In re The Petition of the Norwich and New York Transportation Company. stand to have been the decision in the case to which I have referred, reported in 13 Wallace. The appellants contend, however, that, conceding the value of the vessel is to be estimated as it was after the collision, the measure of the owners' liability is not the value immediately after the collision, but the value at a subsequent time, when the vessel, or its equivalent value, shall be delivered into Court by the owners, for the purpose of apportionment among the sufferers by its fault, or when, the vessel, or its value, being already in the custody of the Court, the owners, or the persons injured by it, shall take the proper proceedings for an apportionment. The collision occurred on the 18th of April, 1866. After the steamboat was raised, repaired and brought into the port of New York, she was libelled and seized, at the suit of sundry owners of her cargo. Having been claimed by her owners, an appraisement was ordered by the District Court, and she was valued at $70,000, and released to her owners on their stipulating for that sum. This was in March, 1867, nearly a year after the collision. The appellants now insist that the sum ascertained to have been the value of the vessel at that time, by that appraisement, and then stipulated for, is to be taken as the measure of the owners' liability, and apportioned accordingly. To this I cannot assent. It is true, the present proceeding for an apportionment was not commenced until a later day; not, indeed, until the Supreme Court, by its decis ion and Rules, had pointed out the course to be pursued to obtain the protection of the Act of Congress. But, the owners had claimed their right to the statutory limitation, alike in the libel in personam in the District of Connecticut, and in the suits in rem in the Eastern District of New York, though the right had not been accorded to them. But, independently of this, I am of the opinion that the sum at which the steamboat was valued in March, 1867, is not the measure of her owners' liability in these proceedings for an apportionment. That appraisement was in proceedings that had no relation to the question as to what is the extent of the owners' In re The Petition of the Norwich and New York Transportation Company. liability. Its purpose was to determine the value of the vessel at the time when she was seized, under the libels in rem filed by the freighters, and when she came into the custody of the Court, and was claimed by her owners. It would have been unnecessary if the owners had surrendered her, and the stipulation for her appraised value was to enable them to recover possession of her. It was taken under the general powers and usage of Admiralty Courts, and not under the Act of Congress or the Rules of the Supreme Court. Besides, the appraisement was one made of the value of the vessel at the time when she was seized by the marshal, after she had been raised at an expense of $22,500, and repaired at a cost of many thousand dollars more. It did not purport to be an estimate of her value at the time of the collision or immediately after. To hold that the owners are liable to the extent of that valuation, would be substantially to require them to surrender not only the ship and her freight, but also a sum of money equal to all they expended upon her in raising and repairs. Such, I think, would be a departure from the obvious meaning of the statute, and not required by the maritime law. Under that law, in cases of maritime abandonment, a seizure, or a judicial sale of the ship, if procured adversely to the owner, but without resistance by him, had no effect in determining the limit of his liability, and did not deprive him of his right to abandon, though the ship or its proceeds were thus brought within the jurisdiction of the Court. (Pouget, Droit Mar., vol. 2, p. 412; Trib. of Commerce, Marseilles, 1828; Do., Aix, 1825.) The stipulation for value given in March, 1867, cannot be said to estop the owners from showing what was the value of the vessel immediately after the collision. Nothing in it warrants such a construction. I cannot doubt that the measure of liability recognized by the maritime law and by the Act of Congress is the value of the offending ship in the condition in which she was immediately after the disaster, adding the freight. Then the claims of the persons injured arose, the claims which the In re The Petition of the Norwich and New York Transportation Company. statute limits. The extent of the limitation is not a shifting one, varying with the times when the protection of the Act may be sought, any more than it can be enlarged or diminished by the choice of the mode of obtaining that protection. Certain it is, that if, immediately after the collision, the steamboat owners had surrendered the vessel and freight, or transferred them to a trustee, they would have been discharged. Her value and her freight then pending were then all that they were liable for. That was then the extent of their loss. I cannot see how their liability can be increased by anything that may have occurred thereafter. It is the vessel as she then was that could have been transferred in satisfaction of all claims, if the owners had elected that mode of obtaining their discharge. And it is the value as it then was, which is the equivalent of the vessel, that might then have been paid in pursuance of an apportionment made by the Court. Had the vessel proceeded on her voyage after the collision, and had she met with a second disaster, occasioned by the fault of the master, by which her value