on October 4th the $3,000, with $25.75 for costs, were paid to the proctors of the libellants in the former action, and the following receipt therefor was given np0l1 discontinuance of that action: . [Title of cRnse.] "Received from the Pacific Mail Steam-ship Company the sum of $3,025.75, the amount agreed upon in settlement of the aboveenti tIed action j the fees of the officers ot the courts to be paid by the claimants. "New Yorl" Odober 4, 1880. JAB. K. HILL. "'YING & SnOUDY, Proctors for libellants."
From these facts it appears unmistakably, by the very terms of the award,-(l) That the claim of salvage was disallowed, and that, by consequence, all claims of the crew upon the moneys awarded were excluded, and intended to be excluded; (2) that the aWll,rd of $3,000 was made to the sole use of Kerr, as owner of the vessel, and as compensation for a towage service only, and not for salvage; (3) that the allowance of $3,000 was made upon the basis of this lower grade of service as towage, and not upon the more remunerative basis of salvage; (4) it also appears that the terms and intent of the award were made known to the parties to it, that they acquiesced in it, and that the moneys in question were paid to Kerr in execution of it.. A settlement thus made is binding upon the parties to it. Neither side, as against the other, can afterwards legally or equitably assert any claims at variance with its intent or legal effect. Though the service rendered might be subsequently adjqdged to be a salvage service, in proceedings by other persons interested, Kerr could claim no benefit from any share in the compensation that would have been awarded to him as owner, though it might be much larger than that. received in his settlement; nor could the owners of the Colon claim any protection or indemnity from Kerr against the claims of any other . persons not bound by the award and settlement. Nor can the court vary the amount of compensation awarded; but, as it was made upon the basis of a towage service only, it must be presumed to have been much less than would have been awarded to Kerr upon the basis of a salvage compensation. The Emily B. Souder, 15 Blatch!.
As this court cannot directly set aside or vary the terms of the award and settlement, so it cannot do so indirectly at the suit of others by compelling Kerr to share with them the money which was paid to him for his own separate interest as owner, unless others have a clear legal right in the fund, and no other legal remedy exists. For if they still have other adequate remedy against the Colon for their compensationl the right of Ke,rr to the full benefit of the settle-
ment m,ade by him would require them first to resort to that means of' payment before coming upon the fund for Kerr's own .. .I cannot perceive .al1Y of legal right in the libellants to share in the money paid to Kerr. No part of it was paid to their use or'£or their benefit. The basis of the award was a towage service merely, in 'which they had no legal interest. Whatever elements of ,salvage there were, according to the judgment of this court; in the actual service rendered, must be deemed, under the express terms of the airlt'rd, to have beeli excluded and disregarded. The statement.in the award that the sum allowed was "in full for the entire service;" controlled by the other statement that only a towage service and not a salvage service was allowed for. The sum given was awarded in full fot It towage service, and that only. It was not in full for a salvage service, for'that claim was disallowed. And while Kerr is. boUiid by. the finding that the service Was a towage service only, othei-pa:rties not bound cannot charge hiro,contrary to the fact, with having received the luoneyas full salvage compensation, when it was awarded to and by'him simply as towage, and for his own exclusive ·use. The libellants, moreover, have an ample remedy against the Colon. Their rights are unimpaired by the award and settlement in the former suit. They are i¥ lid degree bound thereby. The rights of 00salvors are not jointbrit several. The captain and owner have no authority to receive payment in behalf of other co-salvors, much les8 to submit their claims to arbitration or compromise. The Britain, 1 W. Rob. 40;' The Sarah Jane, 2 W. Rob. 110; 2 Pars. Ship. & Adm. book 2, .c. 8, § 1. But in this case the libellants were not parties to the former suit, nor to the arbitration, award, or settlement; they had no notice of the proceedings, and were not legally repre. sented; and, considering that "the question of their right was noi raised," as the arbitrator testifies, it is scarcely credible that the owners of the Colon supposed that their settlement with Mr. Kerr wag not at the risk of any future claims against the Colon for salvage by the officers and crew of the Pomona. In the adjudged cases in which contribution to the crew has been required out of moneys paid to the owner, the decisions have been based . upon the ground that it appeared unmistakably that the money was in payment of the whole service as salvage, and received in behalf of all interested. In Roffv.Was8,2 Sawy; 538, the bill rendered and paid was, "The Astoria and oWlHlrs, Dr., to salvage services, $5,000."
