As respects the tug’s liability, I am asked to reconsider the subject in the light of testimony presented by the assurance company before the commissioner. This testimony was produced solely to account for the company’s delay in making claim, and is of no material value in considering the question of liability. It consists mainly of opinions of the company’s agents based upon what they learned after the occurrence. One or more of them visited the locality of the accident to ascertain the feasibility of reclaiming some part of the cargo, and for that purpose alone. The testimony shows that this was the subject of their inquiries, and that the question of the tug’s liability was not mooted. These opin
As respects the assurance company’s claim to participate in the distribution, the question is interesting, if not difficult. In the absence of Woodworth v. Insurance Co., 5 Wall. 87, I would allow the claim. After a careful examination, I am satisfied that a decree in favor of one lien holder does not of itself entitle him to a preference over others of the same class (in this country), where the proceeds of a vessel are in court for distribution. Neither the date of issuing process nor obtaining a decree is important in this respect.
But especially is this so where the proceeding is governed by the act of congress for limitation of vessel owners’ liability. All parties having liens are entitled to share in the distribution, unless their rights have been forfeited. Henry, Adm. 201; The Martha, No. 44 of 1884, Dist. Ct. E. D. Pa.; The Sarah, No. 58 of 1880, Dist. Ct. E. D. Pa.; The E. A. Barnard, 2 Fed. 719; The City of Tawas, 3 Fed. 173; U. S. v. Ames, 99 U. S. 35; The Rose Culkin, 52 Fed. 331; The Benefactor, 103 U. S. 244; The City of Norwich, 118 U. S. 491 [6 Sup. Ct. 1150]; Providence & N. Y. S. S. Co. v. Hill Manuf’g Co., 109 U. S. 578 [3 Sup. Ct. 379, 617]; The Triumph, 2 Blatchf. 433, note [Fed. Cas. No. 14,182]; The Saracen, 6 Moore, P. C. 56; The Phebe, 1 Ware, 365 [Fed. Cas. No. 11,065]; The Fanny, 2 Low. 509 [Fed. Cas. No. 4,638]; The America, 16 Law Rep. 264 [Fed. Cas. No. 288]; The Arcturus, 18 Fed. 744; The J. W. Tucker, 20 Fed. 131; The Julia, 57 Fed. 235.
Aside from this question, however, I am, unable to distinguish the case before me from that of Woodworth v. Insurance Co., 5 Wall. 87. In that case the supreme court held that where one of two parties injured in a collision institutes proceedings against the vessel in fault, and at his own expense prosecutes the suit to condemnation, the other, who has contributed nothing to establish the vessel’s liability, but bas stood by, taking no part, cannot share the proceeds of the vessel, or receive any thing therefrom until the claim of the other has been satisfied. Here the assurance company not only stood by, doing nothing, but as the commissioner has found, refused to assist when requested. Indeed it discouraged, or sought to discourage, the original libelant by suggesting difficulties in the way of a recovery. Under such circumstances the supreme court seems to regard it as inequitable to allow one occupying the position., of the assurance company to participate in the distribution, and therefore treats him as having waived or forfeited his claim in so far as the original libelant is concerned.
All exceptions are dismissed and the report confirmed.