(235 Fed. 114) UNITED STATES FIDELITY & GUARANTY CO. OF BALTIMORE, MD., v. G. W. PARSONS CO. (Circuit Court of Appeals, Eighth Circuit. July 6, 1916.) SALES 474(2)—CONDITIONAL SALE-VALIDITY OF UNRECORDED CONTRACT. An unrecorded conditional sale contract for a machine, by which the seller reserved title until full payment, although void under the statute as to good-faith purchasers and incumbrancers for value, is good as against one holding a prior contract, executed by the purchaser, giving a lien on after-acquired property, although possession was taken under the contract, the machine sold, and the purchaser credited with the proceeds, without notice by the creditor of the conditions of sale. [Ed. Note. For other cases, see Sales, Cent. Dig. § 1397; Dec. Dig. ~474(2).] In Error to the District Court of the United States for the Southern District of Iowa; John C. Pollock, Judge. Action at law by the G. W. Parsons Company against the United States Fidelity & Guaranty Company of Baltimore, Md. Judgment for plaintiff, and defendant brings error. Affirmed. For opinion below, see 225 Fed. 252. Jesse A. Miller, of Des Moines, Iowa (J. D. Wallingford and Roy E. Curray, both of Des Moines, Iowa, on the brief), for plaintiff in er ror. William B. Brown, of Des Moines, Iowa, and C. O. McLain, of Newton, Iowa, for defendant in error. Before HOOK and SMITH, Circuit Judges, and AMIDON, District Judge. AMIDON, District Judge. March 22, 1913, Misho & Co. contracted with the city of Edmonton, in the province of Alberta, Canada, to construct a sewer for it. Plaintiff in error, the United States Fidelity & Guaranty Company, became surety on its bond for the faithful performance of the contract. As one of the considerations for becoming surety the bond specified that Misho & Co. assign to the surety "all our right, title, and interest in and to all tools, plant, equipment, and materials of every nature and description that we may now or hereafter have upon said work, or in or about the site thereof," and empowered the Surety Company to take possession of the property in the event of default on the part of Misho & Co. in their contract with the city. More than a month subsequent to the giving of this contract of indemnity, Misho & Co. purchased a trencher of the plaintiff below, the G. W. Parsons Company, for a consideration of $7,000, only $1,500 of which was paid. The balance was evidenced by notes and a check. The contract of sale reserved title to the property until the entire consideration was paid. Neither this contract nor any note or memorandum thereof was filed for record either in Iowa, where the plaintiff has its place of business, or in Alberta, to which the trencher For other cases see same topic & KEY-NUMBER in all Key-Numbered Digests & Indexes was immediately removed. By the statute in both jurisdictions this failure to file rendered the conditional sale contract void as to good-faith purchasers and incumbrancers for value. In September, 1913, Misho & Co. abandoned the contract, and authorized the Surety Company to take possession of the trencher and other property. This it did, and completed the work at a loss of about $10,000. The Surety Company examined the records in Alberta, and found no evidence of a conditional sale. At the completion of the job they sold the trencher_for $3,500, and credited Misho & Co. with the sum in their account. This suit was brought by the Parsons Company against the Surety Company to recover the value of the trencher as for conversion. The case was tried before the court without a jury, special findings were made, and a judgment entered in favor of the plaintiff for the sum of $5,000. The Surety Company, which was defendant below, brings error. The case is controlled by Holt v. Henley, 232 U. S. 637, 34 Sup. Ct. 459, 58 L. Ed. 767. That suit involved a contest between the vendor under a conditional sale, and a mortgagee under a mortgage which was executed and recorded previous to the sale, so the cases are parallel. Here the contract granting the Surety Company its rights was executed prior to the sale to Misho & Co. Defendant attempts to distinguish the case of Holt v. Henley upon the ground that there was no taking possession of the property in that case by the mortgagee before the conditional contract was filed, and urges that, as the Surety Company there took possession without notice of the conditional sale, it thereby acquired a right superior to the title held by the vendor. The fallacy of that argument arises out of the fact that the mortgagee in the case of Holt v. Henley filed his mortgage (see decision of trial court, In re Williamsburg Knitting Mill [D. C.] 190 Fed. 871, 872), and that, under all the