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The witnesses for the Yankee differ very materially. Fulford, who was on the Bat, a sloop of the same class as the Hugi, states that he saw the Hugi on the starboard tack and saw her change to go upon the port tack, but did not see her fill away so that she was on the port tack.

Chase, who was on the Idler, saw the Hugi on the starboard tack, saw her come about, and says that as she came about Wood, who was sailing her, stooped to look under the boom, looked across in the opposite direction from the Yankee, and was looking there at the time of collision; that the Hugi had sailed possibly 100 feet on the port tack before the collision; that the Hugi's sails filled, but she did not change her course until she bore away just before the collision. He thinks the witness Fulford was mistaken. He says the Yankee swung to starboard, and had retarded speed before the collision He also stated that the Yankee went across the Idler's bow, and that the Idler's boom overhung the Yankee.

Charlton, who was on a power boat at the dock, says that the Hugi came about directly in the path of the Yankee; that the Hugi was 10 or 12 seconds on the port tack; that she did not change her course; that the wind knocked her down; that her sail was on her port side, and that the Yankee swung to port while the Hugi was on the starboard tack.

Gagnon, who was on the wharf, thinks that the Hugi was struck just as she came about.

The evidence for the Hugi is much more consistent, and it seems to me much more reliable, especially as it is in substantial agreement with the allegation of the cross-libel that the Hugi was close-hauled on the port tack when the launch was still about 100 yards distant. Wood, who was sailing her, testifies that she was on the port tack for 350 to 400 feet, and did not change her course until at the last instant he bore away to save the boat; that he paid particular attention to the Yankee which was coming at the rate of 12 to 15 miles while the Hugi was going at the rate of 4 or 5 miles.

Brayton, owner of the Hugi, says that she was one or two minutes on the port tack before the collision, did not change her course or speed, did not come into the wind, and bore away to save the boat.

Zuill, who was tending main sheet on the Hugi, says that she was on the port tack for at least 375 feet, and that the Yankee did not take a shoot into the wind.

Webster says that the Hugi was a minute on the port tack before collision, and had sailed 400 feet more or less, and did not change course or speed until she bore away two or three seconds before the collision. He testifies that Wood noticed the Yankee, and said, "I wonder what that fellow is going to do;" that the Yankee was 100 feet away when Wood made his remark; that the Hugi did not make a hitch before bearing away; and that when he saw the Yankee she was a little on the port bow, and the courses were converging. He estimates the speed of the Hugi at 4 or 5 miles, and that of the Yankee at 12 to 15 miles.

Rich, who was on the veranda of the clubhouse, saw the Hugi come about, and says that she was on the port tack and sailed 50 or 75 feet before the Yankee came into his view. She then sailed 150 feet; that the Yankee was about 50 feet away when the Hugi bore away; that he then remarked, "There is going to be a collision, and nothing can stop it;" that the Hugi did not change her course, but her sails remained filled.

Weaver, who was on Nimbus III, of the same class as the Hugi, and was following the Hugi on the starboard tack, says that the Hugi came about on the port tack, and that her sails did not afterwards shake. He estimates that she sailed 200 or more feet on this tack before the collision.

Upon the whole evidence, I find that the Hugi was close-hauled on the port tack, and had established her course when the launch was about 100 yards away, and did not change her course until she bore away in extremis, which was not a fault; that the Yankee might have avoided her by promptly keeping off to starboard, but that she held on too long without making a proper effort to give the Hugi a safe margin. According to the statements of her libel, nothing was done to reduce speed or to keep out of the way until after the Hugi was within 100 feet.

There is also evidence that the Yankee was close-shaving in the testimony that she ran across the bow of the Idler so close that she passed under her boom.

The contention that the Hugi was negligent in coming about so close under the Yankee's bow that she could not be avoided is not established by the evidence, and such a charge is not made in the cross-libel.

I find the Yankee alone at fault for the collision.

The libelant proves expenditures on repairs, etc., to the Hugi to the amount of $158.14, and damages to personal effects which I estimate at $30. There is also opinion evidence of depreciation of value due to replacing of her original planking, though it is admitted that her speed is not affected. Though such damage is proved by several witnesses, the extent of it is largely conjectural, but will probably not exceed $50, which amount is allowed.

A draft decree may be presented for the libelant for $238.14 damages, and costs to be taxed.

A draft decree may also be presented dismissing the cross-libel.

