stances on which the limitation of liability is claimed. If the $ 596. 1 Am. Rule 55; The Sacramento, 131 Fed. 373. Adm. Rule 54, S. D. N. Y., provides: "Petitions or libels to limit liability must state: (1) The facts showing that the application is properly made in this district. (2) The voyage on which the demands sought to be limited arose, with the date and place of its termination; the amount of all demands including all unsatisfied liens or claims of liens, on contract or in tort, arising on that voyage, so far as known to the petitioners, and what suits, if any, are pending thereon; whether the vessel was damaged, lost or abandoned, and if so, when and where; the value of the vessel at the close of the voyage, or in case of wreck, the value of her wreckage, strippings or proceeds, if any, as nearly as the petitioners can ascertain, and where and in whose possession they are; also the amount of any pending freight, recovered or recoverable. If any of the above particulars are not fully known to the petitioner, a statement of such particulars according to the best knowledge, information and belief of the petitioner, shall be sufficient." Adm. Rule 55, S. D. N. Y.: "If a surrender of the vessel is offered to be made to a trustee, the libel or petition must further show any prior paramount lien on the vessel, and what voyages or trips if any she has made since the voyage or trip on which the claims sought to be limited arose, and any existing liens, arising upon any such subsequent voyage or trip, with the amounts and causes thereof, and the names and addresses of the lienors, so far as known; also the special facts on which the right to surrender the vessel is claimed, notwithstanding such subsequent trip or voyage, and whether the vessel sustained any injury upon or by reason of such subsequent voyage or trip. Upon surrender of the vessel no final decree exempting from liability will be made until all such liens as may be admitted or proved, prior to such final decree, to be superior to the liens of the claims limited, shall be paid or secured independently of the prop erty surrendered, as may be ordered by the Court; and the monition in cases of surrender, shall cite all persons having any claim upon the vessel to appear on the return day or be defaulted, as in ordinary process in rem." Adm. Rule 56, S. D. N. Y.: "If, instead of a surrender of the vessel, an appraisement thereof be sought for the purpose of giving a stipulation for value, the libel or petition must state the names and addresses of the principal creditors and lienors, whether on contract or in tort, upon the voyage on which the claims are sought to be limited, and the amounts of their claims, so far as they are known to the petitioner, and the attorneys or proctors in any suits thereon; or if such creditors or lienors be numerous, then a sufficient number of them properly to represent all in the appraisement; and notice of the proceedings to appraise the property shall be given to such creditors as the Court shall direct, and to all the attorneys and proctors in such pending suits.'' It is proper to aver that "there is no owner wishes to contest his liability or the liability of the ship, independently of the limitation of the same which he claims, the petition must state the facts and circumstances by reason of which such exemption is claimed.2 The libel or petition should set forth the facts and circumstances on which the limitation is claimed, and pray proper relief. When a petition is filed against another vessel, with which the petitioner's boat has collided, the petition may deny all liability by reason of the collision and claim, in the alternative, relief under the statute. Interrogatories to be answered by a respondent may be attached thereto.5 It should allege either that the vessel is within the district or that the owner has been there sued.6 It is the safer practice for the petition to show the existence, or the probability of the existence, of more than one claim for damage. It is not necessary to aver or prove that the claims against the vessel are in excess of her