Schuchardt et al. v. Ship Angelique. plaintiff could not recover without showing the work was completed, ready for laying down the iron rails for one track, by the 1st day of December, 1854, which the court refused to do. In this, we think, there was error. On a contract where time does not constitute its essence, there can be no recovery at law on the agreement, where the performance was not within the time limited. A subsequent performance and acceptance by the defendant will authorize a recovery on a quantum meruit. It is difficut to perceive any satisfactory mode by which the defendant in the Circuit Court could recoup his damages for the failure of the plaintiff to perform in that action, or by bringing another suit. As a stock and bond holder, his damages would be remote and contingent. To ascertain the general damage of the company by the failure, and distribute that amount among the members of the company in proportion to their interests, would seem to be the proper mode; and this would be complicated, and not suited to the action of -a jury. The judgment of the Circuit Court is reversed, with costs. FREDERICK SCHUCHARDT AND FREDERICK C. GEBBARD, LIBELLANTS AND APPELLANTS, v. WINTHROP 8. BABBIDGE AND OTHERS, CLAIMANTS OF HALF OF THE PROCEEDS OF THE SHIP ANGELIQUE. Where a mortgage existed upon the moiety of a vessel which was afterwards libelled, condemned, and sold by process in admiralty, and the proceeds brought into the registry of the court, the mortgagee could not file a libel against a moiety of those proceeds. His proper course would have been, either to have appeared as a claimant when the first libel was filed, or to have applied to the court, by petition, for a distributive share of the proceeds. THIS was an appeal from the Circuit Court of the United States for the southern district of New York, sitting in admiralty. The facts are stated in the opinion of the court. It was argued by Mr. Cutting upon a brief filed by himself and Mr. Hamilton for the appellants, and Mr. Benedict for the appellees. The arguments of counsel, with respect to the relative rights of the claimants and libellants to the fund in court, are omitted. With respect to the jurisdiction of the court, Mr. Cutting's point was this, viz: Although courts of admiralty in the United States have no Schuchardt et al. v. Ship Angelique. power to foreclose a mortgage of a vessel by a sale, or to transfer the possession to the mortgagee, (17 Howard, 399, Bogart v. The Steamboat John Jay,) they may entertain an application by the mortgagee, after a sale, to be paid out of the proceeds of the sale in the registry of the court. (Propeller Monticello, 17 Howard, 152; Admiralty rule, 43.) Mr. Benedict's point was this: This is really a suit to foreclose a mortgage, even if it were an original suit against the ship. As a suit against the proceeds, it is in substance a suit in equity, for relief against a regular degree in admiralty. In either case, the District Court had no jurisdiction. (Case of the John Jay, 17 Howard, 399.) Mr. Justice NELSON delivered the opinion of the court. This is an appeal from a decree of the Circuit Court of the United States for the southern district of New York, sitting in admiralty. Between sixty and seventy libels had been filed in the District Court by material men-men who had furnished supplies; also, by shippers of goods and passengers-against the ship Angelique, of which S. W. Jones was master. These several proceedings were commenced in July and August, 1853, and interlocutory decrees, condemning the vessel, were entered in all of them, and final decrees in some six or seven. One of the parties obtaining a final decree issued execution, and the vessel was sold, and the proceeds brought into court. The vessel sold for $6,900. In this stage of these proceedings, the present appellants filed their libel against the proceeds of the ship in court, setting forth, that, being the owners of the vessel, they sold and delivered her to one A. Pellitier, for the sum of $15,000, on the 7th May, 1853; that of this sum a promissory note of the vendee was given for $5,000, payable in six months, which was secured by a mortgage upon a moiety of the vessel to the vendors, which was duly recorded, in pursuance of the act of Congress, on the 9th May, 1853, in the office of the collector of customs of the port of New York, where the vessel was then registered, and a copy of the mortgage was also filed in the office of the register of deeds of the city and county of New York. The libel prayed process against a moiety of the proceeds of the vessel in court, claiming the same under, and by virtue of, the mortgage. Several of the libellants, who had obtained either final or interlocutory decrees, above referred to, appeared, and put in New York and Virginia Steamship Company v. Calderwood et al. answers to this libel of the mortgagees, setting up their proceedings, and the decrees condemning the vessel to pay their respective claims to the proceeds, in defence. The case went to a hearing, when the District Court decreed to dismiss the libel. On an appeal, the Circuit Court affirmed the decree. The libel filed in this case is a libel simply to foreclose a mortgage, or to enforce the payment of a mortgage, and the proceeding cannot therefore be upheld within the case of the John Jay, heretofore decided by this court. (17 How., 399.) The proper course for the mortgagees was to have appeared as claimants to the libels filed against the vessel, in which the questions presented in the case might have been raised and considered; or, on the sale of the vessel, and the proceeds brought into the registry, they might have applied by petition, claiming an interest in the fund; and if no better right to it were shown than that under the mortgage, it would have been competent for the court to have appropriated it to the satisfaction of the claim. As the fund is in the custody of the admiralty, the application must necessarily be made to that court by any person setting up an interest in it. This application by petition is frequently entertained for proceeds in the regis try, in cases where a suit in the admiralty would be wholly inadmissible. The decree of the court below is therefore