30 F. 140 | S.D.N.Y. | 1887
The bark Doris Eckhoff, having been libeled for damages iuiliclod upon the libelant’s vessel, both being in tow of steam-tugs, was released from custody upon the execution of a stipulation for the sum of §8,000, her appraised value. Both vessels, as the evidence shows, were damaged by the collision. Prior to the hearing, an amendment to her answer was allowed, setting up the statutes in limitation of liability as a partial defense. The libelant now contends that the owners of the bark and the stipulators are estopped by the appraisement and the stipulation in the sum of §8,000 from proving that her surrender value, for which her owners would be accountable under the statutes in limitation of liability, is any less than the amount of their stipulation given in this causo. I cannot sustain the libelant’s position. There is no doubt that the stipulation stands in the place of the res, and that the stipulators, to the extent of their stipulation, arc substituted for the steamer, and are liable “to the exercise of all those authorities on the part of the court which the tribunal could properly exorcise if the thing ■were still in the custody of the court.” The Webb, 14 Wall. 418; U. S. v. Ames, 99 U. S. 36. If the bark were still in custody, the amount which her owners would be obliged to pay in order to exonerate themselves from liability would be, not her value as she then was, but her value immediately after the collision, or after the termination of the voyage. The Great Western, 118 U. S. 520, 525, 6 Sup. Ct. Rep. 1172. The value of the repairs that might have been made upon her in the meantime would be excluded. The City of Norwich, 118 U. S. 468, 471, 6 Sup. Ct. Rep. 1150.
When the bark was appraised, and released upon the stipulation for $8,000, it would seem that no proceedings in limitation of liability were contemplated. This limitation was not sot up in the original answer. The object of the stipulation ivas simply the immediate release of the vessel, and her delivery to her owners, without reference to any question of limited liability. When it afterwards appeared that application for a limitation of liability might ho expedient, there is no good reason why the owners should be precluded from showing the actual vsduo of the vessel at the termination of the voyage, exclusive of any repairs between that timo and the time when the stipulation was given. The objects of the two stipulations are quite distinct, — the one is for the immediate possession of the vessel as she is; the other, for the payment into court of her value in her damaged condition at the close of the voyage, or security for that value. If the vessel were still in custody, upon the amend
It will doubtless be the duty of the commissioner to scrutinize closely any efforts that may be made to depreciate unduly the value of the bark in her damaged condition, or her value when repaired. There is no reason, however, to apprehend any such attempt in this case more than in ordinary cases. That is no reason for holding the owners or the stip-ulators to the value of $8,000, which plainly was not intended as her damaged value, nor given in reference to proceedings in limitation of liability; and upon the precedent of The Oity ofNormch it is clearly the duty of the court to admit proof of her value at the close of the voyage, and before repair.
Since writing the above, I find that similar proof in reduction of liability upon a bond for value was admitted by Dr. Lushington in the Case of JDuehesse De Brabant, 1 Swab. 264. '