THE LEWIS LUCKENBACH,

(District Court, S. D. New York. August 23, 1912.)

INDEMNITY (§ 13*)-JOINT WRONGDOERS-Defenses-CONDITIONS PRECEDENT. Libelant chartered a steamship from respondent, which was to deliver the vessel completely fitted for service, and pay and provision the officers and crew, while libelant was to load and discharge. One of the stevedores employed by libelant in loading was injured by the giving way of For other cases see same topic & § NUMBER in Dec. & Am. Digs. 1907 to date, & Rep'r Indexes

a strongback crossing a hatch by reason of a defective fastening. He brought an action in a state court against both charterer and owner which libelant settled for $5,000, receiving a general release, while respondent settled for $1,000, receiving a similar release. Held that, conceding the right of libelant to recover contribution from respondent in a proper case, it could not do so without having given respondent notice before settlement and an opportunity to contest libelant's liability in the original action.

[Ed. Note.-For other cases, see Indemnity, Cent. Dig. §§ 29-35; Dec. Dig. § 13.*]

In Admiralty. Suit by the American-Hawaiian Steamship Company against the steamship Lewis Luckenbach. Decree for respondent. Burlingham, Montgomery & Beecher, of New York City (Everett Masten, of New York City, of counsel), for libelant. Peter S. Carter, of New York City, for claimants.

HOLT, District Judge. This suit was brought by the charterer of the steamship Lewis Luckenbach to recover from the steamship an amount paid by the libelant in settlement of a suit. Under the charter party, the owners were to deliver the vessel completely fitted for service with a full complement of officers and crew. The owners were to pay wages, and furnish provisions for officers and crew. The charterer took charge of loading and discharging the vessel, and employed the stevedores for that purpose. The work of taking off and putting on the hatches, as required from time to time in loading and discharging, properly fell upon the stevedores employed by the charterer. On February 26, 1908, Erdman Borst, one of the stevedores employed by the libelant, while seated upon one of the strongbacks crossing the hatch, for the purpose of assisting in removing the fore and after pieces passing from the strongback to the side of the hatch, was injured by reason of the strongback upon which he was sitting falling into the hold. The evidence satisfies me that the strongback fell because one of the sockets or recesses on the side of the hatch which supported it had become badly rusted, and out of order, and that the weight of Borst upon the strongback while engaged in the work caused the strongback to slip down through the socket which should have held it. I think the evidence also shows that this condition had lasted for a considerable time, and should have been discovered by proper inspection. The result is claimed to be that not only the owners of the ship, who were bound to keep the socket upon which the strongback rested in proper order, and also the charterer, which was bound to furnish Borst, its employé, a safe place to work, and which it is asserted neglected by adequate inspection to discover and cause to be removed the defect in the support of the strongback, were jointly guilty of negligence which caused the injury. The fall of Borst broke his leg in several places, and ultimately made necessary the amputation of one of his legs above the knee. He brought a suit in the New York Supreme Court against both the libelant, the American-Hawaiian Steamship Company, and the owners of the Luckenbach. The libelant suggested to the owners of the Luckenbach to make a joint settlement,

For other cases see same topic & § NUMBER in Dec. & Am. Digs. 1907 to date, & Rep'r Indexes

each contributing, which the owners of the Luckenbach refused to do. Thereafter the libelant paid to Borst $5,000 in settlement of its liability, and received from Borst a general release. About the same time the owners of the steamer paid to Borst $1,000 in settlement of their liability, and received from Borst a general release. This suit is now brought by the charterer against the steamer. The claim in the libel is to recover the $5,000 paid by the libelant, on the theory that the accident was due entirely to respondent's negligence.