decisions, was tantamount to the taking of possession. So the contest in Holt v. Henley was between the vendor under an unrecorded conditional sale and a prior mortgagee under a mortgage embracing after-acquired property, which mortgage was duly filed and thus had the same effect as the taking of possession by the mortgagee. The Supreme Court held that the mortgagee was not a good-faith incumbrancer for value of this after-acquired property, and sustained the claim of the vendor under the conditional sale contract. The present case cannot be distinguished from that decision in any material feature. The Surety Company has no standing in equity. It parted with no value. Its claim that the giving of credit to Misho & Co. was sufficient to make it a purchaser for value, is unsound. There were no present negotiations between the Surety Company and Misho & Co. by which the latter transferred title to the trencher to the former in consideration of the credit. That was a mere matter of bookkeeping on the part of the Surety Company. The decision was right, and is affirmed. 148 C.C.A.-39 (235 Fed. 116) THE POCAHONTAS. THE MAIA. (Circuit Court of Appeals, Second Circuit. June 6, 1916.) Nos. 298, 299. COLLISION 71(2)-PASSING TOW AND ANCHORED STEAMSHIP-NEGLIGENT NAVIGATION OF TOW. A steamship, by anchoring in the North River at a place where it is a mile wide and navigable from shore to shore, even though she was partly or entirely off the designated anchorage ground, cannot be held chargeable with fault for a collision with one of the barges of a passing tow, which had a clear space of a quarter of a mile on one side and a half mile on the other; but the fault must be attributed solely to the towing tugs for negligent navigation. [Ed. Note. For other cases, see Collision, Cent. Dig. § 101; Dec. Dig. 71(2).] Appeals from the District Court of the United States for the Southern District of New York. Suits in admiralty for collision by John H. Flannery, owner of the barge Economy, against the steam tug Pocahontas, the Cornell Steamboat Company, claimant, with the steamship Maia impleaded, Otto Schacht, claimant, and by Otto Schacht against the tug Pocahontas. Decree in the first suit for libelant against both the tug and steamship, and both appeal; and in the second case for libelant for half damages, and libelant appeals. Modified on both appeals. For opinion below, see 217 Fed. 135. On appeal from decrees entered in the District Court for the Southern District of New York in the above entitled actions growing out of a collision in the North River between the steamship Maia and the barge Economy in tow of the tug Pocahontas belonging to the Cornell Steamboat Company. The District Court found that both the Pocahontas and the Maia were at fault and divided the damages between their respective owners. Both parties insist that the decree is erroneous and each argues that the other was solely at fault and liable for the damages which resulted from the collision. Kirlin, Woolsey & Hickox, J. Parker Kirlin, and Robert Erskine, all of New York City, for Cornell Steamboat Co. Burlingham, Montgomery & Beecher, of New York City (Charles) C. Burlingham and Chauncey I. Clark, both of New York City, of counsel), for Schacht. James J. Macklin and William F. Purdy, both of New York City, for Flannery. Before COXE and WARD, Circuit Judges, and CHATFIELD, District Judge. COXE, Circuit Judge. On the 18th day of May, 1914, the steam tug Pocahontas assisted by the tug Virginia was proceeding down the North River opposite Palisades Park with a tow of from 18 to 24 barges, the majority being loaded. There were 3 or 4 boats abreast in the three forward tiers, the barge Economy being the outer port For other cases see same topic & KEY-NUMBER in all Key-Numbered Digests & Indexes boat in the third tier. The remaining tiers were made up with less than 4 boats each. The Maia was anchored off Palisades Park and in passing down the river the Economy came into collision with the stern of the Maia, causing the damage complained of. The owner of the Pocahontas impleaded the Maia, alleging that she was improperly anchored across the channel, that she failed to give warning and did not have a proper lookout. We think that there can be no doubt regarding the negligence of the Pocahontas, but it seems to us that the Judge was in error in holding the Maia. It is argued that she was anchored outside the anchorage ground and across the fairway, that she had no lookout and that she gave no warning signal indicating that she was off the anchorage ground. If the locus in quo had been a narrow, tortuous stream, there might be some reason for such contentions but we are dealing here with a river nearly