DISTRICT COURT.

EASTERN DISTRICT OF MICHIGAN.

HON. JOHN W. LONGYEAR, DISTRICT JUDGE.

THE OLD CONCORD.

APRIL, 1870.

PRACTICE. RIGHT OF MORTGAGEE TO INTERVENE.-REARREST OF VESSEL.

A mortgagee of a vessel has a right to intervene in an admiralty suit for the protection of his interest.

A vessel, discharged from arrest upon giving bond or stipulation, returns to her owner forever discharged from the lien which was the foundation of the proceedings against her, and the Court has no power to order her rearrest.

It seems where the sureties become insolvent, the Court may require the claimant to furnish new sureties, on penalty of contempt, or of being denied the right to appear further and contest the suit.

MOTION to vacate order remanding vessel to the custody of the marshal.

In this case the propeller was arrested November 10, 1868, and bonded on the same day by John Hutchings, claimant, with two sureties. December 18, 1868, Hutchings mortgaged the propeller to Eber B. Ward, who intervened pendente lite, setting up his mortgage as the basis of his right to intervene. July, 5, 1869, an order was entered, remanding the propeller to the custody of the marshal, on the ex parte application of libellants, on the ground that the sureties had become insolvent

The Old Concord.

since the bond was given.

Ward now moved to vacate the

order so remanding the propeller, on the ground that the Court had no jurisdiction over the vessel after she was so bonded, and therefore had no power to make the order.

Mr. H. B. Brown, for the motion.

Mr. W. A. Moore, contra.

LONGYEAR, J. It is contended, on behalf of libellants, that Ward has no standing in Court, he being a mortgagee merely, and not the owner or an agent, consignee or bailee for the owner, as required by rule twenty-six. Rule twenty-six has been considerably altered and enlarged, if not entirely superseded by the Act of March 3, 1847 (9 Stat. 181). But the rule and the Act relate exclusively to the conditions to be complied with to entitle a claimant to avoid an arrest of the property, or to obtain its discharge after it shall have been arrested, and not to conditions necessary to entitle a party to intervene pendente lite, to participate in the distribution of proceeds, or to protect any interest he may have in the subjectmatter of the litigation.

The right of a party to intervene for these purposes has been recognized, both in England and in this country, as extending to judgment creditors who have acquired a lien, and also to attaching creditors. (See 1 Conk. Ad. 55, 66-70, citing The Flora, 1 Haggard R. 298, 303; The Rebecca, Ware's R. 204; The Mary Anne, Ware, 99.)

This being so, what reason can there be why a mortgagee should not be admitted to intervene for protection of his own interest, and contest a forfeiture so far as his right or interest would be prejudiced by the decree? I can see none. I am therefore clearly of the opinion that Ward is properly admitted to intervene as mortgagee, and consequently that he has a right to make this motion, and to be heard upon it.

The next and remaining question is as to the validity of the order remanding the vessel. I shall not stop to argue the ques

The Old Concord.

tion. It seems to be too well settled, both in this country and in England, to need further elucidation, that the vessel, on being discharged from arrest upon the giving of the bond or stipulation, returns into the hands of her owner, discharged from the lien or incumbrance which constituted the foundation of the proceedings against her, forever and for all purposes whatsoever, the surety taken being a substitute for the vessel, and the Court has no power or jurisdiction over her thereafter in the same suit or for the same cause (The Union, 4 Blatch. C. C. R. 90, 93; The White Squall, Ib. 103; The Kalamazoo, 9 Eng. L. & Eq. 557, 560; 15 Law Rep. 563).

No question of fraud, mistake or improvidence in entering into the bond, or discharging the vessel, arises in the case, and therefore need not be considered.

The only remedy that seems to be provided in a case where the sureties shall become insolvent is an application to the Court for an order requiring new sureties to be given. Disobedience to such order would put the party in contempt, and he could be proceeded against accordingly, and be denied the right further to appear and contest the suit until he complied with the order, or otherwise purged his contempt (Adm. Rule 6; Ben. Adm. sec. 492; 2 Conk. Adm. 112).

I am therefore of opinion that the Court had no power to make the order remanding the vessel into the custody of the marshal.

Motion granted.

The David Morris.

THE DAVID MORRIS.

FEBRUARY, 1871.

COLLISION IN ATTEMPTING TO PASS A RAFT.-COSTS.

A tug, having five vessels in tow, while running down a narrow, crooked channel, at a speed, with the current, of about seven miles an hour, overtook and attempted to pass a raft of timber in tow, moving at the rate of four and a half miles an hour, and occupying about one-half the width of the channel. One of the vessels grounded upon the port bank, and the one next astern ran into and injured her: Held, that the tug was in fault:

(1.) For not sooner discovering the raft, and that it was in motion; (2.) For attempting to pass it in a narrow channel.

Held, also, that the colliding vessel, not being affirmatively shown to have been negligent, cannot be held in fault..

Where the libellant claimed $70, and recovered but 30 cents, and the respondents claimed a larger amount of damages than they were able to prove: Held, that neither party should recover costs.

LIBEL for towing. The libel alleged the towing of the bark by libellant's tug, the I. U. Masters, from Lake Huron to Lake Erie, August 30th, 1868, and claimed seventy dollars for that service. The answer of Rufus K. Winslow and others, owners and claimants of the bark, admitted the towing as alleged, but denied that the same was worth the amount claimed, or that there was anything due libellants on account thereof, and claimed a recoupment to the full amount of the value of the service, on account of damages alleged to have been suffered by the bark in consequence of unskillful towing.

The facts, as deduced from the pleadings and evidence, were as follows:

The contract as to price was at the usual rate, which was seventy dollars.

There were five vessels in the tow, the bark David Morris being the fourth, and the brig Standard the fifth. A raft of square timber, also passing down, in tow of the tug Clark, was

The David Morris.

overtaken in the narrow channel across the St. Clair Flats, in the twilight of the morning of August 30th, 1868. The channel at this point is about three hundred feet wide. The raft was six to eight hundred feet long, and one to two hundred feet wide, and was passing down the channel nearest its starboard bank, but the tail of it was swinging slowly to port. The tug Masters attempted to pass with her tow on the port hand side of the raft. The first two vessels of the tow, went clear; but the third being the one next ahead of the bark, fetched up on the port bank of the channel. This made it necessary for the bark to starboard her helm, and fetch up also on the port bank, in order to avoid a collision with the vessel forward of her, which she did. The bark having thus fetched up, the vessel behind her, the Standard, ran into her, hitting her in the stern, and causing damages, to repair which cost the owners of the bark $69 70.

The tugs and their tows were moving with the current, which, at that point, was about two and a half miles per hour. The tug Clark, with the raft, was moving through the water about two miles per hour, making her total speed about four and a half miles per hour. The tug Masters, with her tow, was moving through the water about four and a half or five miles per hour, making her total speed about seven or seven and a half miles per hour.

The tug Clark was seen by the mate of the Masters when at least two miles distant, and was then taken by him to be a tug aground. It was not ascertained on board the Masters that the Clark was moving and what she had in tow until within about half a mile of her.

Mr. H. B. Brown, for libellant.

Mr. Wm. A. Moore, for respondents.

LONGYEAR, J. The question is, was the tug in fault for attempting to pass the tug and raft as she did; and was the collision and damage caused thereby?