had been greatly reduced, could she then have been surrendered or transferred, in full satisfaction of the claims against her, or her owners, arising out of her first fault? Would her value after the second disaster have been the measure of the owners' liability? I cannot think such a position can be maintained. Surely, such is not the spirit of the statute. And, if not, it seems equally plain, that the liability of the owners is not enlarged by the fact that, after the collision, the boat has been raised and repaired by them, at large expense, or, in other words, has increased in value. It may, perhaps, be conceded, that if, after the vessel was raised and repaired, the owners had sought the protection of the statutory limitation, by transferring her to a trustee, the creditors would have been entitled to her as she then was, in her improved condition. This, not because her value then was the value for which they were, at all events, responsible, but by force of the transfer. But they have made no such transfer. They never offered to make one. They elected the other course of proceeding allowed to them by the law. They In re The Petition of the Norwich and New York Transportation Company. retained the vessel, and asked the Court for an apportionment of the amount for which they were liable. To hold them now to the value of the vessel when she had been repaired, would practically deny to them the advantages of that election which the statute accords to them. It is to be observed, that the Act of Congress not only adopts the maritime rule or measure of limitation, but it prescribes two modes, in either of which the ship owners may secure the benefits of the rule. The measure of liability and the modes allowed for obtaining the limitation are not to be confounded. One of the modes is the transfer by the owners of the vessel in fault, with her pending freight, to a trustee for those who may be legally entitled thereto. This is substantially the course pursued under the maritime law. The other is an apportionment by the proper Court, on their petition, of the sum for which they are liable, among the parties entitled thereto, when the whole value of the vessel and her freight for the voyage is not sufficient to make compensation to each of them. In other words, the liability of the owners. is discharged, either by transferring the vessel and freight, or by paying their equivalent, that is, the value of what they might have transferred in discharge, according to the apportionment of the Court. The owners have their option of these two modes. They may give up the vessel and freight, or they may retain them and pay their value. But, the measure or limit of liability in each case is the same. Very plainly, it is not intended that the creditors shall obtain more when one mode of proceeding is adopted than when the other is followed. But, as I have said, all that the owners are required to transfer is the ship in her damaged condition, as she was immediately after the injury was inflicted. Equivalent to that is her value at that time. I am, therefore, of opinion, that the District Court was correct in determining that the value of the steamboat immediately after the collision and fire, as she then was, lying at the bottom of the Sound, together with her pending freight, is the extreme measure of the owners' liability, and is the In re The Petition of the Norwich and New York Transportation Company. amount to be apportioned. That value has been ascertained to have been $2,500, and I see no reason to doubt the correctness of the appraisement. It is true, that sum is the value of the vessel alone, without any thing added for freight. But, no freight was earned. Six hundred dollars was the amount pending at the time of the collision, but it was of no value. Had the owners selected the other mode of discharging their liability that of surrendering or transferring the vessel and freight to a trustee-the fact that there had been six hundred dollars of freight pending would have been of no importance. The value of the subject transferred would have been only that of the vessel, the same as that which the District Court fixed for apportionment. The transfer of the freight would have been the transfer of a valueless thing. And, as I have said, the measure of liability is the same, whether the vessel and freight be transferred, or whether their value be paid into Court for apportionment. In neither case do the owners have more at risk than their sea venture. I think, therefore, the owners are not answerable to any extent for freight wholly lost, though it was pending at the time of the collision, for it had no value immediately after. It was suggested, though not pressed, during the argument before me, that, even if the value of the steamboat in the condition in which she was directly after the collision is the maximum of the owners' liability, the appraisement should have been made of her value in the interval between the collision and the fire. But, if this were conceded, the result must have been the same. Plainly, the vessel was worth no more then than she was after she had sunk. She was then a vessel inevitably doomed to partial destruction by fire, and to immediate foundering. The fire was as much a part of the original disaster as was the breaking of the hull by the impingement of the schooner, and so was the sinking. It is impossible to separate them. By the collision, the hull of the steamboat was stoven, and water poured in, driving the fire out of the furnaces into contact with the woodwork, which was mostly destroyed before the hull had sufficiently |