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199,500 10 hours. Hawser broken. 36 Fed. 793.

Benison having had stem

carried away by collision 7,500 Pomona

14,330 240 miles to Charleston, 37 Fed. 444.

S. C.

2,000 Tancarville

87,432 50 hours towage to New 45 Fed. 903.


8,200 Sirius

143,539 Towage 320 miles to San 57 Fed. 851, 6 C. C. A. 614.

Diego (4 days)

8,000 Akaba

130,000 Towage from off Hatteras 54 Fed. 197, 4 0. C. A, 281.

to Hampton Roads (three

30,000 Phenix

160,000 Four days towing in Feb62 Fed. 487, 10 C. C. A, 506.

ruary, 375 miles in gales

fog to Hampton

20,000 Great Northern

100,000 Broken shaft off Hatteras. 72 Fed. 678.

Towed 125 miles to
Hampton Roads

10,000 Gambetta

26,500 Disabled ; towed 520 miles 74 Fed, 260, 20 C. C. A. 417.

to mouth of the Missis-

2,216 Alaska

152,250 Str. out of coal, towed 250 75 Fed. 430.

miles to New York

7,500 Waverly

67,000 Engine broken down, towed 78 Fed. 191.

20 miles to Milwaukee... 1,500 Elm Branch

150,000 Steamer without propeller 106 Fed. 952.

towed by ocean tug into
Port Townsend

8,175 Values over $200,000, not exceeding $400,000. Adirondack

$300,000 5 days, 662 miles.... $ 7,500 2 Fed. 387. Leipsic 264,000 24 hours, 125 miles

3,750 5 Fed. 108. Leipsic

264,000 24 hours, 125 miles. In10 Fed. 585.

creased to $5,500 on ap

peal. D. Steinman

252,000 Towage, 630 miles....... 25,000 19 Fed. 918. California

260,000 Towage, 300 miles. Lost a 36 Fed. 563.

week by putting back.... 15,000 Veendam

Towage, 191 miles while en46 Fed. 489.

gines repairing Veen-
dam then came to port

8,500 Dupuy de Lome

224,000 4 days' towage during a 60 Fed, 921, 9 C. C. A, 292.

'Norther' in Gulf Mexico 18,716 Chinese Prince

250,000 69 miles to Charleston.... 5,000 61 Fed. 697. Hekla

213,300 Cattle steamer turning back 62 Fed. 941.

and towing passenger
steamer 750 miles (lost
12 days)

30,000 Spokane

320,000 Towed from off Manistee in 67 Fed. 254.

L. Michigan to Milwaukee
during storm. 24 hours'

3,600 City of Para

335,000 Passenger steamer towed 69 Fed, 479.

325 miles into Hampton

7,554 Florence

240,000 Towage 140 miles to N. Y., 65 Fed. 248.

with 4 to 5 days' delay.. 8,500 71 Fed. 527, 18 C. C. A. 240.



384,000 Passenger stmr. towed 200 72 Fed. 543.

m. from off Sable Island
to Halifax, losing 24

18,000 Strathnevis

220,000 To Miowera towing stmr. 76 Fed. 855.

without propeller 450 m.
in severe weather, then
lost her in storm...

25,200 To Mineola for bringing

her from dangerous an-
chorage to Port Towns-

20,500 City of Puebla

843,000 Stmr., broken crank pin, 79 Fed. 982.

towed in high seas into
Port Townsend

16,000 Catalina

200,000 Stmr. disabled, towed to 105 Fed. 633, 44 C. C. A. 638.

mouth of Mississippi
about 60 m. in good

2,400 Ereza

250 Steamship losing propeller 124 Fed. 659.

blades towed in winter
415 miles to Del. Break-
water, involving 9 days'
delay, with about $1,500

20,000 Values over $400,000. Colon

$480,000 6 days, 731 miles, Etna de10 Ben, 60, Fed. Cas. No.

tained 242 days

$10,000 3.024. 4 Fed. -469. Edam

450,000 One week lost. Vessel in 13 Fed. 135.

great danger

25,000 Alaska

1,041,542 Steamer used slower stmr. 23 Fed. 597.

as rudder 600 miles.... 26,039 Gallego

476,000 Eight days' loss. Steamer 30 Fed. 271.

in danger

25,000 Wisconsin

505,234 Seven hours' steering rud30 Fed. 879

derless stmr.

