468.

2.

sonam can be maintained under the Suits in Admiralty Act, whether or not the vessel is within the waters of the District or of the United States.

The crew of a vessel salving a vessel of the U. S., may bring a libel in personam against the United States, in the district where libellants reside, and the presence of the vessel in the United States or in the district is not necessary.

SILAS B. AXTELL, for Libellant.

WILLIAM HAYWARD, U. S. Attorney (WALTER SCHAFFNER, Special Assistant), for the U. S.

Sur exceptions to a libel in the admiralty.

The libel alleges that the steamship Faraby was owned by the United States and was and still is employed as a merchant vessel; that she is now within or about to come within the admiralty jurisdiction of this Court. It then sets up facts showing the performance of alleged salvage services by the libellants, the crew of the steamer Hickman, in towing the Faraby from the Azores to the Port of New York. The question raised by the exceptions is, whether this is a case within Section Two of the Act of March 9th, 1920, known as the Suits in Admiralty Act. The respondent claims that as there is no allegation that the ship is within the district, no libel in rem could be maintained against it. The libellants answer that under the Eighteenth Admiralty Rule the libel for salvage lies in personam against the person liable.

GODDARD, D. J.:

A libel in personam lies against the Government for salvage quite independent of any lien upon the goods salvaged, U. S. vs. Cornell S. S. Co., 202 U. S. 184. The present Rule Eighteen is not to be understood as changing the former Rule Nineteen, which enacted that a libel in personam would lie "against the person at whose request or for whose benefit salvage services were performed." These services were performed for the benefit of the United States even though not at its request. Therefore the absence in the libel of any statement that the United States was operating the vessel is of no consequence.

The question then comes to this: Whether a libel in personam lies against the United States although the vessel is not alleged to be within its borders. It is now settled by the Supreme Court in the case of Blamberg vs. U. S., decided January 2nd, 1923,

1923 A. M. C.

1923 A. M. C. 50 that no libel in rem lies against such a vessel. In The Isonomia, 1923 A. M. C. 132, 285 Fed. 516, the Circuit Court of Appeals for this Circuit held that a libel in rem would not even lie against a vessel which was not within the jurisdictional waters of the district in which the libel was filed at the time of filing. If this were a libel in rem for salvage it would not therefore lie. The libellant has not chosen to elect in his libel whether the suit was "to proceed in accordance with the principles of a libel in rem or not, under Section Three of the Suits in Admiralty Act, but I do not think that necessary. If his libel is good in any aspect it ought not to be dismissed. In The Isonomia, supra, it was distinctly said that a libel in personam was authorized by the Suits in Admiralty Act and that it could be brought in any district where the libellant resided, and this libel alleges that the libellants reside in the district. It is open to some doubt whether the language of Mr. Chief Justice Taft in Blamberg vs. U. S. supra, did not mean to confine all remedies under the act to cases in which a libel in rem would lie, but the language of the Isonomia is to the contrary. It cannot be the rule that a libel in personam only lies in case the vessel is within the borders of the United States, although the libel in rem does not lie unless she is within the waters of the district. The Isonomia means that in cases of libels in personam which would not between individuals require the presence of the vessel anyway, a libel may be filed in the district of the libellant's residence. The only escape from this result would be in case it were held that the Suits in Admiralty Act was intended to give no remedy except in cases where there was a maritime lien. The contrary was distinctly held in the Isonomia and is certainly not distinctly overruled in Blamberg vs. U. S.

Therefore I hold that where there is a right in personam against the United States, it is not necessary that the vessel should be either in the waters of the district or in waters of the United States, since the libel in personam does not require the presence of the vessel at all.

LIGHTER MAUD.

WILLIAM SPENCER & SON, INC., Libellant,

vs.

STEAMTUG DOWNER NO. 9, DOWNER TOWING CORPORATION, AND INTERNATIONAL MERCANTILE MARINE CO.,

Respondent impleaded. United States District Court, Southern District of New York, April 9, 1923. TOWAGE COLLISION-EXPOSED BERTH-BARGE AT PIER END-DUTY OF TUG. Where a tug has shifted a barge from the end of a long pier to the end of a shorter one, the slips being too crowded for entrance, neither the tug nor the steamship company controlling the pier and ordering the shift, is responsible for damage done to the barge by other barges which broke loose next day in a gale and drifted against her.. MACKLIN, BROWN & VAN WYCK (HORACE L. CHEYNEY, Advocate), for

Libellant.

ALEXANDER & ASH, for Downer Towing Co., Claimant.

BURLINGHAM, VEEDER, MASTEN & FEAREY (A. HOWARD NEELEY, Advocate), for International Mercantile Marine Co.

