responsible. Evidently the position . . taken by the ferry-boat isdeyoid of equity. Under such circumstances,it will serve the, purposespf.j\lstice to pel them to answer to the libelants, and in my opinion no rule of law will be violateu thereby. "The doctrine of subrogation," says the New

168

REPORTER,

yol. 43.

York court of appeals, (Arer v. Hotchkiss, 97 N. Y. 395, 402,) "is a device to promote justice. We shall never handle it unwisely if that purpose controls the effort, and the resultant equity is kept in view." It seems to, me that the equity resulting from a recognitiop of the right of subrogation in this case, and the inequity resulting from its rejection, show that I shall not handle the doctrine unwisely iLL apply it in lavor of thelibp.lants. The exception is overruled, and the case will proceed to a hearing on the merits.

THE, SEMINOLE. t LYNCH

v.

THE SEMINOLE.

(DIstrict Oourt, E.D. New York. March 15, 18110.)
A.DMIRALTY-I'IBEL FOR POSSESSION.

, The yacht S., belonging to one 'Blunt, and then lying at Brunswick, Ga., was , purchs.sed by Leonard for $1,000, of which $150 was in cash, and $850 in notes. A , bill of sale was delivered' to Leonard, which contained no copy of the certificate of 'enrollment, anJ also an order on the persoll in charge of the boat to deliver her to Leonard or order. Leonard, the same day, sold the yacht to Lynch, this libelant, for $700, of which $110 was paid on the spot. Instead cit & bill of sale, tbe order for delivery of the yacht was given to libelant, which ,he turned over to a person whom be employed to bring the yacht to New York. Leonard afterwards' obtained this order from the employe without the knowledge of libelant, and'delivered it to one Fal'nham, who started with the yacht for New York. thereafter demanded of Leonard the bill of sale, which was refused. After the vessel arrived in New YOl'k, Leonard delivered a bill of sale to Waterhouse, his brother-in-law, for an exprllssed considel'ation of certain moneys claimed ,to have been advanced on hel'. On libel ,for possession, the various parties above , named appearing in the action, it wash-eld that the title to the boat was in Lynch, and possession of hel' would be awarded tQ him on his payment into court of the ba,ll!once of the p1ll'chase money, $590, less his taxed costs, which sum should be paid over to Waterhouse:

In Admiralty. Libel for possession. . On July 5, 1889. William Leonard purchased the yacht Seminole, then lying at Brunswick, Ga., from Edmul1.d Blunt, for $1,000; He paid Blunt $150 in cash, and gave his notes, indorsed, for the balance, $850. He received from Blunt a bill of sale of the yacht, which con· tained no copy of the certificate ofenrollment. He also received a written order on the person in charge of her to deliver her "to bearer, William Leonard, or order." Leonard, later on the same day, sold the yacht to the libelant, George M. Lynch, for $700. Lynch paid $110 in cash, and agreed to pay the balance on receipt of the bill of sale; Leonard sta:tingthat he had not yet received a bill of sale from Blunt. Leonard, however, gave the order for the delivery of the yacht to Lynch, and the latter delivered it to a person employed by him to bring the yacht from Brunswick to New York. Leonard, subsequently, on the same day, obtained the order from this person, without the knowledge or con·
,1,Reported by Edward G. Ben'ldict, Esq., of the New bar.,