Mr. Halsey's Argument for Appellee.

ing to obtain the benefit of the statute, and the court must give the full limitation allowed by it, or it can give nothing. The rule of the general maritime law is to be adopted; under which the owner's liability is limited to his interest in the vessel and cargo; i. e., to that which the general maritime law would have compelled him to surrender, in order to be discharged from liability. This amount has been accurately fixed by the report of the commissioner in this proceeding.

The rule of limitation under the general maritime law that the liability is limited to the ship and freight refers only to the property which the shipowner has put at risk in the maritime venture-to his sea fortune, not to his land fortune. The proceeding to obtain the benefit of this limitation, which is quite a different thing, is the surrender of the ship and freight in the manner provided for by the law of the country. See Caumont Dict. Com. Mar. Abandon, § 8; 1 Bédarride, Code de Com., 297. The Scotland, 105 U. S. 24; Thommessen v. Whitwill, 21 Blatchford, 45. But the rule of limitation itself, which is universal, without regard to local proceedings to enforce it, confines the liability to the condition of the ship in her damaged condition. Strong J. in 21 Blatchford, 231. And proceedings to obtain the benefit of the act, though taken subsequently, are taken as of the time of the disaster.

The claim that the value after the collision and before the fire should have been taken as the value under the statute is untenable, because the fire was the result of the collision, and the two cannot be separated.

The main question relates to the insurance. This court has intimated in previous cases its opinion that insurance recovered forms no part of the amount for which ship owners are liable. The Benefactor, 102 U. S., at page 246; The North Star, 106 U. S., at page 29; Norwich Co. v. Wright, 13 Wall. at page 126; The Scotland, 105 U. S. at page 28; Moore v. Am. Trans. Co., 24 How. at page 29; which is in accord with the general doctrine that an insurance policy is a personal contract. Mildmay v. Folgham, 3 Ves. Jr. 471; Vernon v. Smith, 5 B. & Ald. 1.

This view has been held uniformly by District and Circuit

Courts.

Mr. Halsey's Argument for Appellee.

Wattson v. Marks, 2 Am. Law. Reg. 157; Pet'n, Norwich & N. Y. Trans. Co., 8 Ben. 312; S. C., 17 Blatchford, 221; The Peshtigo, 2 Flippin, 466; Thommessen v. Whitwill, 21 Blatchford, 45; City of Columbus, 22 Fed. Rep. 460.

The soundness of this uniform line of decisions is now before the court for determination. It is respectfully submitted, that the interest in the vessel, which is the measure of liability under $4283, and a transfer of which, if made under § 4285, operates to discharge the claim for loss or damage, does not include a claim for insurance money received by the owners of the vessel.

I. The proper construction of the statute leads to this result. Ships are usually owned in shares. The obvious purpose of the word "interest," is to indicate that each co-owner's liability is limited to his share (which is his interest), and is not to extend to the entire vessel. To extend his liability beyond this to the insurance money would cause a word used for the purpose of limiting liability to operate in a contrary sense. This would violate settled rules of construction.

The word "interest" extends to the freight as well as the ship. If both were totally lost to their owners "by a surrender to the waves," could it be contended, in the light of the reported expressions of this court in relation to freight, that insurance on freight was to be surrendered?

The construction of § 4283, is aided by the language of § 4284, being § 4 of the original act, which describes the liability as "the whole value of this vessel, and her freight for the voyage."

It is now settled by the decisions of this court that all claims for damages arising from the disaster stand upon an equality, when the whole value is insufficient to make full compensation, and that the measure of the owner's liability is the same whether he surrenders his interest under § 4285, or takes "appropriate proceedings" under § 4284.

The "whole value of the vessel and freight for the voyage" is then clearly the limit of the liability, and in case of part owners each is liable only for the value of his interest or share in the ship. This construction gives full effect to the language of each section, and renders them harmonious.

VOL. CXVIII-31

Mr. Halsey's Argument for Appellee.

A policy of insurance on a vessel is not an interest in the vessel itself. It is a right existing by itself, and is the representative of the premium. In addition to the authorities already cited, see McDonald v. Black, 20 Ohio, 155; Wilson v. Hill, 3 Met. 65; Poncles v. Innes, 11 M. & W. 10; Columbian Ins. Co. v. Lawrence, 10 Pet. 512; Plympton v. Ins. Co., 43 Vt. 497: Gleason v. First Nat. Bank, 13 Fed. Rep. 719.

There is no inequity in this construction. This statute was enacted to free shipowners from the severe rules of the common law. See New Jersey Steam Nav. Co. v. Merchants' Bank, 6 How. 344. It is in harmony with the general maritime law. Stinson v. Wyman, 2 Ware, 172; and should be so construed as to carry out the policy introduced in its enactment. See the debates in Congress on the passage of this act. By the general maritime law, the shipowners (if personally free from blame) were not liable for the negligent or wrongful acts of the master and crew, beyond the amount of their interest in the ship. So that if they surrendered the ship they were discharged. Norwich Co. v. Wright, 13 Wall. at page 116; The Scotland, 105 U. S. at page 28.

