fourth sections of the act of March 3, 1851, entitled "An act to limit the liability of shipowners and for other purposes" now embodied in sections 4283 to 4285 of the Revised Statutes, as now or hereafter amended or supplemented, the said owner or owners shall and may file a libel or petition in the proper District Court of the United States, as hereinafter specified, setting forth the facts and circumstances on which said limitation of liability is claimed, and praying proper relief in that behalf; and thereupon said court, having caused due appraisement to be had of the amount or value of the interest of said owner or owners, respectively, in such ship or vessel, and her freight, for the voyage, shall make an order for the payment of the same into court, or for the giving of a stipulation with sufficient sureties or an approved corporate surety for the payment thereof into court with interest at the rate of six per cent. per annum from the date of said stipulation and costs, whenever the same shall be ordered; or, if the said owner or owners shall so elect, the said court shall, without such appraisement make an order for the transfer by him or them of his or their interest in such vessel and freight to a trustee to be appointed by the court under the fourth section of said act; and, upon compliance with such order, the said court shall issue a monition against all persons claiming damages for any such embezzlement, loss, destruction, damage or injury, citing them to appear before the said court and file their respective claims at or before a certain time to be named in said writ, not less than 30 days from the issuing of the same; and public notice of such monition shall be given as in other cases, and such further notice served through the post office, or otherwise, as the court, in its discretion, may direct; and the said court shall also, on the application of the said owner or owners,. make an order to restrain the further prosecution of all and any suit or suits against said owner or owners in respect to any such claim or claims.'' 10

"In the proceedings aforesaid, the said owner or owners shall be at liberty to contest his or their liability, or the liabilty of said ship or vessel for said embezzlement, loss, destruction, damage or injury (independently of the limitation of liability claimed under said act), provided he, it or they shall have

10 Adm. Rule 51.

complied with the requirements of Rule fifty-one and shall also have given a bond for costs and provided that, in his or their libel or petition, he or they shall state the facts and circumstances by reason of which exemption from liability is claimed; and any person or persons claiming damages as aforesaid, and who shall have filed his or their claim under oath, shall and may answer such libel or petition, and contest the right of the owner or owners of said ship or vessel, either to an exemption from liability, or to a limitation of liability under the said act of Congress, or both, provided such answer shall in suitable allegations state the facts and circumstances by reason of which liability is claimed or right to limitation of liability should be denied." 11

"All the preceding rules and regulations for proceeding in causes where the owner or owners of a ship or vessel shall desire to claim the benefit of limitation of liability provided for in the act of Congress in that behalf, shall apply to the Circuit Courts of Appeals of the United States where such cases are or shall be pending in said courts on appear from the District Courts." 12

The Hepburn Act regulating the respective rights of shippers and carriers, 13 does not repeal any of the provisions of these sections of the Revised Statutes, 14 nor does the Employers' Liability Act, of April 22, 1908.15

The owner, who has chartered the vessel,16 a part owner,17 the charterer, 18 and an insurer, to whom a vessel has been abandoned as a total loss, 19 may take the benefit of the statute. The Director General of Railroads was allowed the benefit of the statute,20 but not, it has been held, a towing company which

11 Adm. Rule 53.

12 Adm. Rule 55.

13 Act of February 4, 1887, ch. 104, 24 St. at L. 379, Comp. St. 1901, p. 3154; Act of June 29, 1906, ch. 3591, § 7, 34 St. at L. 595, Comp. St. Supp. 1907, p. 909.

14 The Hoffmans, 171 Fed. 455. 15 35 St. at L. 65 (Comp. St. Supp. 1909, p. 1171). The Passaic, C. C. A., 204 Fed. 267.

16 Quinlan v. Pew, C. C. A., 56 Fed. 111, 5 C. C. A. 438.

17 Benner Line v. Pendleton, 210 Fed. 67.

18 Thorp v. Hammond, 12 Wall. 408, 20 L. ed. 419.

19 Craig v. Continental Ins. Co., 141 U. S. 638, 12 S. Ct. 97, 35 L. ed. 886.

20 The Virginia, 264 Fed. 986.

had engaged another to perform its contract for towage,21 nor a lighterage company, which, in order to fulfill a contract to transfer cargo, had chartered a lighter, the owner of which employed the stevedores and superintendent of the work.22

Claims on behalf of the United States were thereby released.23 The statute applies to liability for a tort; although this is not maritime nor cognizable by admiralty, 24 such as a collision with a structure on the land.25 A claim for salvage after a collision is one of the debts and liabilities of the owner, limitation for his liability for which is determined by the proceedings.26 It may be, however, that a highly meritorious salvage service, which benefits both the owner and the other claimants, is entitled to a preference upon the distribution of the fund.27 It may be that claims for general average are also entitled to a preference.28

The limitation may be obtained, although there is but a single claim.29 Where, however, it clearly appeared from the appraisement or otherwise that all the claims which can be asserted do not exceed the value of the property surrendered the petition will be dismissed.30

21 Re Reichert Towing Line, C. C. A., 251 Fed. 214.

22 Smith v. Booth, 110 Fed. 680; aff'd in C. C. A., 122 Fed. 626, 58 C. C. A. 479.

23 U. S. S. v. Hamburg-Amerikanische Packetfahrt Actien Gesellschaft, C. C. A., 212 Fed. 40; The Florida, 212 Fed. 334.

24 Richardson v. Harmon, 222 U. S. 96, 56 L. ed. 110; The Steam Dredge No. 6, 222 Fed. 576; The Rochester, 230 Fed. 519; The No. 6, C. C. A., 241 Fed. 69,

25 Richardson v. Harmon, 222 U. S. 96, 56 L. ed. 110. This relieves the case of Ex parte Phoenix Ins. Co., 118 U. S. 610, 30 L. ed. 274, decided before the statute was amended. It has been held that the statute does not apply to an injury caused to a man on a pier by a collision of the vessel with the Elwell v. Bender, 79 Hun

same.

