the interest of such owner in such vessel, and her freight then pending.' Rev. St. U. S. § 4283. It appears in this case that supplies to a large amount had been furnished to this tug, which were at the time of the collision unpaid for, and which, under the law, were liens upon the vessel; and the insistment of counsel was that although the tug had an apparent value of $8,000, and had been appraised at that sum, yet the 'interest of the owner' in her ought not to be calculated upon that basis, but that from the appraised value of the vessel should be deducted the full amount of the debts and claims owed by the vessel, and the balance taken to be the true 'value of the interest' of the owner. In other words, that, while the stipulation filed, and upon which the tug was released from the custody of the officers and returned to her owner, was for $8,000, yet when the time came for payment of the sum into court in compliance with its condition, to be distributed among libelants and claimants according to law, there should be first deducted therefrom a sum equal to the full amount of all debts due for supplies, repairs, etc., for which liens against the vessel could be enforced, and the balance only brought here as the true value of the owner's interest, to be distributed pro rata among the libelants. Without considering whether the owner is not, by his own act, estopped from raising this question now, after entering into a stipulation to pay the full amount of the appraised value of the tug if she be found in fault to the other libelants, and in consideration thereof receiving security from the law from all further or greater liability, I am clearly of opinion that the real value of the vessel in fault, without regard to liens upon her at the termination of her voyage, upon which she negligently caused the injury complained of, measures justly and equitably the value of the interest of the owner therein as contemplated by the limited liability act."

SAME-DAMAGES RECOVERED FROM OTHER

VESSEL

169. The owner must also surrender damages recovered from another vessel.

If the owner has proceeded against another vessel, and recovered damages for the injury to his vessel in the accident against which he is claiming liability, he must surrender these damages also; they being considered the representative of his vessel. This was held in O'Brien v. Miller.57 In delivering the opinion of the court, Mr. Justice White says:

"The clear purpose of Congress was to require the shipowner, in order to be able to claim the benefit of the limited liability act, to surrender to the creditors of the ship all rights of action which were directly representative of the ship and freight. Where a vessel has been wrongfully taken from the custody of her owners, or destroyed through the fault of another, there exists in the owner a right to require the restoration of his property, either in specie or by a money payment, as compensation for a failure to restore the property. Manifestly, if the option was afforded the owner of the ship to receive back his property or its value, he could not, by electing to take its value, refuse to surrender the amount as a condition to obtaining the benefit of the act. * * * Indeed, that a right of action for the value of the owner's interest in a ship and freight is to be considered as a substitute for the ship itself, was decided in this court in the case of Sheppard v. Taylor, 5 Pet. 675, 8 L. Ed. 269. * * * Mr. Justice Story, delivering the opinion of the court, said (page 710, 5 Pet., and page 282, 8 L. Ed.): 'If the ship had been specifically restored, there is

§ 169. 57 168 U. S. 287, 18 Sup. Ct. 140, 42 L. Ed. 469. See, also, St. Johns (D. C.) 101 Fed. 469.

HUGHES, ADM. (2D ED.)-24

no doubt that the seamen might have proceeded against it in the admiralty in a suit in rem for the whole compensation due to them. They have, by the maritime law, an indisputable lien to this extent. This lien is so sacred and indelible that it has on more than one occasion been expressively said that it adheres to the last plank of the ship. Relf v. The Maria, 1 Pet. Adm. 186, 195, note, Fed. Cas. No. 11,692; The Sydney Cove, 2 Dod. 13; The Neptune, 1 Hagg. Ad. 227, 239. And, in our opinion, there is no difference between the case of a restitution in specie of the ship itself and a restitution in value. The lien reattaches to the thing, and to whatever is substituted for it. This is no peculiar principle of the admiralty. It is found incorporated into the doctrines of courts of common law and equity. The owner and the lienholder, whose claims have been wrongfully displaced, may follow the proceeds wherever they can distinctly trace them. In respect, therefore, to the proceeds of the ship, we have no difficulty in affirming that the lien. in this case attaches to them.' Nor does the ruling in the CITY OF NORWICH, supra, that the proceeds of an insurance policy need not be surrendered by the shipowner, conflict with the decision in Sheppard v. Taylor. The decision as to insurance was placed on the ground that the insurance was a distinct and collateral contract, which the shipowner was at liberty to make or not. On such question there was division of opinion among the writers on maritime law and in the various maritime codes. But, as shown by the full review of the authorities found in the opinion of the court and in the dissent in the CITY OF NORWICH, all the maritime writers and codes accord in the conclusion that a surrender, under the right to limit liability, must be made of a sum received by the owner as the direct result of the loss of the ship, and which is the legal equivalent and substitute for the ship. We conclude that the owner who retains the sum of the damages which have been awarded him for the loss of his ship and freight has not

