tow her away from the burning wharf. The Carroll at once moved under the bow of the steamer, and took from her a line by which she commenced to tow the steamer. Very shortly afterwards the steam-tug Henry T. Sisson was signaled by the officer in charge of the steamer to take an additional line, which she did, but in so doing got into a position where she could bring little power to bear. At this time the Rose came, and making fast a line to the bow of the Sisson, towed that tug into a position which enabled her to pull upon the steamer. Under power of these three tugs the steamer was moved from her berth to a safe place in the stream. While she was moving, in order to prevent the steamer from being damaged by or doing damage to the pier as she moved out into the ebb tide, the officer in charge of the steamer requested the tug Fuller and also the tug Hammond to push against her port side in order to keep her away from the wharf, the tide then tending to set the steamer against the wharf. In this way the steamer was taken out of danger.

The right of the libelants to recover salvage compensation for these services, although denied in the answer, has been conceded upon the argument. The question submitted for decision relates only to the amount. Manifestly it is a case of salvage, for the steamer was removed from a place of peril to a place of safety by the voluntary efforts of these tugs. While the steamer was undoubtedly exposed to some danger, that danger was not great. The fire department with 12 engines were soon playing water upon the pier. Two fire boats made their appearance in the slip, and the result seems to indicate that their efforts would have been sufficient to prevent the steamer from receiving any considerable damage if she had remained at the wharf. Still there was risk, for it could not be known at the outset to what extent the fire would reach, and it was dangerous. The risk was considered by the officer in charge sufficient to require her removal from the pier. It is also evident that if these tugs had declined to take the steamer into the stream she could have been warped across the slip to the pier above, and so out of danger. For, although she had not steam upon her engines, her donkey boilers had steam and could have been used to work the winches. It is a case, therefore, where the value was large, but the peril was moderate. Moreover the services rendered by these tugs was short in duration, not exceeding two hours. It was not extraordinary in character, and involved no risk to them. Nevertheless, being a salvage service, the tugs are entitled to more than common towing compensation. In my opinion the sum of $4,500 will be a proper salvage award in a case like this. In apportioning this amount among the five tugs it is to be noticed that it is conceded that the service was requested by the officer in charge of the steamer in the case of every tug except the Rose. In regard to the Rose the testimony of the claimants' witness shows that the Rose rendered a necessary service in taking hold of the Sisson and pulling her into a position where she could tow the steam-ship to advantage. Many witnesses testify that the officer by signals directed the Rose to help the Sisson. The officer in charge of the steamer says that he made

signals to the Rose not to take hold. But as the Rose at once gave a line to the Sisson the officer thinks, as he says, that his request was misunderstood. If it had appeared that the Rose had intentionally taken hold in opposition to the known direction of the officer in charge of the steamer I should have refused her any compensation, but that cannot be found to be the fact upon the evidence. The Rose was the most powerful and valuable of all the tugs, but the service rendered by her was similar to that rendered by the Niel, for which no claim is made. In so far as the effort of the Rose enabled the Sisson to get into position, it was valuable, but beyond getting the Sisson into position her services were unnecessary. The Niel left when the Carroll was put in position, and the Rose could have left when the Niel did without interfering with the relief of the steamer. Under all the circumstances I allow to the tug Howard Carroll, her officers and crew, the sum of $1,250; to the tug John Fuller, her officers and crew, the sum of $800; to the tug Henry T. Sisson, her officers and crew, the sum of $1,000; to the tug George L. Hammond, her officers and crew, the sum of $650; to the tug A. C. Rose, her officers and crew, the sum of $800.

GOKEY et al. v. FORT et al.

(District Court, S. D. New York. December 24, 1890.)

1. SHIPPING LIMITATION OF LIABILITY-ACT JUNE 24, 1884-PERSONAL CONTRACTS. The act of June 26, 1884, limiting the liability of the owners of vessels "on account of the same" to their interest in the vessel and the freight pending, is to be construed as in pari materia with the act of 1851, (Rev. St. §§ 4283-4285,) and in accordance with the general maritime law, and does not embrace the personal contracts of such owners, or such as they have adopted as their personal liabilities.

2. SAME-LIABILITY FOR REPAIRS-COLLISION-RES ADJUDICATA.

Repairs were made on the schooner P. in her home port, by order or the managing agent, with knowledge of some of the owners. On the third voyage afterwards, through her fault, a collision claim arose against her, exceeding her value. The owners, upon the surrender of the vessel, and pending freight, thereupon obtained a decree limiting their liability, which decree was pleaded in bar of the claim in this suit against the owners in personam for the bill of repairs. Held, that the decree was not a bar; that the claim was a personal contract of the owners, not subject to limitation, or, if so, only upon surrender of the vessel and freight as they existed at the close of that voyage, free from liens or demands growing out of prior or subsequent voyages.