a mile wide and navigable the entire distance from shore to shore. The anchorage regulations are not in evidence. We do not think the Maia was anchored off the anchorage ground but if she were partly off or wholly off, that did not justify other vessels in running into her. There was nothing to prevent the Cornell tugs from taking down their tow with perfect safety had they been properly handled; they had a quarter of a mile unobstructed water on the Jersey side and over half a mile on the New York side. The suggestion that there was danger of colliding with ascending tows on the New York side is not at all persuasive. If the helping tug had been sent back to aid the flotilla in passing the Maia, there would have been no collision. It seems to us that the tugs were clearly responsible for the collision and that the judgment against the Maia is based upon technical considerations too refined to be considered. The tugs had practically the entire river in which to pass the Maia and if they had been properly handled they would have passed without danger. They should be held solely responsible. The cause is remanded to the District Court with instructions to enter a decree in accordance with this opinion. In the second suit a decree should be entered for full damages to the libelant, with costs. (235 Fed. 117) THE NELLIE T. (Circuit Court of Appeals, Second Circuit. No. 245. June 9, 1916.) ADMIRALTY 8-JURISDICTION-POSSESSORY ACTION. Admiralty has jurisdiction of a suit by a time charterer of a vessel, who is the owner pro hac vice, to recover possession from the owner, who, having taken possession to make repairs, refuses to return the vessel. [Ed. Note.-For other cases, see Admiralty, Cent. Dig. §§ 121-125; Dec. Dig. 8.] For other cases see same topic & KEY-NUMBER in all Key-Numbered Digests & Indexes Appeal from the District Court of the United States for the Eastern District of New York. Suit in admiralty by the Brooklyn Ash Removal Company against the scow Nellie T.; Ellen T. Connell, claimant. From a decree dismissing the libel on exceptions, libelant appeals. Reversed. Alexander & Ash and Mark Ash, all of New York City, for appel lant. Hyland & Zabriskie and Nelson Zabriskie, all of New York City, for appellee. Before COXE and WARD, Circuit Judges, and CHATFIELD, District Judge. WARD, Circuit Judge. This libel is filed against the scow Nellie T. and her owner, alleging that the libelant is charterer for a term beginning January 15, 1914, and ending December 31, 1916, with an option for a further term of two years; that on November 15, 1915, the owner withdrew the scow temporarily from the possession of the libelant to make certain repairs, as required by the charter party, and upon their completion refused to return her to it. The relief prayed for is that the scow may be ordered to be returned to the libelant, and the owner ordered to pay him the damages he sustained by being deprived of the use of the scow in the meantime. The owner filed exceptions to the libel on the ground that the court had no jurisdiction to entertain a libel for possession by a time charterer. The District Judge sustained the exceptions and dismissed the libel, from which decree this appeal is taken. The opinion of the District Judge is as follows: "There seems to be no warrant in admiralty for the maintenance by a time charterer of an action against the owner for possession of the vessel. Exceptions sustained." As the allegations of the libel must be taken to be true, we have the question whether a charterer under a charter demising a vessel, because that is what the libel plainly describes, and entitled to the possession may maintain a possessory suit in the admiralty. It is strange that no case can be found in the books in which such a suit has been considered. Still petitory and possessory suits instituted by vessel owners are rare. A suit which involved similar considerations was maintained in the case of a sheriff from whose possession a vessel had been taken. It is true that in it the sheriff's claim was defeated, because he had levied upon the vessel as belonging to the defendant in an action at law in the state court, whereas she belonged to another person who was the claimant in the admiralty suit. However, the jurisdiction to entertain such a possessory suit was not questioned. The Bonnie Doone (D. C.) 36 Fed. 770. The libelant's right is not an equitable one which courts in admiralty may not enforce (The Eclipse, 135 U. S. 599, 10 Sup. Ct. 873, 34 L. Ed. 269; Wenberg v. A Cargo [D. C.] 15 Fed. 285), but is legal, and we see no reason why it is not within the admiralty jurisdiction. The difference between the title of an owner of a vessel and that of |