AUGUSTUS N. HAND, D. J.:

The lighter Maud was towed by a New York Central tug to Pier 60, North River, where she was made fast at the end of the pier outside other barges and lighters. She was loaded with cotton. for the steamship Baltic which was on the South side of Pier 58. Piers 58, 59, and 60, are owned or leased by the International Mercantile Marine Company. The Harbormaster, Thomas Watt, gave orders to the Downer No. 9 to shift the lighter to the end of Pier 58, which was done. The bargemen testified that they hung him up at the end of the pier because there was no room in the slips. Pier 58 was a shorter pier than Pier 60, and therefore less exposed. When the barge was placed at the end of Pier 58 there were no bad weather conditions, but in the evening of that day southeasterly storm warnings were displayed and the next morning during a sudden gale from the southwest boats from Piers 56 and 57 drifted against the barge, parted her lines and carried her away, breaking three planks.

It is not in itself negligent to moor a barge at the end of a pier. She was shifted to the end of a pier that was even safer than where her own tug had moored her so that I can find no liability on the part of the Downer, who did the shifting, or the Inter

1923 A. M. C. national Mercantile Marine, which seemed to have directed it, through its Harbormaster. The case is much like that of Dunnigan Bros. vs. Golden Rule, recently decided by Judge Hough, and my opinion in the case of John Coughlin vs. Pennsylvania Railroad Company, 1923 A. M. C. 450, decided on February 26, 1923. If there was any liability here it was on the part of the barges that broke loose and came down on the Maud. See The Nora Costello

(1891), 46 Fed. 869, at p. 871.

The libel and intervening petition are each dismissed, but without costs.

DIAMOND FUEL COMPANY, INC., JOHN B. JOHNSTON, RECEIVER, Appellant,

vs.

COMPAGNE NAVIGAZIONE SOTA Y AZNAR AND THE TIDEWATER COAL EXCHANGE, INC., GARNISHEE, Appellees. United States Circuit Court of Appeals, Fourth Circuit, Mar. 31, 1923. Before: Woods and WADDILL, Circuit Judges, and WEBB, District Judge. CHARTER PARTY GOVERNMENT PERMIT-I. C. C. SERVICE ORDER, No. 6— BALTIMORE COAL CASES.

Where a charter party provided by special interlineation that time for loading was to commence "regardless of whether or not charterers have government export license," charterer is liable for failure to furnish cargo because of restrictions of the Interstate Commerce Commission upon railroad transportation of coal to the port under Service Order, No. 6, of July, 1920.

273 Fed. 299, affirmed.

W. AINSWORTH PARKER and R. E. LEE MARSHALL (BROWN, MARSHALL, BRUNE & PARKER on brief), for Appellant.

CHARLES R. HICKOX (STUART S. JANNEY and EARL APPLEMAN on brief), for Appellees.

Appeal from the District Court of the United States for the District of Maryland, at Baltimore.

Per Curiam:

The decree in the District Court was in favor of the owner of the steamship Unbe Mendi against the charterer, for demurrage and damages for failure to perform its charter contract of June 14, 1920, to load the vessel with export coal to be carried at the price of $19 a ton.

472.

The findings of fact of the District Judge, having abundant support in the evidence, are not subject to review.

Careful consideration of the conclusions of law applicable to the facts convinces us that the decree of the District Court is correct. We think nothing of value can be added to the reasoning of the opinions found in Compagne Navigazione Sota y Aznar vs. Diamond Fuel Co., 273 Fed. 299 and Hellenic Transport S. S. Co., vs. Archibald McNeil & Sons Co., 273 Fed. 290.

Affirmed.

DIAMOND FUEL COMPANY, INC., JOHN B. JOHNSTON, RECEIVER, Appellant,

v8.

CANUTE STEAMSHIP COMPANY, LTD., and THE TIDEWATER COAL EXCHANGE, INC., GARNISHEE, Appellees.

United States Circuit Court of Appeals, Fourth Circuit, March 31, 1923.

Before: WOODS and WADDILL, Ct. JJ., and WEBB, D. J.

CHARTER PARTY GOVERNMENT PERMIT-I. C. C. SERVICE ORDER No. 11BALTIMORE COAL CASES.

Service Order No. 11, of the Interstate Commerce Commission in August, 1920, whereby priority of shipment of coal by rail to the port of Baltimore was given to 30 per cent. of the total shipments for coastwise transportation and 70 per cent. of the total was left free for export, did not excuse a charterer for failure to load a vessel for export.

273 Fed. 301, affirmed.

W. AINSWORTH PARKER and R. E. LEE MARSHALL (BROWN, MARSHALL, BRUNE & PARKER on brief), for Appellant.

CHARLES R. HICKOX (STUART S. JANNEY and EARL APPLEMAN on brief), for Appellees.

Appeal from the District Court of the United States for the District of Maryland, at Baltimore.

Per Curiam:

We are satisfied with the reasoning and conclusion of the District Court in the opinion in this case, Canute S. S. Co. vs. Diamond Fuel Co., 273 Fed. 301, and in the related cases of Romney S. S. Co. vs. McNeil & Sons Co., 273 Fed. 287, Hellenic Transport S. S. Co. vs. McNeil & Sons Co., 273 Fed. 290, Western