In Admiralty.

Alexander & Ash, for libelants.

Owen, Gray & Sturgis, for respondents.

BROWN, J. The libelants sue to recover a bill for repairs upon the schooner J. J. Pharo, of New Jersey, in her home port, in May, 1889. The respondents were the owners of the vessel at the time. The amount of the bill is not disputed, but the respondents set up as a defense the proceedings for the limitation of their liability subsequently taken, and

a decree of this court therein, exempting them, in accordance with the provisions of the Revised Statutes, §§ 4283-4285, and the act of June 26, 1884, (23 St. at Large, p. 57, § 18.) The libelants claim that they are not within the provisions of either act, and are not affected by the decree. In the proceedings to limit liability, the vessel was sold, and the proceeds were deposited in the registry of the court. The vessel was in the coasting trade, and on the 31st of July, 1889, by her own fault, came into collision with the brig Kaluna, inflicting damages that exceed the proceeds of the vessel deposited in the registry, and the decree was founded upon those claims. The vessel had been run upon shares by the master. He acted as ship's husband and managing agent, transacting all her business, and reporting to the owners. The repairs in question were incurred in the yearly overhauling of the ship. They were ordered by the master, under his authority as managing agent, in the home port, with the knowledge also, at the time, of some of the owners. The collision was about two months after the repairs were made, and upon the third voyage after their completion.

1. In the case of The Alpena, 8 Fed. Rep. 280, it was held by Judge BLODGETT, in construing the act of 1851 and the provisions of the Revised Statutes, that each voyage or trip

"Must be treated as a separate venture, involving its own particular hazards, losses, and earnings; and that, when each such voyage is ended, it is for the owner to decide whether the losses have been such as to make it expedient for him to invoke the protection given by this act of congress. * * * The language as well as the evident reason of the statute shows that this proceeding can only be had for the purpose of apportioning the owner's interest between several persons who have suffered losses on the same voyage."

Claims arising out of prior voyages were therefore held excluded from the limited liability proceedings, and not to be bound by the decree therein. I concur in the conclusion reached by Judge BLODGETT in that case, although the practice seems to be that liabilities for torts arising out of a prior voyage, unliquidated and undefined in amount, and often wholly unknown, may be limited upon a surrender of the vessel or her value after a subsequent voyage; the value and freight being determined according as they existed at the close of the prior voyage. See The Benefactor, 103 U. S. 239, 245, 9 Ben. 44, 47; The City of Norwich, (Place v. ·Transportation Co.,) 118 U. S. 468, 491, 6 Sup. Ct. Rep. 1150; The Great Western, 118 U. S. 525, 6 Sup. Ct. Rep. 1172; The Doris Eckhoff, 30 Fed. Rep. 140. I think the act of 1884 is doubtless to be treated as in pari materia with the act of 1851, (Rev. St. §§ 4233, 4285,) and designed to extend the act of 1851 to cases of the master's acts or contracts, and thus to bring our law into harmony with the general maritime law on this subject. Butler v. Steam-Ship Co., 130 U. S. 527, 553, 9 Sup. Ct. Rep. 612; The Amos D. Carver, 35 Fed. Rep. 669; Force v. Insurance Co., Id. 778; Miller v. O'Brien, Id. 779, 783. The act of 1884, like the act of 1851, limits the owner's liability to the "value of such vessel and freight pending." But there is no "freight pending," except upon the current voyage; and this shows that the debts of the last voyage only are

