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the 3d of December, 1856, a motion was made in the District Court, on behalf of the libellants, that the claimants bring the ship or her proceeds into court, or that, in default thereof, the stipulation be increased, and a decree of the Court be entered thereon, for the full amount of the damages decreed. The claimants opposed that motion, and read an affidavit showing that, after the vessel was discharged from the arrest on the stipulation, and about the middle of March, 1856, she sailed for Europe, and was delivered to a company who had purchased her, and that the claimants had had no interest in her since. On the 20th of December, 1856, the District Court ordered that the claimants redeliver to the Marshal the vessel, that she might be taken to satisfy the decree rendered in the cause, but that, it being represented that she was beyond their control, the claimants pay into the registry the sum of ten thousand dollars, a part of the purchase money of the ship, and that the same be taken as a sufficient compliance with the order to re-deliver. The claimants then appealed to this Court.

Edwin W. Stoughton and Daniel D. Lord, for the libellants.

Francis B. Cutting, for the claimants.

NELSON, J. Upon the proofs, I am satisfied that the decree of the Court below in favor of the libellants was correct and should be affirmed.

The questions presented on the appeal relate more particularly to the amount of damages. It is to be observed, in the first place, that this is a proceeding in rem, the owners appearing to defend, as claimants, on entering into the usual stipulation. Therefore, no decree can be rendered personally against them, except as stipulators in the suit; and, of course, only to the amount provided for in their stipulation. Hence, the decree in this case, so far as it affects the owners personally, is properly limited to that amount, and, also, to the two owners, Spofford and Tileston, who were the only parties to

The Union.

the stipulation. In other words, the decree as against them is for the $4000 and costs.

The question, therefore, as to any further liability, turns upon the validity of the subsequent order to redeliver the vessel into the custody of the Marshal, or, in default thereof, to pay into the registry the sum of $10,000. This order assumes that the discharge of the vessel from the seizure, and her delivery to her owners, was not absolute, but that she is still subject to the exertion of the power of the Court for the purpose of satisfying any decree. No case has been furnished in which this power of the Admiralty has been exerted; and, on principle, I do not well see how it can be maintained. The vessel, after being discharged from the arrest upon the giving of the bond or stipulation, returns into the hands of her owner, subject to all previously existing liens or charges, the same as before the seizure, except as respects that on account of which the seizure was made. She is also subject to any subsequently accruing liens or charges in the hands of her owner, or in the hands of any person to whom she may have been transferred. The redelivery, therefore, of the vessel, if permitted, or enforced, must necessarily be a redelivery subject to all these existing or subsequently accruing liens, and, also, to the rights of any bona fide purchasers, if a sale has in the meantime taken place. The complication and embarrassment growing out of the exercise of the power, if sanctioned, are apparent, and this, doubtless, accounts for the absence of any precedent in the books. In the present case the vessel has been sold, and has passed into the hands of the purchaser, and his title is, I think, undoubted. It is so for the reason that, on the discharge of the vessel, on the giving of the bond or stipulation, she is thereby discharged from the lien or incumbrance which constituted the foundation of the proceeding against her, the security taken being the substitute for the vessel.

This view is strengthened by the provisions of the Act of March 3d, 1847, (9 U. S. Stat. at Large, 181,) which provides that, in case of a warrant against the vessel, or other process in it shall be the duty of the Marshal to stay the execution

rem,

The Underwriter.

of the process, or to discharge the property arrested, if the same has been levied on, on receiving from the claimant a bond or stipulation in double the amount claimed by the libellant, &c. According to the terms of the Act, the tender of the proper security in time would seem to prevent even the arrest of the vessel, and, of course, in such a case there could be no claim to a redelivery.

I agree, that if there has been any mistake or fraud committed in entering into the stipulation, and the vessel has been improvidently discharged, it would be competent for the Court to relieve the parties concerned, on an application, within a reasonable time, by ordering the vessel back into the custody of the officer. But that is wholly a different question from the one now under discussion.