Judge Sawyer, in affirming the decision below, says: ''1 am satisfied this Clf1im covered the entire salvage services. · · · Nothing indicates any intention to limit the Qmim)o that part of the compensation due to the owners of the vessel as separate claimants." In Stud},ey v. Baker, 2 Low. 205, it "appeared plainly" that $1,540 of the bill paid to the owners was for salvage services; and, on payment, the owners gave a receipt for the "owners, masters, and crew." Judge Lowell says : "The compensation was such as to indicate beyond mistake that it was underst.ood to be for salvage service, and perfectly plain that it was the interest of both parties to adjust the compensation for the whole salvage service." And in The Centurion, Ware, 477, the same substantial facts appeared. In the present case it is equally plain that the opposite was intended by the award, and by the settlement and payment made in pursuance of it. Had the award been made in this case as the compensation for a salvage service, the libellants, upon the cases cited, would have been entitled to contribution. So, also, if a price had been originally fixed for the service, whatever its character might be, and the question submitted to the arbitrator had been merely whether it were a towage or a salvage service, and he had held it a towage service merely, upon which the whole sum, lated had been paid to Kerr, I should have had no hesitation in adjudging contribution in such an action as this; for, in that case, the arbitrator's erroneous decision as to the legal, character of the service rendered. could not have had any influence in fixing the amount to be paid for the service. The owner, by his receipt of the whole stipulated price, would in that case have become possessed of the fund appropriated to its entire payment, and the libellants, not being bound by the award, could, at their option, have followed the fund as held by intendment of law in part for their benefit. It is claimed by the libellants that, inasmuch as Kerr received this money in a suit brought by him "in behalf of all entitled" for a sal"Vage compensation, he is estopped from denying that it was received by him as salvage, and for the benefit of all. I do not perceive how this'}>roposition can be sustained. There is no such relation between a salving owner libellant and other co-salvors, not actual parties, as legally precludes the former from showing the terms of a settlement made by him on his own account, or from retaining the moneys intended to be paid to his own use. It could not be claimed that any such estoppel would apply to a decree of the court in such a suit
adjudgmg the owner's compensation alone, and not providing for the officers or crew; nor could it be claimed that the latter could in Buch a case demand contribution from the owner instead of proceeding upon their own libel. An award aud settlement thereon of the owner's separate interest are equally effectual; and as no action or inaction of the libellants was induced by the former suit, and their remedies remain unimpaired, I do not perceive any ground for the claim of estoppel. The mere filing of a libel "in behalf of all entitled" does not increase the owner's legal authority, or of itself create any trust for other co-salvors, nor impose ahy additional obligations on the libellant in their behalf; it does not make others actual parties to the suit, nor prevent their filing supplementary libels of their own. If they desire, they may be allowed to come in on petition; but if they do not do so, and the court should, from any cause, have entered a decree for the separate interest of some and not of all the co-salvors, the others may still assert their separate remedies. The Aletheih, 13 Weekly Rep. 279. To avoid multiplicity of acti()l1s the betterpmctica is for all co-salvors to join in one action, (The Boston, 1 Sumn. 328; The Edward Howard, Newby, 522;) and the court would douhtlefls withhold costs in all unnecessary proceedings. And in a libel by one co-salvor it usually, for its own convenience as well as for the conven· ienoeof others, enters a decree making provision for all. But this does not affect the s6'veral and independent legal rights .of co-salvors among themselves, ·or their right to make separate settlements of their own interests after suit commenced, though nominally forihe benefit of all others interested, so long as no others have become actual parties. Such is the established rule in equity. In suits for the administrationof assets it is not uncommon for several actions to be brought by different creditors, all for the same common object, and each for the benefit of all others interested. These may all proceed until a hearing in some one of them, when a decree will be made for the benefit of all. Until decree every such suit is entirely in the control of the actual parties to it, and may be settled at their own pleasure, without reference to others. Ross v. Crary, 1 Paige, 416; Handford v. Storie, 2 Sim. & S. 196; Pemberton v. Topham, 1 Beav. 316; Paxton v. Douglas, 8 Ves. 520; Story, Eq. PI. §§ 98-103; Good v. Blewitt, 13 Ves. 397; 19 Ves. 336; Ha,zzettv. Hallett, 2 Paige, 19. In Handford v. Storie, 2 Sim. & S. 1D6, a claim for contribution was made upon the precise groundf::> urgeJ in this case, and overruled
lIl'CONNOCBIE V. KERR.