4,000 Italia

473,421 750 m. to N. Y. towing 42 Fed. 416.

steamer only partially disabled, assisting with own engines

25,000 Chas. Wetmore

409,219 Towage steamer disabled 51 Fed. 449.

drifting upon lee shore
with serious damage to
saloon, crossing bar Co
lumbia River

20,000 Chatfield

435,000 Brixham first towed steam52 Fed. 479.

er within 43 m. of Cape
Henry (9 hours) and City
of Augusta towed her in.
to Hampton Roads (12

27,000 Dania

426,000 Stmr. broken shaft towed 70 Fed. 398.

300 m. to N. Y., 2 days
and 2 hours

17,500 Winifred

710,000 Stmr. disabled ; lost smoke102 Fed. 988.

stack; towed 250 m. to
Nassau; hawsers twice

23,000 Special stress is laid by the claimant upon the award in The Colon, supra. That was a case arising in the same vicinity as this,

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where there was a salved value of $480,000 and a towage of 731 miles. The Colon was one of a line of passenger carrying steamers, running between New York and Colon. She had a non-perishable cargo on board worth $250,000, which formed a part of the saved value. On the occasion in question, she was bound for the latter place and broke her crank shaft. She incurred damage thereby that could not be repaired at sea, nor could she be sailed efficiently without disconnecting her propeller, excepting with a favorable wind, which was generally towards New York. It was said by Judge Blatchford that the part of the ocean where the Colon lay disabled, latitude 28° 17' north, longitude 74° west, was much frequented by both steam and sail vessels. The accident happened on the 20th of August, 1876, about 11 o'clock in the forenoon. A few hours afterwards the steamship Etna, worth with cargo $200,000, bound for New York, came in sight and was engaged to tow the Colon back to New York. Each vessel furnished a hawser. They got under way about 7 o'clock in the evening and reached New York early in the morning of the 26th of August. During the towing the weather was fine and nothing occurred to interrupt progress, except the stranding of the Etna's hawser, which caused a short stoppage while it was being repaired. Both vessels used their sails. The salving vessel there demanded $150,000. A salvage compensation of $10,000 was awarded by the district court, which included $5,125 paid by the owners to master and crew. A further sum of $2,200.28, covering costs, was allowed to certain consignees of cargo, damaged by the detention. The salvor's appeal was disallowed with costs.

The award in The Colon tends to sustain the claimant's contention.

All salvage cases, however, must stand to a certain extent upon their own merits and be governed by the discretion of the court, which is naturally influenced by a desire to award such an amount as will prove an incentive to salving vessels to perform the services required of them, without inflicting too heavy a burden upon the saved property. Having these considerations, as well as the special facts of the case in view, I conclude that an award of $10,000, will be proper, 25% of which will go to the officers and crew of the Rosewood in proportion to their wages, excepting that the master will have a double share.

Decree for libellant accordingly.

(Circuit Court, D. Massachusetts. March 22, 1905.)

No. 1,757.


In a suit in a federal court, brought under section 738, Rev. St., to establish a lien on the interest of defendants in property in the hands of an ancillary administrator in the state in which the suit is brought, the decree is necessarily confined to the property localized within the juris

136 F.-44

diction, although personal judgments may be entered against the defend

ants, to which the liens are incidental. ?. EQUITY-SUIT TO ENFORCE LIEN-DISREGARD OF FORMAL OBJECTIONS,

The fact that in ancillary probate proceedings the will of a testator was admitted to probate without any expressed reference to a compromise decree entered in the state of original jurisdiction by which contesting þeirs not named in the will were given a certain share in the estate, so that the record in the ancillary proceedings does not show any interest in such heirs, will not preclude a court of equity from fastening a lien upon their interest in the assets within the ancillary jurisdiction; the objection being one of form only, which such court will disregard. In Equity. On final hearing.

Hollis R. Bailey, E. N. Harwood, and John H. Hazelton, for complainant.

Louis D. Brandeis, for defendants Coram and Root.
Thaddeus D. Kenneson, for defendant Root.
F. N. Wier, for defendants Coram, Root, Cummings, and Palmer.
H. G. Allen, for defendants Davis and Leyson.
L. S. Dabney, for defendant Leyson.
Adler & Hall, for defendants Coram, Root, and Palmer.