value.8 One or more of the part owners may join in a petition to limit their liability without joining the rest. As soon as the petition is filed the court will grant an order, either appointing appraisers to appraise the amount or value of the interest of the prior paramount lien on said lien." The Defender, 214 Fed. 316, 318. If the value of the vessel and freight is material, the averment thereabout should state the value at the end of the voyage. An allegation that the claim, a limitation of the liability for which he sought far exceeds the petitioner's interest in said vessel and her freight pending" is insufficient. Ibid. So is an averment that no voyage or trip made by the boat since such claim arose "has unrea sonably decreased the value," since this is in the nature of a negative pregnant. Ibid. For other decision as to pleading, see Butler v. Boston & S. S. S. Co., 130 U. S. 527, 32 L. ed. 1017; Black v. So. Pac. R. Co., 39 Fed. 565; The Garden City, 26 Fed. 766; The Benefactor, 103 U. S. 247, 26 L. ed. 354; Provi dence & N. Y. S. S. Co. v. Hill Mfg. Co., 109 U. S. 578, 27 L. ed. 1038; The Luckenback, 26 Fed. 870; The Annie Faxon, C. C. A., 75 Fed. 312; s. c. (D. C.), 66 Fed. 575; 561, supra. 2 Adm. Rule 56. 3 The Sacramento, 131 Fed. 373. 4 Re Piper Aden Goodall Co., 86 Fed. 670. 5 The Murrell, 188 Fed. 727. See supra, § 581. 6 The John K. Gilkinson, 150 Fed. 454. 7 The Rosa, 53 Fed. 132; The Eureka No. 32, 108 Fed. 672. But see supra, § 593. 8 The Garden City, 26 Fed. 766, 770. But see Delaware River Ferry Co. v. Amos, 179 Fed. 756, supra, § 593. 9 The S. A. McCaulley, 99 Fed. 302, supra, § 593. owner or owners in such vessel and her freight for the voyage, or if they elect, without appraisal referring it to a commissioner to take proofs of such value.10 § 597. Surrender to secure limitation of liability. Where an injury was produced by the fault of two vessels with the same owner, both must be surrendered in order to obtain the benefit of the statute.1 When the injury was caused by the negligent operation of a tug, scows or other vessels thereto attached. behind 2 or lashed along side 3 need not be surrendered. It has been held that whaling outfits, such as whaling gear, casks, provisions and supplies are not part of the ship and need not be surrendered. The freight to be surrendered includes what is paid for the carriage of passengers, as well as merchandise." Freight paid in advance under contracts which do not require its return in case of loss, must be surrendered, but not what must be returned in case the voyage is not completed. The earnings of the previous voyage, from the home port to that from which the ship was returning when the loss occurred, need not be surrendered.9 A claim for damages against another vessel because of a collision, which caused the loss, must be surrendered.10 Insurance money need not be surrendered.11 It has been held that the owner, when he owns the cargo as well as the vessel, must surrender a fair compensation for the trans 10 Adm. Rule 51. See Providence & N. Y. S. S. Co. v. Hill Mfg. Co., 109 U. S. 578, 591, 27 L. ed. 1038, 1043. § 597. 1 The San Rafael, C. C. A., 141 Fed. 270, 72 C. C. A., 388; The Dauntless, 212 Fed. 455, two tugs working tandem. 2 The O'Brien Bros., 252 Fed. 185. 3 Liverpool, Brazil & River Plate Steam Navigation Co. v. Brooklyn Eastern District Terminal, 251 U. S. 48; The Transfer No. 21, C. C. A., 248 Fed. 459. 4 Swift v. Brownell, Holmes, 467, 472. 5 The Main v. Williams, 152 U. S. 122, 131, 38 L. ed. 381, 384, 14 6 La Bourgogne, 210 U. S. 95. 8 The Scotland, 105 U. S. 24, 26 L. ed. 1001. 9 La Bourgogne, 210 U. S. 95, 52 L. ed. 973. 10 O'Brien v. Miller, 168 U. S. 287, 303, 307, 42 L. ed. 469, 475, 476. As to a right of subrogation, see The St. Johns, 101 Fed. 469, 477. 