for the reasons above stated. And similarly in admiralty, until decree, or until other co-salvors have been brought in as actual parties, I cannot doubt that the same unrestrained liberty of separate settlement exists, though the libel is nominally in behalf of all interested, and that such settlement, fairly. made, must be upheld according to the intention of the parties to it, without any responsibilityover for the moneys received in the settlement to others who were not parties to it, and were not bound by it, nor intended to be benefited by it. The arbitrator in this case having excluded the claim to salvage, nothing remained to be compensated but the owner's individual claim for'towage, and for this only the money was awarded and paid. Although the libel was filed for a larger compensation as salvage, in which others might share, the settlement was for the smaller and separate interest of the owner for towage. And it was none the less so by reason of the arbitrator's error, if it was error, as I have held, that no others had any claim to compensation for the service stated in the libel. This error, and the settlement based upon it, cl;lunot, by presumption of law, have worked any injury to the owners of the Colon, because, upon the-lower basis of compensation adopted by the arbitrator, the award to the owner is, by presumption of law, lower than his share would have been in an award of salvage compensation. If the award was, as now claimed, excessive in amount on the basis adopted, con.cerning which I express no opinion, that was one of the risks of the arbitration, and the court cannot cor,rect it. The money in question having, therefore, been paid for the own· er's separate interest, and to his own exclusive use, and the amount paid having been adjusted upon that basis, I find no grounds for any legal or equitable claim upon it by the libellants, and the libel must, therefore, be dismissed, with costs.
THE ROBERT GASKIl!\
(District Court, E. D. Michigan.
Where libellant suffered over six years to elapse before filing his libel, ,the ves, sel having been within the district several times, and it appearing, further, that she had been sold to a bonafide purchaser having no knowledge of the claim, it was held he could not recover, notwithstanding the fact that the libel was filed before the sale took place. 2. Sum-NOTICE. The filing of a libel, and the issue of an attachment, without seizure of the vessel, is not constructive notice of the pendency of the suit.
In Admiralty. 'rhis was a libel for towing the barge Robert Gaskin from Bay City to Lake Erie, August 12, 1873; amount claimed, $150; defence, stale claim. The .tes. timony showed that the present owners bought the Gaskin, which was a foreign vessel, March 12, 1880,' for a valuable consideration, and without notice ()f libellant's claim. At the time the services were rendered she was owned in Kingston, Ontario, and was generally engaged in the Canadian trade. In 1874 she made three trips to Sault St. Marie, remaining each time five or six days. Upon returning from one of these trips. she lay at Port Huron 12 hours, discharging cargo. In 1875 she was in Michigan four times, and upon one trip lay in Detroit river, opposite the city, for several hours. In 1876 she was.again at Bay City, where libellants resided. They visited her here; made a demand upon the master for the payment of their bill. They were content, however, with promises, and made no efforts to collect by legal proceedings, The barge was in Michigan three times in 1877, and once in 1878, but this fact was not known to the libellants. In 1879 she was again in this neighborhood, and layoff Detroit for about 18 hours. The bill appears to have ooen sent to the marshal at this place, with instructions to collect, in the spring of IS77, but no libel was filed until October 17, 1879, when an attachment was issued and kept alive by renewals until June 23,1880, when she was seized. This was three months after she had been sold, and eight months after the libel was filed and the first attachment issued.
J. W. Finney for libellant. lVm. A. Moore, for claimant. BROWN, D. J. In this case six years and three months elapsed from the time the service was rendered to the day the libel was filed. No excuse is shown for the delay. In The Hercules, 1 Brown, Adm. 559., I had occasion to hold that the libel should be filed during the current season of navigation, or as early the following season as it was probable the vessel could be seized. The testimony does not show such an absence from these water!:! as precluded the necessity