PUTNAM, Circuit Judge. This case was heard on demurrers which were disposed of by an opinion passed down on December 30, 1903 (127 Fed. 418), accompanied with an order which directed that on final decree the bill should be dismissed as to certain parties respondent, and which determined all the other issues in favor of the complainant. It was again heard on motion for interlocutory injunction, and an opinion passed down on August 15, 1904. 132 Fed. 168. The case has now been heard on bill, answer, and proofs. The substantial conditions on the present hearing are so little changed from what they were at the hearing on the demurrers, and the order on the demurrers so far disposed of the issues in the case, that we have occasion to discuss only a very few topics. Some propositions were argued somewhat more fully by the respondents than when the case was submitted on the demurrers; but, with the following exceptions, we do not think it advantageous to attempt to review the questions which we then disposed of.

The respondents especially urge on us that the remedy must be limited to assets which are localized within this district by the proceedings in the probate court for Suffolk county, in Massachusetts, all of which were intended to be described in the decree for an interlocutory injunction which was entered on the 6th day of September, 1904. As this proceeding is under section 738 of the Revised Statutes, and can only be sustained in that aspect, it is very plain that the position of the respondents in this respect is correct, and the decree to be entered hereon must be framed accordingly, subject only to the necessity of entering personal judgments to which the liens asserted herein are incidental.

The respondents also claim that John A. Davis, who was the principal legatee in the will of Andrew J. Davis as the same was offered for probate, has deceased, and that no person has been appointed by the probate court within this jurisdiction as the legal

representative of his estate, so that, therefore, there is an inevitable lack of necessary parties on the present bill. Under the circumstances of the case, however, John A. Davis, or his estate, stands, so far as these proceedings are concerned, in the same position as Mrs. Ellen S. Cornue, as explained in our opinion passed down on December 30, 1903, already referred to. If any representative of the estate of John A. Davis had been joined as a respondent in this bill, he would necessarily be dismissed therefrom, so that the proposition of the respondents in this particular is wholly ineffectual.

The respondents urge again on us the fact that the probate court for the county of Suffolk formally probated the will of Andrew J. Davis as a will, so that, whatever the nature of the proceedings in Montana may be, the relations in the state of Massachusetts are those of legatees; and, also, so that, according to the probate records of Massachusetts, the estate of John A. Davis as principal legatee represents, and must be the sole representative of, all the interests sought to be reached by this bill. It is, therefore, maintained that, on a distribution made by that probate court, no apparent interest would be vested in any of the present respondents. This, however, is all a matter of form, with which equity does not seriously trouble itself. It may be that, inasmuch as the probate proceedings in Massachusetts are purely ancillary, and so appear on their face when taken altogether, the probate tribunals in that state will regard the proceedings in Montana as dominant, and make decrees of distribution accordingly, if they order distribution. Of course, we do not presume to undertake to determine what they ought to do in this respect, nor do we know what they ought to do; but, again, whatever may be the result of their proceedings in distribution, and whosoever may be regarded by them as the proper nominal distributees, such result involves question of form so far as we are concerned. Our only duty is to reach the beneficial interests as they must finally rest.

It is now urged on us for the first time that the agreement made with Mr. Ingersoll, which forms the basis of this bill, created no lien, either legal, equitable, or statutory. We determined on the demurrers that there is no statutory lien. The respondents now press on us that the words in the agreement of August 17, 1891, as follows: "In no event is the said J. A. Coram obligated, except to pay such fee out of the funds secured from the estate of J. A. Davis, deceased," etc.--created no legal or equitable lien; and they cite several authoritative decisions which they maintain sustain that proposition. We came to a different conclusion on the determination of the demurrers, and remain of the same opinion. Whether or not a particular agreement creates a lien is a matter of construction. In this case, the fact that there was no primary personal responsibility on J. A. Coram especially serves to stamp the agreement in issue as declaring a purpose to create a lien. Therefore, on the whole, we hold that, on this final hearing on bill, answer and proofs, the bill must be sustained.

Consequently there will be a decree for the complainant, which will provide as follows:


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