right, and should be affirmed. THE NEW YORK AND VIRGINIA STEAMSHIP COMPANY, OWNERS OF THE STEAMER ROANOKE, APPELLANTS, v. Ezra CALDERWOOD, THOMAS C. BARTLETT, DEXTER CARLETON, JOSHUA Norwood, PHILANDER CARLETON, ENOS COOPER, AND SETH COOPER, LI BELLANTS. Neither rain, nor the darkness of the night, nor the absence of a light from a barge or sailing vessel, nor the fact that the steamer was well manned and furnished, and conducted with caution, will excuse a steamer for coming in collision with a barge or sailing vessel, where the barge or sailing vessel is at anchor or sailing in a thoroughfare, but out of the usual track of the steam vessel. Therefore, where a collision took place between a steamer and a sailing vessel, the latter being out of the ship channel, and near an edge of shoals, the steamer must be responsible. The sailing vessel had no pilot, and did not exhibit an efficient light. Although these circumstances did not exonerate the steamer, yet they make it necessary for this court to say that an obligation rests upon all vessels found in the avennes of commerce, to employ active diligence to avoid collisions, and that no inference can be drawn from the fact, that a vessel is not condemned for an omission of certain precautionary measures in one case, that another vessel will be excused, under other circumstances, for omissions of the same description. VOL. XIX. 16 New York and Virginia Steamship Company v. Calderwood et al. THIS was an appeal from the Circuit Court of the United States for the southern district of New York. It was a libel filed by Calderwood, and the other owners of a schooner called the "Sprightling Sea," against the steamship Roanoke, her tackle, &c., in a case of collision at the place and under the circumstances stated in the opinion of the court. In July, 1853, the district judge decreed that the libellants should recover against the steamship the damages occasioned by the collision, and referred the case to a commissioner to ascertain the amount. In September, 1854, the commissioner reported that there was due to the libellants, for the value of the vessel at the time of the collision, after deducting the amount for which the vessel sold Amount added to the value above by court Interest on the above amounts, from Oct. 17, 1852 $4,442.00 200.00 162.00 672.56 $5,478.56 The sum of five thousand four hundred and seventy-six dollars and fifty-six cents. This report was confirmed by the District Court, and, upon appeal, the decree was affirmed by the Circuit Court, an appeal from which brought the case here. It was argued by Mr. Van Winkle for the appellants, and Mr. Benedict for the appellees. In a case of this kind, where the points of law are connected with the evidence, they can only be stated in general terms, although they may not be understood by the reader without a recital of the evidence. They were these on the part of the appellants. Mr. Van Winkle, after stating his version of the case, contended that the schooner was clearly to blame. 1. She was negligent; she was proceeding up a narrow river in the night time, without a pilot on board, without a light in her binnacle, and without a light displayed in any part of her hull or rigging. The steamer was moving as slowly as she could by steam; had three lights displayed, which were visible for miles; had a competent lookout, and at the approach of the danger, in the emergency, ported her helm. If the light first seen on her larboard bow was that of the schooner, she still did all she could do by hugging the easterly side of the channel, so as to pass the schooner on the larboard hand. (Trinity House Rule of 30th Oct., 1840.) New York and Virginia Steamship Company v. Calderwood et al 2. It is the duty of a sailing vessel in a river or roadstead to carry a light at night, conspicuously displayed in her rigging; if not imperative on her to do so, it is a precautionary meas ure, dictated by prudence, and if neglected, precludes a recovery, except for wilful damage. (The Rose Gilmor, 2 Wm. Rob., 4; The Columbine, Norwood, Ibid., 33.) 3. If the schooner was not to blame, or not so much so as to render her liable, then it was a case of inevitable accident, and the loss must remain where it fell. (Stainback v. Rae, 14 How., 532.) 4. The true state of the case seems to be, that the two vessels, when they respectively discovered each other, were approaching on opposite courses on a line, or on parallel lines so close as to amount to the same thing; that the steamer ported her helm, bore off to the starboard, close to the edge of the channel, which is here very narrow; but the schooner, through mistake or mismanagement, changed her course, fell with the wind, and ran across the steamer's bows. If this be so, the steamer was not the cause of the accident, but the schooner was. 5. But, admitting that the schooner kept her course, the steamer, as in duty bound, tried to pass to the leeward of her. The schooner's navigators had no right to persist in their course, when they knew, or ought to have known, by so doing they incurred the imminent danger of forcing the steamer ashore, in her endeavors to pass to the leeward. It comes within the exceptions laid down in St. John v. Paine et al., (10 Howard, 582.) Mr. Benedict's points were the following: I. The plan of the position of the vessels at the time of the collision, asserted by the defendants, and proved by them to be a fair plan of the place of collision, exhitits the schooner close in shore, in a deep bay, heading along shore, and the steamer far out of the channel-also close in shore, heading at the schooner-a position so surprising as to put the steamer on her defence, with the strongest presumption against her-the wind being about south, and the schooner close-hauled on the privileged tack. They do not produce a lookout. The captain and pilot say they had a lookout. If so, the not producing him is ground of strong suspicion. II. Their helmsman, Henson, is called to explain, and he says, "It was a kind of cloudy night; once in a while you would see the stars; it was not very thick or cloudy." This is corroborated by all our witnesses, and is true, although the captain and pilot swear it was pitch dark; could hardly see |