71 F. 891 | E.D. Pa. | 1896
The following statement of facts is ad opt (id:
On September 2i, 1886, a libel was tiled in the district court of the United states for the Southern district of New York by the Deep Sea Hydraulic Dredging Company, owner of the dredge Queen, against the steamship City of Alexandria and the steam tug Argus, to recover damages for the sinking on September 9, 1886, of the Queen, while in tow of the Argus, by a collision with the City of Alexandria. The libel alleged specific faults contributing to the collision on the pari; of both vessels.
Process was issued to tlie marshal, and the marshal made return on I he process that he had been unable to find, the Argus in his district. The owners of the City of Alexandria appeared and gave bonds for her, and they answered the libel.
The cause was tried on the issues raised by the libel, and the answer of the City of Alexandria and the amended libel and amended answer. On June 17, 1887, the judge made his decision [81 Fed. 427] an<i4on the 11th of October, 1887, the district court made its
The libelants must of course show a lien as the foundation of their suit. As I understand their position it is that the Argus was jointly responsible for the collision, and that a lien in their favor against her resulted from the collision (although the Alexandria sustained no damage thereby) for such sum as it might be decreed to pay the Queen on account of the Argus’ fault; and that they may therefore sue the latter as they have done, and recover accordingly.
The position of the insurance companies is that the Argus was in fault, and that having paid the insurance on the Queen and taken an assignment of her rights, they may sue upon her lien against the Argus, and recover what the Queen might have recovered thereon.
In my judgment, no lien accrued to the Alexandria from the collision. No authority in support of the libelant’s position is cited, and I do not know of any which tends to sustain it. The position seems unreasonable. The Alexandria was not injured by the collision. The injury which her owners have sustained, if they sustained any of which they can complain, resulted from the. failure to attach the Argus in the Queen’s suit, the subsequent decree of the court and the payment of money under it which the Argus should have paid. They were not hurt until required to pay; and it would not be known that they would be so. required until the decree was entered. Their ground of complaint against the Argus is not, therefore, that she injured them by contributing to the collision, but by failure to pay damages to the Queen which she should have paid. I am satisfied that if the libel can be sustained it-must rest on the Queen’s lien (if she had any) against the Argus. If a lien resulted to the Queen from the collision, against the Argus it is possible that the
As the conclusion reached is fatal to both the libelants and the insurance companies it is unnecessary to consider other questions discussed.
The libel must be dismissed, and the costs be borne by the libelants and insurance companies equally.
In the suit brought by the insurance companies against the owners of the Argus in personam for the same cause of action, a decree must be entered dismissing the libel with costs.