(N. Y.) 243, 29 N. Y. Supp. 357.

26 Richardson v. Harmon, 222 U. S. 96, 56 L. ed. 110; The San Pedro, 223 U. S. 365, 56 L. ed. 473.

27 The San Pedro, 223 U. S. 365, 376, 56 L. ed. 473. See The H. F. Dimock, 186 Fed. 662.

28 The H. F. Dimock, 186 Fed.

662.

29 White v. Island Transportation Co., 233 U. S. 346; Strong v. Holmes, C. C. A., 238 Fed. 554.

30 The Dauntless, 212 Fed. 455; Shipowners' & Merchants' T. Co. v. Hammond Lumber Co., C. C. A., 218 Fed. 161; The George W. Fields, 237 Fed. 403; Shipowners' & Merchants' Tugboat Co. v. Hammond Lumber Co., C. C. A., 251 Fed. 266. But see The Defender, 201 Fed. 289; The Tug No. 16, 237 Fed. 405. The court is not ousted of jurisdiction by the recovery by the claimants of less than the stipulated

The recovery of insurance is no defense to the petition.31 A surrender of the vessel to the insurer does not relieve the ship from liability.32 The proceedings have no effect against a party who has already obtained a satisfaction of his demands.33 The statute does not relieve the owner from any individual liability to material-men or repairers or others which he may have incurred; 34 nor for his personal warranty of seaworthiness,35 nor from liability for overloading which is included in such warranty; 36 nor for the recovery of charter hire paid in advance.37 The right to secure a limitation is not waived by giving a stipulation for a release of the vessel.88

The proceeding may be instituted after a decree in admiralty against the owner or the vessel,39 or after judgment against him in a State court,40 but the court of admiralty may compel the petitioner to pay the costs of a suit in the State court that has proceeded to trial,41 and also, a sum equal to the deterioration in value of the property surrendered, since the claim originated with interest from the date of the liquidation of the claim.4 42 The petition may be filed before any suit has been brought to enforce the liability and in case a suit has been brought before any property has been attached or seized or at

value of the boat, where their original claims were greater than such value. Briggs v. Day, 21 Fed. 727. 31 The Pere Marquette, 203 Fed. 127.

32 The City of Norwich, 118 U. S. 468, 505, 30 L. ed. 134,, 147.

33 New York & W. Steamship Co. v. Mount, 103 U. S. 239, 26 L. ed. 351; reversing 18 Fed. Cas. No. 10,200, 9 Ben. 44.

34 The Leonard Richards, 41 Fed. 818; Gokey v. Fort, 44 Fed. 364, 366; American Warehouse & Trading Co. v. Davison Lumber Co., C. C. A., 240 Fed. 126 (for wharfage).

35 Pendleton v. Benner Line, 246 U. S. 353; Capitol Transportation Co. v. Cambria Steel Co., 249 U. S. 334; The Julia Luckenbach, C. C. A., 235 Fed. 388.

36 The Benjamin Noble, 232 Fed. 382.

37 Re Sugar Products Co. et al., 247 Fed. 623.

38 The Rochester, 230 Fed. 519; Société Napthés Transports v. Bisso Towboat Co., C. C. A., 241 Fed. 463. 39 Monongahela River Consol. Coal & Coke Co. v. Hurst, C. C. A., 200 Fed. 713; Lindley v. Ross, 200 Fed. 733; The Defender, 214 Fed. 316; The Ethelstan, 246 Fed. 187.

40 Gleason v. Duffy, C. C. A., 116 Fed. 298; The T. W. Wellington, 235 Fed. 728.

41 Gleason v. Duffy, C. C. A., 116 Fed. 298; The Ocean Spray, 117 Fed. 971.

42 The T. W. Wellington, 235 Fed. 728. See The Defender, 214 Fed. 316.

any other time.43 The proceeding is not in rem, but partakes rather of the character of a loss in personam.44

3

§ 593a. Vessels in respect to which limitation of liability may be obtained. The statute applies to all vessels at sea, including fishing vessels, lighters,2 barges, tugs and their tows, temporarily sunken drill boats and to all vessels engaged in inland navigation on lakes, rivers and canals, including canal boats; 7 but not to dry dock although capable of floating and being towed.8

It was held to apply to vessels in the possession of the Director General of Railroads.9

The statute applies to foreign as well as to domestic vessels.10 Owners of a foreign vessel may, in a proper case, file a petition for the limitation of their liability.11 Owners of a domestic vessel may be relieved from their liability to a foreign vessel and its owners by proceedings under the statute.12 When the injury is caused by a collision between a foreign and American vessel, the American statute applies, although the law of the vessel's flag imposes a severe liability.13 The same rule applies to an injury caused by the navigation of a foreign vessel, upon the high seas where there are claimants of different nationalities, although by the law of the flag, the liability of the owner cannot be limited to the extent authorized by the United States.1 14