The Propeller Monticello v. Mollison. 17 H.

Presque Isle, on Lake Huron, and about six miles from land, sailing with a fair breeze, on the course of west-northwest, (the wind being south-southwest,) the sparks from the chimney of the propeller were seen some six miles off. In order to give a "wide berth" to the approaching vessel, the schooner ported her helm and ran her course a point more to the north. That, when from four to six miles apart, a bright light was placed in a conspicuous position on the schooner, and the vessel held steadily to her course, so that the approaching propeller might not mistake the course of the schooner. That the propeller exhibited no light, except that occasionally thrown out by the sparks from her chimney. That some time after, the master of the schooner, by close observation, discovered that the propeller was directly forward of the beam of the schooner, close upon her, and steering directly for her. He then hailed the steamboat, and ordered his helm aport, but too late to avoid the collision, which caused the schooner to sink immediately.

The answer admits that the lights of the schooner were seen when five miles off, and states that the steamboat was on a course of eastsoutheast, and continued on that course for a short time after seeing

the light of the schooner; but that, as the schooner appeared [* 154] "far in shore," in order to give her lake room, * the propeller bore away into the lake about three quarters of a point; and that the collision was occasioned by the fault of the schooner, in not keeping her course.

The answer also alleges, as a defence, that the schooner and cargo had been insured and abandoned to the insurers, who accepted the abandonment, and had paid the insurance to the libellant, prior to the filing of the libel.

1. On the first point, as to the party to whom the fault of this collision is to be imputed, we entirely concur with the judgment of the district and circuit courts. The testimony of libellant's witnesses is consistent, and, connected with the admissions of the answer and of respondent's witnesses, is conclusive to show that the fault was in the steamboat. The master of the steamboat was not on board on that occasion; and the testimony of the mate, who had command, and by whose obliquity of vision, or want of judgment, the steamboat was so dexterously brought into collision with the schooner, attempts to excuse his conduct by a statement of facts disproved by all the other witnesses, and demonstrably incorrect. He admits that he saw the bright light of the schooner five miles off. He asserts that the schooner's light appeared on the starboard bow of the steamer; this is clearly a mistake in his statement of facts, or, if true, was occasioned by the steamer turning out of her course.

The Propeller Monticello v. Mollison. 17 H.

The theory of mere negligence, or inattention, will hardly account for this collision. Defendant's witnesses admit that they at one time mistook the bright light of the schooner for the Presque Isle lighthouse; and it is evident that, laboring under this delusion, they must have steered directly for the schooner's light, not discovering their mistake till it was too late to remedy it. The night, though dark, had some starlight, by which the land, some six miles off, showed itself above the horizon. With a channel and room to pass as wide as the lake, with the bright light of the schooner full in view for more than twenty minutes before the collision, it cannot be accounted for, except by the hypothesis of the active coöperation of the officers of the steamboat, caused by a delusion, under which they continued to labor in consequence of a reckless inattention to their duty.

It is contended, on behalf of respondent, that the fault of the collision is to be attributed to the schooner, because she did not keep on her course and leave the steamboat to pass as best she could, according to the rules laid down by this court in the case of St. John v. Paine, 10 How. 557. The answer to this argument is obvious. When the master of the schooner first observed that he was sailing on a line with the steamboat, and ordered his helm to be ported, so as to avoid being on the track of the approaching vessel, they were seven or eight miles or more apart, *not in the [*155] narrow channel, but in the wide lake. There was no immediate danger of a collision. The order was one of extreme caution; it did not tend to produce the collision, for, when the light of the schooner was first seen, five miles off, the schooner was sailing steadily on her course of northwest by north, making an angle of one point with the course of the steamer, and continued on that course till she was run down and sunk.

The rules laid down by this court for avoiding collision should be strictly adhered to, so that conflicting orders may not produce the collision instead of avoiding it. But in the present case, when the schooner changed her course, the vessels were in no danger of collision, being many miles apart in an open sea. They had not approached to that point of danger which brings the rules of the admiralty into exercise, and makes their observance necessary, in order to avoid a collision. When the steamer first discovered the light of the schooner, she was sailing steadily on the course adopted, and continued to do so, till the collision was produced by the perverse dexterity of the helmsman of the steamboat.

2. The defence set up in the answer, that the libellants have received satisfaction from the insurers, cannot avail the respondent. The contract with the insurer is in the nature of a wager between

The Propeller Monticello v Mollison. 17 H.

third parties, with which the trespasser has no concern. The insurer does not stand in the relation of a joint trespasser, so that satisfaction' accepted from him shall be a release of others. This is a doctrine well established at common law and received in courts of admiralty. See Yates v. Whyte, 4 Bing. N. C. 272; Phillips on Insurance, 2163; Abbott on Shipping, 318.

It is true, that in courts of common law the injured party alone can sue for a trespass, as the damages are not legally assignable; and if there be an equitable claimant, he can sue only in the name of the injured party; whereas, in admiralty, the person equitably entitled may sue in his own name. But the same reasons by the wrongdoer cannot be allowed to set up as a defence the equities between the insurer and insured, equally apply in both courts. The respondent is not presumed to know, or bound to inquire, as to the relative equities of parties claiming the damages. He is bound to make satisfaction for the injury he has done. When he has once made it to the injured party, he cannot be made liable to another suit, at the instance of any merely equitable claimant. If notified of such a claim before payment, he may compel the claimants to interplead; otherwise, in making reparation for a wrong done, he need look no further than to the party injured. If others claim a right to stand in his place, they must intervene in proper time, or lose their recourse to the respondent.