intended. It cannot be that prior debts are to be included but not prior earnings. The City of Norwich, ut supra. In the case of debts contracted for the benefit of the ship and of her owners, which are known, and are for known or ascertainable amounts, and of which the owners reap the benefit in the improvement of the ship, and in the freights subsequently earned, there may be sufficient reason to hold that the owners, having knowledge of such debts, adopt them as their own personal liabilities, if the vessel is sent out upon subsequent voyages, and that by so doing they lose their right to limit their liability in respect to such beneficial contracts, even if they were not at first personally liable therefor. 2. But the respondents were individually liable for the contracts of their managing agent, made in the home port, in the ordinary repair of the vessel, these repairs being known and approved by some of the owners. The Two Marys, 10 Fed. Rep. 923; Scull v. Raymond, 18 Fed. Rep. 549. It has been held that the limitation provided by the act of 1884 upon the liabilities of the owners "on account of the ship" does not extend to their personal contracts, but only to the debts and liabilities that arise out of the navigation or business of the ship, or from the contracts of the master, under his general powers in the course of the voyage. The Amos D. Carver, supra; McPhail v. Williams, 41 Fed. Rep. 61. Such has long been the construction of the broad provisions of the ordinance of Louis XIV., as well as of the similar provisions of section 216 of the Code of Commerce, (1 Valin, Comm. 568;) Emerigon, Cont. à la Grosse, c. 4, § 11; 2 Desjardin, Droit, Com. Mar. §§ 283-286; 2 Valroger, Com. du Code de Com. § 256. And, in general, repairs made in the home port by the owners, or by their authorized agent, are treated as the personal debts of the owners, and cannot be discharged by a surrender of the vessel. It is the same with the captain's foreign contracts from the time they are ratified by the owners. Several of the maritime codes thus expressly provide. See Italian Code Mar. § 491; 3 Revue, Internat. du Droit Mar. 316, 318; 4 Revue Internat. du Droit Mar. 337-339; and Desjardin, ut supra. Valin says: "There are cases, however, in which the owner cannot free himself by making this abandonment. * * * The reason is, because these debts are his own personal debts, as much as if he had contracted them himself." "It is universally recognized in modern law," says Desjardin, (section 283,) "that the right of abandonment cannot be invoked by the owner in order to limit his own personal obligation. The right of abandonment ceases also if the obligation at first contracted by the captain is ratified by the owner; it is the same as if the owner had acted himself. (Section 284.) All legislations that permit the owner to limit his obligation by abandonment disallow this right from the time he has transformed the captain's engagement into his own personal obligation." (Section 286.) In the case of Norwich Co. v. Wright, 13 Wall. 104, 120, and of The Scotland, 105 U. S. 24, 28, 29, Mr. Justice BRADLEY, in delivering the opinion of the supreme court, states that "the act of congress seems to have been drawn with direct reference to these previous laws," and that "the rule adopted by congress is the same as the rule of the general maritime law." The City of

Norwich, 118 U. S. 468, 490, 6 Sup. Ct. Rep. 1150. The general purpose of both is the same. The object of both was to encourage ship-building and commerce, and to enable persons having a moderate capital to engage in commerce without becoming liable for an indefinite amount beyond what was invested in the enterprise, through the faults or contracts of others. This principle becoming, early in the middle ages, a rule of the maritime law, secured, to a considerable extent, for persons engaging in commerce, the same beneficent results that the municipal law educed by other means; namely, by the formation of corporations, and, more latterly, by associations "limited," by which individuals may engage in trade without being liable beyond the amount of invested capital.

Construing the acts of 1884 and 1851 in the light of these decisions, and of the general maritime law which it was their purpose to introduce into our jurisprudence, I must hold that the decree set up in the answer, limiting the liability of the respondents, as a decree based on claims growing out of a subsequent voyage, does not affect the libelant's prior demand, and that this prior demand was from the first a personal liability of the respondents, and not subject to limitation at all; and that, if it were, it could only be thus limited upon the surrender of the vessel, or her value and the freight as they stood at the end of that voyage, free from all demands or liens growing out of any of her other voyages prior or subsequent.

Decree for libelants, with costs.

THE LAGONDA.1

THE JAMES A. GARFIELD.

MATHIESEN v. THE JAMES A. GARFIELD.

(District Court, E. D. New York. December 17, 1890.)

1. DEMURRAGE-YACHT.

Demurrage may be recovered for the detention of a yacht, caused by a wrongful act, at the market rate of such craft, though the yacht was never let for hire, and no substitute was employed during the time of such detention.

2. SAME

AMOUNT OF DEMURRAGE-EXPERT TESTIMONY.

The amount of demurrage to be recovered by a pleasure yacht may be shown by the testimony of those engaged in chartering yachts, as to what, in their opinion, the owner could have obtained for her use during the period of detention.

In Admiralty. On exceptions to commissioner's report. See 42 Fed. Rep. 304.

R. D. Benedict, for libelant.

Goodrich, Deady & Goodrich, for claimant.

BENEDICT, J. This case comes before the court upon exceptions to the commissioner's report. The action is brought to recover the dam

'Reported by Edward G. Benedict, Esq., of the New York bar.