surrendered 'the amount or value' (section 4283, Rev. St. U. S.) of his interest in the ship; that he has not given up the 'whole value of the vessel' (section 4284); that he has not transferred 'his interest in such vessel and freight' (section 4285). It follows that the shipowner, therefore, in the case before us, to the extent of the damages paid on account of the collision, was liable to the creditors of the ship, and the libelants, as such creditors, were entitled to collect their claim, it being less in amount than the sum of such proceeds."

SAME-FREIGHT

170. Pending freight must be surrendered.

The owner is also required to surrender pending freight. This has been held to include demurrage, and prepaid fare of passengers."

58

If any freight has been earned or prepaid during the voyage, the owner must account for it; but, if the voyage is broken up, so that no freight is actually earned, then he cannot be made to pay it.59

The freight to be surrendered is the gross freight for the voyage.60

If the vessel owner is carrying his own goods, he must account for a fair freight for them."1

A government subsidy is not freight, and need not be surrendered.62

3 170. 58 Giles Loring (D. C.) 48 Fed. 463; Main, 152 U. S. 122, 14 Sup. Ct. 486, 38 L. Ed. 381. As to the meaning of freight, see ante, p. 155, § 72.

59 CITY OF NORWICH, 118 U. S. 468, 6 Sup. Ct. 1150, 30 L. Ed. 134.

60 Abbie C. Stubbs (D. C.) 28 Fed. 719.

61 Allen v. Mackay, 1 Spr. 219, Fed. Cas. No. 228.

62 Deslions v. La Compagnie Générale Transatlantique, 210 U. S. 95, 28 Sup. Ct. 664. 52 L. Ed. 973.

SAME-SALVAGE AND INSURANCE

171. Salvage and insurance need not be surrendered, neither being an interest in the vessel or freight.

But the owner is not required to account for salvage earned during the voyage."

And, if he has taken out insurance, he is not required to account for the insurance money collected by him; that being a collateral undertaking, and not an interest in the vessel. On this subject Mr. Justice Bradley says in the CITY OF NORWICH.64

"The next question to be considered is whether the petitioners were bound to account for the insurance money received by them for the loss of the steamer, as a part of their interest in the same. The statute (section 4283) declares that the liability of the owner shall not exceed the amount or value of his interest in the vessel and her freight; and section 4285 declares that it shall be a sufficient compliance with the law if he shall transfer his interest in such vessel and freight, for the benefit of claimants, to a trustee. Is insurance an interest in the vessel or freight insured, within the meaning of the law? That is the precise question before us.

"It seems to us, at first view, that the learned justice who decided the case below was right in holding that the word 'interest' was intended to refer to the extent or amount of ownership which the party had in the vessel, such as his aliquot share, if he was only a part owner, or his contingent interest, if that was the character of his ownership. He might be absolute owner of the whole ship, or he might own but a small fractional part of her, or he might have a tem

§ 171. 68 In re Meyer (D. C.) 74 Fed. 881.

64 118 U. S. 468, 6 Sup. Ct. 1150, 30 L. Ed. 134. See, also, Pere Marquette 18 (D. C.) 203 Fed. 127.