I cannot see on what legal theory, if the accident was due solely to the respondent's negligence, the libelant can claim to recover from the respondent the amount which the libelant paid in settlement of an unfounded claim against the libelant. The counsel for the libeiant now claims, however, that both the charterer and the owners of the steamer were negligent, and that this suit may be treated as a suit for contribution, citing The Ira M. Hedges, 218 U. S. 264, 31 Sup. Ct. 17, 54 L. Ed. 1039, 20 Ann. Cas 1235. In that case a collision occurred between a car float, towed by the tug Slatington, and a scow towed by the tug Ira M. Hedges. The court held that both the tugs were in fault for the collision. The owner of the scow brought an action at common law in the state court against the owners of the Slatington, without joining the owner of the Ira M. Hedges, and recovered a judgment against the owner of the Slatington. This judgment was paid, and thereupon the owner of the Slatington filed a libel against the Ira M. Hedges to recover the amount paid on the judgment. An exception to the jurisdiction of the court was filed, which was sustained by the district judge on the ground that a court of admiralty had no jurisdiction in such a case; the original judgment having been recovered and collected in the state court at common law, under which there is no contribution between wrongdoers. The Supreme Court held that the suit could be treated as a suit for contribution, and reversed the decision of the District Court, holding that the action might be maintained on the theory of a suit for contribution in admiralty under the law by which contribution is permitted between tort-feasors in admiralty. In that case, as in the case at bar, there was nothing in the libel to indicate that it was a suit for contribution. The demand in both cases was to recover the entire amount paid, but, as the Supreme Court held in the Hedges Case that the suit could be treated as one for contribution, I think this case may be treated in the same way. The decision, however, in the Hedges Case was simply a decision upon pleadings, and simply held that a cause of action was stated, and the Supreme Court states in the opinion:

"No doubt it would have been a prudent course for the appellant to give notice to the owner of the Ira M. Hedges to take part in the defense, with a view to its possible ultimate liability. Whether a failure to do so would affect its rights is not before us to decide."

Upon principle, I cannot see how the libelant in this case can hold the respondent for any part of the amount which the libelant paid, without having given the respondent notice that it proposed to settle, and offering to the respondent an opportunity to come in and contest the liability of the libelant to Borst in the state suit. The libelant paid

$5,000 to Borst, and obtained a full release from him. The respondent paid $1,000 to Borst, and obtained a full release from him. If the libelant proposed to hold the respondent for any part of the $5,000 which it paid in settlement, on the theory of contribution, it seems to me that it should have given the respondent an opportunity to contest the liability of the libelant to pay that or any other sum. In the first place, the liability of the libelant at all is in my opinion not beyond controversy. The primary duty to keep the steamer in good condition was by the terms of the charter on the owners. Moreover, the question arises whether, if the libelant and respondent are to be regarded as joint tort-feasors, a greater liability might not justly have been imposed upon the owners of the steamer for the accident which occurred than upon the charterer, who presumably had nothing to do with keeping the ship in order. Moreover, the defendant urges that Borst was negligent in being upon the strongback at all, and that his fall was caused by the negligence of his fellow servants who were engaged in taking out. the fore and after pieces. All these questions the respondent had a right to litigate in the state court if it saw fit. It had a right to assume, upon payment of $1,000 and obtaining a general release from Borst, that its liability was at an end, and under all the circumstances of the case I do not think that the libelant has established a right to compel the respondent to reimburse it for a large payment voluntarily made in settlement without notice to the respondent or an opportunity afforded the respondent to litigate the necessity of such payment.

The libel is dismissed, with costs.

In re ZITRON.

(District Court, E. D. Wisconsin. February 8, 1913.)

1. INSURANCE (§ 580*)-RIGHT TO PROCEEDS MORTGAGEE.

A contract by a mortgagor or purchaser under a conditional sale contract to provide insurance as additional security, although he has violated it by taking the insurance in his own name, will be given effect in equity through a lien against the proceeds of the insurance after a loss. [Ed. Note. For other cases, see Insurance, Cent. Dig. §§ 1439-1443; Dec. Dig. § 580.*]

2. BANKRUPTCY (§ 143*)—PROPERTY PASSING TO TRUSTEE-PROCEEDS OF INSURANCE-CONDITIONAL SALE CONTRACT.

Where a contract of conditional sale, which, although not filed as required by statute, was valid between the parties, required the purchaser to insure the property for the benefit of the seller, but he insured it in his own name, and it was destroyed by fire within four months prior to his bankruptcy, not having been paid for, the seller became at once equitably entitled to the insurance proceeds, and his right thereto was not affected by the subsequent bankruptcy.

[Ed. Note.-For other cases, see Bankruptcy, Cent. Dig. §§ 194, 201, 202, 213-217, 223, 224; Dec. Dig. § 143.*]

3. BANKRUPTCY (§ 188*)-LIEN-WAIVER,

The filing of an ordinary claim against the estate of a bankrupt by one who sold him property by a contract of conditional sale was not •For other cases see same topic & § NUMBER in Dec. & Am. Digs. 1907 to date, & Rep'r Indexes

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