17 F. 653 | U.S. Circuit Court for the District of Southern New York | 1883
The district court awarded priority of claim and lien to the Phenix Insurance Company, and directed that the §34,500 and all accumulations of interest thereon be paid to it. The Conways appeal from such award and direction. The view of the district court was that the interest or lien of the Conways in tho tug, growing out of the damage suffered by the canal-boat and cargo at the earlier date, was liable to respond for the damage to the barge at the later date. I cannot concur in this view. This is a case where there was no priority of attachment or seizure of the vessel, although the libel for the second damage was first filed, and it is not a ease where either claim can be considered as other than one sounding in damages for a tort. The contention on the part of the Phenix Insurance Company is that the claims arising out of the two torts are
The decree of the district court must be reversed, as to the matters appealed from, with costs of the appeal, and priority of lien and of payment out. of the fund be awarded to the Conways, and both cases be remanded to the district court, with directions to that court to proceed with the reference in the suit brought by the Conways, and to take such further proceedings thereafter as may not be inconsistent with the findings and opinion of this court.