In the first of these cases this court (on page 11) quotes from Pardessus, intimating that insurance must be surrendered. But this extract, taken from an early edition, is not contained in the edition of 1841, where it would seem that he has a doubt of its correctness, and in any event he stands alone. Many other and far more weighty authorities are against him. See 1 Boulay-Paty, Droit Com. Mar. 297; de Villeneuve & Massé, Dict. Cont. Com. Armateur § 18; Éloy & Guerrand, Capitaines Mait. et Pat. 270; 1 Bédarride, Com. Mar. 359; Valin, Com. sur l'Ord de la Marine.

In addition to the sections of Caumont's Dictionnaire du Droit Maritime, referred to in the opinion of the District Court, we refer also to sections 57 and 58.

The 7th section of the same article states the earlier authorities for the general rule, as follows: "The ordinance of 1681, and the jurisprudence of the Parliament of Aix, while it had authority, decided that the owner never exposed anything but his ship to the chances of navigation; that is to say, his sea

Mr. Ingersoll's Argument for Appellants.

property and not that of the land. So taught also Loccenius and Vinnius; Decree of Parl. of Aix, 18 May, 1761, Émerigon, Contrats à la grosse, ch. 4, Section 4, § 5; Consul. de la Mer. ch. 194 and 239; Grotius, Stypmann, part 4, ch. 15, No. 120; Kuricke, Quest. 21; Pothier, Traité des Obligations, No. 451 and Charter parties; Boulay-Paty 1, 270; Dageville 2, 111; Frémery, p. 189; Court of Cassation, 9 March, 1814, at Rennes, 16 Jan., 1821; at La Haye, 4 Nov., 1824; at Marseilles, 20 Sept., 1831.

Mr. C. R. Ingersoll, for appellants Wright and another.

1. The court below erred in not apportioning among the sufferers by the steamer's fault the whole value of the owner's interest in the offending vessel at the time the limitation of liability was sought; such value being fixed by the stipulation at $70,000. That the stipulation taken upon the release of the vessel from custody is (independently of any peculiar provision) a substitute for the released vessel, and that the rights and remedies of all parties interested in the released vessel remain unaffected by the substitution, and are to be regarded precisely the same as though the vessel itself was now in court, as the actual res to be subjected to its decrees, we suppose will be conceded. United States v. Ames, 99 U. S. 35, 42; The Wanata, 95 U. S. 600, 611.

When this statute was enacted the general maritime law as administered, not only in the United States, where no limitation of the shipowner's liability by Federal law obtained, but in continental Europe and England, also, where the limitation existed, entitled the lien-creditor to the full amount of the owner's interest in the vessel as that interest might be at the time of its appropriation for his benefit. The Rebecca, 1 Ware, 188; The Maggie Hammond, 9 Wall. 449; The China, 7 Wall. 68; The Siren, 7 Wall. 155; The Alive, 1 W. Rob. 111; The Europa, 2 Moore P. C. N. S. 1; The Charles Amelia, 2 L. R. Adm. & Eccl. 330; The Bold Buccleugh, 7 Moore P. C. 267.

This maritime lien or hypothecation of the vessel, adheres to the ship from the instant it attaches as a proprietary interest

Mr. Ingersoll's Argument for Appellants.

-a jus in re-and travels with her wherever she may go and in whatever condition she may be, so long as her identity as a ship is preserved.

However it may be in England, where the administration of the general maritime law has been largely influenced by common law rules and practice, it is very certain that in this country, and particularly in this court, the doctrine of the general maritime law, as declared in The Rebecca (p. 203), has been uniformly followed, and the master of the ship regarded "not precisely as the agent, or, in the language of the civil law the præpositus of the owners, but as standing with regard to them in a peculiar relation which was expressed by the term commendatory."

And therefore, as Émerigon says (as quoted by Judge Ware, p. 204): "The obligations of the proprietors are rather real than personal. The master's legal power does not extend beyond the ship of which he is the master, that is the administrator."

And later commentators upon the general maritime law are in accord with this. Bédarride in his Commentaire du Code de Commerce, Paris, 1859, vol. 1, art. 216, says:

"The responsibility of the owner rests upon the basis that those who have directly or indirectly dealt with the captain, acting in that character, and within the limits of his power, have really dealt with the ship itself, which becomes the principal bound."

Out of this responsibility which the maritime law imposes upon the offending vessel, has grown the peculiar remedy of the court of admiralty, in rem. Its sole purpose is to enforce the lien by which the ship is bound.

Also out of this distinction between the liability of the vessel and the liability of the person grew the mode by which the principle of limiting the personal liability of the shipowner to his sea-fortune was carried into effect. He was allowed to limit his own liability by limiting the creditor to the remedy which the maritime law gave him against the ship; but he could not limit the liability of the ship, or impair the remedy which the maritime law gave the creditor in rem.