Then as to that part of the decree or order which requires the claimant to pay in a portion of the purchase money. If the vessel is not subject to the exercise of this power of the Court, to be redelivered into the custody of the Marshal, to be applied to the payment of the damages, it follows that the proceeds of a sale are not. They cannot, in this respect, be distinguished from the vessel herself.

I must, therefore, reverse the decree or order directing the redelivery of the vessel, or the payment of the $10,000 into the registry, and affirm the decree against the stipulators.

THE UNDERWRITER.

In this case, the service was a salvage service, and is entitled to a salvage compensation.

Reasons stated, why the compensation allowed by the District Court was too large.

The character of the evidence as to the injury suffered by the salving vessel, commented on.

Apportionment of the salvage.

No costs allowed on either side, in this Court.

(Before NELSON, J., Southern District of New York, September 17th, 1857.)

The Underwriter.

翼

THIS was a libel in rem, filed in the District Court by the owners of the steamship Delaware, against the ship Underwriter, to recover salvage for contributing to the rescue of the Underwriter, which was stranded on Squam Beach, in April, 1854, laden with a cargo and passengers. The Delaware had started on one of her usual trips from the city of New York to the city of Philadelphia, and, on the morning of the 17th of April, discovered the Underwriter in distress. The storm had subsided, but the wind was [fresh from the land, and the sea was rolling heavily upon the vessel. She had on board between six and seven hundred passengers. Efforts were being made from the shore to communicate with her by lifeboats and otherwise, but without success. The master of the Delaware neared her, and sent a boat to communicate with the captain and ascertain if he desired assistance. The hands in the boat succeeded in the communication, and learned from the captain that he desired the Delaware to remain and furnish all the assistance in her power. Efforts were made to get lines attached to a hawser, but without success. The boat, in the course of her service, capsized, from the violence of the sea, but all the hands were saved except one, by a life-boat from the shore. The Delaware remained at the place during the day and succeeding night and until the next morning, when assistance was sent down from the city by the owner of the Underwriter, and the master of the Delaware was told that his services were no longer required, and she left. The Underwriter was finally saved by taking off her passengers, and transferring her cargo of goods and merchandise to lighters, and by the aid of pumps and heavy anchors, and the power of steam-tugs, all of which occupied some five or six days. The crew of the Delaware consisted of some thirty hands. The Underwriter, it was agreed, was worth $56,000; the Delaware about $80,000, and her cargo $90,000. There was also some evidence that the steamer was damaged by means of the deck freight, and otherwise, from remaining at anchor in a heavy sea.

The District Court held the service rendered by the Dela

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ware to have been a salvage service, and awarded to her owners and crew the sum of $5000. The claimant appealed to this Court.

George J. Cornell, for the libellants.

Francis B. Cutting, for the claimant.

NELSON, J. I agree with the Court below that the service. of the Delaware might properly be regarded as a salvage service; and that the compensation was rightfully made in conformity with the principles applicable to such a service. There appears to have been great excitement and confusion. among the passengers on board of the Underwriter at the time of the arrival of the steamer; and her presence, the advice given to the captain, and the consent to remain and render all the assistance practicable, together with the efforts made for the purpose, until the means of assistance arrived from the owner, may well have contributed somewhat to the saving of the vessel, and furnish a claim to compensation beyond that of mere labor and service. But, comparing this assistance of the steamer and her hands, including her detention and damage, with the service and expense which were subsequently required and rendered by the owner before she was rescued, I cannot but think that the compensation awarded was too high, and that the rate, if extended to the efficient service and expense in the saving of the vessel, would, in the aggregate, constitute a salvage allowance beyond the principles generally admitted as governing cases of this description. I think, also, that the injury to the steamer, claimed to have been occasioned while she was detained, has been greatly exaggerated. No repairs seem to have been made upon her for a month after the alleged injury occurred, the vessel being, in the meantime, engaged in her usual trips; and the bills of repairs have not been produced, nor is it pretended that the cost approached the estimate furnished. The shipwright states that he repaired her but partially, and then gives us a general estimate of what it would have cost to repair her thoroughly. He states the ex