73 F. 499 | N.D. Ill. | 1896
The Australasia, belonging to the libelant, came in collision with the steamer Majestic, in consequence of which they both suffered injuries. The libel charges the Majestic with having been the cause of the collision. Upon this, after default, a decree was taken, finding the Majestic to have been in fault, and for damages. The underwriters of the Australasia and Majestic, respectively, were, with some exceptions, the same parties. My recollection is that three of the parties underwriting the former did not underwrite the latter. It appears that the damages to the Australasia have been already paid by her underwriters. I am not advised, however, whether the damages to the Majestic have yet been paid or not. In either instance, however, my conclusion would have been the same. Some of the underwriters of the Majestic now move that the decree finding her in fault, and assessing the damages, be set aside, and the libel dismissed, and, in support of the motion, contend that the libelant had at the time of the decree no remaining cause of action against the Majestic, for the reason that its damages had been satisfied by the Australasia’s underwriters.
It is insisted that, because some of the underwriters of the Australasia were also underwriters of the Majestic, this suit, which is beneficially for the Australasia’s underwriters, becomes, in substance, a suit of parties against themselves. I do not assent to this proposition. In the absence of. satisfaction of its damages, the right of the libelant to bring this action against the party in fault is, of course, incontrovertible. The receipt of its damages does not affect this right, except to enable the underwriters who have paid them to intervene, for the purpose of. having a share in the control of the case and the results of the judgment. The underwriters of the Majestic have not underwritten her liability for a tort Their contract is to make the Majestic as good as she was before the collision. The lien of the libelant and his interveners may, on proper process, be extended, not only to the remnant of the Majestic, but to the fund that covers her injury. The remnant and such fund together constitute the res against which their right of lien and action may be made to- run. What effect an innocent payment to the owners of the Majestic might have upon the liability of her underwriters I am not now determining.
Now, the fact that some of the parties who are entitled to intervene, under the libelant, are at the same time liable to make good to the res, against which the lien of the court runs, what otherwise would be lost, does not prevent this action taking the same course as if the interveners and the parties liable over to the fund were, in their personality, entirely separate. The most equitable course open for me is to give to all parties having contributed to the owners of the Australasia, on account of her damages, leave to intervene under the libel. If any of the underwriters of the Majestic wish to contest the question of her fault