11 The City of Norwich, 118 U. S. 468, 30 L. ed. 134. : portation of the former.12 The owner must surrender in the case of a fishing boat, the earnings of the voyage; 13 in all cases; demurrage due and unpaid; 14 salvage due under a contract, by which he received a specified sum for such service, without deducting the value of other vessels or appliances in the same service, which were not surrendered; 15 but not an unliquidated claim for salvage that was volunteered,16 nor any part of an annual subsidy, in return for which the mails were transported and other services rendered to the Government, which had the right to use the ship in case of war.17 The value of the amount surrendered and the amount of the liability are measured as of the termination of the voyage, during which the injury occurred.18 A loss upon a subsequent voyage cannot be deducted 19 when the vessel is sunk, the voyage terminates,20 unless the boat can be saved in whole or in part.21 Where the vessel, immediately after a collision, was surrendered to the underwriters, who took possession, and before she reached port was sunk by the negligence of her crew; she was appraised as of the date of the second misfortune and the amount realized by the underwriters from the sale of the wreck was the measure of its value.22 Wages 23 and towage,24 after the injury and before the termination of the voyage, cannot be deducted; unless they are extraordinary expenses, made in order to earn the freight, and are in the nature of salvage, when they may be allowed the owner.25 12 Allen v. MacKay, 1 Sprague, 219. 13 Whitcomb v. Emerson, 50 Fed. 128. Held otherwise as to a whaler, in Smith v. Brownell, Holmes, 467. 14 The Giles Loring, 48 Fed. 463. 15 The Captain Jack, 162 Fed. 808. 16 Re Meyer, 74 Fed. 881. 17 La Bourgogne, 210 U. S. 95, 52 L. ed. 973; affirming in this respect, C. C. A., 139 Fed. 433; s. c., 117 Fed. 261. 18 The City of Norwich, 118 U. S. 468, 30 L. ed. 134. 19 The Americana, 230 Fed. 853. 20 The City of Norwich, 118 U. S. 468, 30 L. ed. 134; The Abbie C. Stubbs, 28 Fed. 719; The George L. Garlick, C. C. A., 107 Fed. 542. 21 The Abbie C. Stubbs, 28 Fed. 719, 720; The Anna, 47 Fed. 525, 528. 22 The Great Western, 118 U. S. 520, 6 Sup. Ct. 1172, 30 L. ed. 156. 23 The Abbie C. Stubbs, 28 Fed. 719, 720. 24 Ibid. The Ethelstan, 246 Fed. 187. 25 The Jose E. More, 37 Fed. 122; Pacific Coast Co. v. Reynolds, C. C. A., 114 Fed. 877, 52 C. C. A. 497. It has been held that salvage and general average charges, which accrued subsequently to the collision, may be deducted; 26 but that the cost of telegrams concerning the loss,27 notarial fees for a protest,28 and payments for the transportation, comfort and benefit of the survivors,29 cannot. There can be no deduction from the value of the vessel or from the freight surrendered because of liens previous to the injury; 30 neither for bottomry,31 nor for mortgage, 32 nor for previous pilotage,33 nor for wages of seamen,34 nor for towage, 35 previously incurred. Where the petitioner contumaciously refuses to put the court in actual or constructive possession of the fund to be distributed, its petition may be dismissed.86 Where there is an honest controversy as to how much should be surrendered and there is no question as to the solvency of the petitioner, the court may permit him to withhold the disputed sum pending an appeal.37 § 598. Appraisement in proceedings for limitation of liability. The rules provide that upon the filing of the petition, the 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, or an approved corporate surety for the payment thereof to the 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 26 The Abbie C. Stubbs, 28 Fed. 719. 27 The Jane Gray, 99 Fed. 582, 593. 28 The Jane Gray, 99 Fed. 582, 593. 29 Pacific Coast Co. v. Reynolds, C. C. A., 114 Fed. 877, 52 C. C. A. 497; certiorari denied, 187 U. S. 640, 23 Sup. Ct. 841, 47 L. ed. 345; approved in La Bourgogne, C. C. A., 139 Fed. 433. 30 The Maria & Elizabeth, 12 Fed. 627, 630; The Leonard Richards, 41 Fed. 818, 820; The Jane Gray, 99 Fed. 582, 592; Barnes v. Steamship Co., 6 Phila. 479, 2 Fed. Cas. No. 1021. 31 Barnes v. Steamship Co., 6 Phila. 479, 2 Fed. Cas. No. 1021. 32 Ibid. 33 Ibid. 34 The Jane Gray, 99 Fed. 582, 592; Barnes v. Steamship Co., 6 Phila. 479, 2 Fed. Cas. No. 1021. 35 The Jane Gray, 99 Fed. 582, 592. 36 La Bourgogne, 210 U. S. 95, 141, 52 L. ed. 973, 994. 37 Ibid. |