[* 156]

*

The insurer may at all times intervene in courts of admiralty, if he has the equitable right to the whole or any part of the damages. Under the 34th rule in admiralty of this court, he may be allowed to intervene, and become the dominus litis, where he can show an abandonment, which devests the original claimant of all interest. See 1 Curtis's R. 340. Under the 43d rule also he may intervene after decree, and claim the damages recovered, by showing that he is equitably entitled to them. But with all this the respondent has no concern, nor can he defend himself by setting up these equities of others, unless he can show that he has made satisfaction to the party justly entitled to receive the damages.

The judgment of the circuit court is therefore affirmed, with costs.

DANIEL, J., dissented.

In the cases of The Propeller Monticello v. Mollison, in admiralty, and in those of Clapp v. The City of Providence, and of The Bank of Tennessee v. Horn, I dissent from the opinion and decision of this court; not upon the merits of those cases, but upon the ground of a want of jurisdiction in this court to adjudicate them. The reasons for my objection to the jurisdiction of this court, in cases like those

The Bank of Tennessee v. Horn. 17 H.

above mentioned, have been so frequently assigned in preceding instances before this court, that a repetition of them, on the present occasion, is deemed superfluous. My purpose is simply to maintain my own consistency in adhering to convictions which are in nowise weakened. 19 H. 312; i Wal. 43; 3 Wal. 257; 6 Wal. 216.

THE PRESIDENT, DIRECTORS, AND COMPANY OF THE BANK OF TEN NESSEE, Plaintiffs in Error, v. LEWIS B. HORN.

17 H. 157.

A statute of Louisiana having provided that all the property of an insolvent debtor shall be deemed vested in his creditors from and after the acceptance of a cession thereof, a judg. ment recovered in the circuit court of the United States, after that day, gave no lien on land of the debtor, even though it was misdescribed in the schedule of his effects.

THE case is stated in the opinion of the court

Dunbar, (with whom were Stockton and Steele,) for the plaintiffs.

Janin, contrà.

TANEY, C. J., delivered the opinion of the court. The facts in this case, as they appear on the record, are as follows:

[ *159 ]

Peter Corney, Jr., who resided in New Orleans, on the 7th of November, 1851, filed a petition under the insolvent law of Louisiana, in the second district court, declaring his inability to meet his engagements, and praying that a cession of his property might be accepted by the court, for the benefit of his creditors, and that in the mean time all proceedings against him should be stayed. To this petition, a schedule of his property was annexed, in which [* 160 ] it is apparent that the lot in question was intended to be included, but which is so erroneously described that it can hardly be identified, by the schedule alone, as a part of his estate.

The district court, on the day the petition was presented, accepted the cession, and ordered a meeting of the creditors on the 13th of December following. The meeting was held accordingly, and a syndic appointed, and a report of the proceedings made to the court. On the 8th of March following, the court authorized a sale of the property now in dispute, by the syndic; and at that sale, in May, 1852, the defendant in error became the purchaser.

The insolvent, at the time of his petition, was indebted to the bank, the plaintiff in error, in a large sum of money, for which a suit was then pending in the circuit court of the United States for the eastern

The Bank of Tennessee v. Horn. 17 H.

district of Louisiana. The bank proceeded in its suit and obtained judgment; but the judgment was rendered after the cession had been accepted and the syndic appointed by the creditors. The bank, however, issued an execution, under which this property was seized by the marshal, in February, 1852, and sold in the April following. The bank was the purchaser at this sale, and obtained possession of the lot under it.

The defendant in error, after his purchase from the syndic, brought suit for the premises, and upon a trial in the circuit court of the United States for the eastern district of Louisiana, recovered a judgment; the court being of opinion that the property in question vested in the creditors, upon the cession and acceptance above mentioned, and was not liable to seizure under the execution which issued upon the judgment afterwards obtained by the plaintiff in error.

By an act of the legislature of Louisiana, passed on the 29th of March, 1826, all the property of an insolvent petitioner mentioned in his schedule is fully vested in the creditors, from. and after the cession and acceptance; and the syndic is directed to take possession of it, and to administer and sell it, for the benefit of the creditors. At the time, therefore, when the bank obtained judgment against Corney, the insolvent, he had no interest in the lot in question upon which the judgment could be a lien, or which could be seized upon, on execution issuing on that judgment. The right and title to it had, by operation of the law of the State, vested in the creditors, to be administered by the syndic, as their trustee.

Nor can the imperfect or erroneous description in the schedule have any influence on the decision. For it is well settled, by decisions of the courts of Louisiana, that all the property of the insol

vent, whether included in his schedule or not, passes to his [161] *creditors by the cession. 4 Ann. Rep. 492, 493; 11 Louisiana, 521; 8 Rob. 128; 9 ibid. 223. Consequently, if, under the ambiguous or erroneous description in the schedule, this lot must be regarded as omitted, it still passed by the cession, and Corney had no remaining interest in it.

Neither can there be any constitutional objection to this law of the State. The validity of a state law of this description has been fully recognized in the case of Peale v. Phipps and others, 14 How. 368, and in the previous cases therein referred to, and cannot now be considered as an open question.

We see no error, therefore, in the judgment of the circuit court, and it must be affirmed.

17 H. 152; 23 H. 90.